Full opinion text
OPINION OF THE COURT GREENBERG, Circuit Judge. I. FACTUAL AND PROCEDURAL HISTORY This matter comes on before this court on appeals by the University of Iowa (“Iowa”), Delaware State University (“Delaware State”), the University of Massachusetts (“UMass”), and the University of Memphis (“Memphis”) in an action Michael Bowers brought under Title II of the Americans with Disabilities Act (“ADA”) and section 504 of the Rehabilitation Act as well as under the New Jersey Law Against Discrimination (“NJLAD”). Among the appellants, however, Bowers sued only Iowa although he also sued Temple University (“Temple”), which is an ap-pellee and is participating in this appeal, and certain other parties that have been dismissed from the action or are not participating in the appeal. During the course of the proceedings, Michael Bowers has died leading to his mother Kathleen Bowers being substituted for him. Nevertheless, as the parties have done in their briefs, as a matter of convenience we will treat him as the sole appellant in this opinion referring to him as “Bowers”. In determining this matter, we accept as true the facts Bowers alleged in his complaint, as amended, and the facts Temple alleged in its third-party complaint against Memphis, UMass, and Delaware State. Inasmuch as the history of this case is long and complicated, we set forth only the portions necessary for resolution of the appeal. The case may be said to have its origin in the circumstances that Bowers played football in high school in New Jersey and was interested in obtaining an athletic scholarship at a National Collegiate Athletic Association (“NCAA”) Division I or II school. The NCAA is an unincorporated voluntary association of more than 1000 members, a majority of which are public and private four-year colleges. See Cureton v. NCAA, 198 F.3d 107, 110 (3d Cir.1999). In fact, the universities involved on this appeal are NCAA members. Bowers suffered from a diagnosed learning disability that prevented him from taking several of the secondary school courses the NCAA considers to be core requirements for athletic eligibility and for the award of an athletic scholarship. The complaint and third-party complaint allege that the five universities we have mentioned, i.e., Temple, Iowa, Delaware State, UMass, and Memphis, recruited Bowers for their football programs but that the NCAA Clearinghouse, which determines whether student-athlete prospects meet required education guidelines, determined that he did not meet the requirement that a student take 13 core courses in his secondary school. In 1996, after the universities learned of Bowers’s status, they ceased recruiting him. On May 23, 1997, Bowers filed a complaint alleging that the NCAA, the NCAA Initial Eligibility Clearinghouse, and a number of individual defendants violated, inter alia, the ADA and the Rehabilitation Act in their treatment of him. After the district court denied Bowers’s motion for preliminary injunctive relief, Bowers v. NCAA, 974 F.Supp. 459, 467 (D.N.J.1997), he amended his complaint to join Temple, Iowa, and American International College as defendants and to add state law claims under the NJLAD. The district court subsequently granted summary judgment in favor of the Clearinghouse and granted in part and denied in part the motions for summary judgment filed by the NCAA, Temple, Iowa, and American International College. Bowers v. NCAA, 9 F.Supp.2d 460 (D.N.J.1998). Following the district court’s disposition of subsequent motions for summary judgment in Bowers v. NCAA, 118 F.Supp.2d 494 (D.N.J.2000), Temple filed a third-party complaint on November 21, 2000, seeking contribution for any monetary liability it might have to Bowers from Delaware State, UMass, and Memphis. These three universities had not been parties to this litigation and Bowers has not sued any of them. Subsequently, Bowers moved to add claims against Iowa and on July 3, 2001, the district court granted that motion. Bowers v. NCAA, Civ. No. 97-2600, 2001 WL 1772801, at *10 (D.N.J. July 3, 2001). In its opinion, in response to Iowa’s contention that the amendment would be futile as it was immune from suit, the court held that Iowa was not an arm of the State of Iowa for Eleventh Amendment purposes and thus it was not immune. Id. at * 9. Iowa did not appeal from that order at that time. All three third-party defendants moved to dismiss the third-party complaint, arguing that neither Title II nor section 504 contemplates an award for contribution and further arguing, in the cases of Memphis and Delaware State, that the Eleventh Amendment applied to them and barred Temple’s action against them as the provisions for abrogation and waiver of immunity in the two statutes were unconstitutional. The district court, on November 7, 2001, granted in part and denied in part Memphis’s motion, holding that Memphis was an arm of the State of Tennessee for Eleventh Amendment purposes, Temple’s contribution claim under the NJLAD against Memphis was barred by the doctrine of sovereign immunity, there is a right of contribution under Title II of the ADA and section 504 of the Rehabilitation Act, Congress validly abrogated Memphis’s Eleventh Amendment immunity under Title II of the ADA, and Memphis waived its Eleventh Amendment immunity under the Rehabilitation Act by accepting federal funds. Bowers v. NCAA, 171 F.Supp.2d 389, 397-409 (D.N.J.2001). The district court denied with prejudice Delaware State’s motion to dismiss Temple’s claims for contribution under Title II and section 504 as, unlike Memphis with respect to the State of Tennessee, it did not come forward with evidence demonstrating its relationship to the State of Delaware. Id. at 399. The court, however, did not make other dispositive rulings on the Eleventh Amendment issues, though it did invite UMass and Delaware State to submit additional briefing on these issues and granted Temple an opportunity to reply to this briefing. Id. at 409. Memphis filed a notice of appeal from the November 7, 2001 order on November 21, 2001, and Iowa filed a notice of appeal from the July 3, 2001 order on December 21, 2001. On November 21, 2001, UMass filed a motion pursuant to 28 U.S.C. § 1292(b) for a prescribed statement with respect to the district court’s ruling that there is a right of contribution under Title II and section 504 of the Rehabilitation Act. Delaware State joined in that motion but Memphis did not. On December 7, 2001, UMass filed supplemental papers in support of its motion to dismiss, addressing the Eleventh Amendment issues, but Delaware State did not file any similar additional papers. On March 6, 2002, the district court granted the motions of UMass and Delaware State for a certified order pursuant to 28 U.S.C. § 1292(b) with respect to the contribution issues. It also found that UMass was an arm of the State of Massachusetts for Eleventh Amendment purposes, but consistently with its order with respect to Memphis, denied UMass’s motion to dismiss Temple’s claims against it under section 504 and Title II and dismissed Temple’s claims against it under the NJLAD. It also dismissed Temple’s claim for contribution under the NJLAD against Delaware State as it declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over that claim. Bowers v. NCAA, 188 F.Supp.2d 473, 481-82 (D.N.J.2002). These dispositions left Temple’s claim for contribution under Title II and section 504 alive against all three third-party defendants but eliminated the NJLAD contribution claim from the third-party complaint. The court, however, stayed all proceedings related to the third-party complaint pending resolution of Memphis’s appeal. Id. at 483. Iowa now appeals at No. 01-4492 from the district court’s order reflecting its finding that it is not an arm of the State of Iowa for Eleventh Amendment purposes and Iowa, Memphis at No. 01-1226, and UMass at No. 02-1789, appeal from the district court’s orders reflecting its Eleventh Amendment determinations with respect to the abrogation of and waiver of sovereign immunity. Delaware State did appeal from the district court’s order denying its motion to dismiss on Eleventh Amendment grounds but it has dismissed that appeal voluntarily. With our permission UMass and Delaware State appeal at No. 02-3236 from the district court’s orders of November 7, 2001, and March 6, 2002, reflecting its conclusion that there is a right to contribution under Title II of the ADA and section 504 of the Rehabilitation Act. On March 19, 2002, the United States filed a notice of intervention pursuant to 28 U.S.C. § 2403(a), advising that it was intervening to argue that Congress validly abrogated the states’ Eleventh Amendment immunity under Title II and that states accepting federal funds waived that immunity under the Rehabilitation Act. Thus, the appeals raise significant issues with respect to Iowa’s status under the Eleventh Amendment, the abrogation and waiver of the states’ Eleventh Amendment immunity by and pursuant to the ADA and the Rehabilitation Act, and whether there can be a right of contribution under those acts. Preliminarily, however, we address procedural and jurisdictional matters with respect to Iowa and Memphis. II. JURISDICTION AND STANDARD OF REVIEW Subject to the timeliness issue with respect to Iowa’s appeal, we have jurisdiction over the orders denying the appellants Eleventh Amendment immunity under 28 U.S.C. § 1291 as those orders are final for purposes of appeal under the collateral order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687, 121 L.Ed.2d 605 (1993). We have jurisdiction with respect to the contribution issues under 28 U.S.C. § 1292(b). Inasmuch as we are deciding this appeal by resolving questions of law, we are exercising de novo review. See Lavia v. Pa., Dep’t of Corrs., 224 F.3d 190, 194-95 (3d Cir.2000). III. DISCUSSION A. TIMELINESS OF IOWA’S APPEAL We first discuss the timeliness of Iowa’s appeal. On December 21, 2001, Iowa filed a notice of appeal stating that it appealed “from the following portions of the Orders and Memoranda of the District Court entered on July 3, 2001.... ” Iowa App. at 30. Bowers has moved to dismiss the appeal as being untimely. Clearly, Iowa filed this notice after the 30-day deadline prescribed by Fed. R.App. P. 4(a)(1). Iowa appears to recognize that, under Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), this time limit is mandatory and jurisdictional, and thus ordinarily its appeal would be untimely. See Iowa Br. at 9. It nevertheless argues that we may and should entertain its appeal because the interests of justice and judicial economy dictate that we consider its appeal together with the timely appeal of Memphis which also raises Eleventh Amendment issues. Memphis filed its notice of appeal on November 21, 2001, appealing from the district court’s November 7, 2001 order but Iowa was not a party to that order. Iowa, however, did file its appeal 30 days after Memphis filed its appeal. Fed.R.App. P. 4(a)(3) provides: “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed.... ” Iowa argues that even though it did not file its appeal within the Rule 4(a)(3) 14-day time limit that rule is a nonmandatory rule of practice so that its late filing date does not require us to dismiss its appeal. Iowa Br. at 10. Although not expressly using the term in its brief, it in effect argues that we may consider its appeal under our “pendent” appellate jurisdiction as it contends that Memphis’s notice of appeal “establishes the jurisdiction of the Circuit over the entire ease.... ” Id. Thus, it seeks to tie its appeal to that of Memphis for jurisdictional purposes. Bowers, on the other hand, argues that Rule 4(a)(3)’s time limit is mandatory and that our pendent jurisdiction cannot reach so far as to encompass Iowa’s appeal. Bowers Br. at 24. In Torres, the Supreme Court held that omission of one litigant’s name in a notice of appeal filed by 15 other appellants required a conclusion that that party had not appealed. The Court stated that “the mandatory nature of the time limits contained in Rule 4 would be vitiated if courts of appeals were permitted to exercise jurisdiction over parties not named in the notice of appeal.” Torres, 487 U.S. at 315, 108 S.Ct. at 2407-08. The Court quoted the Advisory Committee Note following Rule 3, which states: “Rule 3 and Rule 4 combine to require that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal is ‘mandatory and jurisdictional,’ [citation omitted] compliance with the provisions of those rules is of the utmost importance.” Id., 108 S.Ct. at 2408. The Court also stated that, although a court may construe the rules liberally in determining the sufficiency of a party’s compliance with them, “it may not waive the jurisdictional requirements of Rules 3 and 4, even for ‘good cause shown’ under Rule 2, if it finds that they have not been met.” Id. at 317, 108 S.Ct. at 2409. Nonetheless, in United States v. Tabor Court Realty Corp., 943 F.2d 335, 344 (3d Cir.1991), we held that, notwithstanding the broad language of Torres, Rule 4(a)(3) is best considered a rule of practice so that compliance with it is not a jurisdictional prerequisite. We further held that “in some cases, the rights of the parties are so closely tied together that an appellate court can render no judgment that would be just without affecting the rights of the parties who did not file notices of appeal.” Id. Yet, subsequently, in EF Operating Corp. v. American Buildings, 993 F.2d 1046, 1049 n. 1 (3d Cir.1993), we noted that the broad language of Torres overruled several of our precedents that had held that rules like Rule 4(a)(3) were rules of practice. Without citing Tabor Court, we stated that “there is no reason to believe that the specific time requirement of Rule 4(a)(3) is not jurisdictional.” Id. Bowers urges us to consider Tabor Court to be a pendent appellate jurisdiction case, the holding of which does not withstand the Supreme Court’s recent narrow view of that doctrine in Swint v. Chambers County Commission, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). We recently have observed that our discretionary, though narrow, exercise of pendent appellate jurisdiction after Swint has been limited to two circumstances: “inextricably intertwined orders or review of the non-appealable order where it is necessary to ensure meaningful review of the appealable order.” E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 203 (3d Cir.2001). Here, however, we have no need to reconcile our precedents. Indisputably, considering the July 3, 2001 order by itself Iowa failed to file a timely appeal. Of course, it was that order that determined that Iowa was not an arm of the State of Iowa for Eleventh Amendment purposes and thus was not entitled to sovereign immunity under the amendment. In the November 7, 2001 order, by contrast, the district court did not make any determinations with respect to Iowa. Moreover, in contrast to its conclusion with respect to the relationship of Iowa to its state, it held that Memphis was an arm of the State of Tennessee for Eleventh Amendment purposes, but that Congress validly had abrogated the states’ immunity under that amendment in Title II and the State of Tennessee had waived that immunity pursuant to section 504 of the Rehabilitation Act by reason of Memphis having accepted federal funds. Thus, Iowa’s argument fails under even the most liberal of the standards enunciated in Tabor Court for, as we set forth above, the principles of that case apply only where “the rights of the parties are so closely tied together that an appellate court can render no judgment that would be just without affecting the rights of the parties who did not file notices of appeal.” Moreover, DuPont suggests that the exercise of pendent appellate jurisdiction requires, at the very least, that the orders from which the appeals are taken be “inextricably intertwined.” The July 3 and November 7 orders are not “tied together” or “inextricably intertwined.” Our resolution of the Eleventh Amendment questions posed by Memphis’s appeal would not be material to the decision that Iowa is not an arm of the State of Iowa for Eleventh Amendment purposes and a ruling with respect to Iowa’s status under the Eleventh Amendment would be independent of our determinations with respect to Memphis. Accordingly, we will dismiss Iowa’s appeal at No. 01-4492 because it was not timely filed, and do not consider whether Iowa is an arm of the State of Iowa for Eleventh Amendment purposes. B. THE STATUS OF MEMPHIS ON THIS APPEAL Temple urges that we should dismiss Memphis’s appeal for the following reasons. On November 6, 2002, Temple filed in the district court a notice of dismissal without prejudice of its third-party complaint against Memphis pursuant to Fed.R.Civ.P. 41(a) which provides in pertinent part, with inapplicable exceptions, that “an action may be dismissed by the plaintiff without order of court ... by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.... ” Memphis acknowledged at oral argument before us that the rule is applicable to third-party complaints (a point with which we agree) and that prior to November 6, 2002, notwithstanding its extensive participation in this case, it had not filed an answer or a motion for summary judgment. Thus, the dismissal would appear to have removed Memphis from the litigation. Memphis, nevertheless, urges that the notice of dismissal was ineffective and that, in any event, we should not simply dismiss its appeal without granting it certain relief. With respect to the first contention, it reasons that inasmuch as it filed its appeal before Temple filed its notice of dismissal, the district court did not have jurisdiction to dismiss the case “over those aspects of [the] case included in the appeal.” Letter from Peter L. Frattarelli, attorney for Memphis, to court (Nov. 18, 2002). In this regard, Memphis cites Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). Therefore, Memphis considers that it still is a party in the district court. Nevertheless, Memphis does not object to dismissal of its appeal and of Temple’s third-party complaint against it “provided that the dismissal of all claims against [it] is with prejudice and that the Court assesses [its] costs to Temple.” Letter of November 18, 2002. In considering whether to dismiss its appeal, we reject Memphis’s request that we modify Temple’s notice of dismissal in the district court to provide that it is with prejudice. After all, Rule 41(a) provides that “[u]nless otherwise stated in the notice of dismissal ... the dismissal is without prejudice.... ” Thus, Temple in specifying that the dismissal was without prejudice merely followed the rule. Consequently, even in the absence of the “without prejudice” provision, the effect of the notice of dismissal would have been the same. Furthermore, we see no reason why Temple should not be able partially to dismiss its third-party complaint as authorized by Rule 41(a). We, however, are not unmindful of Memphis’s claim that it should be awarded its costs. At oral argument before us it pointed out that it had expended substantial funds in defense of this action. Nevertheless, we are satisfied that Temple should not be required to pursue a claim that it seeks to abandon, i.e., the third-party complaint against Memphis, merely because the party against whom it has asserted the claim has expended effort and resources in defense against it. Thus, we will dismiss Memphis’s appeal at No. 01-4226 but will do so without prejudice to it seeking an order from the district court to compensate it for its costs and fees in both the district court and in this court. Of course, we express no opinion on whether it is entitled to recover these expenses as the district court will resolve that issue on the remand of the case we are ordering. In reaching our result, we are cognizant of Memphis’s argument that the notice of dismissal was ineffective as the district court lost jurisdiction over the case when Memphis appealed. To the contrary, we will accommodate that argument by remanding the matter to the district court where Temple again should file the notice of dismissal. Cf. Venen v. Sweet, 758 F.2d 117, 123 (3d Cir.1985) (court of appeals may remand case to the district court for that court to have jurisdiction to grant a motion under Fed.R.Civ.P. 60(b)). In the circumstances, we have no need to determine whether the original notice of dismissal was effective. We make one further point with respect to Memphis’s status. We are dismissing its appeal on the basis of our understanding that Temple continues to wish to dismiss Memphis from the case and thus, on the remand we are ordering, will refile its notice of dismissal. If it does not do so promptly Memphis may move in this court to reinstate its appeal. C. THE JURISDICTIONAL NATURE OF THE ELEVENTH AMENDMENT The district court permitted the third-party complaint to go forward notwithstanding its holdings that two of the third-party defendants, Memphis and UMass, were arms of their respective states and thus could invoke the Eleventh Amendment. It reached this result because it held that they waived immunity under the Rehabilitation Act by their acceptance of federal funds and because Congress had abrogated their immunity by enacting Title II of the ADA. These holdings permitted the district court to exercise jurisdiction notwithstanding the Eleventh Amendment which recites that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Moreover, as we have indicated, the district court held that there is a right of contribution under the Rehabilitation Act and the ADA. If the court had reached a contrary result either in its abrogation and waiver of immunity holdings or its contribution holding it would have dismissed UMass from this case, and if it reached a contrary result on the contribution issue it would have dismissed Delaware State from the case. Accordingly, there are two independent bases on which it is possible that Temple’s contribution claims must fail as a matter of law against the remaining third-party defendants, UMass and Delaware State, either that the Eleventh Amendment precludes the claims against UMass or that neither the Rehabilitation Act nor the ADA permits claims for contribution. It might be thought that we should consider the statutory construction argument first for in Hindes v. FDIC, 137 F.3d 148, 166 (3d Cir.1998), we observed that Eleventh Amendment immunity questions are “constitutional in scope” and that “[c]ourts, of course, will avoid such questions where possible.” On the other hand, questions as to the scope of the Rehabilitation Act and ADA with respect to the availability of contribution are not constitutional in scope. In Hindes, applying the approach of avoiding constitutional questions, we declined to determine whether suit was proper under the Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), exception to Eleventh Amendment immunity inasmuch as the anti-injunction provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) barred the suit. We explained our ruling in Hindes by stating: “[W]e need not decide difficult jurisdictional issues where we can decide the case on another dispositive issue in favor of the party who would benefit by a ruling that we do not have jurisdiction.” Id. (citing Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623 (3d Cir.1996)). Yet, within one month after we decided Hindes, the Supreme Court decided Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). In Steel Co. the Court rejected the notion of “hypothetical jurisdiction” adopted by some courts of appeals, whereby a court would “assume” jurisdiction for purposes of deciding the merits of a case, at least where the court could resolve the merits question more easily and the prevailing party on the merits would be the same as the prevailing party if jurisdiction were denied. Id. at 93-94, 118 S.Ct. at 1012. Inasmuch as in entertaining Hindes we exercised hypothetical jurisdiction it would be plausible for us now to hold that notwithstanding Hindes, in the light of Steel Co., we initially must address the Eleventh Amendment issues raised on this appeal. Yet, Steel Co. may be somewhat limited as it specifically indicated that “Article III jurisdiction is always an antecedent question.” Id. at 101, 118 S.Ct. at 1016 (emphasis added). In fact, the Court recognized that in its prior cases it had decided, for example, whether a statutory cause of action existed before determining statutory standing questions such as whether the plaintiff comes within the zone of interests protected by the statute. Id. at 96-97, 118 S.Ct. at 1013 (citing Nat’l RR Passenger Corp. v. Nat’l Ass’n of RR Passengers, 414 U.S. 453, 465 n. 13, 94 S.Ct. 690, 696 n. 13, 38 L.Ed.2d 646 (1974)). Steel Co., therefore, should not be understood as requiring courts to answer all questions of “jurisdiction,” broadly understood, before addressing the existence of the cause of action sued upon. Instead, that case requires courts to answer questions concerning Article III jurisdiction before reaching other questions. We, therefore, must consider whether the Eleventh Amendment immunity issues presented by this case are questions of Article III jurisdiction or are at least sufficiently similar to such questions to require application of Steel Co. As the Steel Co. Court stated, the “triad of injury in fact, causation, and redressability constitutes the core of Article Ill’s case- or-controversy requirement.” Id. at 103-04, 118 S.Ct. at 1017 (footnote omitted). The Eleventh Amendment has little bearing on these Article III concerns. See Calderon v. Ashmus, 523 U.S. 740, 745 n. 2, 118 S.Ct. 1694, 1697 n. 2, 140 L.Ed.2d 970 (1998) (“While the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court’s judicial power, and, therefore, can be raised at any stage of the proceedings, we have recognized that it is not coextensive with the limitations on judicial power in Article III.”); but see Wisconsin Dep’t of Corrs. v. Schacht, 524 U.S. 381, 389, 391, 118 S.Ct. 2047, 2052, 2054, 141 L.Ed.2d 364 (1998) (noting that the “Eleventh Amendment ... does not automatically destroy original jurisdiction” and that the Court never has resolved whether, or to what extent, “Eleventh Amendment immunity is a matter of subject matter jurisdiction.”). It cannot, in any event, seriously be disputed that this case meets the minimum requirements for Article III jurisdiction. While we have not had occasion to consider whether Steel Co. requires the resolution of Eleventh Amendment issues before a court reaches different issues, other courts of appeals have done so. As it happens, they have split fairly evenly on this issue, with three courts reading Steel Co. broadly and holding that courts must address the Eleventh Amendment issue first as it raises an Article III type restriction, Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir.1999); United States v. Texas Tech Univ., 171 F.3d 279, 287 (5th Cir.1999); Seaborn v. Florida Dep’t of Corrs., 148 F.3d 1405, 1407 (11th Cir.1998), while at least three courts have held to the contrary, United States ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892 (D.C.Cir.1999); Parella v. Ret. Bd. of the R.I. Employees’ Ret. Sys., 173 F.3d 46 (1st Cir.1999); Kennedy v. Nat’l Juvenile Det. Ass’n, 187 F.3d 690, 696 (7th Cir.1999) (not citing Steel Co.); see also Kovacevich v. Kent State Univ., 224 F.3d 806, 816 (6th Cir.2000) (finding that “the Eleventh Amendment is not jurisdictional in nature,” but addressing that issue first where a state defendant had raised it). The Supreme Court has not resolved this dispute. The Court of Appeals for the Fifth Circuit well articulated the view that a court must address Eleventh Amendment issues first. Recognizing that courts often interpret statutes so as to avoid constitutional problems, the court distinguished cases relying on that practice by finding that “[t]he Eleventh Amendment’s admonition is jurisdictional in nature.” Texas Tech, 171 F.3d at 285. The court explained: “While often noted for preserving state sovereignty, the Amendment only accomplishes this end through jurisdictional limitation.... Its negative instruction on how to construe federal judicial power operates as an additional boundary on that power, supplementing the restraints on judicial power already implicitly provided in Article III of the Constitution.” Id. The court recognized the Supreme Court’s recent statement that the Eleventh Amendment “is not coextensive with the limitations on judicial power in Article III,” Calderon, 523 U.S. at 745 n. 2, 118 S.Ct. at 1697 n. 2, but opined that the Eleventh Amendment nonetheless is “certainly intertwined with Article III jurisprudence,” Texas Tech, 171 F.3d at 285 n. 9. Notwithstanding the views of the Court of Appeals for the Fifth Circuit we are convinced that this “intertwining” does not require that we apply the rule of Steel Co. in this case. Rather, we are convinced that the Court of Appeals for the First Circuit expressed a better view in Parella. In that case, the court recognized the intertwined nature of the two constitutional provisions, both of which place limits on judicial power. Parella, 173 F.3d at 54. The court further noted other characteristics of the Eleventh Amendment that support such a view of the Eleventh Amendment, namely, that the Eleventh Amendment can be raised for the first time on appeal and that a court sua sponte may raise Eleventh Amendment issues. Id. Nonetheless, the court observed, “the nature of the Eleventh Amendment is more complex than these decisions acknowledge.” Id. at 54-55. For example, a state may waive Eleventh Amendment immunity, and, although courts may raise Eleventh Amendment issues sua sponte, they are not required to do so. Id. (citing Schacht, 524 U.S. at 389, 118 S.Ct. at 2052). The characteristics of Eleventh Amendment immunity the court identified in Parella comport with Justice Kennedy’s understanding that the Supreme Court’s “precedents have treated the Eleventh Amendment as ‘enactfing] a sovereign immunity from suit, rather than as a non-waivable limit on the federal judiciary’s subject-matter jurisdiction.’ ” Schacht, 524 U.S. at 394, 118 S.Ct. at 2055 (Kennedy, J., concurring) (quoting Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 267, 117 S.Ct. 2028, 2033, 138 L.Ed.2d 438 (1997)). Furthermore, as the Court of Appeals for the First Circuit noted in Parella, in Calderon the Supreme Court stated that the Eleventh Amendment is not co-extensive with Article Ill’s limitations and that it should consider the question whether an inmate’s declaratory judgment action presented an Article III case or controversy before it could consider the parties’ Eleventh Amendment and First Amendment contentions. Parella, 173 F.3d at 55. If the Supreme Court considered Eleventh Amendment immunity to be an Article III concern, it would be expected that the Court at least would have made reference to it when deciding the Article III question rather than putting the immunity issue aside for consideration after its resolution of the case or controversy issue. Finally, the main object underlying Steel Co. is that courts not declare the law where they do not have Article III jurisdiction because any opinion in such a situation would be advisory, thus raising separation of powers problems. Steel Co., 523 U.S. at 101, 118 S.Ct. at 1016. Eleventh Amendment immunity, on the other hand, does not affect a court’s underlying power to hear a given case or controversy. If it did, courts would be obligated to raise Eleventh Amendment issues sua sponte, but the Supreme Court has held that they have no such obligation. See Parella, 173 F.3d at 55-56 (citing Schacht, 524 U.S. at 387-91, 118 S.Ct. at 2052-53). Furthermore, if the presence of Eleventh Amendment immunity implicated case or controversy concerns, states would not be able to waive that immunity by their conduct in a given case. The Eleventh Amendment’s limitations on judicial power are, therefore, in the nature of a constitutional recognition of the states’ sovereign immunity, not a statement of a nonwaivable absence of subject-matter jurisdiction. Accordingly, Eleventh Amendment cases do not raise the same separation of powers concerns with respect to hypothetical jurisdiction as do Article III standing cases. We, therefore, hold that, notwithstanding Steel Co., a court may reserve judgment on Eleventh Amendment issues even when advanced by a state where it can resolve the case on other grounds and the prevailing party on the merits would be the same as the prevailing party if immunity were recognized. We follow that course here. Even though, as will be seen, our nonconstitu-tional disposition of this case will not be easy, still it is better to decide the case on that basis than to address the constitutional jurisdictional issues under the Eleventh Amendment. Thus, we pass the Eleventh Amendment issues with respect to UMass and in view of our conclusions on the contribution issue dismiss its appeal at No. 02-1789 as moot. D. RIGHT TO CONTRIBUTION UNDER TITLE II AND THE REHABILITATION ACT In considering the right to contribution, we start with section 504 of the Rehabilitation Act which provides: “No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 29 U.S.C. § 794(a). The term “program or activity” includes “a college, university, or other postsecondary institution, or a public system of higher education.” Id. § 794(b)(2)(A). Though section 504 does not in itself provide a private right of action for aggrieved individuals, it does state that the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of federal financial assistance or federal provider of such assistance under section 794 of this title.” Id. § 794a(a)(2). Inasmuch as courts have held that Title VI implies a private right of action, “private individuals may sue to enforce § 601 of Title VI and obtain both injunctive relief and damages.” Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511, 1516, 149 L.Ed.2d 517 (2001). Title II of the ADA provides: “Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. As in the case of section 504, Title II does not, in terms, create a private right of action. Instead, it provides that the remedies, procedures and rights applicable to section 504 of the Rehabilitation Act also are applicable under Title II. Id. § 12133. Neither statute explicitly provides for a right to contribution. The district court, however, found that such a right exists by applying the reasoning in Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 113 S.Ct. 2085, 124 L.Ed.2d 194 (1993). UMass and Delaware State argue that Musick is inapplicable in this case, and that, under Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981), and Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), we should refuse to recognize a right to contribution. Surprisingly, it appears that no federal appellate court, at least of which we are aware, has answered the question of whether there is a right to contribution under Title II or under section 504 of the Rehabilitation Act. 1. Right of Action or Remedy ? Preliminarily we consider whether we must determine if a right of contribution is a right of action in itself or whether it is a remedy. In an effort to distinguish this case from Northwest Airlines and other cases derived from Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), in which the Supreme Court narrowed the circumstances in which a court may find an implied right of action, Temple argues that the right of contribution is a remedy. In Temple’s view, we, like the Supreme Court in Musick, should decline to apply the strict test for implying a cause of action used in Cort v. Ash, Northwest Airlines, and Texas Industries because this case involves statutes that have been enforced through judicially established rights of action rather than through detailed remedial schemes. Temple argues that instead we should apply a less exacting standard based on Musick, asking only whether the availability of a right to contribution should be implied as a proper part of the liability apparatus created by the judiciary to enforce the statutes. Temple Br. at 18. Thus, by treating the right to contribution as a remedy, Temple not only seeks to avoid the Cort v. Ash analysis, but also attempts to avail itself of the principle that once a right and cause of action are established, the federal courts are empowered broadly to award any appropriate relief. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 70-71, 112 S.Ct. 1028, 1035-36, 117 L.Ed.2d 208 (1992). This argument is something of a red herring, however. To be sure, Supreme Court eases, at least since the 1970s, have referred to rights, rights of action, and remedies separately. Nonetheless, this case should not turn on our characterization of the nature of contribution as the Supreme Court has not determined whether contribution is available by clearly distinguishing among rights, rights of action, and remedies. Thus, in Northwest Airlines, the Court stated: “Even though Congress did not expressly create a contribution remedy, if its intent to do so may fairly be inferred from either or both statutes, an implied cause of action for contribution could be recognized on the basis of the analysis used in cases such as Cort v. Ash....” 451 U.S. at 90, 101 S.Ct. at 1580 (emphasis added). In Texas Industries, the Court, in deciding whether to find an implied right to contribution, stated that its “focus, as it is in any case involving the implication of a right of action, is on the intent of Congress.” 451 U.S. at 639, 101 S.Ct. at 2066 (emphasis added). Finally, in Musick the Court refers to the right of contribution in ways that could support an understanding of the claim as either a right, a right of action, or a remedy. See 508 U.S. at 291-92, 113 S.Ct. at 2088. Thus, contribution cases are unlike discrimination cases, in which the right at issue (the right to be free from discrimination) is distinct from the remedy sought (monetary or injunctive relief), in a way that makes discussion of rights, rights of action, and remedies overlap. Nevertheless, this inconsistency does not overly concern us inasmuch as the key question before us is simply whether Northwest Airlines/Texas Industries or Musick should guide us and Musick did not distinguish the former cases as “right of action” as opposed to remedy cases, but rather did so on more analytic grounds that we will discuss shortly. 2. Supreme Court Precedent Addressing Implied Rights to Contribution In Northwest Airlines, a class of flight attendants sued its employer, Northwest Airlines, Inc., under the Equal Pay Act and Title VII of the Civil Rights Act of 1964, challenging the legality of the wage differential between pursers (who were males) and stewardesses (who were females). The plaintiff class won at trial, following which Northwest Airlines filed a separate action stating a claim for contribution against two unions that represented the employees with whom Northwest Airlines had bargained collectively in setting the employees’ wages. The Supreme Court held that there is not an implied right to contribution under Title VII or the Equal Pay Act. Northwest Airlines, 451 U.S. at 98, 101 S.Ct. at 1584. In Northwest Airlines, the Court explained that a right to contribution can be created in either of two ways: either Congress could have intended, explicitly or implicitly, to create such a right under Cort v. Ash, or “a cause of action for contribution may have become a part of the federal common law through the exercise of judicial power to fashion appropriate remedies for unlawful conduct.” Id. at 90, 101 S.Ct. at 1580. In examining the first possibility, the Court explained: “In determining whether a federal statute that does not expressly provide for a particular private right of action nonetheless implicitly created that right, our task is one of statutory construction.... The ultimate question in cases such as this is whether Congress intended to create the private remedy-for example, a right to contribution-that the plaintiff seeks to invoke.” Id. at 91, 101 S.Ct. at 1580 (citation omitted). Factors relevant to Congress’s intent include legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supersede or to supplement existing state remedies. Id., 101 S.Ct. at 1580 (citing Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088; Cannon v. Univ. of Chicago, 441 U.S. 677, 689-709, 99 S.Ct. 1946, 1958-64, 60 L.Ed.2d 560 (1979)). The Court then asked whether the language of the statute demonstrated an intent to create a right of contribution. Noting that neither statute expressly created such a right, the Court explained that “[t]his omission, although significant, is not dispositive if, among other things, the language of the statutes indicates that they were enacted for the special benefit of a class of which the petitioner is a member.” 451 U.S. at 91-92, 101 S.Ct. at 1580-81. The Court concluded, however, that “it cannot possibly be said that employers are members of the class for whose especial benefit either the Equal Pay Act or Title VII was enacted.... To the contrary, both statutes are expressly directed against employers; Congress intended in these statutes to regulate their conduct for the benefit of employees.... In light of this fact, petitioner ‘can scarcely lay claim to the status of “beneficiary” whom Congress considered in need of protection.’ ” Id. at 92, 101 S.Ct. at 1581 (citation and footnotes omitted). On this point, the Court specifically rebuked the court of appeals, which had refused to apply Cort v. Ash literally in evaluating the claim of a right to contribution. Id. at 92 n. 25, 101 S.Ct. at 1581 n. 25. The court of appeals had asked, instead, whether employees could bring suit against their unions under the statutes. The Court stated that this inquiry confused the question whether the elements of a contribution claim are established in a given case-a fact the Court assumed in deciding the case and which we also assume here -with the question of whether Congress intended that contribution should be available under any circumstances. Thus, “[t]he Court of Appeals erred ... because it failed to focus on whether the party seeking to invoke the implied remedy is a member of a class that Congress intended to benefit.” Id., 101 S.Ct. at 1581 n. 25. Next, the Court considered whether the structure of the statutes might suggest that Congress intended to create a right of contribution. Noting that both statutes established “comprehensive programs designed to eliminate certain varieties of employment discrimination” and contained “express provision for private enforcement in certain carefully defined circumstances, and provide[d] for enforcement at the instance of the Federal government in other circumstances,” the Court concluded that “[t]he comprehensive character of the remedial scheme expressly fashioned by Congress strongly evidences an intent not to authorize additional remedies.” Id. at 93-94, 101 S.Ct. at 1581-82. The Court explained that “[i]t is, of course, not within our competence as federal judges to amend these comprehensive enforcement schemes by adding to them another private remedy not authorized by Congress.” Id. at 94, 101 S.Ct. at 1582. Finally, the Court noted that nothing in the legislative history suggested a congressional intent to create a right to contribution. Id., 101 S.Ct. at 1582. The Court recognized that it is not uncommon in an implied right of action case to encounter such legislative silence and that, on its own, such silence is not necessarily inconsistent with an intent to create the remedy suggested. Id., 101 S.Ct. at 1582. Nonetheless, in the absence of suggestions in the statutory language or structure that Congress intended to create such a right of action, “the essential predicate for implication of a private remedy simply does not exist.” Id., 101 S.Ct. at 1582. The Court also considered the second possible source of a right of contribution, namely, federal common law. The Court noted that, except in limited circumstances such as cases involving the rights or duties of the United States or resolution of interstate controversies, the courts’ power to fashion federal common law is strictly limited. Id. at 95, 101 S.Ct. at 1582. The Court distinguished Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974), in which it had found a nonstatutory right to contribution in the admiralty setting, noting that the constitutional grant of general admiralty jurisdiction to the federal courts provides a basis for development of judge-made rules in the area of maritime law. Id. at 95-96, 101 S.Ct. at 1583. Finally, the Court concluded that it should not create a right to contribution where Congress had “enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.” Id., 101 S.Ct. at 1584. The Court left open the question whether federal courts may have more power to fashion remedies in other areas of the law, such as under the antitrust laws, under which federal courts act more as common law courts. Id. at 98 & n. 42, 101 S.Ct. at 1584 & n. 42. That same term the Court addressed a question not involved in but referred to in Northwest Airlines and concluded that the antitrust laws do not confer on federal courts the power to formulate a right to contribution where Congress has not created the right explicitly. Texas Indus., 451 U.S. at 646, 101 S.Ct. at 2070. The Court analyzed the question of whether the antitrust laws establish a right of contribution in the same manner as in Northwest Airlines. It concluded that there was no congressional intent to create such a right, noting that there was no indication of such an intent in the language of the statute or in the legislative history. Id. at 639, 101 S.Ct. at 2066. The Court again noted that the statutes in question “were not adopted for the benefit of the participants” in the prohibited conduct in question. Id., 101 S.Ct. at 2066. Rather, the petitioner was “ ‘a member of the class whose activities Congress intended to regulate for the protection and benefit of an entirely distinct class....'" Id., 101 S.Ct. at 2066 (quoting Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 37, 97 S.Ct. 926, 947, 51 L.Ed.2d 124 (1977) (emphasis in Texas Industries)). The Court, therefore, concluded that any right to contribution could be derived only from federal common law. The Court then expanded on its discussion in Northwest Airlines of federal courts’ power to recognize a right of contribution as part of federal common law. The Court explained that the power to formulate federal common law is implicated in two basic types of cases: where a federal rule of decision is necessary to protect “uniquely federal interests,” and where “Congress has given the courts the power to develop substantive law.” Id. at 640, 101 S.Ct. at 2067. The Court found that antitrust suits, which involve the rights and interests of private parties, do not involve the duties of the federal government, the distribution of powers in the federal system, or matters necessarily subject to federal control, and, therefore, do not involve “uniquely federal interests.” Id. at 642, 101 S.Ct. at 2068. With regard to the second type of case in which courts have the power to formulate federal common law, the paradigmatic case is Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), in which the Supreme Court read section 301 of the Labor Management Relations Act not only as a grant of jurisdiction over certain areas of labor law but also as a grant of the power to develop common law of labor-management relations. Texas Indus., 451 U.S. at 642-43, 101 S.Ct. at 2068. The Court noted that federal courts traditionally had broad common law powers under the antitrust laws as well. Id. at 643, 101 S.Ct. at 2068. Nonetheless, the Court held that, although Congress intended to give the courts the power to develop common law defining violations of the antitrust laws, there was no similar indication of congressional intent with regard to the provisions of the antitrust laws providing for treble damages and other remedies. Id. at 643-44, 101 S.Ct. at 2068-69. Instead, the Court held, the “detailed and specific” remedial provisions set forth in the Sherman Act give rise to a strong presumption that Congress deliberately omitted a contribution remedy from the statute. Id. at 644-45, 101 S.Ct. at 2069-70. The Court, therefore, concluded that the antitrust laws do not confer on federal courts “the broad power to formulate the right to contribution sought here.” Id. at 646, 101 S.Ct. at 2070. In Musick, however, the Court followed a different course, distinguishing Northwest Airlines and Texas Industries and holding that defendants in an action under Rule 10b-5 of the Securities Exchange Commission adopted pursuant to the Securities Exchange Act of 1934 have a right to seek contribution under federal law. 508 U.S. at 297, 113 S.Ct. at 2091. The Court distinguished Northwest Airlines and Texas Industries, as well as the precedents on which those cases were based, as follows: The federal interests in both Texas Industries and Northwest Airlines were defined by statutory provisions that were express in creating the substantive damages liability for which contribution was sought. Recognizing that the applicable statutes did not ‘implicate “uniquely federal interests” of the kind that oblige courts to formulate federal common law,’ Texas Industries, 451 U.S. at 642, 101 S.Ct. at 2068, we asked whether Congress ‘expressly or by clear implication’ envisioned a contribution right to accompany the substantive damages right created, id. at 638, 101 S.Ct. at 2066, or, failing that, whether Congress ‘intended courts to have the power to alter or supplement the remedies enacted,’ id. at 645, 101 S.Ct. at 2069.... But these inquiries are not helpful in the present context. The private right of action under Rule 10b-5 was implied by the Judiciary on the theory courts should recognize private remedies to supplement federal statutory duties, not on the theory Congress had given an unequivocal direction to the courts to do so. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 737, 95 S.Ct. 1917, 1922, 1926, 44 L.Ed.2d 539 (1975). Thus, it would be futile to ask whether the 1934 Congress also displayed a clear intent to create a contribution right collateral to the remedy. [See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 1039, 117 L.Ed.2d 208 (1992); id. at 77, 112 S.Ct. at 1039 (Scalia, J., concurring) ]. Id. at 290-91, 113 S.Ct at 2087-88. In response to the argument that the precedents on which Northwest Airlines and Texas Industries were based should control, the Court continued: This argument ... would have much force were the duty to be created one governing conduct subject to liability under an express remedial provision fashioned by Congress, or one governing conduct not already subject to liability through private suit. That, however, is not the present state of the jurisprudence we consider here. The parties against whom contribution is sought are, by definition, persons or entities alleged to have violated existing securities laws and who share joint liability for that wrong under a remedial scheme established by the federal courts. Even though we are being asked to recognize a cause of action that supports a suit against these parties, the duty is but the duty to contribute for having committed a wrong that courts have already deemed actionable under federal law. The violation of the securities laws gives rise to the 10b-5 private cause of action, and the question before us is the ancillary one of how damages are to be shared among persons or entities already subject to that liability. Having implied the underlying liability in the first place, to now disavow any authority to allocate it on the theory that Congress has not addressed the issue would be most unfair to those against whom damages are assessed. We must confront the law in its current form. The federal courts have accepted and exercised the principal responsibility for the continuing elaboration of the scope of the 10b-5 right and the definition of the duties it imposes. As we recognized in a case arising under § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a), ‘where a legal structure of private statutory rights has developed without clear indications of congressional intent,’ a federal court has the limited power to define ‘the contours of that structure.’ Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1104, 111 S.Ct. 2749, 2764, 115 L.Ed.2d 929 (1991). As to this proposition we were unanimous. See ibid. (SOUTER, J., joined by REHNQUIST, C.J., and WHITE, O’CONNOR, and SCALIA, JJ.); id., at 1114, 111 S.Ct., at 2768 (KENNEDY, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., concurring in part and dissenting in part) (Where an implied cause of action is well accepted by our own cases and has become an established part of the securities laws ... we should enforce it as a meaningful remedy unless we are to eliminate it altogether’). See also Blue Chip Stamps, supra, at 737, 95 S.Ct., at 1926 (recognizing the authority of federal courts to ‘define the contours of a private cause of action under Rule 10b-5’ and ‘to flesh out the portions of the law with respect to which neither the congressional enactment nor the administrative regulations offer conclusive guidance’). Id. at 292-93, 113 S.Ct. at 2088-89. The Court found support for its conclusions in two amendments to the securities laws, in which Congress appeared to acknowledge the judicially created Rule 10b-5 action “without any further expression of legislative intent to define it.” Id. at 294, 113 S.Ct. at 2089. Having declined to follow Northwest Airlines and Texas Industries, the Court turned to “the question whether a right to contribution is within the contours of the 10b-5 action.” Id., 113 S.Ct. at 2089. The Court explained, however, that its “task is not to assess the relative merits of the competing rules, but rather to attempt to infer how the 1934 Congress would have addressed the issue had the 10b-5 action been included as an express provision in the 1934 Act.” Id., 113 S.Ct. at 2090. The Court acknowledged that this exercise may appear to be “not a promising venture as a general proposition,” but, nonetheless, found that other specific sections of the 1934 Act to which Rule 10b-5 was analogous provided a right of contribution. Id. at 295-97, 113 S.Ct. at 2090-91. Beginning with the language of section 10(b) itself, the Court noted that the text provided little guidance as to a right to contribution, but found that “[hjaving made no attempt to define the precise contours of the private cause of action under § 10(b), Congress had no occasion to address how to limit, compute, or allocate liability arising from it.” Id. at 295, 113 S.Ct. at 2090. The Court then compared Rule 10b-5 to the eight express liability provisions in the 1933 Securities Act and the 1934 Securities Exchange Act, and found that it was most similar to two provisions that conferred an explicit private right of action, because both provisions targeted the same danger that was the focus of section 10(b), because both had the same purpose “to deter fraud and manipulative practices in the securities markets and to ensure full disclosure of information material to investment decisions,” and because Rule 10b-5 defendants stood in a similar position to defendants in actions based on the other two provisions. Id. at 296, 113 S.Ct. at 2090-91. Because those two provisions each contained “nearly identical express provisions for a right to contribution,” the Court concluded: “Absent any showing that the implied § 10(b) liability structure or the 1934 Act as a whole will be frustrated by finding a right to contribution paralleling the right to contribution in analogous express liability provisions, our task is complete and our resolution clear: Those charged with liability in a 10b-5 action have a right to contribution against other parties who have joint responsibility for the violation.” Id. at 298, 113 S.Ct. at 2091-92. 3. Applicability of Musick Analysis Although the Court’s decision in Musick may seem to have been something of a departure from the course it appeared to be setting in Northwest Airlines and Texas Industries, we can read the three cases harmoniously. When a statute creates a private right of action but fails to provide expressly for a right to contribution, particularly if the remedial scheme created is detailed, Congress’s silence with regard to contribution weights heavily against implying such a right because there is a presumption that the silence reflects congressional intent not to create such a right. On the other hand, when courts have implied a right of action it would be “futile” to look for congressional intent to create a right to contribution, inasmuch as Congress did not intend explicitly to create the cause of action on which such a right would be based. Musick, 508 U.S. at 291, 113 S.Ct. at 2088. In that situation, courts have somewhat broader latitude to determine whether a right to contribution is consistent with Congress’s intent in creating the right sought to be enforced. The first question we must resolve, therefore, is whether the private rights of action under section 504 of the Rehabilitation Act and Title II are express or implied. This question is not as easily answered as one might expect. In discussing rights and remedies available to aggrieved persons, Title II cross-references the Rehabilitation Act, which in turn cross-references Title VI of the Civil Rights Act of 1964. Title II was enacted in 1990, while the Title VI cross-reference of the Rehabilitation Act was enacted in 1978. By 1978, courts had reco