Doe v. Nebraska, 345 F.3d 593 (8th Cir. 2003)

The Eighth Circuit found that a state cannot claim sovereign immunity in a Rehabilitation Act case when the state accepted federal funds for its foster care program and discriminated against a foster care parent on the basis of her HIV-positive status. A child had been placed with the foster parents before the state learned that the foster mother was HIV-positive. Once the state learned of her status, it removed the child from their home and placed him in another home. The foster parents filed suit against the state alleging a violation of section 504 of the Rehabilitation Act. The state argued that it could not be sued in this case because of its immunity from suit under the Eleventh Amendment. The court found that the Rehabilitation Act’s abrogation clause required the state to waive its sovereign immunity if the state accepted federal funds for its programming, which Nebraska did in this case. The court acknowledged that the ADA’s abrogation clause, which is almost identical to that found in the Rehabilitation Act, had been called into question, but the court still found the state had waived its Eleventh Amendment defense as a matter of contract. As a result the validity of the abrogation clauses under either the ADA or Rehabilitation Act was not a factor.