Amos v. Maryland Department of Public Safety & Correctional Services

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 opinion in City of Cleburne v. Cleburne Living Center, 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985), Justice Marshall argued that the courts should pay special deference to evolving standards of equality as embodied in acts of Congress:

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 *224 and invidious constraint on human potential and freedom. Shifting cultural, political, and social patterns at times come to make past practices appear inconsistent with fundamental principles upon which American society rests, an inconsistency 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 , 105 S.Ct. 3249 (Marshall, J., concurring in the judgment in part and dissenting in part) (citations omitted). This deference is especially appropriate in the often fact-based equal protection context 1 and given the command in City of Boerne v. Flores, 521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (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 recognizing that the disabled had long been subjected to invidious discrimination, and had not enjoyed the equal protection under the law guaranteed by the Constitution. U.S. Const, amend. XIV, § 1. On several 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 discrimination against the disabled abounds. Appellees are correct; often the difference 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 building, 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 these necessary and often minor accommodations when designing buildings and programs is invidious discrimination in a most pernicious form — willful blindness. The state effectively tells the disabled, “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 society stems from attitudes formed during a “ ‘lengthy and tragic history’ of segregation and discrimination,” City of Cleburne, 473 U.S. at 461 , 105 S.Ct. 3249 (Marshall, J., concurring in the judgment in part and dissenting in part) (quoting Univ. of Cal. Regents v. Bakke, 438 U.S. 265, 303 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 *225 (1978)), which continues to affect the daily lives of the disabled. Such considerations should not be overlooked.

. 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).

. 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 conclusion not because distinctions based on gender are subject to heightened 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.