concluding that regulation prohibiting surcharges sought “to redefine the Equal Protection Clause” by creating “a positive entitlement to a free handicapped parking space”
How later courts described this case
- concluding that regulation prohibiting surcharges sought “to redefine the Equal Protection Clause” by creating “a positive entitlement to a free handicapped parking space”
- finding that Congress went beyond a mere remedy of violations of constitutional rights and attempted to define tbe substance of those rights and holding that Congress did not abrogate the states’ Eleventh Amendment immunity
- concluding that regulation prohibiting *215 surcharges sought “to redefine the Equal Protection Clause” by creating “a positive entitlement to a free handicapped parking space”
- holding that the ADA did not validly abrogate the States' Eleventh Amendment immunity
Written by the judges who cited it.
The opinion
MURNAGHAN, Circuit Judge,
dissenting:
Because I believe that the ADA provision is a reasonable and valid exercise of Congress’ powers pursuant to Section 5 of the Fourteenth Amendment, I respectfully dissent.
The majority opinion has detailed the applicable law with respect to Congress’ ability to abrogate the states’ sovereign immunity, and I need not recount that in great detail here. However, I question the majority’s application of that law to 28 C.F.R. § 35.130 (f).
First, I note that there is absolutely no basis to conclude that § 35.130(f) is anything like the now discredited RFRA. Unlike RFRA, the provisions of which applied to “laws ... [and] official actions of almost every description and regardless of subject matter,” see Boerne, 117 S.Ct. at 2170, § 35.130(f) by its terms applies only to a certain class of laws (laws authorizing fees or surcharges) that in turn apply only to a certain class of people (the disabled). See 28 C.F.R. § 35.130 (f). Moreover, by its terms § 35.130(f) only .applies to surcharges imposed on the disabled to cover the cost of measures taken “to provide that [disabled] individual or group with the nondiscriminatory treatment required by this Act or this part.” Id. All § 35.130(f) really stands for, then, is the unspectacular proposition that a state may not recover from victims of discrimination the cost of ending discrimination against those victims. The very terms of the regulation provide for no more than that.
Second, it troubles me to reach the notion that Congress cannot protect the disabled from discrimination because of the deferential rational basis standard of review Record *709 ed to state legislation. See Clark, 123 F.3d at 1271 (concluding that the standard of review to which state legislation is subjected should not define Congress’ boundaries for its enforcement powers under § 5). When Congress finds that invidious discrimination has plagued a class of people, it may act to ensure that the class receives equal protection under the law. See Amend XIV, § 5; Ex 'parte Virginia, 100 U.S. at 345-46. Congress has some discretion in how it chooses to respond to the problem, since “[a]s a general matter, it is for Congress to determine the method by which it will reach a decision.” Boerne, 117 S.Ct. at 2170.
As the Supreme Court made clear in Cle-burne, the disabled, while not considered a suspect class, may not be subjected to arbitrary and invidious discrimination. See 473 U.S. at 446-47, 105 S.Ct. 3249 . Here, Congress has made substantial findings that the disabled are subjected to just that type of discrimination in numerous arenas. See 42 U.S.C. § 12101 (1990). In response to that discrimination, Congress enacted the ADA, which has been found constitutional by all circuits that have reviewed it. See Clark, 123 F.3d at 1270-71 (9th Cir.1997); Coolbaugh, 136 F.3d at 438 (5th Circuit); Autio, 140 F.3d at 806, aff'd by an equally divided court, 157 F.3d 1141 (8th Cir.1998). The regulation at issue here, which was promulgated by the Department of Justice pursuant to the ADA, merely ensures that the costs of correcting the wrongs inflicted upon the disabled will be borne by the wrongdoer (the state) rather than the victim (the disabled individual or group). Therefore, § 35.130(f) does not expand the rights of the disabled, but merely prevents a state from adding insult to injury by making the disabled pay for the correction of the injuries inflicted over the years.
Finally, § 35.130(f) does not purport to provide the disabled with a “free” parking space. What few comments the Department of Justice made regarding § 35.130(f) indicate that the measure was only designed to cover surcharges for services that the state was under an obligation to provide. See 28 C.F.R. Pt. 35, App. A (1998). The brief comments discussing § 35.130(f) relate to a request for clarification of the ability to charge for courtroom interpreters. See id. In response to the request, the Department adopted the standard set forth in its regulations pursuant to § 504 of The Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (West Supp. 1998), and stated that where the court system is obligated to provide an interpreter, it cannot charge the litigant. See 28 C.F.R. Pt. 35, App. A. The import of that statement is clear: where there is no obligation to provide an interpreter (or any other service), the state is under no obligation to pay for it.
The comments accompanying an identical provision in the ADA regulations applicable to public accommodations make it even clearer that the bans on surcharges found in the regulations were not intended to be broad-based bans on all surcharges applicable to the disabled but merely limited tools to help facilitate the remedial aims of the ADA. See 28 C.F.R. Pt. 36, App. B (1998). Like § 35.130(f), 28 C.F.R. § 36.302 (c)(1998) prohibits an entity (public accommodations here) from “imposing] a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures ... that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.” Id. The Department notes that it was asked whether daycare centers could charge fees for services rendered in addition to those required by the ADA, and it made clear that 28 C.F.R. § 36.302 (c) “is intended only to prohibit charges for measures necessary to achieve compliance with the ADA.” 28 C.F.R. Pt.36, App. B. Therefore, the bans on surcharges embodied in § 35.130(f) and like provisions are not intended to redefine the rights of the disabled by guaranteeing them free access to services but are remedial measures designed to ensure that the disabled are not charged for services required to provide them with the level of treatment accorded to nondisabled persons.
Viewed in its proper light, § 35.130(f) not only is constitutional, but merely states expressly that which is intuitive. It makes no more sense to allow states to recoup from the disabled the costs of providing the remedial programs needed to fully integrate them into *710 society than it would, for example, to permit universities receiving federal funding to charge women higher tuition rates to cover the costs of complying with Title IX of the Civil Rights Act of 1964. The goal is to help the victims of discrimination, not to heap more discriminatory treatment upon them. Therefore, I would reverse the district court’s decision that it lacked subject matter jurisdiction to hear the claim.