Erickson, Melinda v. Bd Governors State

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3614

Melinda Erickson,

Plaintiff-Appellee,

United States of America,

Intervenor,

v.

Board of Governors of State Colleges and

Universities for Northeastern Illinois University,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 2541--John A. Nordberg, Judge.

Argued April 27, 1999--Decided March 27, 2000

Before Eschbach, Easterbrook, and Diane P. Wood, Circuit

Judges.

Easterbrook, Circuit Judge. We must decide

whether Title I of the Americans with

Disabilities Act, 42 U.S.C. sec.sec. 12111-17, is

an exercise of power under sec.5 of the

Fourteenth Amendment, which confers authority "to

enforce, by appropriate legislation, the

provisions of this article." Defendant in this

suit is an arm of Illinois and therefore one of

the United States for purposes of the Eleventh

Amendment. Congress has power under the Commerce

Clause to adopt the ADA’s rules, but given the

Eleventh Amendment a statute that rests only on

the Commerce Clause can not authorize private

suits against states in federal court. Seminole

Tribe v. Florida, 517 U.S. 44 (1996). But if

sec.5 bestows power to adopt the ADA, then private

litigation is compatible with the Eleventh

Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445

(1976).

Melinda Erickson worked for five years in the

College of Business and Management at

Northeastern Illinois University, rising from

secretary to "program associate." She contends

that the University failed to accommodate her

efforts to have children. Medical care for her

infertility was physically demanding and had side

effects. Both the treatment and the circumstances

that gave rise to it were emotionally draining.

Erickson often did not come to work and was late

on days when she did appear. She was fired after

she became distraught and stayed home for six

working days. Erickson does not contend that the

attendance requirements were designed to

discriminate against persons with disabilities.

Instead she argues that the University should

have tolerated absences and tardiness that it

would not have condoned from a healthy employee.

Invoking the Eleventh Amendment, the University

filed a motion to dismiss, which the district

court denied. 1998 U.S. Dist. Lexis 15779 (N.D.

Ill. Oct. 1, 1998). The University’s

interlocutory appeal is within our jurisdiction,

see Seminole Tribe, 517 U.S. at 52, even though

the University does not assert sovereign immunity

with respect to Erickson’s claim under the

Pregnancy Discrimination Act, 42 U.S.C.

sec.2000e(k). Scott v. Lacy, 811 F.2d 1153 (7th

Cir. 1987). Cf. Wisconsin Department of

Corrections v. Schacht, 524 U.S. 381 (1998). The

United States intervened as a party in this court

to defend the ADA’s constitutionality. See 28

U.S.C. sec.2403(a).

Three times during the last four Terms, the

Supreme Court has addressed the extent of

legislative power under sec.5. Kimel v. Florida

Board of Regents, 120 S. Ct. 631 (2000); Florida

Prepaid Postsecondary Education Expense Board v.

College Savings Bank, 527 U.S. 627 (1999); Boerne

v. Flores, 521 U.S. 507 (1997). Thrice it has

stressed that the language of sec.5, which gives

Congress the power to "enforce" the Fourteenth

Amendment, must be taken seriously. Statutes that

create new rights, or expand old rights beyond

the Fourteenth Amendment’s bounds, do not

"enforce" that amendment.

Boerne dealt with the Religious Freedom

Restoration Act of 1993 (RFRA), 42 U.S.C. sec.sec.

2000bb to 2000bb-4, a response to Employment

Division v. Smith, 494 U.S. 872 (1990). Smith had

held that the Free Exercise Clause of the First

Amendment never requires accommodation of

religiously inspired practices, so that laws

neutral with respect to religion are valid. The

RFRA, by contrast, obliged states to accommodate

practices associated with religion. The Court

held that an accommodation requirement could not

be thought to "enforce" a constitutional norm

that does not require accommodation. Florida

Prepaid held that Congress may not use sec.5 to

abrogate state sovereign immunity on the ground

that statutory rights are "property" under the

Fourteenth Amendment. Kimel held that sec.5 does

not support the Age Discrimination in Employment

Act, 29 U.S.C. sec.sec. 621-34, because although

the ADEA forbids consideration of an employee’s

age unless age is a "bona fide occupational

qualification reasonably necessary to the normal

operation of the particular business",

sec.623(f)(1), the Constitution’s own requirement

is considerably more lenient. The Equal

Protection Clause permits a state to consider a

person’s age unless age lacks a rational

relationship to the state’s objective. Most

consideration of age in employment therefore is

constitutional; but under the ADEA most

consideration of age is forbidden; Kimel

therefore held that the ADEA sets up an

independent rule and does not "enforce" the

Constitution’s rule.

Twenty-three days before the Supreme Court

decided Boerne, we held in Crawford v. Indiana

Department of Corrections, 115 F.3d 481, 487 (7th

Cir. 1997), that sec.5 supports Title II of the

ADA, which deals with public services. Our opinion

analogized the ADA to the ADEA and observed that

the latter statute had been applied to states in

private litigation. Kimel shows that if our

analogy to the ADEA is precise, then Crawford is

no longer authoritative; Florida Prepaid and

Boerne likewise call for a fresh look at the

subject. Elsewhere a great deal of ink has been

spilled on this question. After Boerne but before

Kimel, panels of five appellate courts held that

sec.5 supplies the necessary legislative power,

though there was one squarely contrary holding by

a court en banc. Compare Muller v. Costello, 187

F.3d 298 (2d Cir. 1999); Coolbaugh v. Louisiana,

136 F.3d 430 (5th Cir. 1998); Clark v.

California, 123 F.3d 1267 (9th Cir. 1997); Martin

v. Kansas, 190 F.3d 1120 (10th Cir. 1999); and

Kimel v. Florida Board of Regents, 139 F.3d 1426,

1433, 1441-44 (11th Cir. 1998), with Alsbrook v.

Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc).

The fourth circuit is internally divided.

Although Amos v. Maryland Department of Public

Safety, 178 F.3d 212 (4th Cir. 1999) (rehearing

en banc granted Dec. 28, 1999), holds that

private ADA litigation may proceed against state

prisons, Brown v. North Carolina Division of

Motor Vehicles, 166 F.3d 698 (4th Cir. 1999),

held that a regulation, based on the ADA,

requiring the state’s Division of Motor Vehicles

to accommodate disabled drivers, is

unconstitutional. Recently a divided panel of the

ninth circuit disagreed with Brown. See Dare v.

California Department of Motor Vehicles, 191 F.3d

1167 (9th Cir. 1999). The Supreme Court’s opinion

in Kimel calls all of these decisions into

question, and we think it best to analyze the

subject afresh rather than to rehash pre-Kimel

conclusions in and out of this circuit. Believing

that the Supreme Court would tackle the issue

before July, the second circuit declined to

reconsider Muller in light of Kimel. See

Kilcullen v. New York State Department of Labor,

2000 U.S. App. Lexis 2714 (2d Cir. Feb. 24, 2000).

But settlements have dashed that hope; we

therefore undertake independent consideration.

Whether Congress has authorized federal

litigation against states is our initial

question. Kimel answered yes for the ADEA, see 120

S. Ct. at 640-42, and the same answer is

appropriate for the ADA. By incorporating 42

U.S.C. sec.2000e, the ADA defines persons, and

thus employers, to include units of government.

42 U.S.C. sec.12111(5)(A), (7). Fitzpatrick held

that sec.2000e is a sufficiently clear statement.

Section 12202 adds that "[a] State shall not be

immune under the eleventh amendment to the

Constitution of the United States from an action

in Federal or State court of competent

jurisdiction for a violation of this chapter."

Finally, just in case there were doubt,

sec.12101(b)(4) invokes all possible sources of

authority to enact the ADA, "including the power

to enforce the fourteenth amendment".

On the question whether a statute such as the

ADA enforces the Fourteenth Amendment, Kimel

establishes two principal propositions. First,

because the rational-basis test applies to age

discrimination, almost all of the ADEA’s

requirements stand apart from the Constitution’s

rule. Most age discrimination is rational, and

therefore constitutional, yet the Act forbids it.

The ADEA therefore does not "enforce" the

Fourteenth Amendment. 120 S. Ct. at 645-48.

Second, there is no need for prophylactic rules

to catch evasions of the rational-basis test by

state governments. Congress did not find that

such a problem exists, and there is no evidence

of one. The ADEA therefore cannot be understood as

enforcement legislation. 120 S. Ct. at 648-50.

Both of these propositions are true of the ADA as

well--indeed, the ADA is harder to conceive as

"enforcement" of the Fourteenth Amendment than is

the ADEA. Under the ADEA employers must ignore age

but are free to act on the basis of attributes

such as strength, mental acuity, and salary that

are related to age. Hazen Paper Co. v. Biggins,

507 U.S. 604 (1993). In other words, the ADEA

forbids disparate treatment but not disparate

impact. EEOC v. Francis W. Parker School, 41 F.3d

1073, 1077 (7th Cir. 1994); Anderson v. Baxter

Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994).

Likewise with the Constitution and most other

employment-discrimination laws. E.g., Troupe v.

May Department Stores Co., 20 F.3d 734 (7th Cir.

1994) (the Pregnancy Discrimination Act does not

require accommodation). Title I of the ADA, by

contrast, requires employers to consider and to

accommodate disabilities, and in the process

extends beyond the anti-discrimination principle.

42 U.S.C. sec.12112(b)(5)(A), (6) (defining

failure to accommodate, and criteria with

disparate impacts, as "discrimination"). (Some

other titles of the ADA are less expansive. See

Doe v. Mutual of Omaha Insurance Co., 179 F.3d

557 (7th Cir. 1999). Our concern in this case is

Title I, and unelaborated references to "the ADA"

are to Title I.)

A rational-basis test applies to distinctions on

the ground of disability, just as to distinctions

on the ground of age. Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 432, 439-42 (1985); Heller

v. Doe, 509 U.S. 312, 319-21 (1993); United

States v. Harris, 197 F.3d 870, 873-76 (7th Cir.

1999). Consideration of an employee’s

disabilities is proper, so far as the

Constitution is concerned. See Cleburne, 473 U.S.

at 444 ("governmental consideration of those

differences in the vast majority of situations is

not only legitimate but also desirable").

Consider this from the perspective of a

university such as our defendant. A would-be

professor who is not in the top 1% of the

population in mental acuity is not apt to be a

good teacher and scholar. Likewise it is rational

for a university to favor someone with good

vision over someone who requires the assistance

of a reader. The sighted person can master more

of the academic literature (reading is much

faster than listening), improving his chance to

be a productive scholar, and also is less

expensive (because the university need not pay

for the reader). An academic institution that

prefers to use a given budget to hire a sighted

scholar plus a graduate teaching assistant,

rather than a blind scholar plus a reader, has

complied with its constitutional obligation to

avoid irrational action. But it has not complied

with the ADA, which requires accommodation at any

cost less than "undue hardship". 42 U.S.C.

sec.12112(b) (5)(A), sec.12111(10). How the

"undue hardship" defense under the ADA compares

with the "bona fide occupational qualification"

defense under the ADEA is an interesting question,

but not one we need pursue: both statutes

presumptively forbid consideration of attributes

that the Constitution permits states to consider,

and then (like the RFRA) require the state to

carry a burden of persuasion in order to take the

characteristic into account. As in Kimel, the

fact that the law has made adverse action based

on a characteristic "prima facie unlawful" shows

the extent of its departure from the

Constitution’s own rule. 120 S. Ct. at 647. Like

the ADEA, the ADA "prohibits very little conduct

likely to be held unconstitutional," id. at 648.

The ADA’s main target is an employer’s rational

consideration of disabilities. Rational

discrimination by definition does not violate a

constitutional provision that condemns only

irrational distinctions based on disabilities.

Congress has ample power under the Commerce

Clause to forbid rational discrimination, which

may bear especially heavily on a class of persons

who suffer from diminished human (and often

financial) capital. But to say that in devising

these new rules Congress is just "enforcing" a

substantive command present in sec.1 of the

Fourteenth Amendment since 1868 would be a legal

fiction. Boerne, Florida Prepaid, and Kimel hold

that fictions do not support legislation under

sec.5.

One way to distinguish the ADA from the ADEA would

be to emphasize a remark in Kimel that "[o]ld age

. . . does not define a discrete and insular

minority because all persons, if they live out

their normal life spans, will experience it." 120

S. Ct. at 645. The argument would continue that

many disabilities are immutable; few people born

blind acquire vision later. We do not read the

Court’s observation in Kimel as distinguishing

among characteristics that are subject to

rational-basis review; instead the Court offered

the observation as one reason why earlier cases

had applied the rational-basis test to age.

Because Cleburne held that the rational-basis

test likewise governs disabilities, the reasoning

behind that opinion need not come back into

consideration. We know from Cleburne that

rational distinctions based on disabilities

comport with the Constitution. What is more, many

disabilities come and go, or progress with time.

Beethoven did not become deaf, or Milton blind,

until middle age. Erickson’s medical problem

affected her for a number of years but not for a

lifetime (if only because medical treatment may

have succeeded, or because after menopause it

would have lost significance). One can imagine an

argument under sec.5 for a federal law dealing

with discrimination against persons with life-

long disabilities, but the ADA is not such a law--

not only because it extends beyond permanently

disabled persons, but also because

"discrimination" as the ADA defines it, see

sec.12112(b), has little in common with

"discrimination" in constitutional law.

To see this, consider the role of intent. When

a state law or practice does not expressly

concern a particular characteristic (such as

race, sex, age, or disability), but has a

disparate impact on persons with that

characteristic, the plaintiff in constitutional

litigation must establish that the state intends

to discriminate on the basis of that

characteristic. See, e.g., Personnel

Administrator v. Feeney, 442 U.S. 256 (1979)

(sex); Washington v. Davis, 426 U.S. 229 (1976)

(race). Things are otherwise under the ADA, which

not only demands accommodation (which forces the

employer to consider, rather than ignore,

disabilities) but also prohibits any rule or

practice that has a disparate impact, unless the

rule is "job-related for the position in question

and is consistent with business necessity". 42

U.S.C. sec.12112(b)(6). See Washington v. Indiana

High School Athletic Ass’n, 181 F.3d 840 (7th

Cir. 1999) (under the ADA the plaintiff need not

show that the governmental body intended to

discriminate on account of disability). Cases

such as Feeney and Davis hold that the Equal

Protection Clause does not forbid laws and

practices that have a disparate impact; but the

ADA does forbid them.

By requiring that employers accommodate rather

than disregard disabilities, the ADA is a cousin

to the RFRA. Smith held that demands for

accommodation and claims of disparate impact have

no constitutional footing under the Free Exercise

Clause; it takes express or intentional

discrimination to violate that provision. See

also Church of the Lukumi Babalu Aye, Inc. v.

Hialeah, 508 U.S. 520 (1993). Congress then

enacted the RFRA, which requires every unit of

government to justify any law or practice that

burdens a person’s exercise of religion, "even if

the burden results from a rule of general

applicability". 42 U.S.C. sec.2000bb-1(a). This

requires a state to accommodate religiously

motivated behavior unless it can show a

"compelling" reason for neutrality between

religious and secular conduct. Boerne responded

that Congress may not redefine the constitutional

rule under the rubric of "enforcement."

What the RFRA did for religion, the ADA does for

disabilities. In neither situation does the

Constitution forbid neutral laws or practices

that create disparate impacts; in neither

situation does the Constitution require

accommodation. Both the RFRA and the ADA replace

the Constitution’s approach with a prohibition of

disparate impact and jettison neutrality in favor

of accommodation. The RFRA’s demand for a

"compelling governmental interest", 42 U.S.C.

sec.2000bb-1(b)(1), made it harder for a

government to prevail than do the ADA’s

requirements (job-relatedness, business

necessity, and undue hardship), but there is a

countervailing difference that makes the ADA the

more adventuresome. The Free Exercise Clause

forbids all intentional discrimination against

religious practices; the Equal Protection Clause

has no similar rule about disabilities. Rational

discrimination against persons with disabilities

is constitutionally permissible in a way that

rational discrimination against religious

practices is not. This makes the ADA harder than

the RFRA to justify under sec.5, for "[i]t is

precisely in a close case that the independent

judgment of Congress on a constitutional question

should make a difference." Michael W. McConnell,

Institutions and Interpretation: A Critique of

City of Boerne v. Flores, 111 Harv. L. Rev. 153,

155 (1997). See also Stephen L. Carter, The

Morgan "Power" and the Forced Reconsideration of

Constitutional Decisions, 53 U. Chi. L. Rev. 819

(1986). Some of the Justices and several careful

scholars believe that the rule of decision in the

RFRA is the Constitution’s own. See Boerne, 521

U.S. at 544 (O’Connor, J., dissenting), 565

(Souter, J., dissenting). Others who support the

majority position in Smith acknowledge that the

question is difficult. See generally Symposium,

Reflections on City of Boerne v. Flores, 39

William & Mary L. Rev. 597 (1998). But no one

believes that the Equal Protection Clause

establishes the disparate-impact and mandatory-

accommodation rules found in the ADA. The statute

is outside the boundaries of constitutional

discourse in a way that the RFRA was not. If the

RFRA and the ADEA exceed the sec.5 power, then so

does the ADA--at least to the extent it extends

beyond remedies for irrational discrimination.

Well, then, can the ADA be sustained as

reasonable prophylactic legislation? Because the

ADA requires accommodation, forbids practices with

disparate impact, and disregards the employer’s

intent, it is harder than the ADEA to characterize

as a remedial measure. The ADEA was a real anti-

discrimination law; unless age was held against

the employee, there was no violation. The ADA goes

beyond the anti-discrimination principle, a step

that requires reason to think that only by going

to these lengths is it possible to implement the

core constitutional rule. Yet just as for the

ADEA, Congress did not find that states have

adopted clever devices that conceal irrational

discrimination. The legislative findings in 42

U.S.C. sec.12101 contain not a word about state

governments. Congress did find that persons with

disabilities have been discriminated against; it

found the same in the ADEA for age. What it did

not find is that the practices labeled

"discrimination" are irrational (as that term

works under the Equal Protection Clause) or that

states are major offenders--a critical inquiry

not only under Kimel but also under Florida

Prepaid. Instead, Congress used the word

"discrimination" in sec.12101, and Committees of

Congress used that word in the legislative

history, to refer to any disadvantage that

accompanies a disability. For example, the

statement in H.R. Rep. No. 101-485(II), 101st

Cong. 2d Sess. 37 (1990), that "inconsistent

treatment of people with disabilities by

different State or local government agencies is

both inequitable and illogical for a society

committed to full access for people with

disabilities" means only that different public

bodies treated persons differently, because the

Rehabilitation Act applied to some persons but

not others; it does not mean that either

treatment was unconstitutional. "Inconsistent" is

not a synonym for irrational--especially not when

it was a federal statute that induced the

inconsistency on which the Committee remarked.

Just as in Kimel, legislative statements about

discrimination consist "almost entirely of

isolated sentences clipped from floor debates and

legislative reports." 120 S. Ct. at 649. These

snippets use the word "discrimination" in a way

that fails to distinguish between rational

distinctions (which the Constitution allows) and

irrational ones (which it forbids). The sort of

findings that would permit adoption of the ADA as

a precautionary measure, after the fashion of the

Voting Rights Act, see South Carolina v.

Katzenbach, 383 U.S. 301 (1966), must establish

that states have been able to disguise forbidden

discrimination as the permissible kind. Nothing

in the legislative findings, or the debates

preceding the ADA’s adoption, shows (or even

asserts) that state governments engaged in

deception that prevented victims of irrational

discrimination from obtaining a remedy. Findings

underlying Title VII were more substantial, and

because employers frequently disguised their

resort to racial criteria it is easier to justify

the disparate-impact features of Title VII as

remedial measures. In re Employment

Discrimination Litigation, 198 F.3d 1305 (11th

Cir. 1999), concludes accordingly that sec.5

supports the disparate-impact rules under Title

VII, as well as the disparate-treatment rules

addressed in Fitzpatrick v. Bitzer. We leave that

question for another day and hold only that the

background of the ADA does not meet the standards

that Boerne and Kimel set for using sec.5 to

enact prophylactic legislation.

From all of this it follows that the ADA does

not "enforce" the Fourteenth Amendment, and from

Seminole Tribe it follows that the Eleventh

Amendment and associated principles of sovereign

immunity block private litigation against states

in federal court. But Northeastern Illinois

University must understand the limits of this

holding. The ADA is valid legislation, which both

private and public actors must follow. Even if

the Supreme Court should overrule Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S.

528 (1985), and return to the view of National

League of Cities v. Usery, 426 U.S. 833, 852

(1976), that laws resting only on the Commerce

Clause cannot "directly displace the States’

freedom to structure integral operations in areas

of traditional governmental functions," the

University still would be bound by the ADA, for

running a university is no more a core

governmental function than is running a railroad.

See United Transportation Union v. Long Island

R.R., 455 U.S. 678 (1982). Like most railroads,

most universities in the United States are

private. All our holding means is that private

litigation to enforce the ADA may not proceed in

federal court. Erickson may repair to Illinois

court--for although states may implement a

blanket rule of sovereign immunity, see Alden v.

Maine, 527 U.S. 706 (1999), Illinois has not done

this. Having opened its courts to claims based on

state law, including its own prohibition of

disability discrimination by units of state

government, see 775 ILCS 5/1-102, 5/2-

101(B)(1)(c), Illinois may not exclude claims

based on federal law. Howlett v. Rose, 496 U.S.

356, 367-75 (1990); FERC v. Mississippi, 456 U.S.

742, 759-69 (1982); Testa v. Katt, 330 U.S. 386

(1947). Moreover, the United States may enforce

the ADA against the University and other state

actors through federal litigation. West Virginia

v. United States, 479 U.S. 305, 311 n.4 (1987).

But Erickson has not enlisted the United States

as her champion (its intervention was for the

purpose of defending Erickson’s right to sue in

her own name), so this suit belongs in state

court.

Reversed

Diane P. Wood, Circuit Judge, dissenting. The

Americans with Disabilities Act, or ADA, 42

U.S.C. sec. 12111 et seq., stands at the

intersection of two lines of cases that address

Congress’s power under section 5 of the

Fourteenth Amendment to abrogate the Eleventh

Amendment immunity of the states. Laws that fall

within the section 5 power may abrogate the

States’ Eleventh Amendment immunity from suit, if

Congress has made its intent to abrogate

"unmistakably clear" in the language of the

statute. See City of Boerne v. Flores, 521 U.S.

507 (1997); Atascadero State Hospital v. Scanlon,

473 U.S. 234, 242 (1985). When the question has

been whether Title VII of the Civil Rights Act

represents a valid use of Congress’s power under

section 5, courts have answered in the

affirmative. See, e.g., Fitzpatrick v. Bitzer,

427 U.S. 445, 456-57 (1976); In re Employment

Discrimination Litigation Against State of

Alabama, 198 F.3d 1305, 1324 (11th Cir. 1999)

(finding that disparate impact analysis is a

valid prophylactic measure and thus that this

aspect of Title VII, equally with the disparate

treatment branch, is a valid exercise of section

5 power).

On the other hand, the Supreme Court has

recently ruled that the Age Discrimination in

Employment Act, or ADEA, 29 U.S.C. sec. 621-34,

exceeded Congress’s section 5 powers and thus

could not as a matter of law override the State’s

Eleventh Amendment immunity. Kimel v. Florida

Board of Regents, 120 S.Ct. 631 (2000). The

question before us today, as the majority

recognizes, is which line of authority to apply

to yet another statute, the ADA. This is plainly

a delicate and difficult issue, as the Supreme

Court itself appeared to have signaled when it

granted certiorari in Florida Dept. of

Corrections v. Dickson, 120 S.Ct. 976 (2000), and

in Alsbrook v. Arkansas, 120 S.Ct. 1003 (2000),

two cases presenting precisely the problem before

us now. The Court dismissed those two petitions

under S.Ct. Rule 46.1, and so it will not be

considering the issue during the present Term.

See Dickson, No. 98-829, 2000 WL 215674 (U.S.,

Feb. 23, 2000), and Alsbrook, No. 99-423, 2000 WL

230234 (U.S., Mar. 1, 2000). We must therefore

decide this case without the prospect of

immediate guidance from Washington. For the

reasons I explain below, I conclude that Title I

of the ADA falls within Congress’s section 5

powers under the principles the Court has

articulated. I would therefore find that Erickson

is entitled to bring her ADA suit against

Northeastern Illinois University consistently

with the Eleventh Amendment, and I respectfully

dissent.

I

Although the literal language of the Eleventh

Amendment addresses only the question of the

extent of the judicial power of the United States

(which "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," U.S. Const. amend. XI), the Supreme

Court has held in a recent line of decisions that

the meaning of this part of the Constitution is

not limited to the precise words of the text.

Instead, the Eleventh Amendment reflects the

structural fact that each state is a sovereign

entity within the federal system, and as such,

each state enjoys sovereign immunity from suit

except insofar as its immunity has legitimately

been curtailed. See Seminole Tribe v. Florida,

517 U.S. 44, 54 (1996); Alden v. Maine, 119 S.Ct.

2240, 2253-54 (1999); Florida Prepaid

Postsecondary Education Expense Board v. College

Savings Bank, 119 S.Ct. 2199, 2204 (1999).

There are a number of ways in which sovereign

immunity can be overcome consistently with the

law: the state might consent to suit; to much the

same effect, it might choose to waive its

sovereign immunity; or Congress might enact

legislation that abrogates the state’s

immunity./1 Only the last of those options is

relevant here. Abrogation is constitutionally

possible only in narrow circumstances. First,

Congress must make its intent to abrogate

"unmistakably clear" in the language of the

statute. See Kimel, 120 S.Ct. at 640 (citing

Dellmuth v. Muth, 491 U.S. 223, 228 (1989), and

quoting from Atascadero, 473 U.S. at 242).

Second, it must act pursuant to a valid grant of

constitutional power. Kimel, 120 S.Ct. at 642;

City of Boerne, 521 U.S. 507, 519; Green v.

Mansour, 474 U.S. 64, 68 (1985). Here, everyone

agrees that the only source of congressional

power at issue is section 5 of the Fourteenth

Amendment. Cf. Florida Prepaid, 119 S.Ct. at

2205.

In Kimel, the Court found that the ADEA

satisfied the "clear statement" requirement for

abrogation. 120 S.Ct. at 640-42. The majority

finds, and I agree, that the same is true of the

ADA. Unlike the majority, however, I also

conclude that Congress legitimately used its

power under section 5 of the Fourteenth Amendment

when it made the ADA applicable to the states.

As I have already noted, we know that Title VII

represents a valid exercise of Congress’s section

5 power to abrogate the Eleventh Amendment

immunity of the states, but the ADEA does not.

The Kimel Court made the latter finding because,

following City of Boerne, it concluded that the

ADEA was a measure that went beyond either

enforcement of the Fourteenth Amendment or valid

prophylactic measures designed to prevent

violations of the Constitution. See Kimel, 120

S.Ct. at 645, 648-49. In Florida Prepaid, the

Court explained the difference between valid

efforts to exercise section 5 powers and those

that go beyond the constitutional limits as

follows:

While 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 Congress must

have wide latitude in determining where it lies,

the distinction exists and must be observed.

There must be a congruence and proportionality

between the injury to be prevented or remedied

and the means adopted to that end.

119 S.Ct. at 2205 (quoting from City of Boerne,

521 U.S. at 519-20).

While the majority appears to concede that

Kimel should guide our decision with respect to

the ADA, its reading of Kimel overlooks important

qualifications on that decision. The majority

sees Kimel as a case holding that virtually all

discrimination that is subject to rational basis

review for equal protection clause purposes is

outside the scope of Congress’s section 5 powers.

Ante, at 5. I find no hint of this in Kimel; to

the contrary, after recognizing that age

discrimination is subject to rational basis

review, the Court took pains to analyze the ADEA

in detail before finding that it cannot be

sustained against the states as a valid exercise

of the section 5 powers. That analysis would have

been entirely beside the point if the mere fact

of rational basis review was enough to decide the

case. Furthermore, the majority here, in

rejecting the idea that the accommodation

provisions of the ADA could be sustained under

section 5 (ante at 7) ignores the express holding

of Kimel that "we have never held that section 5

precludes Congress from enacting reasonably

prophylactic legislation." 120 S.Ct. at 648.

Last, the majority appears to hold that virtually

all antidiscrimination statutes that focus on

disparate impact, rather than intentional

disparate treatment, exceed Congress’s section 5

powers. In so doing, it has created a square

conflict with the Eleventh Circuit’s decision in

Employment Discrimination, supra, 198 F.3d at

1324.

Kimel provides the analytical approach for

assessing whether a statute addressing

discrimination is a valid exercise of the section

5 power. Looking at both the legislative record

and the language of the pertinent statute, the

Kimel Court first asked whether the substantive

requirements of the statute were proportionate to

any unconstitutional conduct that the statute

could have targeted. 120 S.Ct. at 645. It looked

to earlier decisions that had considered the

constitutional implications of age discrimination

and found it significant that all had upheld age

distinctions against constitutional challenges.

See Gregory v. Ashcroft, 501 U.S. 452 (1991);

Vance v. Bradley, 440 U.S. 93 (1979);

Massachusetts Bd. of Retirement v. Murgia, 427

U.S. 307 (1976) (per curiam). Second, it

consulted the legislative record to see if it

revealed either (1) a pattern of age

discrimination committed by the states or (2)

"any discrimination whatsoever that rose to the

level of constitutional violation." 120 S.Ct. at

648-50. Finding neither element present, the

Court concluded that Congress did not in the ADEA

validly abrogate the states’ sovereign immunity.

Following this roadmap, one can see that the

ADA differs critically from the ADEA in the areas

the Supreme Court deemed significant. The first

question concerns the level of constitutional

protection the Supreme Court has recognized in

prior cases for persons with disabilities. With

that standard in mind, the next question is

whether the ADA represents a proportionate

response to the likelihood of constitutional

violations.

The leading case on the equal protection

dimensions of disability discrimination is City

of Cleburne v. Cleburne Living Center, Inc., 473

U.S. 432 (1985). Although, as the majority

observes, the Court ultimately decided that

rational basis review was proper for the

ordinance in that case, the majority finds the

Court’s reasoning to be irrelevant, ante at 6.

The majority also pays no heed to the fact that

the Court struck down the Cleburne ordinance

because it unconstitutionally discriminated

against the mentally retarded (clearly

illustrating that legislation prohibiting

discrimination with respect to a category that

receives rational basis review might indeed be

enforcing the Constitution). I cannot dismiss

either aspect of Cleburne so readily.

The specific question before the Court in

Cleburne was whether a local ordinance that

required a special use permit for a home for the

mentally retarded, but that imposed no such

requirement for many similar uses, violated the

equal protection rights of the mentally disabled.

The Court held that mental retardation should not

be treated as a "quasi-suspect classification"

for equal protection purposes, but it

nevertheless found that the ordinance failed

rational basis scrutiny, because the permit

requirement "rest[ed] on an irrational prejudice

against the mentally retarded . . . ." Cleburne,

473 U.S. at 450./2 In coming to that conclusion,

the Court subjected the city’s proffered reasons

in defense of the ordinance to careful scrutiny,

even while it avoided introducing undue rigidity

into its analysis by using terms like "suspect"

or "quasi-suspect" classifications--terms which

the Court later pointed out had sometimes given

rise to the erroneous notion that scrutiny that

was strict in theory was often fatal in fact. See

Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

237 (1995).

Both the rationale of Cleburne and the nature

of disability discrimination itself, as outlined

in the congressional findings and legislative

history of the ADA, highlight important

differences between disability and age as bases

for differential treatment, and they reveal,

contrary to the majority’s surprising suggestion,

that the ADA is indeed a statute designed to

prohibit irrational discrimination.

As the Kimel Court observed, older persons

"have not been subjected to a history of

purposeful unequal treatment." 120 S.Ct. at 645

(citing Murgia, 427 U.S. at 313, quoting San

Antonio Independent School Dist. v. Rodriguez,

411 U.S. 1, 28 (1973)). In contrast, Congress

found in the ADA that disabled persons have been

"subjected to a history of purposeful unequal

treatment," "in such critical areas as

employment, housing, public accommodations,

education, transportation, communication,

recreation, institutionalization, health

services, voting, and access to public services."

42 U.S.C. sec. 12101. Second, harking back to the

well known idea in United States v. Carolene

Products, 304 U.S. 144, 152-53 n.4 (1938), in no

meaningful sense of the term can the elderly be

regarded as a "discrete and insular minorit[y]";

to the contrary, as Kimel notes, "all persons, if

they live out their normal life spans, will

experience [old age]." 120 S.Ct. at 645. This is

a strong reason to believe that the normal

political processes are adequate to protect the

interests of the elderly and that they will not

be singled out for unconstitutionally

discriminatory treatment.

The disabled stand in a distinctly different

position. Not everyone is or will become

disabled. And the fact that some disabilities

arise later in life and some do not persist for

a lifetime does not make them the equivalent of

the inexorable aging process. The point is that

Congress found that those who are disabled will

suffer during the time they are disabled from the

same invidious discrimination that has haunted

racial minorities and women. The ADA reflects

Congress’s finding that society has the ability

to, and has historically, "tended to isolate and

segregate individuals with disabilities." 42

U.S.C. sec. 12101.

There are other reasons as well to conclude

that the ADA is a permissible exercise of

Congress’s section 5 power. Apart from the

salient differences between age and disability as

bases for categorization, the two statutes fare

quite differently under the proportionality

analysis required by Boerne and Kimel. The broad

sweep of the ADEA caused the Supreme Court to

find that it was not a proportional response to

the problem of age discrimination. The ADEA

prohibits all employment discrimination on the

basis of age against persons in the protected

class (those above the age of 40). 29 U.S.C. sec.

623(a)(1). The only tempering of this rule

appears in the statutory rules allowing an

employer to justify age-based distinctions if it

shows either a substantial basis for believing

that all or nearly all employees above a given

age lack the qualifications required for the

position or that reliance on the age

classification is necessary because individual

testing for qualifications is highly impractical.

Kimel, 120 S.Ct. at 647 (citing Western Air Lines

v. Criswell, 472 U.S. 400, 422 (1985)). The

EEOC’s implementing regulations, as well as cases

decided under the ADEA, make it clear that these

exceptions were intended to be narrow ones. See

29 C.F.R. sec. 1625.6(a); see also Western Air

Lines, 472 U.S. at 422.

The ADA adopts a more nuanced approach to the

problem of disability discrimination. An employer

is entitled to treat a disabled person

differently--indeed, even to deny employment to

the person on that basis--if there are no

reasonable accommodations that will permit the

individual to do the job and she cannot handle

the job without accommodations. 42 U.S.C. sec.

12113. See, e.g., Stewart v. County of Brown, 86

F.3d 107, 112 (7th Cir. 1996); Pond v. Michelin

North America, Inc., 183 F.3d 592, 596 (7th Cir.

1999); Sieberns v. Wal-Mart Stores, Inc., 125

F.3d 1019, 1022 (7th Cir. 1997). Thus, while an

employer discriminating on the basis of age must

demonstrate that it would be "highly impractical"

not to do so, an employer making distinctions on

the basis of disability need only show that

"reasonable steps" of accommodation, such as

modifying work schedules, training materials,

facilities, or policies, will not work. See 42

U.S.C. sec.sec. 12113, 12111. The incorporation

of a reasonableness standard in the duty to

accommodate, which itself modifies the duty not

to discriminate on the basis of disability, is

essentially a legislative incorporation of the

proportionality test required under the

Constitution. It also illustrates, contrary to

the majority’s suggestion, that the duty to

accommodate is not a command to give "special"

treatment; instead, it spells out the way that

discrimination is to be avoided. I would

therefore find that the ADA meets the first part

of the Kimel analysis.

The second question under Kimel requires us to

consider whether the legislative record reveals

either a pattern of age discrimination committed

by the states or "any discrimination whatsoever

that [rises] to the level of constitutional

violation." 120 S.Ct. at 649. Here, although the

evidence is stronger on the second point than the

first, the record shows both kinds of disability

discrimination.

With respect to the first question (i.e.

legislative findings pertaining specifically to

state behavior), the legislative record is

admittedly sparse. Nevertheless, the House Report

notes that "inconsistent treatment of people with

disabilities by different state or local

government agencies is both inequitable and

illogical." H.R. Rep. No. 101-485 (II). More

importantly, the express congressional findings

with respect to pervasive discrimination address

many areas that are controlled to a significant

degree by state and local governments. For

example, Congress identified discrimination in

education as a particular problem. See 42 U.S.C.

sec. 12101(3). Education in this country is

overwhelmingly an enterprise of state and local

government./3 Another sector singled out in the

statute was health services, see 42 U.S.C. sec.

12101(3), in which state and local governments

also play a powerful role./4 The story is

similar for transportation, which is also

mentioned in sec. 12101(3)./5 Congress’s

specific attention to sectors with such a

substantial state and local governmental presence

indicates that it knew that government action at

the state level was an important part of the

problem it was addressing.

The other evidence the Kimel Court found

lacking for the ADEA--a record of discrimination

that reveals constitutional violations--is

present in abundance for the ADA. It would be

hard to imagine greater scrutiny than Congress

gave to the harm caused by disability

discrimination when it passed the ADA. Its

findings explain in painstaking detail the extent

of the evil. See 42 U.S.C. sec. 12101./6 We give

congressional findings substantial deference,

because Congress "is far better equipped than the

judiciary to amass and evaluate the vast amounts

of data bearing upon legislative questions."

Turner Broadcasting Systems v. F.C.C., 520 U.S.

180, 195 (1997). This is the legislative task the

Supreme Court contemplated in Cleburne, where it

held that the way disabled people are "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." Cleburne, 473 U.S. at 442-43.

The ADA’s legislative findings distinguish the

ADA from both the ADEA and RFRA, the statute

before the Court in City of Boerne. Like the ADEA

and unlike the ADA, Congress did not make

findings in the RFRA about the seriousness or

scope of discrimination against religious

persons. See 42 U.S.C. sec.sec. 2000bb to

2000bb-4. As I have already noted, in the ADEA

Congress never identified "any discrimination

whatsoever that rose to the level of

constitutional violation." Kimel, 120 S.Ct. at

649. The only evidence the Kimel Court found

showing the harm at which the ADEA was aimed was

a few "isolated sentences clipped from floor

debates and legislative reports." Id. When

formulating the ADA, in contrast, Congress

compiled an immense legislative record. It

examined all this evidence and found that "[t]he

severity and pervasiveness of discrimination

against people with disabilities [was] well

documented." H.R. 101-485 (II). This factor

therefore points toward a conclusion that the

legislative basis for a valid exercise of

Congress’s section 5 powers is present for the

ADA, even though it was not for the ADEA or RFRA.

Before leaving this subject, it is important to

note that the majority has elevated a single

point in the legislative history to dispositive

significance: the absence of a statement

somewhere to the effect that "we are passing this

law because we need to correct discrimination on

the basis of disability committed by the states."

I see nothing in Kimel that gives such primacy to

this single point. Combining the explicit

coverage of sectors in which the states are the

principal actors, with the deliberate decision of

Congress to make the states subject to the

statute, and finally with the enormous

legislative record documenting the depth of the

problem of disability discrimination, I find the

second part of the Kimel approach to be satisfied

for the ADA.

II

Given its conclusion about the Eleventh

Amendment, the majority does not reach the last

question that was presented in this case, which

was whether the analysis that applies to an

Eleventh Amendment argument directed at the

general prohibition in the ADA against

discrimination is different from the analysis

appropriate to the accommodation provisions of

the Act. Because I would reject the general

Eleventh Amendment defense, I add a brief word on

this point. In my view, because the accommodation

duty and the duty to avoid discrimination are

nothing more than two sides of the same coin, the

answer is no.

The ADA defines discrimination to include "not

making reasonable accommodations to the known

physical or mental limitations of an otherwise

qualified individual with a disability who is an

applicant or employee, unless . . . [the] covered

entity can demonstrate that the accommodation

would impose an undue hardship on the operation

of the business of such covered entity." 42

U.S.C. sec. 12112(b)(5)(A). The Act also provides

that an employer may defend against a charge of

discrimination by showing that its goals require

discrimination--that they "cannot be accomplished

by reasonable accommodation." 42 U.S.C. sec.

12113(a).

The University argues that this statutory

accommodation process is unconstitutional under

Printz v. United States, 521 U.S. 898 (1997),

because it violates the Tenth Amendment by

forcing state officials to administer a federal

regulatory scheme. In my view, however, the

Printz model has no bearing on the question

before us. The flaws the Court identified in

Printz included the act of conscripting state

officials to administer a federal program, the

effective reallocation of duties from the

branches of the federal government to which the

Constitution assigned them to the state

officials, and the conferral of policy-making

authority on the state officials without adequate

guidance. The Printz Court found that forcing the

state to implement this type of regulatory system

violated the principles of separation of powers

and dual sovereignty. Id. at 922, 932, 930.

The ADA does not establish anything like the

regulatory scheme for handguns at issue in

Printz. The ADA is instead a straightforward law

prohibiting discrimination on the part of all

employers, private and governmental alike, and

defining the way the prohibition must be

implemented. It provides the employers with

precise definitions to follow: a reasonable

accommodation is one tailored to the

discrimination issue before the employer, which

does not "impose an undue hardship on the

operation [of the employer’s business]." 42

U.S.C. sec. 12112(b)(5)(A). Unlike the regulatory

system before the Printz Court, the ADA does not

confer any special powers on employers in general

or on state employers in particular. Employers

are not administering a federal benefit by

providing a reasonable accommodation; they are

refraining from discrimination and to some degree

taking preventative measures. There is no duty to

accommodate that is separate from the general

obligation to avoid discrimination against the

disabled.

It bears repeating that, for this purpose,

state employers stand in exactly the same

position as private employers. As this court held

in Travis v. Reno, 163 F.3d 1000, 1004-05 (7th

Cir. 1998), federal law may pervasively regulate

states as market participants; the anti-

commandeering law of Printz only comes into play

when the federal government calls on the states

to use their sovereign powers to implement a

federal regulatory program. In Travis, which came

to the result later endorsed by the Supreme Court

in Reno v. Condon, supra, we concluded that the

Drivers Privacy Protection Act (DPPA) did not

violate the Tenth Amendment. The DPPA requires

disclosure of certain records by the state, and

so necessarily forces the state to come up with

a system of determining which records should be

disclosed, as well as how best to disclose them.

The system was found constitutional because it

affects states in their role as owners of

databases, not in their role as governments.

Condon, 120 S.Ct. at 672; Travis, 163 F.3d at

1004.

Though the ADA forces the states to comply with

a federal regulation, it affects the states in

their role as employers, not in their role as

governments. Federal regulations of states acting

as employers have been upheld in the past. In

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985), the Court held

that state employers may be forced to follow the

federal Fair Labor Standards Act’s wage and hour

rules. Nothing in the recent line of Eleventh

Amendment decisions undermines that rule. To the

contrary, in Alden v. Maine the Court went out of

its way to reaffirm that "[t]he constitutional

privilege of a State to assert its sovereign

immunity in its own courts does not confer upon

the State a concomitant right to disregard the

Constitution or valid federal law." 119 S.Ct. at

2266. Instead, the Court assumed that the states

would ordinarily live up to their duties under

federal law as a matter of good faith, and it

noted that enforcement of federal obligations by

the federal government remains permissible under

the constitutional design. Id. at 2267. The fact

of dual sovereignty does not, therefore, carry

with it any implication that states are allowed

to disregard or to frustrate valid federal

programs. See City of New York v. United States,

179 F.3d 29, 35 (2d Cir. 1999).

By defining discrimination in part as not

making reasonable accommodations to disabled

employees, the ADA does impose costs on

employers, including the states. Employers must

affirmatively act to alter any practices they

have in place that discriminate against the

disabled. Of course, this makes a great deal of

sense. Just because an employer has a

discriminatory practice, such as maintaining

steep stairways or only offering breaks at wide

intervals and therefore not allowing diabetics to

take their medication, does not mean that the

employer should be able to continue such a

discriminatory practice without violating the

ADA, any more than an employer’s refusal in the

past to construct a women’s restroom would

justify a refusal to hire female employees. The

ADA allows an employer to adjust the workplace

environment on a case-by-case basis, adopting

only those changes that are reasonably necessary

to refrain from discriminating against the

disabled individual or individuals in question.

The ADA hardly broke new ground when it

incorporated this type of affirmative duty. The

Equal Protection Clause often requires states to

take affirmative measures to eliminate or prevent

discriminatory systems. For example, states with

racially discriminatory reapportionment plans

must redraw their congressional districts. See,

e.g., Shaw v. Reno, 509 U.S. 630, 652 (1993)

(holding that the state’s reapportionment plan

might violate the Equal Protection Clause). The

logic of the University’s argument here would, if

taken to its limits, call into question every

affirmative injunction a court has ever entered

to prevent threatened future violations of the

constitutional guarantee of equal protection of

the laws. Nothing in the Supreme Court decisions

on which the University relies even hints at such

a radical result. Similarly, the First Amendment

guarantee of the right of free exercise of

religion carries with it an implied duty on the

part of the state to make reasonable adjustments.

See, e.g., Sherbert v. Verner, 374 U.S. 398, 403-

04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 231

(1972); Church of the Lukumi Babalu Aye v. City

of Hialeah, 508 U.S. 520, 546 (1993); Zorach v.

Clauson, 343 U.S. 306, 313-14 (1952). Boerne does

not overrule these direct constitutional rulings.

Last, as I indicated above, I do not read any

of the Supreme Court’s recent decisions as

overruling prior rulings that have upheld

congressional legislation prohibiting measures

with a discriminatory impact as valid exercises

of the section 5 power. As the Eleventh Circuit

explained in Employment Discrimination,

"disparate impact analysis was designed as a

’prophylactic’ measure." 198 F.3d at 1321 (citing

Connecticut v. Teal, 457 U.S. 440, 449 (1982),

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417

(1975), and Griggs v. Duke Power Co., 401 U.S.

424, 435 (1971)). The Eleventh Circuit went on to

explain that even though, in a disparate impact

case, "the plaintiff is never explicitly required

to demonstrate discriminatory motive, a genuine

finding of disparate impact can be highly

probative of the employer’s motive since a racial

’imbalance is often a telltale sign of purposeful

discrimination.’" Id. (citing International

Brotherhood of Teamsters v. United States, 431

U.S. 324, 339-40 n.20 (1977)). It found from this

that the disparate impact provisions of Title VII

are preventive rules that have the necessary

congruence between the means used and the

constitutional violation to be addressed

(intentional discrimination). Id. at 1322.

Nothing in Kimel comes close to suggesting that

the Court was overruling this long line of its

own authority, upon which the Eleventh Circuit

carefully relied, and I am not prepared to take

that step in the present case.

For all these reasons, I therefore respectfully

dissent from the majority’s conclusion that the

Eleventh Amendment bars Erickson’s suit against

Northeastern University.

/1 The extent of the protection from suit that

results from a finding of sovereign immunity is

also an important question, because, at least in

certain contexts, sovereign immunity is qualified

rather than absolute. See, e.g., the Foreign

Sovereign Immunities Act, 28 U.S.C. sec.sec.

1602, 1605. Despite the exchange between the

majority and dissenters in College Savings Bank

v. Florida Prepaid Postsecondary Educ. Expense

Bd., 119 S.Ct. 2219, 2230-31, 2235-37 (1999), on

the significance of market participation for

sovereign immunity purposes, there remains some

tension in the Supreme Court’s cases on this

point. See Reno v. Condon, 120 S.Ct. 666 (2000)

(finding the Driver’s Privacy Protection Act to

be a valid exercise of Congress’s Commerce Clause

power, and non-violative of state sovereignty

under both the Tenth and Eleventh Amendments,

because it regulated the state’s market

activities); California v. Deep Sea Research, 523

U.S. 491, 506-07 (1998) (finding that, in

determining whether sovereign immunity applies to

states, the Court looks at whether sovereign

immunity would apply to the federal government,

because "this Court has recognized a correlation

between sovereign immunity principles applicable

to States and the Federal government," and at

whether sovereign immunity would apply to a

foreign government). Although I recognize that

the Supreme Court may ultimately have more to say

on the subject, I am assuming here, consistently

with College Savings and Kimel, that the

commercial character of the operation of a state

university system is not enough to qualify the

state’s Eleventh Amendment immunity.

/2 This implies a more exacting test for rationality

than the majority finds in Cleburne, ante at 6-7.

The majority goes on to advance the astonishing

propositions that it would be rational for a

university to conclude that anyone not in the top

1% of the population is not apt to be a good

teacher and scholar, or that it would be rational

to refuse to hire a blind professor because she

could not master material as fast as her sighted

colleagues. Such a view flies in the face of

evidence about the accomplishments of the

visually impaired; it assumes rationality in the

process of choosing who exactly falls within the

top 1% of the population; and it illustrates

exactly the kind of stereotyped thinking that the

ADA was designed to combat.

/3 A 1995 study by the Department of Education

showed that 90% of elementary and secondary

education in the United States is public--only

10% of students are enrolled in private schools.

See <http://www.ed.gov>.

/4 Together, state and local governments were

responsible for 12.7% of the United States’

health expenditures in 1998, while private

individuals and corporations were responsible for

only 54% of those costs. See

<http://www.hcfa.gov>.

/5 Government as a whole paid about 50% of

transportation costs in the United States in

1996, with state and local governments covering

about 60% of those costs, or 34.5% of the total.

See <http://www.bts.gov>.

/6 Congress found that:

(1) some 43,000,000 Americans have one or more

physical or mental disabilities, and this number

is increasing as the population as a whole is

growing older;

(2) historically, society has tended to isolate

and segregate individuals with disabilities, and,

despite some improvements, such forms of

discrimination against individuals with

disabilities continue to be a serious and

pervasive social problem;

(3) discrimination against individuals with

disabilities persists in such critical areas as

employment, housing, public accommodations,

education, transportation, communication,

recreation, institutionalization, health

services, voting, and access to public services;

(4) unlike individuals who have experienced

discrimination on the basis of race, color, sex,

national origin, religion, or age, individuals

who have experienced discrimination on the basis

of disability have often had no legal recourse to

redress such discrimination;

(5) individuals with disabilities continually

encounter various forms of discrimination,

including outright intentional exclusion, the

discriminatory effects of architectural,

transportation, and communication barriers,

overprotective rules and policies, failure to

make modifications to existing facilities and

practices, exclusionary qualification standards

and criteria, segregation, and relegation to

lesser services, programs, activities, benefits,

jobs, or other opportunities;

(6) census data, national polls, and other

studies have documented that people with

disabilities, as a group, occupy an inferior

status in our society, and are severely

disadvantaged socially, vocationally,

economically, and educationally;

(7) individuals with disabilities are a discrete

and insular minority who have been faced with

restrictions and limitations, subjected to a

history of purposeful unequal treatment, and

relegated to a position of political

powerlessness in our society, based on

characteristics that are beyond the control of

such individuals and resulting from stereotypic

assumptions not truly indicative of the

individual ability of such individuals to

participate in, and contribute to, society;

(8) the Nation’s proper goals regarding

individuals with disabilities are to assure

equality of opportunity, full participation,

independent living, and economic self-sufficiency

for such individuals, and

(9) the continuing existence of unfair and

unnecessary discrimination and prejudice denies

people with disabilities the opportunity to

compete on an equal basis and to pursue those

opportunities for which our free society is

justifiably famous, and costs the United States

billions of dollars in unnecessary expenses

resulting from dependency and nonproductivity.

42 U.S.C. sec. 12101.