Amos v. Md. Dept of Public Safety

Rehearing en banc granted by order

filed 12/28/99; published opinion

issued 6/24/99 is vacated.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRANVILLE AMOS; HARVEY W.

BLOXOM; MICHAEL A. HOLT; TEDDY

T. JONES; CHARLES MADISON;

HOWARD MEGGINSON; BORIS

PRYMERMAN; GARY RALPH; JOHN

SMITH; MICHAEL HILMAN SMITH;

WILLIAM LEWIS SMITH; CALVIN J.

WHITING; DENNIS BRIAN ABSHER,

Plaintiffs-Appellants,

UNITED STATES OF AMERICA,

Intervenor,

and

WINFRIED LEE RHODES,

Plaintiff,

No. 96-7091

v.

MARYLAND DEPARTMENT OF PUBLIC

SAFETY AND CORRECTIONAL SERVICES;

ROXBURY CORRECTIONAL INSTITUTION,

Hagerstown, Maryland; RICHARD

LANHAM, SR., in his official capacity

as Commissioner, Maryland

Division of Correction; JOHN P.

GALLEY, in his official capacity as

Warden, Roxbury Correctional

Institution; RONALD MOATS, Warden,

Roxbury Correctional Institution;

WILLIAM SMITH, Warden, Maryland

House of Correction,

Defendants-Appellees.

NATIONAL ADVISORY GROUP FOR

JUSTICE; THE ASSOCIATION OF STATE

CORRECTIONAL ADMINISTRATORS,

Amici Curiae.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CA-91-508-JFM, CA-95-524-JFM)

Argued: December 4, 1998

Decided: June 24, 1999

Before MURNAGHAN and WILLIAMS, Circuit Judges,

and CLARKE, Senior United States District Judge

for the Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Senior Judge Clarke

wrote the opinion. Judge Murnaghan wrote a concurring opinion.

Judge Williams wrote a dissenting opinion.

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COUNSEL

ARGUED: Marjorie Lynn Rifkin, National Prison Project, ACLU

FOUNDATION, Washington, D.C., for Appellants. Seth Michael

Galanter, UNITED STATES DEPARTMENT OF JUSTICE, Wash-

ington, D.C., for Intervenor. Maureen Mullen Dove, Assistant Attor-

ney General, Baltimore, Maryland, for Appellees. Marci A. Hamilton,

Professor of Law, BENJAMIN N. CARDOZO SCHOOL OF LAW,

New York, New York, for Amicus Curiae ASCA. ON BRIEF: Mar-

garet Winter, Elizabeth Alexander, Jerome W. Wesevich, National

Prison Project, ACLU FOUNDATION, Washington, D.C., for Appel-

2

lants. Bill Lann Lee, Acting Assistant Attorney General, Jessica Dun-

say Silver, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Intervenor. J. Joseph Curran, Jr., Attorney

General of Maryland, Stephanie Lane-Weber, Assistant Attorney

General, David P. Kennedy, Assistant Attorney General, Baltimore,

Maryland, for Appellees. Barbara E. Ransom, Kirsten E. Keefe, THE

PUBLIC INTEREST LAW CENTER OF PHILADELPHIA, Phila-

delphia, Pennsylvania, for Amicus Curiae Advisory Group.

_________________________________________________________________

OPINION

CLARKE, Senior District Judge:

Thirteen disabled Maryland state prisoners (collectively Appel-

lants) incarcerated at Roxbury Correctional Institution (RCI) at

Hagerstown, Maryland, brought suit against RCI, the Maryland

Department of Public Safety and Correctional Services (MDPSCS),

Richard Lanham, the Commissioner of the Maryland Division of Cor-

rection, and John P. Galley, the Warden of RCI (collectively Appel-

lees), alleging that Appellees violated Title II of the Americans with

Disabilities Act (ADA), see 42 U.S.C.A.§§ 12131-12165 (West 1995

& Supp. 1997); and § 504 of the Rehabilitation Act of 1973, see 29

U.S.C.A. § 794 (West Supp. 1997). This case was originally before

the Court on appeal from a grant of summary judgment in favor of

Appellees. Based on our analysis of the statutes under the clear state-

ment rule, and in light of our decision in Torcasio v. Murray, 57 F.3d

1340 (4th Cir. 1995), we found that the ADA and the Rehabilitation

Act do not apply to state prisons. We affirmed the judgment of the

district court, see Amos v. Md. Dept. of Pub. Safety & Corr. Serv., 126

F.3d 589 (4th Cir. 1997) (Amos I), and Appellants petitioned the

Supreme Court of the United States for certiorari. On June 22, 1998,

the Supreme Court granted certiorari, vacated our opinion in Amos I,

and remanded in light of the Supreme Court's decision in

Pennsylvania Dept. of Corr. v. Yeskey, 118 S.Ct. 1952 (1998). See

Amos v. Md. Dept. of Pub. Safety & Corr. Serv., 118 U.S. 2339 (1998).1

_________________________________________________________________

1 Appellants also brought claims based on alleged violations of their

constitutional rights under the Eighth Amendment of the United States

3

I.

In Yeskey, a state prisoner had been denied admission to a Motiva-

tional Boot Camp Program because of his medical history of hyper-

tension. The Supreme Court affirmed the Third Circuit's opinion that

the ADA does apply to state prisons, stating explicitly that Congress

drafted the ADA in unambiguous terms. Based on the unambiguous

text of the statute, the Court held that Congress clearly intended to

include state prisons within the scope of the ADA. See Yeskey, 118

S.Ct. at 1953-54. Although the Court ruled that Congress intended for

the ADA and Rehabilitation Act to apply to state prisons, the Court

expressly declined to rule on the issue of whether application of the

ADA to state prisons is a constitutional exercise of Congress' legisla-

tive power, either under § 5 of the Fourteenth Amendment or the

Commerce Clause. Id. at 1956.

By Order of July 10, 1998, after this Court regained jurisdiction

over Amos I on remand, we directed both parties to file supplemental

briefs addressing the issue of the constitutionality of the application

of the ADA and Rehabilitation Act to state prisons. Both Appellants

and Appellees, as well as the United States as intervenor and several

amicus curiae, filed briefs addressing the issue. 2 Being bound to reject

_________________________________________________________________

Constitution. The district court granted summary judgment in favor of

Appellees on that claim, as well, and we affirmed. See Amos I, 126 F.3d

at 611. Since Appellants did not petition the Supreme Court for certiorari

on this Court's ruling on the Eighth Amendment claims, these claims are

no longer before the Court and will not be addressed further.

2 Although the issue of the constitutionality of applying the ADA and

Rehabilitation Act to state prisons was not raised below, we exercise our

limited discretion to consider the issue on appeal in light of the fact that

the constitutionality of this federal statute is purely a question of law,

both parties have fully briefed the issue, and its resolution at this stage

will advance and expedite the progress of this litigation. See United

States v. Presley, 52 F.3d 64, 67 (4th Cir.), cert. denied, 516 U.S. 891

(1995); Pinney Dock & Transport Co. v. Penn Cent. Corp., 838 F.2d

1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880 (1988) (when resolution

of issue not presented below will "materially advance the progress of

[the] already protracted litigation, [courts of appeal] should address it" if

the issue has been "presented with sufficient clarity and completeness");

Hormel v. Helvering, 312 U.S. 552, 557 (1941) (court of appeals has dis-

cretion to deviate from normal rule of procedure and hear issues not

raised below in exceptional cases or particular circumstances).

4

our panel's previous opinion in Amos I, and to follow instead the

direction of the Supreme Court,3 we must now base our analysis of

the statutes' constitutionality on the premise that Congress did intend

for the ADA and the Rehabilitation Act to apply to state prisons.

Under such analysis, we hold that Congress did in fact act constitu-

tionally when it enacted the ADA and the Rehabilitation Act pursuant

to its enforcement powers under § 5 of the Fourteenth Amendment

with the intent that the statutes apply to state prisons.

Before we go further, however, we note that with our holding

today, we continue to have our reservations, stated in Torcasio and

Amos I, about the far-reaching and serious implications for the man-

agement of state prisons that will result from application of these Acts

to those institutions. We agree with the Seventh Circuit that

[i]t might seem absurd to apply the Americans with Disabil-

ities Act to prisoners. Prisoners are not a favored group in

society; the propensity of some of them to sue at the drop

of a hat is well known; prison systems are strapped for

funds; the practical effect of granting disabled prisoners

rights of access that might require costly modifications of

prison facilities might be the curtailment of educational, rec-

reational, and rehabilitative programs for prisoners, in which

event everyone might be worse off . . . .

Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 486 (7th Cir.

1997). Our job today, however, is simply to decide whether Congress,

in pursuing its clear objective, exceeded its constitutional authority.

Since we hold that Congress acted constitutionally under its Four-

teenth Amendment enforcement powers, our opinion as to the pru-

_________________________________________________________________

3 See Ethridge v. Norfolk & Western Ry. Co., 9 F.3d 1087, 1090 (4th

Cir. 1993) ("A decision of a panel of this court becomes the law of the

circuit and is binding on other panels unless it is overruled by a subse-

quent en banc opinion of this court or a `superceding contrary decision

of the Supreme Court'") (quoting Busby v. Crown Supply, Inc., 896 F.2d

833, 840-41 (4th Cir. 1990)).

5

dence of Congress' choice to make the statutes applicable to state

prisons is irrelevant.4

II.

When Congress enacted the ADA, it "invoke[d] the sweep of con-

gressional authority, including the power to enforce the fourteenth

amendment . . . in order to address the major areas of discrimination

faced day-to-day by people with disabilities." 42 U.S.C.A.

§ 12101(b)(4) (West 1995). Thus, we begin our analysis with the

Equal Protection Clause and § 5 of the Fourteenth Amendment, not-

ing, as we did in Amos I, that "because Congress has directed that

Title II of the ADA be interpreted in a manner consistent with §504

of the Rehabilitation Act, see 42 U.S.C.A.§§ 12134(b), 12201(a)

(West 1995), we combine the analysis of the prisoners' ADA and

Rehabilitation Act claims." Amos I, 126 F.3d at 593, n.2 (citing

Shafer v. Preston Mem'l Hosp., 107 F.3d 274, 276, n.3 (4th Cir.

1997); Doe v. University of Md. Med. Sys. Corp. , 50 F.3d 1261, 1264,

n.9 (4th Cir. 1995); Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209,

213, n.1 (4th Cir. 1994)). We also note that although § 504 of the

Rehabilitation Act does not state explicitly that it was enacted pursu-

ant to § 5 of the Fourteenth Amendment, the Supreme Court has

stated in dicta that "[t]he Rehabilitation Act was passed pursuant to

§ 5 of the Fourteenth Amendment." Welch v. Texas Dept. of High-

ways & Pub. Transp., 483 U.S. 468, 472, n.2 (1987) (citing

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 244-45, n.4

(1985)).

A.

Congress has the power to protect classes of persons from arbitrary

discrimination by the States. This power is rooted in the Equal Protec-

_________________________________________________________________

4 Also irrelevant to our determination of the statutes' constitutionality

is the possibility of an increase in frivolous prisoner litigation. As the

United States aptly states in its supplemental reply brief, "Congress has

elected to address that separate problem of frivolous prisoner suits by

enacting the Prison Litigation Reform Act, Pub. L. No. 104-134, 110

Stat, 1321 (1996), instead of by excluding prisoners from the ADA's

protections." (Intervenor S. Reply Br. at 16, n.10).

6

tion Clause of § 1 of the Fourteenth Amendment to the United States

Constitution which guarantees that no State shall"deny to any person

within its jurisdiction the equal protection of the laws." The Supreme

Court has stated that the Equal Protection Clause"is essentially a

direction that all persons similarly situated should be treated alike."

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439

(1985). The Supreme Court has specifically found that the Equal Pro-

tection Clause protects the physically and mentally disabled from

arbitrary discrimination by the States, even though the disabled do not

themselves constitute a suspect or quasi-suspect class of persons. Id.

at 446.

Section 5 of the Fourteenth Amendment grants to Congress the

power to enforce the mandates of the Equal Protection Clause through

legislation that is aimed at remedying or preventing violations of the

Amendment. This remedial power has traditionally been quite broad,

not only in the context of racial discrimination and voting rights, but

in other areas of discrimination as well. See , e.g., City of Rome v.

United States, 446 U.S. 156, reh'g denied , 447 U.S. 916 (1980);

Fitzpatrick v. Bitzner, 427 U.S. 445 (1976); Oregon v. Mitchell, 400

U.S. 112 (1970), reh'g denied, 401 U.S. 903 (1971); Katzenbach v.

Morgan, 384 U.S. 641 (1966); South Carolina v. Katzenbach, 383

U.S. 301 (1966); Ex parte Virginia, 100 U.S. 339, 345-46 (1879). In

the voting rights context, the Supreme Court has declared § 5 to be

"a positive grant of legislative power authorizing Congress to exercise

its discretion in determining whether and what legislation is needed

to secure the guarantees of the Fourteenth Amendment." Katzenbach

v. Morgan, 384 U.S. at 651.

Congress' enforcement power is not without limits, and the

Supreme Court has recently attempted to define and clarify the limits

of Congress' § 5 power in the case of City of Boerne v. Flores, 521

U.S. 507, 117 S.Ct. 2157 (1997), where the Court stated that under

§ 5, "Congress' discretion is not unlimited, however, and the courts

retain the power, as they have since Marbury v. Madison, to deter-

mine if Congress has exceeded its authority under the Constitution."

Boerne, 117 S.Ct. at 2172. In Boerne, the Supreme Court struck down

the Religious Freedom Restoration Act of 1993 (RFRA), see 42

U.S.C.A. § 2000bb et seq. (West 1994 & Supp. 1998), an act which

Congress passed pursuant to its Fourteenth Amendment enforcement

7

powers, and in direct response to the Supreme Court's decision of

Employment Div., Dept. of Human Resources of Oregon v. Smith, 494

U.S. 872, reh'g denied, 496 U.S. 913 (1990). In Smith, the Court had

held that the Free Exercise Clause of the First Amendment does not

require States to justify by a compelling interest generally applicable,

neutral laws that coincidentally burden religious practices. See Smith,

494 U.S. at 884-86. Thus, Smith essentially lowered the standard for

judicial review of generally applicable, neutral laws that burden reli-

gion. In direct response to Smith, and in an attempt to remedy sup-

posed harms to the free exercise of religion, Congress passed RFRA,

which required all laws that burden a group's religion, even neutral

laws of general applicability, to be narrowly tailored and justified by

a compelling interest. See 42 U.S.C. § 2000bb-1.

In striking down RFRA, the Supreme Court admonished that § 5

of the Fourteenth Amendment grants Congress only the power to

enforce the Fourteenth Amendment and not the power to define the

substance of the Amendment since "[t]he design of the Amendment

and the text of § 5 are inconsistent with the suggestion that Congress

has the power to decree the substance of the Fourteenth Amendment's

restrictions on the States." Boerne, 117 S.Ct. at 2164. Thus, Congress'

power is remedial and not substantive in nature. The Boerne Court

had the foresight to recognize that distinguishing between laws that

remedy or prevent unconstitutional conduct and laws that operate to

define constitutional rights substantively is a difficult task, and in an

effort to guide lower courts in analyzing laws passed under § 5, the

Court crafted its "congruence and proportionality" test for deciding

whether Congress has acted outside the scope of the Fourteenth

Amendment. In order for laws to qualify as remedial under the Four-

teenth Amendment, according to Boerne, "[t]here must be a congru-

ence and proportionality between the injury to be prevented or

remedied and the means adopted to that end." Id. (internal quotation

and citation omitted). Thus, as the Tenth Circuit has aptly interpreted

Boerne, "[i]f the legislation at issue imposes burdens far greater than

the seriousness of any demonstrated constitutional injury requiring

such measures, then the legislation does not remediate the constitu-

tional violation but creates substantive change in constitutional pro-

tections." Migneault v. Peck, 158 F.3d 1131, 1137 (10th Cir. 1998)

(citing Boerne, 117 S.Ct. at 2163-70).

8

The Court applied its congruence and proportionality test to RFRA

and found that the broad sweeping and constitutionally demanding

tests set up by RFRA totally lacked the necessary congruence and

proportionality to the harm the statute purported to remedy. Finding

no evidence in the record of "modern instances of generally applica-

ble laws passed because of religious bigotry," Boerne, 117 S.Ct. at

2169, the Court found the statute to be "so out of proportion to a sup-

posed remedial or preventative object that it cannot be understood as

responsive to, or designed to prevent, unconstitutional behavior." Id.

at 2170. Thus, by creating substantive and not remedial legislation,

Congress exceeded its remedial legislative powers under § 5 of the

Fourteenth Amendment.

Since Congress purported to exercise its Fourteenth Amendment

enforcement powers when enacting the ADA, see 42 U.S.C.A.

§ 12101(a)(7), (b)(4) (West 1995), we analyze the question of its con-

stitutionality under Boerne's test for congruence and proportionality.

Having examined, among other things, the statute itself, portions of

its legislative history, see 42 U.S.C. § 12101; S. Rep. No. 101-116,

at 7-8 (1989); H.R. Rep. No. 101-485, pt. 2, at 28-31 (1990); H.R.

Rep. No. 101-485, pt.1, at 24 (1990), and the opinions of our sister

circuits that have addressed the issue, see Crawford v. Indiana Dep't

of Corrections, 115 F.3d 481 (7th Cir. 1997); Clark v. California, 123

F.3d 1267 (9th Cir. 1997), cert. denied, 118 S.Ct. 2340 (1998);

Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.), cert. denied, 119

S.Ct. 58 (1998); Kimel v. Florida Bd. of Regents , 139 F.3d 1426 (11th

Cir. 1998), cert. granted, 67 U.S.L.W. 3464 (U.S. Jan. 25, 1999) (No.

98-791); Seaborn v. Florida, 143 F.3d 1405 (11th Cir. 1998), cert.

denied, 119 S.Ct. 1038 (1999); see also Autio v. AFSCME Local

3139, 157 F.3d 1141 (8th Cir. 1998) (en banc), we hold that Congress

did not exceed its authority under § 5 of the Fourteenth Amendment

when it enacted the ADA to remedy discrimination against disabled

persons, including disabled state prisoners.

B.

The first question to be decided is whether the ADA, as enacted,

is remedial or substantive in nature. We note again that the Supreme

Court has found that the Equal Protection Clause protects the physi-

cally and mentally disabled from arbitrary discrimination by the

9

States. City of Cleburne, 473 U.S. at 446. It also protects prisoners

from arbitrary discrimination. See Turner v. Safley, 482 U.S. 78, 84

(1987) ("Prison walls do not form a barrier separating prison inmates

from the protections of the Constitution."). As the Seventh Circuit has

aptly noted, "[a]lthough the special conditions of the prison setting

license a degree of discrimination that would not be tolerated in a free

environment, there is no general right of prison officials to discrimi-

nate against prisoners on grounds of race, sex, religion, and so forth."

Crawford, 115 F.3d at 486 (7th Cir. 1997) (internal citations omitted).

Thus, if arbitrary discrimination against disabled inmates exists, then

Congress has the power to enact legislation that remedies or prevents

such violations of disabled inmates' equal protection rights.

When enacting the ADA, Congress made several findings of both

past and present discrimination against the disabled in the country's

general population that it determined violated the Equal Protection

Clause. See 42 U.S.C. § 12101(a)(2)-(a)(3), (a)(5)-(a)(6); H.R.Rep.

No. 101-485, pt.2, at 22, 30, 42 (1990), reprinted in 1990

U.S.C.C.A.N. 267, 303, 311-12, 324. Congress determined that "the

exclusion of persons with disabilities from government facilities, pro-

grams, and benefits was a result of past and on-going discrimination."

(Intervenor S. Br. at 18). We are compelled to give some deference

to the record of Congress' factual findings, and to Congress' determi-

nation that the ADA is an appropriate remedy to the harms it found

to exist. We reiterate the Supreme Court's observation that "the line

between measures that remedy or prevent unconstitutional actions and

measures that make a substantive change in the governing law is not

easy to discern" and as such "Congress must have wide latitude in

determining where it lies. . . ." Boerne, 117 S.Ct. at 2164. Further,

with respect to the disabled, the Court has stated that "[h]ow this large

and diversified group is to be treated under the law is a difficult and

often a technical matter, very much a task for legislators guided by

qualified professionals and not by the perhaps ill-informed opinions

of the judiciary." City of Cleburne, 473 U.S. at 442-43. Thus, while

we are mindful that our deference to the judgment of Congress must

not be blind, we are also aware that even after Boerne, a great deal

of deference must still be given to Congress, especially in the face of

a fully developed evidentiary record of discrimination. Such a record

exists with respect to the ADA. Unlike RFRA, which the Court found

to be totally unsupported by evidence or examples of present-day reli-

10

gious discrimination by States, see Boerne, 117 S.Ct. at 2169, the

ADA's legislative history is replete with examples of discrimination

against the disabled in the free world.

Even if the legislative record lacked specific findings of discrimi-

nation with regard to state prison inmates, that would not change our

finding that the ADA is remedial and not substantive legislation with

respect to state prisons.5 It would be obtuse for us to believe that the

discrimination Congress found to be so pervasive in the free world

automatically stops at the prison gates. Furthermore, as the Seventh

Circuit has noted,

[disabled prisoners] have the same interest in access to the

programs, services and activities available to the other

inmates of their prison as disabled people on the outside

have to the counterpart programs, services, and activities

available to free people. They have no right to more services

than the able-bodied inmates, but they have a right, if the

Act is given its natural meaning, not to be treated even

worse than those more fortunate inmates.

Crawford, 115 F.3d at 486.

In light of the legislative history and the stated purpose of the

ADA, we must conclude that the ADA, even with respect to state

prison inmates, is indeed adequately justified as remedial legislation

and therefore fully within the scope of Congress' enforcement power

under the Fourteenth Amendment.

_________________________________________________________________

5 In any event, Congress did gather evidence on arbitrary discrimina-

tion against the disabled in prisons. Several House and Senate subcom-

mittees received into evidence the United States Commission on Civil

Rights Report, Accommodating the Spectrum of Individual Abilities

(1983). See Sen. Rep. No. 101-116 at 6 (1989); H.R. Rep. No. 101-485

(II) at 28 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 310. This report

pointed to "[i]nadequate treatment and rehabilitation programs [for the

disabled] in penal and juvenile facilities," and "[i]nadequate ability to

deal with physically handicapped accused persons and convicts (e.g.,

accessible jail cells and toilet facilities)."

11

We cannot, however, stop our inquiry with the mere conclusion

that the ADA is remedial in nature. We must also decide whether the

sweep of the ADA's remedy takes it outside the scope of the Four-

teenth Amendment. We believe it does not. The scope of the ADA is

limited to the unconstitutional conduct that it is aimed at preventing.

It does not, as RFRA did, "[displace] laws and [prohibit] official

actions of almost every description and regardless of subject matter."

Boerne, 117 S.Ct. at 2170. Even if, however, the application of the

ADA to state prisons may incidentally affect some conduct by prison

officials that is otherwise constitutional, such an incidental burden

does not necessarily invalidate the statute. As the Boerne Court stated,

"[l]egislation which deters or remedies constitutional violations can

fall within the sweep of Congress' enforcement power even if in the

process it prohibits conduct which is not itself unconstitutional and

intrudes into `legislative spheres of autonomy previously reserved to

the States.'" Id. at 2169 (quoting Fitzpatrick v. Bitzner, 427 U.S. 445,

455 (1976)). That penal institutions may have to modify some of their

otherwise constitutional practices in order to comply with the ADA

does not make the ADA unconstitutional in light of the discrimination

it aims to curtail.

We cannot lose sight of the fact that the ADA limits itself by only

requiring that a penal institution make "reasonable" accommodations

for the disabled that are not unduly burdensome. The ADA, unlike

RFRA, is not attempting to impose a strict scrutiny standard on all

state laws or actions in the absence of evidence of discrimination. The

Supreme Court objected in large part to RFRA because"[t]he strin-

gent test RFRA demands of state laws reflects a lack of proportional-

ity or congruence between the means adopted and the legitimate end

to be achieved." Boerne, 117 S.Ct. at 2171. The ADA dictates no such

stringent test. Rather, the ADA seeks to impose a scheme that will

adequately prevent or remedy a well-documented problem of discrim-

ination without unduly burdening the state prison system. It subjects

some laws and official actions to a "reasonable accommodation"

requirement only to the point that the accommodation is not unduly

burdensome. Such a scheme, unlike RFRA, does not redefine or

expand prisoners' constitutional protections, but simply proportion-

ally acts to remedy and prevent documented constitutional wrongs.

12

C.

Appellees agree that in design, the ADA passes muster as remedial

and not substantive legislation, but they argue that the effect of apply-

ing the ADA to state prison inmates will take it out of the scope of

§ 5 unless this Court follows the lead of the Ninth Circuit and holds

that the ADA is only constitutional if it is limited by the holding in

Turner v. Safley, 482 U.S. 78 (1987).6 See Gates v. Rowland, 39 F.3d

1439 (9th Cir. 1994).

This Court has already commented unfavorably on the Ninth Cir-

cuit's approach in Gates. See Amos I, 126 F.3d at 600. We still

decline to use that approach now. For us to graft the standards for

review of prisoners' constitutional claims onto these statutes would be

for us essentially to rewrite what the Supreme Court has deemed to

be unambiguous statutory language. See Yeskey , 118 S.Ct. at 1953-53.

We cannot engage in such apractice. See, e.g., Seminole Tribe of Flor-

ida v. Florida, 517 U.S. 44, 75 (1996) ("Nor are we free to rewrite

the statutory scheme in order to approximate what we think Congress

might have wanted had it known that [the provision at issue] was

beyond its authority. If that effort is to be made, it should be made

by Congress, and not by the federal courts."); Honig v. Doe, 484 U.S.

305, 323 (1988) ("The language of [the statute] is unequivocal. . . .

Faced with this clear directive, . . . we decline petitioner's invitation

to rewrite the statute."); Louisiana Public Service Com'n v. F.C.C.,

476 U.S. 355, 376 (1986) ("As we so often admonish, only Congress

can rewrite this statute."). Our failure to borrow the Turner standard

does not condemn the ADA in the prison context. For the reasons dis-

cussed above, even as applied to prisons we find that the ADA is a

valid exercise of Congress' Fourteenth Amendment enforcement

power under the Boerne congruence and proportionality test.

Appellees next contend that the Department of Justice Regulations

(regulations) accompanying the ADA and § 504 of the Rehabilitation

_________________________________________________________________

6 Turner addressed the standard of judicial review of state prison

inmates' constitutional claims of violations of equal protection. The

Court held that "when a prison regulation impinges on inmates' constitu-

tional rights, the regulation is valid if it is`reasonably related' to legiti-

mate penological interests." Turner v. Safley, 482 U.S. at 89.

13

Act render the statutes too broad-sweeping to survive analysis under

Boerne, and urge us to reject the regulations as they apply to state

prisons. (Appellants' S. Br. at 23, n.14).

With regard to the amount of deference due to regulations promul-

gated by administrative agencies, the Supreme Court has stated that

if, in an unambiguous statute, Congress makes "an express delegation

of authority to [an] agency to elucidate a specific provision of [a] stat-

ute" then "[s]uch legislative regulations are given controlling weight

unless they are arbitrary, capricious, or manifestly contrary to the stat-

ute." Chevron v. Natural Resources Defense Council, 467 U.S. 837,

843-44 (1984) (citations omitted).

In the case of the ADA and § 504 of the Rehabilitation Act, statutes

the Supreme Court has declared to be unambiguous, Congress has

made an express delegation by directing the Department of Justice

(DOJ) to promulgate implementing regulations for the statutes. See 29

U.S.C.A. § 794(a) (West 1999); 42 U.S.C.A.§ 12134 (West 1995).

Congress incorporated § 504 of the Rehabilitation Act's implement-

ing regulations into Title II of the ADA. See 42 U.S.C.A. § 12201(a)

(West 1995). As such, this Court must afford a great deal of deference

to the DOJ's interpretation of these statutes, even if that interpretation

is somewhat detailed and intrusive into the normal operations of pris-

ons. We cannot reject the regulations wholesale because they are nei-

ther clearly contrary to Congress' "unambiguous" intent that these

statutes apply to state prisons, nor are they arbitrary or capricious. In

fact, many of the regulations have a certain degree of flexibility that

will allow state prison authorities the latitude to exercise their own

judgment in devising a scheme that will satisfy both prison authori-

ties' concerns for issues such as safety and Congress' demand for rea-

sonable accommodation. The regulations provide methods by which

entities will be sure to come into compliance with the statutes, but

they allow for entities such as state prisons to develop their own

methods of complying with the statutes.7 This is not to say that all the

_________________________________________________________________

7 As United States correctly points out in its supplemental reply brief,

(Intervenor S. Reply Br. at 14), Regulation 28 C.F.R. § 35.151(a) states

that construction or alterations made after January 26, 1992, should be

"readily accessible to and usable by individuals with disabilities." The

14

regulations promulgated under the ADA will be constitutional. The

constitutionality of each regulation will require a careful case-by-case

analysis of each regulation as challenges to specific regulations arise.8

In finding that the regulations in general do not extend the reach

of the ADA too far, we are mindful of the traditional policy of judicial

restraint with regard to decisions involving prison administration in

the context of constitutional rights, see Procunier v. Martinez, 416

U.S. 396, 405 (1974), overruled on other grounds by Thornburgh v.

Abbott, 490 U.S. 401 (1989); Turner v. Safley, 482 U.S. at 84-85, and

the deference due to prison authorities with regard to their decisions

on how best to administer their institutions. In counseling deference

to appropriate prison authorities in the context of prisoners' constitu-

tional rights, the Supreme Court has recognized that"[r]unning a

_________________________________________________________________

regulation states construction that complies with either of two codes will

comply with the ADA. The regulation also dictates, however, that

"[d]epartures from particular requirements of either standard by the use

of other methods shall be permitted when it is clearly evident that equiv-

alent access to the facility or part of the facility is thereby provided." 28

C.F.R. § 35.151(c).

8 We feel compelled to note here that since this panel heard this case,

the Fourth Circuit has announced its opinion in the case of Brown v.

North Carolina Div. of Motor Vehicles, 166 F.3d 698, 705 (4th Cir.

1999), reh'g en banc denied. In Brown , the Fourth Circuit struck down

as unconstitutional a regulation promulgated under the ADA. After care-

ful consideration of the opinion in Brown, we conclude that the decision

in Brown does not control the issue before us in Amos. The panel in

Brown considered the validity of a specific regulation promulgated under

the ADA, and not the constitutionality of the ADA itself as applied to

state agencies. Although the majority in Brown does question Congress'

authority with respect to the ADA itself, see Brown, 166 F.3d at 708, the

majority does not go so far as to hold that the ADA is unconstitutional.

Therefore, we continue to adhere to our position that Congress acted

within its § 5 authority when it enacted the ADA with the intent that it

apply to state prisons. We emphasize again, however, that in affirming

Congress' general exercise of its authority in adopting the ADA with the

intent that it apply to state prisons, we do not automatically affirm the

constitutionality of all regulations promulgated under the ADA by the

DOJ.

15

prison is an inordinately difficult undertaking that requires expertise,

planning, and the commitment of resources, all of which are pecu-

liarly within the province of the legislative and executive branches of

the government." Turner v. Safley, 482 U.S. at 84-85.

While in the case of the ADA and the Rehabilitation Act we are

concerned with the interpretation of statutory and not constitutional

rights, and while we still decline to graft the standard for constitu-

tional claims onto the ADA and Rehabilitation Act, we nonetheless

feel that in the special context of prison administration, prison offi-

cials' judgments of what is "reasonable" or"undue" with regard to

prisons are due some amount of deference. We find it appropriate to

note here our agreement with the Seventh Circuit's statement that

[t]erms like "reasonable" and "undue" are relative to circum-

stances, and the circumstances of a prison are different from

those of a school, an office, or a factory, as the Supreme

Court has emphasized in the parallel setting of prisoner'

constitutional rights. E.g., Turner v. Safley . . . 482 U.S. at

84-91, 107 S.Ct. at 2259-63.

Crawford, 115 F.3d at 487. Thus, while courts deciding the meaning

of "reasonable" and "undue" should afford the necessary amount of

deference to the DOJ and its regulations, the courts should also con-

sider the learned opinions of the prison experts charged with running

the prisons.

This permissible deference to prison authorities, however, must be

balanced with the great deal of deference due the DOJ in this area,

since Congress has spoken through the DOJ with respect to interpreta-

tion of the ADA. We note, however, that the courts cannot simply

defer blindly to either the decisions of the DOJ or to those of prison

officials. We emphasize that neither the DOJ nor prison authorities

themselves ultimately determine what type of accommodation is "rea-

sonable" or when an accommodation becomes an"undue burden" on

a particular institution. Certainly there will be conflicts between the

views of the DOJ and prison authorities with respect to what is a "rea-

sonable accommodation," but it is and always has been the job of the

courts to reconcile such conflicting interpretations by considering all

the unique surrounding facts and circumstances and attempting to bal-

16

ance the interests at stake in making the ultimate statutory interpreta-

tion.

D.

For the reasons stated above, we hold that Congress acted within

its constitutionally granted powers when it enacted the ADA and

§ 504 of the Rehabilitation Act pursuant to§ 5 of the Fourteenth

Amendment.

III.

We next come to the issue of whether the application of the ADA

and § 504 of the Rehabilitation Act is a valid exercise of Congress'

authority under the Commerce Clause. We find it unnecessary to

reach this issue, however, since we have already found the statutes to

be a valid exercise of Congress' authority under the Fourteenth

Amendment.9

IV.

Finally, we reach the issue of sovereign immunity. The State of

Maryland is entitled under the 11th Amendment of the United States

Constitution to immunity from suit under the ADA unless Congress

has validly abrogated that immunity. The analysis is a two step pro-

cess, since "[i]n order to determine whether Congress has abrogated

the States' sovereign immunity, we ask two questions: first, whether

Congress has unequivocally expressed its intent to abrogate the

immunity; . . . and second, whether Congress has acted pursuant to

a valid exercise of power." Seminole Tribe of Florida v. Florida, 517

U.S. at 55 (internal quotations and citations omitted).

The defense of sovereign immunity is not available to Appellees in

this case, as Appellees concede in their brief. (Appellees' S. Reply Br.

_________________________________________________________________

9 Appellants urge us to rule on the constitutionality of § 504 of the

Rehabilitation Act under the Spending Clause. Even if we did find it nec-

essary to rule on this issue, which we do not, we would be unable to do

so due to the lack of evidence in the record on the status of federal fund-

ing made available to and accepted by RCI.

17

at 37). Since neither party disputes that Congress, through 42 U.S.C.

§ 12202, unequivocally expressed its intent to abrogate the States'

sovereign immunity under the ADA, and since we have held today

that the ADA is a valid exercise of Congress' power under the Four-

teenth Amendment, we rule that the State of Maryland's sovereign

immunity has been validly abrogated and the State is subject to suit

in this case. Since the District Court granted summary judgment in

this case based on the incorrect conclusion that the ADA and Rehabil-

itation Act do not apply to state prisons, we do not have an adequately

developed record of the facts surrounding the Appellants' statutory

claims to make a determination about whether Appellees violated

Appellants' statutory rights. We must, therefore, remand to the Dis-

trict Court for determination of the Appellants' statutory claims on

their merits.

V.

For the foregoing reasons, we find that application of the ADA and

the Rehabilitation Act to state prisons is a valid exercise of Congress'

legislative powers under § 5 of the Fourteenth Amendment and that

the Appellees are validly subject to suit under these statutes.

REVERSED AND REMANDED

MURNAGHAN, Circuit Judge, concurring:

I join Judge Clarke's judgment and opinion. I write separately only

to recall the powerful sentiments of Justice Marshall and the grave

nature of the discrimination at issue in this case. In his separate opin-

ion in City of Cleburne v. Cleburne Living Center, 473 U.S. 432

(1985), Justice Marshall argued that the courts should pay special def-

erence to evolving standards of equality as embodied in acts of Con-

gress:

history makes clear that constitutional principles of equality,

like constitutional principles of liberty, property, and due

process, evolve over time; what once was a "natural" and

"self-evident" ordering later comes to be seen as an artificial

and invidious constraint on human potential and freedom.

18

Shifting cultural, political, and social patterns at times come

to make past practices appear inconsistent with fundamental

principles upon which American society rests, an inconsis-

tency legally cognizable under the Equal Protection Clause.

It is natural that evolving standards of equality come to be

embodied in legislation. When that occurs, courts should

look to the fact of such change as a source of guidance on

evolving principles of equality.

Id. at 466 (Marshall, J., concurring in the judgment in part and dis-

senting in part) (citations omitted). This deference is especially appro-

priate in the often fact-based equal protection context1 and given the

command in City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157

(1997), that we give wide latitude to Congressional judgments as to

what legislation is needed to secure the guarantees of the Fourteenth

Amendment, id. at 2163 & 2171.

In enacting the ADA, Congress gathered extensive evidence recog-

nizing that the disabled had long been subjected to invidious discrimi-

nation, and had not enjoyed the equal protection under the law

guaranteed by the Constitution. U.S. Const. amend. XIV, § 1. On sev-

eral occasions in its argument the Appellees pointed out that the ADA

often mandates changes based on differences of only a few inches --

e.g., in the width of a door frame or in the height of a toilet seat. By

this argument the Appellees unwittingly revealed the accuracy of

Congress' determination that unconstitutional invidious discrimina-

tion against the disabled abounds. Appellees are correct; often the dif-

ference between accommodating the disabled and leaving them

segregated and excluded is only a difference of a few inches. But, for

the disabled, "almost" is not good enough. From the perspective of a

disabled American, the absence of these accommodations in a build-

ing, a hallway, a bathroom, or a state-run program is tantamount to

a sign that says, "No disabled allowed." A state's failure to consider

_________________________________________________________________

1 Cf. Clark v. State of California , 123 F.3d 1267, 1271 (9th Cir. 1997)

(concluding that the Supreme Court's level of scrutiny for purposes of

Equal Protection review does not define the boundaries of Congress' § 5

enforcement powers); Kimel v. State of Fla. Bd. of Regents, 139 F.3d

1426, 1441 (11th Cir. 1998) (Hatchett, C.J., concurring in the judgment

in part and dissenting in part) (same).

19

these necessary and often minor accommodations when designing

buildings and programs is invidious discrimination in a most perni-

cious form -- willful blindness. The state effectively tells the dis-

abled, "As far as we are concerned you do not exist." Like so many

in the rest of society, the state simply averts its eyes when confronted

with a member of the disabled, and tries to ignore the person as the

state goes about its business.

But this deliberate ignorance is unreasonable and irrational. The

disabled are as much a part of society as are those of us fortunate

enough not to be challenged. The need to have a ramp for a building

and accessible toilets and showers is as evident as the need to have

doors and bathrooms in the first place.2 A state's decision to construct

facilities and design programs as if the disabled are not a part of soci-

ety stems from attitudes formed during a "`lengthy and tragic history'

of segregation and discrimination," City of Cleburne, 473 U.S. at 461

(Marshall, J., concurring in the judgment in part and dissenting in

part) (quoting Univ. of Cal. Regents v. Bakke , 438 U.S. 265, 303

(1978)), which continues to affect the daily lives of the disabled. Such

considerations should not be overlooked.

WILLIAMS, Circuit Judge, dissenting:

By enacting the Americans with Disabilities Act (ADA) and the

Rehabilitation Act, Congress has, in my opinion, attempted to expand

the scope of substantive constitutional rights under the Fourteenth

Amendment by subjecting state action that incidentally burdens the

disabled to a higher level of judicial scrutiny than what the Supreme

Court held to be required by the Constitution in City of Cleburne v.

Cleburne Living Ctr. Inc., 473 U.S. 432, 446 (1985) (holding that

state action affecting the disabled is constitutional if "rationally

related to a legitimate government purpose"). In light of the Supreme

_________________________________________________________________

2 For instance, we would have no problem finding that the absence of

bathrooms or programs accessible to women in a state facility open to

women constitutes irrational discrimination. We would come to this con-

clusion not because distinctions based on gender are subject to height-

ened equal protection scrutiny, but because it is simply unreasonable to

ignore the needs of this group, whether by "oversight" or design, when

such needs can be reasonably accommodated.

20

Court's landmark decision in City of Boerne v. Flores, 117 S. Ct.

2157, 2164 (1997) (reaffirming that Congress cannot expand the sub-

stantive scope of the Fourteenth Amendment), and this Court's recent

decision in Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d

698, 705 (4th Cir. 1999) (striking down a regulation promulgated

under the ADA in light of Boerne and Cleburne), I am constrained to

conclude that Congress exceeded its power under Section 5 of the

Fourteenth Amendment in enacting the ADA and the Rehabilitation

Act. Because Congress has failed validly to abrogate the State of

Maryland's Eleventh Amendment immunity, and the State of Mary-

land has not waived its Eleventh Amendment immunity by accepting

federal funds, I respectfully dissent.1

I.

It is well established that immunity under the Eleventh Amendment

affects our subject matter jurisdiction. See Brown v. North Carolina

_________________________________________________________________

1 In enacting the ADA, Congress announced its intent "to invoke the

sweep of congressional authority, including the power to enforce the

[F]ourteenth [A]mendment and to regulate commerce, in order to address

the major areas of discrimination faced day-to-day by people with dis-

abilities." 42 U.S.C.A. § 12101(b)(4) (West 1995). Because of the pos-

ture of this case, however, I need not address whether Congress has the

authority to apply the ADA to state prisons under the Commerce Clause.

In their suit, Plaintiffs sought monetary damages and injunctive relief. It

is undisputed, however, that Plaintiffs sued Defendants in their official

capacities only. As a result, only the State of Maryland is potentially lia-

ble for monetary damages. As noted above, Congress cannot abrogate the

State of Maryland's Eleventh Amendment immunity when enacting leg-

islation pursuant to the Commerce Clause. See Seminole Tribe of Florida

v. Florida, 517 U.S. 44, 59-73 (1996). In addition, none of the Plaintiffs,

most of whom are no longer incarcerated by the State of Maryland, are

currently housed at the Roxbury Correctional Institution (RCI) in

Hagerstown, Maryland, the institution to which all of Plaintiffs' claims

were directed. As a result, Plaintiffs' claims for injunctive relief are

moot. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (holding

that prisoner's transfer to another facility mooted his claims for injunc-

tive relief); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986)

(holding that prisoner's transfer mooted a request for declaratory and

injunctive relief).

21

Div. of Motor Vehicles, 166 F.3d 698, 701 (4th Cir. 1999). Thus,

when raised by a State, as it was here by the State of Maryland, this

Court must first address whether Eleventh Amendment immunity is

applicable.2 See Wisconsin Dep't of Corrections v. Schacht, 118 S. Ct.

2047, 2052 (1998) (holding that a court can ignore Eleventh Amend-

ment immunity only if a state fails to raise the question). For the rea-

sons that follow, I conclude that this suit should have been dismissed

for lack of subject matter jurisdiction. See Steel Co. v. Citizens for a

Better Environment, 118 S. Ct. 1003, 1012 (1998) ("Jurisdiction is

power to declare the law, and when it ceases to exist, the only func-

tion remaining to the court is that of announcing the fact and dismiss-

ing the cause." (internal quotation marks omitted)).

The Eleventh Amendment provides as follows:

The Judicial power of the United States shall not be con-

strued 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.

U.S. Const. amend. XI. The Eleventh Amendment not only prohibits

suits brought against States in federal court by citizens of other States,

but also prohibits suits, such as the one here, brought against a State

in federal court by its own citizens. See Hans v. Louisiana, 134 U.S.

1, 15-16 (1890). Thus, whether this Court has subject matter jurisdic-

tion depends on whether the State of Maryland's Eleventh Amend-

ment immunity has been either abrogated or waived.

_________________________________________________________________

2 The majority erroneously states that the State of Maryland has con-

ceded that "[t]he defense of sovereign immunity is not available." Ante

at 17 (citing Appellees' S. Br. at 37). Although the State of Maryland has

conceded that "[t]he defense of qualified immunity is not available,"

(Appellees' S. Br. at 37), the State of Maryland specifically argues that

if "neither the ADA nor the Rehabilitation Act can constitutionally be

extended to state prisons as an exercise of Congress' enforcement power

under § 5 of the Fourteenth Amendment, . . . then the Inmates' claims

in federal court are barred in their entirety by the Eleventh Amendment,"

(Appellees' S. Br. at 37).

22

A.

In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the Supreme

Court recently considered the issue of when Congress can properly

abrogate a State's Eleventh Amendment immunity. In Seminole, the

Supreme Court specifically held that Congress had no authority to

abrogate a State's sovereign immunity under the Eleventh Amend-

ment when it enacted legislation pursuant to the Commerce Clause.

See id. at 59-73. In contrast, Congress may abrogate a State's sover-

eign immunity when it enacts valid legislation pursuant to Section 5

of the Fourteenth Amendment.3See Fitzpatrick v. Bitzer, 427 U.S.

445, 456 (1976) ("[T]he Eleventh Amendment, and the principle of

state sovereignty which it embodies, are necessarily limited by the

enforcement provisions of § 5 of the Fourteenth Amendment." (cita-

tion omitted)). Thus, whether Congress had the authority to abrogate

the State of Maryland's Eleventh Amendment immunity turns on

whether Congress had the authority under Section 5 of the Fourteenth

Amendment to enact the ADA and the Rehabilitation Act. See

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985) (holding

that the courts must ensure that Congress was "acting pursuant to § 5

of the Fourteenth Amendment").

The Fourteenth Amendment provides, in pertinent part, as follows:

Section 1. . . . . No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person

_________________________________________________________________

3 In addition, Congress must express its intent to abrogate the States'

Eleventh Amendment immunity by providing "a clear legislative state-

ment," i.e., by "making its intention unmistakably clear in the language

of the statute." Seminole Tribe v. Florida , 517 U.S. 44, 54 (1996) (citing

Blatchford v. Native Village of Noatak & Circle Village, 501 U.S. 775,

785 (1991), and Dellmuth v. Muth, 491 U.S. 223, 224-25 (1989)). Both

parties agree that the ADA, see 42 U.S.C.A. § 12202 (West 1995) ("A

State shall not be immune under the [E]leventh[A]mendment . . . ."), and

the Rehabilitation Act, see 42 U.S.C.A.§ 2000d-7(a)(1) (West 1994) ("A

State shall not be immune under the Eleventh Amendment . . . ."),

include clear statements of Congress's intent to abrogate the States'

Eleventh Amendment immunity.

23

of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protec-

tion of the laws.

....

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

U.S. Const. amend. XIV, §§ 1, 5. Section 5"is a positive grant of leg-

islative power authorizing Congress to exercise its discretion in deter-

mining whether and what legislation is needed to secure the

guarantees of the Fourteenth Amendment." Katzenbach v. Morgan,

384 U.S. 641, 651 (1966). In fact, "when properly exercising its

power under § 5, Congress is not limited by the same Tenth Amend-

ment constraints that circumscribe the exercise of its Commerce

Clause powers." EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983)

(emphasis added) (citing City of Rome v. United States, 446 U.S. 156,

179 (1980)). Congress's power to enact legislation under the Four-

teenth Amendment is not unlimited, however. See, e.g., City of

Boerne v. Flores, 117 S. Ct. 2157, 2171-72 (1997) (holding that the

Religious Freedom Restoration Act is "a considerable congressional

intrusion into the States' traditional prerogatives," and that Congress

exceeded its power under the Fourteenth Amendment in enacting the

statute); Gregory v. Ashcroft, 501 U.S. 452, 469 (1991) (stating that

"the Fourteenth Amendment does not override all principles of feder-

alism"); Oregon v. Mitchell, 400 U.S. 112, 128 (1970) (noting that

"[a]s broad as the congressional enforcement power is, it is not unlim-

ited"). For instance, Congress's power "extends only to enforcing the

provisions of the Fourteenth Amendment." Boerne, 117 S. Ct. at 2164

(emphasis added) (internal quotation marks and alteration omitted).

Of perhaps equal importance, Congress does not possess "the power

to determine what constitutes a constitutional violation." Id. "In other

words, Congress has the power to remedy violations of constitutional

rights, not [the power] to define the substance of those rights." Brown,

166 F.3d at 705.

The standard for determining whether an exercise of Congress's

Section 5 power is appropriate was set forth in Boerne: The injury to

be prevented or remedied must be a "constitutional violation[ ],"

24

Boerne, 117 S. Ct. at 2163, and the means employed must be congru-

ent and proportional to any such violation, see id. at 2164. Although

Congress has the power to remedy violations of constitutional rights,

it bears repeating that the Supreme Court in Boerne specifically

rejected the notion that Congress can expand or define the substantive

scope of constitutional rights using its Section 5 powers:

Congress does not enforce a constitutional right by changing

what the right is. It has been given the power "to enforce,"

not the power to determine what constitutes a constitutional

violation. Were it not so, what Congress would be enforcing

would no longer be, in any meaningful sense, the"provi-

sions of [the Fourteenth Amendment]."

Boerne, 117 S. Ct. at 2164 (alteration in original).

In Boerne, the Supreme Court decided that, in enacting the Reli-

gious Freedom Restoration Act (RFRA), Congress had impermissibly

attempted to expand the scope of substantive constitutional rights

under the Fourteenth Amendment by subjecting generally applicable

state laws that had the effect of burdening religion to a higher level

of judicial scrutiny than that required by the Supreme Court in

Employment Division v. Smith, 494 U.S. 872, 887-88 (1990). In sum,

the Supreme Court held that Congress could not create a substantive

constitutional right to "strict scrutiny" for state action to which the

Supreme Court had already determined that a lower standard of

review should apply. See Boerne, 117 S. Ct. at 2170. In so holding,

the Supreme Court made the following observation about RFRA:

The stringent test RFRA demands of state laws reflects a

lack of proportionality or congruence between the means

adopted and the legitimate end to be achieved. If an objector

can show a substantial burden on his free exercise, the State

must demonstrate a compelling governmental interest and

show that the law is the least restrictive means of furthering

its interest. . . . Laws valid under Smith would fall under

RFRA without regard to whether they had the object of sti-

fling or punishing free exercise. We make these observa-

tions . . . to illustrate the substantive alteration of [Smith's]

holding attempted by RFRA. Even assuming RFRA would

25

be interpreted in effect to mandate some lesser test, say one

equivalent to intermediate scrutiny, the statute nevertheless

would require searching judicial scrutiny of state law with

the attendant likelihood of invalidation. This is a consider-

able congressional intrusion into the States' traditional pre-

rogatives and general authority to regulate for the health and

welfare of their citizens.

Id. at 2171.

In City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432

(1985), the Supreme Court expressly rejected an attempt to make the

mentally disabled a suspect, or quasi-suspect, class for Equal Protec-

tion purposes:

[W]e conclude for several reasons that the Court of Appeals

erred in holding mental retardation a quasi-suspect classifi-

cation calling for a more exacting standard of judicial

review than is normally accorded economic and social legis-

lation.

Cleburne, 473 U.S. at 442. The Supreme Court determined that state

action placing incidental burdens on the mentally disabled would be

subject to rational basis scrutiny. See id. at 446 (holding that state

action affecting the mentally disabled is constitutional if "rationally

related to a legitimate governmental purpose"); see also Doe v. Uni-

versity of Md. Medical Sys. Corp., 50 F.3d 1261, 1267 (4th Cir. 1995)

(extending rational basis scrutiny to all disabilities). As the First Cir-

cuit recently noted:

Congress' section five enforcement power, as it pertains to

the Equal Protection Clause in cases not involving suspect

or quasi-suspect classes or fundamental interests, is limited

to the elimination of arbitrariness or the effects of arbitrary

government action, and does not permit Congress to prohibit

or otherwise target reasonable state decisions or practices.

Mills v. Maine, 118 F.3d 37, 47 (1st Cir. 1997); see also Brown, 166

F.3d at 706-07 (noting that arbitrary and irrational discrimination vio-

lates the Equal Protection Clause under rational basis scrutiny).

26

A careful review of the Supreme Court's decisions in Boerne and

Cleburne, reveals an amazing similarity between the ADA and

RFRA. As Judge Smith recently noted:

Both RFRA and the ADA purport to establish greater rights

for individuals against the states by increasing the measure

of judicial scrutiny for conflicting state actions to a level

higher than the Supreme Court has found appropriate under

the Fourteenth Amendment. . . . [T]he ADA increases the

judicial scrutiny level applicable for disabled persons by

requiring a closer nexus between the governmental purpose

and the governmental means than presently exists under

rational basis scrutiny. The ADA mandates an affirmative

justification for a state action that has the effect of inciden-

tally burdening these non-suspect classes of persons; a

state's actions are no longer presumptively valid if rationally

related to the interests that they serve. Instead, the state must

make "reasonable accommodations" for the disabled -- and

only once the state can show that it cannot "reasonably

accommodate" will the courts validate the state's chosen

policy.

Coolbaugh v. Louisiana, 136 F.3d 430, 440-41 (5th Cir. 1998)

(Smith, J., dissenting) (internal citation omitted). A panel of this

Court recently came to the same conclusion, i.e. , the ADA, like

RFRA, impermissibly attempts to subject state action to higher level

of judicial scrutiny than the Supreme Court has found appropriate

under the Fourteenth Amendment. See Brown, 166 F.3d at 708.

Although the panel in Brown considered the validity of a regulation

promulgated under the ADA, rather than the ADA itself, I believe that

the panel's reasoning controls the issue before us today. In holding

that the regulation at issue did not lie within the scope of Congress's

enforcement power under the Fourteenth Amendment, the panel in

Brown specifically held that the level of judicial scrutiny required by

the ADA was incompatible with the more lenient rational basis test

established in Cleburne. See id. In fact, as this Court noted, the ADA

was simply not intended to remedy violations of the standard estab-

lished in Cleburne. See id. Rather, the ADA was intended to effect a

"`substantive alteration of [Cleburne's] holding.'" Id. (quoting

27

Boerne, 117 S. Ct. at 2171). As a result, State actions that are ratio-

nally based and perfectly constitutional under Cleburne are invalid

under the ADA. In that crucial respect, the ADA is nearly indistin-

guishable from RFRA, i.e., the ADA is definitional rather than reme-

dial. Indeed, as Judge Smith observed, by changing but a few words

in Boerne, the Supreme Court could well have been speaking about

the ADA:

The stringent test [the ADA] demands of state laws

reflects a lack of proportionality or congruence between the

means adopted and the legitimate end to be achieved. If an

objector can show a substantial burden [of his rights under

the ADA], the State must [show that it cannot reasonably

accommodate him]. . . . Laws valid under [Cleburne] would

fall under [the ADA] without regard to whether they [were

rationally related to a legitimate governmental purpose]. We

make these observations . . . to illustrate the substantive

alteration of [Cleburne's] holding attempted by [the ADA].

Even assuming [the ADA] would be interpreted in effect to

mandate some lesser test, say one equivalent to intermediate

scrutiny, the statute nevertheless would require searching

judicial scrutiny of state law with the attendant likelihood of

invalidation. This is a considerable congressional intrusion

into the States' traditional prerogatives and general authority

to regulate for the health and welfare of their citizens.

Boerne, 117 S. Ct. at 2171.

Prior to this Court's decision in Brown, five Circuits published

opinions upholding the ADA as a valid exercise of Congress's Sec-

tion 5 powers. See Kimel v. Florida Bd. of Regents, 139 F.3d 1426,

1433 (11th Cir. 1998), cert. granted, 119 S. Ct. 901 (1999); Autio v.

AFSCME, Local 3139, 140 F.3d 802, 806 (8th Cir. 1998), vacated,

140 F.3d 802, reh'g en banc, 157 F.3d 1141 (affirming district court's

decision upholding the ADA by an evenly divided vote); Coolbaugh

v. Louisiana, 136 F.3d 430, 432 (5th Cir.), cert. denied, 119 S. Ct. 58

(1998); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997), cert.

denied, 118 S. Ct. 2340 (1998); and Crawford v. Indiana Dep't of

Corrections, 115 F.3d 481, 487 (7th Cir. 1997). Despite that fact, it

is worth noting that a number of appellate and district court judges

28

have come to the opposite conclusion. See Autio , 157 F.3d at 1141

(Bowman, C.J., & Wollman, Beam, Loken, Hansen, & Morris Shep-

pard Arnold, JJ.) (concluding that Congress exceeded its power under

Section 5 of the Fourteenth Amendment in enacting the ADA); Kimel,

139 F.3d at 1444 (Cox, J., dissenting) (noting that the disabled enjoy

no special rights under the Equal Protection Clause); Coolbaugh, 136

F.3d at 439 (Smith, J., dissenting) (noting that in the wake of Boerne,

Congress could not, consistent with the Fourteenth Amendment,

increase the level of scrutiny for states' actions that incidently burden

disabled persons); Kilcullen v. New York State Dep't of Trans., 33 F.

Supp.2d 133 (N.D.N.Y. 1999) (same); Hedgepeth v. Tennessee, 33 F.

Supp.2d 668, 675 (W.D. Tenn. 1998) (same); Garrett v. Board of

Trustees of University of Ala. in Birmingham, 989 F. Supp. 1409

(N.D. Ala. 1998) (same); Brown v. North Carolina Div. of Motor

Vehicles, 987 F. Supp. 451 (E.D.N.C. 1997) (same); Nihiser v. Ohio

E.P.A., 979 F. Supp. 1168, 1170-76 (S.D. Ohio 1997) (same). Like

the aforementioned judges, I conclude -- and would so conclude even

without this Court's recent decision in Brown , which I believe to be

controlling here -- that Congress exceeded its power under Section

5 of the Fourteenth Amendment by enacting the ADA.

Congress does not possess the power under Section 5 of the Four-

teenth Amendment to supersede a Supreme Court decision construing

the substantive rights embodied by the Constitution. See United States

v. Dickerson, 166 F.3d 667, 687 (4th Cir. 1999). In Cleburne, the

Supreme Court held that the disabled are not a class entitled to

increased Fourteenth Amendment protection. In light of the Supreme

Court's decision in Cleburne, Congress does not have the power to

declare otherwise in the ADA. See Marbury v. Madison, 5 U.S. (1

Cranch) 137 (1803). Following this Court's decision in Brown, which

faithfully applied the dictates of Boerne and Cleburne, I am con-

strained to conclude that Congress exceeded its authority under Sec-

tion 5 of the Fourteenth Amendment in attempting to abrogate

Maryland's sovereign immunity with the ADA.

B.

In Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), the

Supreme Court considered whether a State waives its Eleventh

Amendment immunity by accepting federal funds under a federal pro-

29

gram enacted pursuant to the Spending Clause. In Atascadero, the

Supreme Court specifically held that "the mere receipt of federal

funds cannot establish that a State has consented to suit in federal

court." Id. at 246-47. Rather, the statute in question must expressly

"condition participation in the program funded under the Act on a

State's consent to waive its constitutional immunity." Id. at 247.

In response to the Supreme Court's decision in Atascadero, Con-

gress amended the Rehabilitation Act as follows:

(1) A State shall not be immune under the Eleventh

Amendment of the Constitution of the United States from

suit in Federal court for a violation of section 504 of the

Rehabilitation Act of 1973 . . . or the provisions of any other

Federal statute prohibiting discrimination by recipients of

Federal financial assistance.

(2) In a suit against a State for a violation of a statute

referred to in paragraph (1), remedies (including remedies

both at law and in equity) are available for such a violation

to the same extent as such remedies are available for such

a violation in the suit against any public or private entity

other than a State.

42 U.S.C.A. § 2000d-7(a) (West 1994). Without question, Congress,

by enacting § 2000d-7(a), has expressed its intent to abrogate the

States' Eleventh Amendment immunity. See Franklin v. Gwinnett

County Pub. Sch., 503 U.S. 60, 72 (1992) (noting that Congress, by

enacting § 2000d-7, expressed its intent to"abrogate" the States'

Eleventh Amendment immunity under the Rehabilitation Act). I ques-

tion, however, whether the language of § 2000d-7 sufficiently "condi-

tions" a State's receipt of federal funds under the Rehabilitation Act

on that State's "consent" to waive its Eleventh Amendment immunity.

As the Supreme Court recently noted, the doctrines of abrogation

and waiver are "completely unrelated." Seminole Tribe, 517 U.S. at

63. With respect to the Eleventh Amendment, abrogation deals with

Congress's power under Section 5 of the Fourteenth Amendment to

subject unconsenting States to federal court jurisdiction. See

Atascadero, 473 U.S. at 242-46. In contrast, waiver deals with, among

30

other things, Congress's power under the Spending Clause to condi-

tion the receipt of federal funds on a State's consent to federal juris-

diction. See id. at 246-47. Thus, while statutory language may be

sufficient to satisfy the demands of abrogation, it may nonetheless fail

to satisfy the demands of waiver. Here, the language in question sim-

ply placed the State of Maryland on notice that it could be sued in

federal court if the Rehabilitation Act was a valid exercise of Con-

gress's power under Section 5 of the Fourteenth Amendment. Indeed,

the statute did not use the type of words or phrases, e.g. "if," "pro-

vided that," "when," "after," "as soon as," and "subject to," that would

indicate that the receipt of funds had been made conditional. Because

§ 2000d-7(a) did not, as the Supreme Court requires, "expressly con-

dition" the State of Maryland's receipt of federal funds under the

Rehabilitation Act on its consent to waive its constitutional immunity,

there is no indication that the State of Maryland knowingly and vol-

untarily waived its Eleventh Amendment immunity.

II.

Because the State of Maryland's Eleventh Amendment immunity

was neither abrogated nor waived, this case should have been dis-

missed for lack of subject matter jurisdiction. Accordingly, I respect-

fully dissent.

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