Respondents Brief — Pennsylvania Dept. of Corrections v. Yeskey

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In the Supreme Court

United States

OCTOBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

On A Writ Of Certiorari To The

United States Court Of Appeals For The Third Circuit

BRIEF FOR THE RESPONDENT

Eve H. CERVANTEZ DONALD SPECTER

HOWARD, RICE, NEMEROVSKI, Counsel of Record

CANADY, FALK & RABKIN PRISON LAW OFFICE

A Professional Corporation General Delivery

Three Embarcadero Center, San Quentin, CA 94964

7th Floor Telephone: 415/457-9144

San Francisco, CA 94111 Facsimile: 415/457-9151

Telephone: 415/434-1600

Facsimile: 415/399-3041

Attorneys for Respondent Ronald R. Yeskey

[Additional counsel listed on inside cover]

BEST AVAILABLE COPY” N

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether Congress intended the Americans with

Disabilities Act, which prohibits any and all state agencies

from discriminating against disabled individuals, to apply to

state prisoners?

ü iii Page

2. The Legislative History Supports

Application Of The ADA To

TABLE OF CONTENTS Prisons. 25

Page 3. Department Of Justice.

Regulations Applying The ADA

To Prisoners Are Entitled To

4 CONSTITUTIONAL, STATUTORY, AND Great Deference. 28

REGULATORY PROVISIONS INVOLVED 1

4. A Judicially Created Exemption

STATEMENT OF THE CASE 2 To The ADA For State Prisoners

Not W ted.

SUMMARY OF ARGUMENT 4 1 ead *

III. THIS COURT SHOULD NOT REACH

ARGUMENT 6 THE CONSTITUTIONAL ISSUES. 32

I. INTRODUCTION 6 IV. PETITIONERS’ CONSTITUTIONAL

ARGUMENTS HAVE NO MERIT. 33

II. TITLE UH OF THE ADA PROTECTS

STATE PRISONERS FROM A. Petitioners’ “As Applied” Challenge

DISCRIMINATION ON THE BASIS OF To The Statute Is Too Broad. ‘ 33

DISABILITY. 10

. B. Congress Properly Exercised Its

A. Title II Of The ADA Unambiguously Powers Under Section 5 Of The 14th

Covers State Prisoners. 10 Amendment. 34

B. The Clear Statement Rule Should Not 1. Congress Has Broad Powers To

Be Applied To Determine Whether Enact Remedial And Preventative

The ADA Protects State Prisoners. 19 Legislation To Enforce The Equal

Protection Clause In State

C. Under Normal Rules Of Statutory Prisons. 35

Construction, The ADA Should Be

Applied To State Prisoners. 23 2. As Applied To State Prisoners

: . The ADA Is A Constitutional

. The ADA Incorporates Section Exercise Of Congress’s Remedial

504 Regulations That Have | Powers. 36

Consistently Applied To

Prisons. 23

a. Applying The ADA To

Prisoners Is Consistent With

The Court’s Interpretation Of

The Equal Protection

Clause.

b. The Legislative Record Is

Sufficient To Support The

ADA’s Application To State

Prisoners.

c. The ADA Does Not Impose

A Constitutionally Excessive

Burden On Prison Officials.

C. Congress May Regulate

Discrimination In Prison Under The

Commerce Clause.

CONCLUSION

TABLE OF AUTHORITIES

Cases

Albright v. Oliver, 510 U.S. 266, 127 L. Ed. 2d

114 (1994) 2

Amos v. Maryland Dey t of Public Safety &

Correctional Servs., 126 F.3d 589 (4th Cir. 1997),

petition for cert. filed, 66 U.S.L.W. 3474 (U.S.

Dec. 19, 1997) (No. 97-1113) 11, 12, 13,

15, 17

Andrus v. Glover Constr. Co., 446 U.S. 608 (1980) 15

Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997),

petition for cert. filed, 66 U.S.L.W. 3308

(U.S. Oct. 20, 1997) 18

Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d

472 (1995) 11

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) 27

Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263 (1993) 14

Bryant v. Madigan, 84 F.3d 246 (1996) 18

Burson v. Freeman, 504 U.S. 191 (1992) 34

Cannon v. University of Chicago, 441 U.S. 677 (1979) 27

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) 28

vi Page

City of Boerne v. Flores, --U.S.--, 138 L. Ed. 2d

624 (1997) 35, 36, 37,

39, 42, 43

City of Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985) 37, 38, 39,

40, 41, 43

City of Edmonds v. Oxford House, Inc., 514 U.S.

725, 131 L. Ed. 2d 801 (1995) 20

City of Rome v. United States, 446 U.S. 156 (1980) 39, 40,

42, 44

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

petition for cert. filed, 66 U.S.L.W. 3308 (U.S.

Oct. 20, 1997) 33, 40

Clarkson v. Coughlin, 898 F. Supp. 1019

(S.D.N.Y. 1995) 18

Conley v. Gibson, 355 U.S. 41 (1957) 34

Connecticut Nat] Bank v. Germain, 503 U.S. 249 (1992) 10

Consolidated Rail Corp. v. Darrone, 465 U.S. 624

(1984) 23, 25, 26

Coolbaugh v. Louisiana, -- F.3d --, No. 96-30664,

1998 WL 84123 (5th Cir. Feb. 27, 1998) 7, 33, 41

Crawford v. Indiana Dey of Correction, 937 F. Supp.

785 (N.D. Ind. 1996), rev’d, 115 F.3d 481

(7th Cir. 1997) 18

Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481

(7th Cir. 1997) 18, 19,

33, 45, 46

Dean v. Knowles, 912 F. Supp. 519 (S.D. Fla. 1996) 18

—

— —— ——— ͤ ͤêK—ẽ——— . ——.

—— —— ṹ —— —

vii Page

Dellmuth v. Muth, 491 U.S. 223 (1989) 17

Dothard v. Rawlinson, 433 U.S. 321 (1977) 22

Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) 18

EEOC v. Massachusetts, 987 F.2d 64 (Ist Cir. 1993) 20

Employment Division, Dep’t of Human Resources v.

Smith, 494 U.S. 972 (1990) 37, 44

Estelle v. Gamble, 429 U.S. 97 (1976) 44

Ex parte Virginia, 100 U.S. 339 (1880) 35

FCC v. National Citizens Comm. for Broadcasting,

436 U.S. 775 (1978) 42

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 35, 47

Fullilove v. Klutznick, 448 U.S. 448 (1990) 36, 39

Garcia v. San Antonio Metropolitan Transit Auth.,

469 U.S. 528 (1985) 20, 21

Gately v. Massachusetts, 2 F.3d 1221 (1st Cir. 1993) 20

Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989) 209

Gregory v. Ashcroft, 501 U.S. 452 (1991) 4, 5, 15,

16, 17, 19,

20, 21, 2

Grove City College v. Bell, 465 U.S. 555 (1984) 26

Herndon v. Johnson, 970 F. Supp. 703 (E.D. Ark. 1997) 18

Hilton v. South Carolina Pub. Rys. Comm’n, 502

U.S. 197 (1991) i

viii Page

Hodel v. Virginia Surface Mining & Reclamation

Ass n, 452 U.S. 264 (1981) 48

Journey v. Vitek, 685 F.2d 239 (8th Cir. 1982) 27

Katzenbach v. Morgan, 384 U.S. 641 (1966) 39, 40,

42, 44

Kaufman v. Carter, 952 F. Supp. 520 (W.D. Mich. 1996) 18

Kendrick v. Bland, 541 F. Supp. 21 (W.D. Ky. 1981) 27

Key v. Grayson, No. Civ.A. 96-40166, 1988 WL 125769

(E.D. Mich. Mar. 19, 1998) 18

King v. Edgar, No. 96 C 4137, 1996 U.S. Dist. LEXIS

17999 (N. D. Ill. Dec. 9, 1996) 18

Lee v. Washington, 390 U.S. 333 (1968) 38

Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606 (1996) 32

Love v. Westville Correctional Ctr., 103 F.3d 558

(7th Cir. 1996) 18

Miller v. Illinois Dep’t of Corrections, 107 F.3d 483

(7th Cir. 1997)

National League of Cities v. Usery, 426 U.S. 833 (1976) 22

New York v. United States, 505 U.S. 144 (1991) 47

Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996) 18

Oregon v. Mitchell, 400 U.S. 112 (1970) 41, 42,

Printz v. United States, -U.S.—, 138 L. Ed. 2d

914 (1997) 47

ix Page

Public Citizen v. United States Dey t of Justice,

491 U.S. 440 (1989) 16, 29

Purcell v. Pennsylvania Dep’t of Corrections, No.

95-6720, 1998 U.S. Dist. LEXIS 105 (E.D. Pa.

Jan. 9, 1998) 31

Randolph v. Rodgers, 980 F. Supp. 1051 (E.D. Mo. 1997) 18

Reich v. New York, 3 F.3d 581 (2d Cir. 1993) 20

Renne v. Geary, 501 U.S. 312 (1991) 33

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) 21

Richardson v. McKnight, --U.S.--, 138 L. Ed. 2d

540 (1997) 14, 22

Rust v. Sullivan, 500 U.S. 173 (1991) 28, 34

Salinas v. United States, -U.S.--, 139 L. Ed. 2d

352 (1997) 19, 20

School Board v. Arline, 480 U.S. 273 (1987) 9, 30

Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W. Va.

1976) 27

South Carolina v. Katzenbach, 383 U.S. 301 (1966) 39, 44

Southeastern Community College v. Davis, 442 U.S.

397 (1979) 8

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) 33

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995) 17, 18

Traynor v. Turnage, 485 U.S. 535 (1988) 25

Turner Broadcasting Sys. v. FCC, 520 U.S.--, 137

L. Ed. 2d 369 (1997) 42

x Page

Turner v. Safley, 482 U.S. 78 (1987) 21, 30, 38,

40, 44

United States v. Bass, 404 U.S. 336 (1971) 21

United States v. Board of Comm’rs, 435 U.S. 110

(1978) 25

United States v. Locke, 471 U.S. 84 (1985) 29

United States v. Lopez, 514 U.S.--, 131 L. Ed. 2d

626 (1995) 46, 47

United States v. Lot 5, Fox Grove, 23 F.3d 359

- (11th Cir. 1994) 20

United States v. Monsanto, 491 U.S. 600 (1989) 17

United States v. Salerno, 481 U.S. 739 (1987) 34

Yee v. City of Escondido, 503 U.S. 519 (1992) 33

Yeskey v. Pennsylvania Dep’t of Corrections, 118

F.3d 168 (3d Cir. 1997), petition for cert.

granted, 118 S. Ct. 876 (Jan. 23, 1998)

(No. 97-634) 3, 11, 12,

13, 45

Constitutional Provisions

U.S. CONST.

art. I, §1 19

art. IV, §3 21

art. IV, §4 21

amend. XIV, §5 6, 34, 35, 38,

39, 40, 47

amend. XV, §2 39

xi Page

Statutes and Regulations

20 U.S.C. §1681 26

29 U.S.C.

§790 et seq. 24

§794 im

§794(b)(1) 11

42 U.S.C.

§2000bb(a) 37

§2000bb(b) 37

1 37

§12101(a) 7, 14, 38, 43, 47

§12101(b) 6, 8, 38, 47

§12111(5)(B) 15

§12131 et seq. 3

§12131(1) 4, 10

§12131(2) 12

§12132 11, 12, 38

§12133 11

§12134 —

12134

8421340 8, 23, 24

§12201(a) 8, 11, 24

§12202 10

§12208 15

§12210(a) 15

Civil Rights Restoration Act, Pub. L. No. 100-259 25

FED. R. Civ. P. 12(b)(6) 2, 3

FED. R. EVw. 201(b)(2) 3

28 C. F. R.

835.104 9

835. 13000007 8

835. 150(a) 8, 9

835. 15006) (1) 9, 29

§35.151(c) 29

8222

* 88

5 S

85 S

Editorial Note

E22

5 *

“3

36 C.F.R. pt. 1191

41 C.F.R.

subpt. 101-19.6, App

subpt. 101-19.6, App. A §4.1.4(9\(c)

45 Fed. Reg.

37,621

37,627

37,630

59 Fed. Reg.

31,676

31,681

31,687

31,697-31,711

63 Fed. Reg.

2000

2046-47

BHSRERR RR

SNN

iii Page

PA. STAT. ANN. tit. 61 (West Supp. 1997)

§1122 14

§1123 2, 12, 13, 46

§1124 13

§1125(b) 15, 45

Legislative Materials

Americans with Disabilities Act of 1989: Hearings

on S. 933 Before the Subcomm. on the Handicapped

of the Senate Comm. on Labor and Human Relations,

101st Cong. (1989) 27

Americans with Disabilities Act of 1988: Joint

Hearing on S. 2345 Before the Subcomm. on the

Handicapped of the Comm. on Labor and Human

Relations, 100th Cong. (1988) 27

Rehabilitation of the Handicapped Programs, 1976:

Hearings Before the Subcomm. on the Handi

the Comm. on Labor and Public Welfare, 94th Cong.

(1976) 25

H.R. REP. No. 485(III) (1990), reprinted in 1990

U.S.C.C.A.N. 445 8, 9,

25, 27

H.R. REP. No. 101-485(II) (1990), reprinted in 1990

U.S.C.C.A.N. 303 7, 8,

23, 26

S. REP. No. 101-116 (1989) 7, 9, 26

8. REP. No. 100-64 (1988), reprinted in 1988

U.S.C.C.A.N. 3 26

xiv

Other Authorities

HARRY ELMER BARNES, THE EVOLUTION OF PENOLOGY

IN PENNSYLVANIA (1927)

COMMONWEALTH OF PENNSYLVANIA, DEP’T OF

CORRECTIONS, QUEHANNA BOOT CAMP

INMATE HANDBOOK

D.O. Conkle, The Religious Freedom Restoration Act:

The Constitutional Significance Of An Unconstitutional

Statute, 56 MONT. L. REV. 39 (1995)

CORRECTIONAL INDUSTRIES ASS’N, 1997 DIRECTORY:

PRODUCING PRODUCTIVE PEOPLE (1997)

T. Don Hutto, The Privatization of Prisons, in ARE

= ANY BETTER? (J. Murphy & J. Dison eds.,

PENN. DEP’T OF EDUC. FINAL REPORT: A PROGRAM

TO REINTEGRATE PENNSYLVANIA INMATES THROUGH

LIVE WORK AND COMMUNITY INVOLVEMENT

(June 30, 1996)

WILLIAM G. SAYLOR & GERALD G. GAES, U.S. FED.

BUREAU OF PRISONS INTERIM REPORT: THE EFFECT OF

PRISON WORK EXPERIENCE, VOCATIONAL

AND APPRENTICESHIP TRAINING ON THE

LONG-TERM RECIDIVISM OF U.S. FEDERAL

PRISONS (Nov. 1995)

a“. THIRD NEW INTERNATIONAL DICTIONARY

)

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

In addition to the constitutional, statutory, and regula-

tory provisions set out in the Brief for Petitioners, the

following statutory and regulatory provisions are also

involved, and are set forth verbatim in the appendix to this

brief.

Portions of the Americans with Disabilities Act, specifi-

cally 42 U.S.C. §§12111, 12201, 12202, 12208, and 12210, are

set forth verbatim in the appendix at Al-A4.

The Department of Justice regulations implementing the

ADA are set forth at Part 35 of Title 28 of the Code of

Federal Regulations. 28 ©.F.R. §§35.104, 35.149, 35.151,

35.164, 35.190, and excerpts from Appendix A are set forth

verbatim in the appendix at A5-A11.

The Department of Justice regulations implementing

Section 504 of the Rehabilitation Act of 1973 with respect to

Activities Conducted By The Department of Justice are set

forth at Part 39 of Title 28 of the Code of Federal

Regulations. 28 C.F.R. §§39.150, 39.170, and excerpts from

the Editorial Note are set forth verbatim in the appendix at

Al1-Al6.

The Department of Justice coordination regulations

implementing Section 504 of the Rehabilitation Act of 1973

with respect to Federally Assisted Programs are set forth at

Part 41 of Title 28 of the Code of Federal Regulations. 28

C.F.R. §41.4 is set forth verbatim in the appendix at A16-

A17.

The Department of Justice regulations implementing

Section 504 of the Rehabilitation Act of 1973 with respect to

Federally Assisted Programs are set forth at Part 42 of

Title 28 of the Code of Federal Regulations. 28 C. F. R.

§§42.522 and 42.540 are set forth verbatim in the appendix

at Al7-A18. The Department of Justice analysis of these

regulations is set forth at Volume 45, No. 108 of the Federal

verbatim in the appendix at A24-A27.

The Americans with Disabilities Act Accessibility

Guidelines for Buildings and Facilities; State and Local

Government Facilities, are set forth at Part 1191 of Title 36

of the Code of Federal ions, published at 63 Fed.

Reg. 2000 (Jan. 13, 1998). Section 12, Detention and

Correctional Facilities, is set forth verbatim in the appendix

at A19-A23.

The Uniform Federal Accessibility Standards are set

forth at Appendix A to subpart 101-19.6 of Title 41 of the

Code of Federal Regulations. An excerpt from Section 4.1.4

is set forth verbatim in the appendix at A23-A24.

STATEMENT OF THE CASE

Respondent Ronald R. Yeskey was originally sentenced

to serve eighteen to thirty-six months in state prison, but

the sentencing court recommended that Yeskey instead be

placed in the Motivational Boot Camp Program (“Boot

Camp”) for youthful, non-violent offenders. JA 6

(Complaint) 1-10. Participants in the Boot Camp are

released on parole after just six months and receive the

benefits of substance abuse treatment, continuing education,

vocational training, work experience on public projects, and

pre-release counseling. Id. 410; PA. STAT. ANN. tit. 61,

§1123 (West Supp. 1997).

Despite the sentencing court’s recommendation,

Petitioner Department of Corrections refused to let Yeskey

participate in the program “due to a medical history of

hypertension (on medication).” JA6 411. Petitioners

refused to reconsider this decision, and Yeskey therefore

spent over a year longer in prison and was denied the

Because Yeskey’s case was dismissed pursuant to Federal Rule of

Civil Procedure 12(b)(6), all well-pleaded allegations of the complaint

must be taken as true for purposes of this appeal. See Albright v. Oliver,

510 U.S. 266, 268, 127 L. Ed. 2d 114, 120 (1994) (plurality opinion).

benefits of the boot camp program because of his disability.

Id. 4410, 12, 17.

Yeskey brought this suit under Title II of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §12131 et seq.,

seeking both money damages and injunctive relief.’ JA 10-

11 J. Petitioners moved to dismiss under Rule 12(b)(6),

arguing that (1) Yeskey had no protected right to a

particular custody status, (2) he was not an “otherwise

qualified individual” because he could not meet the Boot

Camp’s requirement of “rigorous physical activity and

(3) the ADA did not apply to prison inmates. The District

Court held that the ADA does not apply to state prison

inmates and dismissed the entire action. JA 95. No

constitutional issue was raised or decided.

The Third Circuit reversed. Based on the “plain words

of [the] statute,” as well as the “weight of judicial authority”

and the Department of Justice (“DOJ”) regulations imple-

menting the statute, the Court held that the ADA applies to

state prison inmates. Yeskey v. Pennsylvania Dep't of

Although Yeskey has been released from prison, his request for an

injunction is not moot, because this is a wrong capable of repetition yet

evading review. See Yeskey v. Pennsylvania Dep't of Corrections, 118 F 3d

168, 170 n.3 (3d Cir. 1997), petition for cert. granted, 118 S. Ct. 876 Can. B.

1998) (No. 97-634).

This Court must assume that Yeskey is “qualified,” because he has

alleged as much. JA 7 414. On remand, Yeskey will be entitled to prove,

Sey ee oS Se ee ee =

“vigorous physical activity” without to health

— — 4 — tn Q —

or (2) that Petitioner could make some reasonable change

to its policies, which only require one hour of calisthenics at the

beginning of a full day of work, educational and vocational training and

substance abuse treatment. See excerpt from COMMONWEALTH OF

PENNSYLVANIA, DEPT. OF CORRECTIONS, QUEHANNA BOOT CAMP INMATE

HANDBOOK, reprinted in at A29-A33. (This Court may take

judicial notice of the existence of the handbook. FED. R. EVW. 201(b)(2).)

Petitioner may then articulate some legitimate non-discriminatory reason

for excluding Yeskey, or demonstrate that any proposed modification of

its policies would alter the purpose of the boot camp program.

Corrections, 118 F.3d 168, 170-74 (3d Cir. 1997), petition for

cert. granted, 118 S. Ct. 876 (Jan. 23, 1998) (No. 97-634).

Again, no constitutional issue was raised or decided.

SUMMARY OF ARGUMENT

Congress found and Petitioners concede that

discrimination against people with disabilities pervades

nearly every aspect of our society. Completely absent from

Petitioners’ argument is any suggestion that this noxious

form of discrimination does not infect state

nne

appropriate exercise of congressional authority to eliminate

discrimination for the rest of society, they contend that the

ADA should never be applied to any prisoner who has

suffered discrimination on the basis of disability, under any

circumstance, in any state prison. That is not the law.

There is no “state prisoner exception” to the ADA, and the

Court should not create one.

The plain words of the ADA provide universal

protection against discrimination to all individuals with

disabilities who participate in programs of * ~oe

local government” or “any department, agency . . . or other

instrumentality of a State 2 US: U.S.C. 6121311)

(emphasis added). Congress confirmed that prisoners are

covered by incorporating into the ADA federal regulations

implementing Section 504 of the Rehabilitation Act, which

explicitly cover prisoners. The legislative history of the

ADA and other relevant statutes also shows that

discrimination against prisoners was one of the specific

problems Congress considered before it enacted the statute.

Petitioners cannot avoid the unambiguous terms of the

ADA; instead, they distort the clear statement rule of

Gregory v. Ashcroft, 501 U.S. 452 (1991). Petitioners’ implicit

claim that Gregory requires that traditional state functions be

enumerated in the text of the statute proves too much.

There is no principled way to distinguish between

managing prisoners and the myriad other state functions

that are both traditional and essential, which Petitioners

concede are covered under the ADA. Under Petitioners’

argument, the ADA would not apply to any traditional state

function unless that function was specifically mentioned,

e functions going to the

statement when — * to regulate functions,

Petitioners really are making a policy argument: that

the ADA might interfere with their discretion to maintain

security. Not only is their argument only cognizable by

Congress, but it is not supported by the facts, which are

nothing more than imagined scenarios that are not before

this or any other Court.

In fact, applying the ADA to state prisoners will not

interfere with the management of state prisons. Petitioners

concede that the ADA applies to prison employees and

visitors. Section 504 of the Rehabilitation Act has been

applied to state prisoners by federal regulation and court

decisions for almost two decades. Congress imported the

same regulatory standards into the ADA, thereby providing

sufficient flexibility to prisons, and any other state

program, safely and with due concern for legitimate security

interests. Specifically, the ADA does not require prison

officials to modify programs if doing so will create a

significant risk of harm to others, impose an undue financial

or administrative burden, or fundamentally alter the nature

of the states’ programs.

Petitioners’ constitutional ts were neither made

nor decided below, and the Court should not (and need

not) address them. They are also without merit. First, the

Court has held that prisoners retain their right to be free of

discrimination. The ADA is as congruent with the

Fourteenth Amendment within prison as Petitioners

concede it is outside the prison walls. Because its remedies

are designed to accommodate the interests of the states

according to the particular factual setting, the ADA also is

as proportional a remedy to prevent future discrimination

in prison as Petitioners concede it is in the free world. The

ADA therefore is an appropriate exercise of Congress’s

remedial powers to prevent future unconstitutional discrimi-

nation under Section 5 of the Fourteenth Amendment.

Second, Petitioners’ other concession—that certain aspects

‘> nar Canaan aie — —

to use argument since ma

ben discrimination in prison os part of tts regulation of 2

larger class of activities. Finally, since the ADA does not

“commandeer” state officials and press them into federal

service, the statute does no harm to the principles of

federalism.

The central purpose of the ADA is to “provide a clear

and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” 42

U.S.C. 812101 %). The ADA does nothing more than

permit prisoners with disabilitier access to the same pro-

grams, services and activities as non-disabled prisoners.

This unremarkable result was intended by Congress and is

sanctioned by the Constitution.

ARGUMENT

INTRODUCTION

Congress enacted the ADA after twenty years of

experience with six other disability discrimination statutes

demonstrated that a comprehensive remedy was necessary.

See H.R. REP. No. 101-485(I]), at 48 (1990), reprinied in 1990

U.S.C.C.A.N. 303, 330; S. REP. No. 101-116, at 19.

Congress based the ADA on two years of work and on a

vast amount of information from numerous sources,

including fourteen congressional hearings, polling data on

society’s attitudes toward the disabled, a report from the

U.S. Commission on Civil Rights, and seven other

substantive studies or reports, one of which compiled the

testimony from seventy-seven public hearings in all fifty

states and the District of Columbia. See Coolbaugh v.

Louisiana, F. 3d—, No. 96-30664, 1998 WL 84123, at *6-*8

(Sth Cir. Feb. 27, 1998) (listing hearings and studies).

These studies and testimony specifically addressed disability

discrimination against prisoners. See Part II(C)(2), infra.

Congress also made detailed findings about the

pervasiveness of disability discrimination throughout

American society. 42 U.S.C. §12101(a). Congress found

that persons with disabilities have been subjected to a

history of unequal treatment, that such discrimination

persists in critical areas of society, including institutionaliza-

tion and access to public services and that “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.” Id.

These amply supported findings demanded a direct and

thorough federal response, forbidding disability discrimi-

nation in all aspects of society, including employment

decisions, government services, public transportation,

telecommunications, and public accommodations. Congress

‘See also Brief of Amici Curiae the National Advisory Group for

Justice, et al., which contains an extensive discussion of the legislative

history of the ADA and its precursor statutes.

enacted the ADA to establish a “clear and comprehensive

national mandate for the elimination of discrimination

against individuals with disabilities” and to “provide clear,

strong, consistent, enforceable standards addressing

discrimination against individuals with disabilities.” 42

U.S.C. §12101(b) (emphasis added).

Congress specifically concluded that Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. §794, which prohibits

disability discrimination by public agencies that receive

federal funds, was insufficient. It enacted Title II of the

ADA to expand the scope of coverage of the Rehabilitation

Act and its implementing regulations and specifically

incorporated the Rehabilitation Act standards and

regulations into Title II to assure that all operations of state

and local governments would be accessible to persons with

disabilities in a non-discriminatory manner. See 42 U.S.C.

§§12201(a), 12134(b); H.R. REP. No. 101-485(II), at 47-48, 184

(1990), reprinted in 1990 U.S.C.C.A.N. 303, 329-30, 366; H.R.

REP. No. 101-485(III), at 69 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 492. These Rehabilitation Act

regulations have always applied to state prisoners. See Part

(Och, infra.

The ADA’s broad non-discrimination mandate requires

guidelines that apply in a wide variety of factual

circumstances, with due respect for state interests and

policy choices. For that reason, the ADA’s implementing

regulations, modeled after Rehabilitation Act regulations

and this Court’s interpretations of them, are broad and

flexible to balance the needs of people with disabilities and

the legitimate interests of local and state governments.

Thus, the regulations require only reasonable modifica-

tions that neither “result in a fundamental alteration” of a

program nor create an “undue financial or administrative

burden{ J.“ 28 C. F. R. §35.150(a)(3) (emphasis added); see also

id. §35.130(b)(7); id. pt. 35, App. A at 477, 483 (regulations

codify holding in Southeastern Community College v. Davis,

442 U.S. 397 (1979)). Nor do the regulations require a

public agency to take any action that poses a significant risk

to the health or safety of others. 28 C.F.R. §35.104; id. pt.

35, App. A at 472 (DOJ Analysis of §35.104; codifying School

Board v. Arline, 480 U.S. 273, 287 (1987))°; see also 28 C.F.R.

§36.104.° Indeed, recognizing the special challenges posed

by architectural access in prisons, the ADA Accessibility

Guidelines (“ADAAG”) contain several prison-specific

exceptions, most promulgated in response to comments

from prison administrators.

The ADA is a flexible statute that respects legitimate

penological and security concerns. Moreover, the

requirements of Title II have been applied in this manner to

state prisoners for almost two decades under Section 504.

See infra, Parts II(C)(1)-(2).

See H.R. REP. No. 101-485(III), at 34 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 457; S. REP. NO. 101-116, at 27, 40.

Moreover, a public entity is not required to make any structural

changes in existing facilities where other methods effectively permit

individuals with disabilities access to a public program, when the

program is “viewed in its entirety.” 28 C.F.R. §35.150(a), “), id. pt.

35, App. A at 484 (structural changes in existing facilities not required

unless no other “feasible way to make program accessible”).

See, e.g., 63 Fed. Reg. 2046-47 (ADAAG 12.1 (elevators), 12.2.1, 12.5.2

(entrances need not comply “where security requirements prohibit full

compliance”), 12.4.2 (grab bars not required in suicide prevention cells)).

ADAAG is set forth at Part 1191 of Title 36 of the Code of Federal

Regulations, and the final rule for Detention and Correctional Facilities

is published at 63 Fed. Reg. 2000 (Jan. 13, 1998). The views of state

prison officials from 44 states were submitted to the Architectural and

Transportation Barriers Compliance Board, which adopted many of their

suggestions. See 59 Fed. Reg. 31,676; 31,681; 31,687; 31,697-31,711.

TITLE U OF THE ADA PROTECTS STATE

PRISONERS FROM DISCRIMINATION ON THE BASIS

OF DISABILITY.

A. Title I Of The ADA Unambiguously Covers State

Prisoners.

Because the plain language of the ADA unambiguously

applies to all state entities, including prisons, there is no

basis to carve out an exception for state prison inmates.

“When the words of a statute are unambiguous, then, this

first canon is also the last: ‘judicial inquiry is complete.

Connecticut Nat’! Bank v. Germain, 503 U.S. 249, 253-54

(1992).

Title II of the ADA is explicitly universal in scope. It

prohibits discrimination by “public entities,” defined as

“(A) any State or local government; (B) any department,

agency, special purpose district, or other instrumentality of

a State or States or local government... 42 U.S.C.

§12131(1) (emphasis added).* This language—any state

agency or department—cannot possibly be read to exempt

state prisons. Conceding this, Petitioners still argue that

the statute can be read to exempt prison inmates.

Not surprisingly, given the lack of ambiguity in the

statutory language, Petitioners’ argument below was quite

different. Rather than contend that the ADA is ambiguous,

they argued: “The plain meaning of a statute should not be

automatically followed where it ‘will produce a resuit

*See also 42 U.S.C. §12202 (abrogating States’ Eleventh Amendment

immunity).

In their brief to the Third Circuit, Petitioners stated, “Appellees do

not argue that all aspects of a correctional facility are immune from

application of the ADA. Certainly, the ADA would be applicable to

employment of staff and access to buildings open to the public such as

administration areas or visiting areas.” JA 114n.8. They have

not retreated from this position.

demonstrably at odds with the intention of the drafters.’”

JA 116 (citation omitted).

Here, Petitioners, relying on Amos v. Maryland

Department of Public Safety & Correctional Services, 126 F.3d

589 (4th Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3474

(U.S. Dec. 19, 1997) (No. 97-1113), attempt to manufacture_

a “state prisoner” exception to the ADA by ignoring the

statutory definitions and ordinary meanings of various

statutory terms, none of which is ambiguous. See Brief for

the Petitioners (Pet. Brf.”) at 19-20. Title II provides that

“no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities

of a public entity, or be subjected to discrimination by any

such entity.“ 42 U.S.C. §12132. This Section explicitly

covers all of the operations of a public agency, including the

boot camp operated by the state departmen . of corrections

here.

First, Petitioners argue that the terms “program and

activity” are undefined and ambiguous. Pet. Brf. 12. Both

assertions are incorrect. The term “program or activity” is

statutorily defined in Section 504 to encompass “all of the

operations of—(1)(A) a department, agency, special purpose

district, or other instrumentality of a State or of a local

government” (29 U.S.C. §794(b)(1) (emphasis added)) and

Congress has directed that the ADA be interpreted in

congruence with Section 504. 42 U.S.C. §§12133, 12134,

12201(a).” “It is hard to imagine how state correctional

programs would not fall within this broad definition.”

Yeskey, 118 F.3d at 170." Indeed, and contrary to the

“As discussed infra, Parts II(C)(1)-(2), Section 504 has consistently

been applied to state prison inmates.

A statutory term “must be given its ordinary or natural’ meaning.”

Bailey v. United States, 516 U.S. 137, 145, 133 L. Ed. 2d 472, 481 (1995):

“Activity” means, inter alia, “natural or normal function or

operation,” and includes the “duties or function” of “an

(continued...)

Fourth Circuit’s surmise that “most prison officials would be

surprised to learn that they were required . . . to provide

inmates with ‘services,’ ‘programs,’ or ‘activities’ as those

terms are ordinarily understood” (Amos, 126 F.3d at 601

(some internal quotation marks omitted)), Petitioners

themselves frequently refer to “program” or “activity” when

discussing state prisons. See, e.g., Pet. Brf. 31-32 (referring

to boot camp as “program”). This is unsurprising, as the

Pennsylvania statute itself refers to the Boot Camp from

which Yeskey was excluded as a “program” that provides

“services.” PA. STAT. ANN. tit. 61, §1123 (West Supp.

1997). Moreover, the ADA does not apply only to “ser-

vices, programs, or activities”; in its second clause it

affirmatively forbids a public entity from subjecting people

with disabilities to discrimination generally. 42 U.S.C.

§12132.

Second, Petitioners argue that the term “qualified

individual with a disability” is ambiguous because it implies

voluntariness and therefore excludes prisoners. The ADA

defines a “qualified individual with a disability” as

an individual with a disability who . . . meets the

essential eligibility requirements for the receipt of

services or the participation in programs or activi-

ties provided by a public entity. (42 U.S.C.

§12131(2))

Nothing in this definition excludes prisoners. The terms

“eligible” and “participate” do not “imply voluntariness on

the part of an applicant who seeks a benefit from the state.”

Cf. Pet. Brf. 20. As the Third Circuit held, “the term

continued)

organizational unit for performing a specific function.

Webster s Third New International Dictionary 22 (1986). Pro-

gram” is defined as “a plan of procedure: a schedule or

system under which action may be taken toward a desired

goal.” Id. at 1812. Certainly, operating a prison facility falls

within the “duties or functions” of local government authori-

ties. (Yeskey, 118 F.3d at 170)

‘eligibility’ simply describes those who are ‘fitted or

qualified to be chosen,’ without regard to their own wishes.

See Webster’s Third New International Dictionary, supra at

736.” Yeskey, 118 F.3d at 173. And, as the dissenting judge

in Amos correctly noted,

The “voluntary” limitation that the majority opin-

ion imposes would immunize discrimination on the

basis of disability in the provision of compulsory

services such as public education, mandatory

vaccinations, and jury service. Yet several courts,

including the Fourth Circuit, have indeed applied

the statutes to such mandatory and “involuntary”

programs. (Amos, 126 F.3d at 615 (Murnaghan, J.,

dissenting))

Indeed, Petitioners concede that the ADA applies to

institutionalization. Pet. Brf. 17. Prison is similar to other

institutions; although an inmate does not choose to go to

prison, once there he is eligible to receive certain services

from the state such as food and medical care merely because

he is an inmate. On the other hand, prison inmates are

commonly subject to “eligibility” requirements to receive

certain prison programs, services, or activities. For

example, the statutory definition of the Boot Camp from

which Yeskey was excluded is “[a] program in which eligible

inmates participate for a period of six months in a humane

program for motivational boot camp .. . PA. STAT. ANN.

tit. 61, §1123 (West Supp. 1997) (emphasis added). The

statute specifically defines “eligible inmate”” and provides

that sentencing judges should identify “those defendants

who are eligible for participation in a motivational boot

camp” (id. §1124), as the judge did in this instance. Having

met the eligibility requirements, Yeskey sought only to be

free of discrimination based on disability.”

“An eligible inmate is a person under the age of 35 serving a

relatively short term (two to five years) for a non-violent offense. See PA.

STAT. ANN. tit. 61, §1123 (West Supp. 1997).

”Yeskey pled that he was qualified to participate in Boot Camp (JA

(continued...)

Third, Petitioners argue that the title “public services”

excludes state prisoners, because prisons are not open to

the public. As discussed above, the term “public entity” is

statutorily defined to include “any” State agency or depart-

ment—not just those open to the “general public.

Normal rules of statutory construction require that a

common term occurring in several places within a statute be

given a single meaning. See Bray v. Alexandria Women's

Health Clinic, 506 U.S. 263, 283 (1993). Thus, the term

“public services” cannot be reinterpreted to mean only those

services open to the general public, when the statute

defines “public entity” to mean any state agency. Indeed,

many services provided by public entities are not available

to the public at large, but only to those who meet certain

selection criteria: involuntary commitment to a mental

hospital, drug treatment facilities, jury duty, even public

education.

Finally, Petitioners argue that the statutory goals of the

ADA—“to assure equality of opportunity, full participation,

independent living, and economic self-sufficiency” so that

people with disabilities can “pursue those op nities for

which our free society is justifiably famous“ are incom-

patible with the Act’s application to prison inmates. But the

ADA’s goals mirror the goals of the Boot Camp, which was

created because of the State’s desire “to salvage the contri-

butions and dedicated work which its displaced citizens

may someday offer.” PA. STAT. ANN. tit. 61, §1122 (West

Supp. 1997). The statutory objectives of the Boot Camp are

to prepare prisoners to be productive members of free

continued)

7 414), which must be assumed to be true on this denial of a motion to

dismiss.

“This is in accord with the common understanding of “public entity”

as an agency operated by the government, rather than by the private

sector. See, e. g., Richardson v. McKnight, U. S.—, 138 L. Ed. 2d 540, 557

(1997) (Scalia, J., dissenting) (referring to state-run prison as a “public

entity“).

542 U.S.C. §12101(a)(8), (9).

society. Id. §1125(b). Prisons frequently offer programs

designed to rehabilitate prisoners and prepare them for life

“beyond the walls.“ Indeed, the modern penitentiary,

which had its origins in Pennsylvania, is founded on the

notion of rehabilitative and vocational training. See HARRY

ELMER BARNES, THE EVOLUTION OF PENOLOGY IN

PENNSYLVANIA 179-80 (1927).

Accordingly, Petitioners’ attempt to manufacture a

“state prisoner” exception founders on the plain language

of the ADA. Congress did make some exemptions from

ADA coverage generally, but there is no state prisoner

exception. See, e. g., 42 U.S.C. §12210(a) (current users of

illegal drugs not “disabled”); id. §12208 (transvestites not

disabled“). When a statute lists specific exemptions, others

are not to be judicially implied. Andrus v. Glover Constr.

Co., 446 U.S. 608, 616-17 (1980).”

There are no exceptions to Title II of the ADA, and no

ambiguity about the scope of coverage. Thus, this case

does not come within the rule of Gregory v. Ashcroft, 501

U.S. 452 (199), where an exception to the scope of

“For example, “[iJt is the policy of the Bureau of Prisons to provide

work to all inmates (including inmates with a disability who, with or

without reasonable accommodations, can perform the essential tasks of

the work assignment) contained in a federal institution . . This work

is designed to allow inmates the opportunity to acquire the knowledge,

skills, and work habits which will be useful when released from the

institution. 28 C.F.R. §345.10. In contrast, the disabled prisoners in

Amos alleged that they had been denied “the opportunity to participate

in work release and pre-release programs because of their disabilities.”

Amos, 126 F. 3d at 591. The Fourth Circuit's decision in that case ensured

that this discrimination would continue.

"In contrast to Title II of the ADA, which covers all “public entities”

without exception, the definition of a covered “employer” under Title |

of the Act specifically exempts the federal government and federally

owned corporations, Indian tribes, and certair non-profit private clubs.

42 U.S.C. 8121116000000, (ii).

Under the clear statement rule, li Congress intends to alter the

usual constitutional balance between the States and the Federal

(continued...)

coverage created an ambiguity as to whether the statute was

meant to apply to judges. Id. at 467. Indeed, in Gregory,

the broad language of the ADEA would have encompassed

state judges had there not been an ambiguous exception to

the statute: The “ADEA plainly covers all state employees

except those excluded by one of the exceptions. Where it

is unambiguous that an employee does not fall within one

of the exceptions, the Act states plainly and unequivocally

that the employee is included.” Id. at 467. Because Title II

of the ADA has no exceptions at all, let alone one that

could be construed to encompass state prisoners, it must be

interpreted to include them.

That the ADA does not explicitly mention prisoners or

prisons is not relevant. Gregory did not announce an

“enumeration” rule, and Congress is not required to list

every entity, or every aspect of an entity, that it intends to

cover in a statute of general application. Petitioners’

contrary argument “reflects an incorrect understanding of

the kinds of laws Congress passes: it usually does not

legislate by specifying examples, but by identifying broad

and general principles that must be applied to particular

factual instances.” Public Citizen v. United States Dep t of

Justice, 491 U.S. 440, 475 (1989) (Kennedy, J., concurring).”

This Court stated in Gregory that the clear statement rule

does not require Congress to list those state functions it

intends to cover. Gregory, 501 U.S. at 467 (ADEA need not

(continued)

Government, it must make its intention to do so unmistakably clear in

the language of the statute Id. at 460 (internal quotation marks and

citations omitted).

“Requiring enumeration in broadly worded statutes would have

several negative consequences. First, Congress would have to expend

scarce legislative resources determining a “laundry list” of traditional

state functions. Second, there is a high risk that Congress could

inadvertently fail to list a specific state function, particularly since

different states typically engage in different functions (i.e., snow removal

in New Hampshire and volcano warnings in Hawaii). Third, an

enumerated statute is inherently inflexible, making it difficult to adapt to

changing circumstances and changing state functions.

“mention judges explicitly”); see also Dellmuth v. Muth, 491

U.S. 223, 233 (1989) (Scalia, J., concurring). Indeed, given

Petitioners’ concession that the ADA applies to prison

guards and visitors, it is difficult to imagine the statute that

Petitioners would ask Congress to draft—not only would it

have to list “state prison” as a public entity, but it would

have to specify that “guards, visitors, and inmates are

.” This is not the law. The fact that the ADA

encompasses state prisoners, “even though it contains no

express provisions to this effect, does not demonstrate

ambiguity in the statute: It demonstrates breadth.” United

States v. Monsanto, 491 U.S. 600, 609 (1989) (internal

quotation marks omitted).

Although Petitioners attempt to constitutionalize their

argument by referencing the Gregory “clear statement rule,”

it is evident that they, and the lower court opinions they

cite, are actually asking this Court to rewrite the plain

language of the ADA by adding a “state exception”

that does not exist in the text. Cf. Pet. Brf. 18-19. A close

reading of the cited opinions reveals that the courts there

were doing the same thing that Petitioners are doing here:

straining to find a perceived ambiguity in the statute so as

to find it inapplicable to prisoners, because they believed

that application to prisoners would be difficult, and thus

could not (or should not) have been intended by Congress.

In the leading case of Torcasio v. Murray, 57 F.3d 1340 (4th

Cir. 1995), explicitly followed and adopted by Amos, 126

F.3d at 591, the Fourth Circuit acknowledged that the

language of the ADA “appears all-encompassing.” Torcasio,

57 F.3d at 1344. It then set out in search of ambiguity.

Ignoring statutory and dictionary definitions, it relied on

intuition, finding that prisons

“activities” as those terms are ordinarily under-

stood. A prisoner is not normally thought of as

one who would have occasion to “meet{] the

essential eligibility requirements” for receipt of or

participation in the services, programs, or activities

of a public entity. The terms “eligible” and

“participate” imply voluntariness on the part of an

applicant .... (Id. at 1347 (emphasis added))

Other cases cited by Petitioners acknowledged the ADA’s

broad and all-encompassing language but relied exclusively

on Torcasio’s explication of ambiguity” or _e*Plicitly

acknowledged a judicially created exemption.” Many

more courts have explicitly found that the plain language of

the ADA encompasses state prisoners, or have assumed

such coverage—presumably because the statute is not

ambiguous.” Although Chief Judge Posner mused in dicta

that Congress might not have intended the ADA to apply

to prisons, he acknowledged that there is no express

exception in the ADA for prisoners, and instead speculated

about the possibility of crafting a “[jjudge-made

exception to avoid absurdity.” Bryant v. Madigan, 84

F.3d 246, 248-49 (7th Cir. 1996) (dicta). But when squarely

confronted with the issue, Judge Posner held that the ADA

*The district court here, for example, relied exclusively on Torcasio

with no independent analysis. JA 98-99. See also Crawford v. Indiana

Dey t of Correction, 937 F. Supp. 785, 787-88 (N. D. Ind. 1996), en d, 115

F.3d 481 (7th Ce. 1997) (acknowledging “broad language” defining

un King v Edgar, No. 96 C 4137, 1996 U.S. Dist. LEXIS 17999 (N. D.

Ill. Dec. 9, 1996), the court did not find ambiguity at all, but instead

stated “it is so unlikely that Congress envisioned mandating equal

participation for disabled prisoners that an exception should be inferred.”

Id. at *13.

“Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997), petition for

cert. filed, 66 U.S.L.W. 3308 (U.S. Oct. 20, 1997) (No. 97-686); Crawford v.

Indiana Dey t of Corrections, 115 F.3d 481, 486-87 (7th Cir. 1997) (Posner,

].); Love v. Westville Correctional Ctr., 103 F.3d 558, 559 (7th Cir. 1996);

Duffy v. Riveland, 8 F.3d 447, 452 (9th Cir. 1996); Key v. Grayson, No.

Civ. A 96-40166, 1998 WL 125769, at *3-*4 (E.D. Mich. Mar. 19, 1998);

Randolph v. Rodgers, 980 F. Supp. 1051, 1059-60 (E.D. Mo. 1997); Herndon

v. Johnson, 970 F. Supp. 703, 708 (E.D. Ark. 1997); Kaufman v. Carter, 952

F. Supp. 520, 529 (W.D. Mich. 1996); Niece v. Fitzner, 941 F. Supp. 1497,

1505 (E.D. Mich. 1996); Dean v. Knowles, 912 F. Supp. 519 (S.D. Fla.

1996); Clarkson v. Coughlin, 898 F. Supp. 1019, 1036-38 (S.D.N.Y. 1995).

applies to state prison inmates. Crawford v. Indiana Dep’t of

Corrections, 115 F.3d 481, 486-87 (7th Cir. 1997). Thus,

Petitioners’ contention that the statute is necessarily

, because “federal judges across this country

sharply disagree” about the applicability of the ADA to

prisons, is based on a false premise. Pet. Brf. 18-21.

Because Title II of the ADA unambiguously covers all

operations of all public entities, with no exception, it

necessarily prohibits discrimination against state prison

inmates with disabilities.

B. The Clear Statement Rule Should Not Be Applied

To Determine Whether The ADA Protects State

Prisoners.

There is no reason for this Court to use the clear

statement rule to decide whether Title II of the ADA applies

to state prison inmates, because (1) the statute is clear and

unambiguous on its face, see Part IIA), supra; and

(2) determining the conditions of confinement for prison

inmates is not the type of sovereign state function impli-

cated by this Court’s decision in Gregory.

First, the clear statement rule is a tool of statutory

interpretation that only is used when a statute is

See Gregory, 501 U.S. at 461, 470; Hilton v.

South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 205-06

(1991); Salinas v. United States, -U.S.--, 139 L. Ed. 2d 352,

363 (1997). This Court recently emphasized the important

policy reasons for not applying the Gregory clear statement

rule to an unambiguous statute:

Statutes should be construed to avoid constitu-

tional questions, but this interpretative canon is not

a license for the judiciary to rewrite language

enacted by the legislature. Any other conclusion,

while purporting to be an exercise in judicial

restraint, would trench upon the legislative powers

vested in Congress by Art. I, §1, of the

Constitution. (Salinas, 139 L. Ed. 2d at 363

(citations and internal quotation marks omitted))

In other words, this Court will not use a canon of interpreta-

tion to rewrite a statute.

Second, while management of state prison inmates is

a function traditionally performed by states, it is not a

fundamental attribute of state sovereignty. The clear

statement rule is designed to maintain the “delicate balance”

between the federal and state governments by insuring that

Congress actually intended “to alter the usual constitutional

balance.” Gregory, 501 U.S. at 459-61. It thus applies to

decisions] of the most fundamental sort for a sovereign

entity.” Id. at 460.”

Accordingly, the Gregory clear statement rule does not

apply to any federal law that impinges on a function that

has traditionally been performed by the states, but only to

federal laws directly impinging on a state’s sovereignty as

expressly guaranteed by the Constitution.“ This reading

Gregory is consistent with Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 546-47 (1985), in

which this Court “reject{ed], as unsound in principle and

o the extent there was any ambiguity in Gregory with respect to

whether it applied only to “federal regulation of the qualifications of state

officials” or “more broadly to the regulation of any ‘state governmental

functions (cf. Gregory, 501 U.S. at 478 (White, J., concurring and

dissenting)), this Court clarified the rule in City of Edmonds v. Oxford

House, Inc., 514 U.S. 725, 131 L. Ed. 2d 801 (1995), by limiting the clear

statement rule to “a provision going ‘beyond an area traditionally

regulated by the States’ to implicate ‘a decision of the most fundamental

sort for a sovereign entity. 514 U.S. at 732 n.5, 131 L. Ed. 2d at 809

n.5.

*With the exception of the Fourth Circuit, all Courts of Appeals to

consider the issue have declined to apply Gregory to “traditional” state

functions. See United States v. Lot 5, Fox Grove, 23 F.3d 359, 362 (11th Cir.

1994) (homestead protection); Reich v. New York, 3 F.3d 581, 589-90 (2d

Cir. 1993) (law enforcement); Gately v. Massachusetts, 2 F.3d 1221, 1230

(Ist Cir. 1993) (law enforcement); EEOC v. Massachusetts, 987 F. 2d 64, 67-

70 (Ist Cir. 1993) (state employees).

unworkable in practice, a rule of state immunity from

federal regulation that turns on a judicial appraisal of

whether a particular governmental function is ‘integral’ or

traditional.“ In large measure this was because the line

proved, in practice, impossible to draw. See id. at 538-39

(comparing judicial decisions finding a “traditional” state

activity with those declining to so find). However, the

Court in Garcia also noted certain “rare exceptions, like the

guarantee, in Article IV, Section 3, of state territorial

integrity” in which the Constitution does “carve out express

elements of state sovereignty that Congress may not employ

its delegated powers to displace.” Id. at 550. This Court in

Gregory relied on another such “express element of state

sovereignty” guaranteed by the Constitution—the guarantee

of a Represeniative government. Gregory, 501 U.S. at 463

(citing U.S. CONsT. art. IV, §4). The other clear statement

rule is based on States’ immunity from suit, which is

guaranteed by the Eleventh Amendment.”

Moreover, management of state prison inmates—that is,

determining the conditions of their confinement—could not

be the type of “core” state function this Court had in mind

in Gregory. To the contrary, there always has been a place

for federal oversight of state prisons. The Court’s deference

to prison administrators is a policy of restraint, not

abdication. See, e.g., Turner v. Safley, 482 U.S. 78, 84-85, 99-

100 (1987) (striking down prohibition on inmate marriages).

*Certainly, Gregory did not purport to overrule longstanding

preemption doctrine. Gregory did not substitute a requirement that

congressional intent be clear in the text of the statute for the normal rule,

which requires only that Congress should make its intention “clear and

manifest” if it intends to pre-empt the historic powers of the States

Gregory, 501 U.S. at 461 (citing Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947)). Rice was a standard statutory construction case in which

this Court relied explicitly on legislative history to determine Congres-

sional intent, rather than requiring a “clear statement” in the text of the

statute itself. 331 U.S. at 232-36; see also United States v. Bass, 404 U.S.

336, 344-47 (1971) (examining legislative history).

Moreover, Petitioners concede that the ADA applies to

certain aspects of prison management—including the

employment of prison staff and treatment of visitors. JA

114. If the operation of state prisons were truly a core state

function, then employment of guards (who are ultimately

responsible for prison security and for enforcing the prison

administration’s policy choices) would also be a

“traditional” state function to which the clear statement rule

applied. Cf. National League of Cities v. Usery, 426 U.S. 833,

851 (1976) (discussing importance of State’s “abilities to

structure employer-employee relationships”). Of course,

this is not the law. Courts do not refuse to apply Title VII

or the ADA to prison employment situations, despite

security issues that may differentiate prisons from most

other functions traditionally performed by states; instead,

security is taken into account in deciding the reasonableness

of a requested accommodation. See, e. g., Dothard v.

Rawlinson, 433 U.S. 321, 331-36 (1977) (gender is a bona fide

occupational qualification that may, consistent with Title

VII, disqualify women for employment as corrections

officers in certain circumstances); Miller v. Illinois Dep’t of

Corrections, 107 F.3d 483, 485 (7th Cir. 1997) (person with

severe vision impairment not “otherwise qualified” to serve

as prison guard).

Finally, Title II of the ADA clearly was intended to alter

the federal- state balance of powers: it expressly applies to

states, and abrogates their Eleventh Amendment immunity.

Congress explicitly intended to eliminate discrimination in

institutions traditionally operated by states such as schools,

“The fact that states often contract out prison operations also

indicates that management of prisoners is not the type of “core” state

function implicated in Gregory. See, e g., Richardson v. McKnight, U. S.—,

138 L. Ed. 2d 540, 547-49 (1997) (discussing history of private prisons,

including a limited prison contracting system in Pennsylvania); T. Don

Hutto, The Privatization of Prisons, in ARE PRISONS ANY BETTER? 111, 124-

25 J. Murphy & J. Dison eds., 1990) (noting increase in number of

profitable private prison companies, and states contracting for such

services).

courts and hospitals. Petitioners have failed to distinguish

management of state prisoners from these other

“traditional” state functions that are concededly covered by

the ADA. They cannot explain how applying the ADA to

state prisoners encroaches on the states’ sovereignty any

more than applying the ADA to other state functions.

C. Under Normal Rules Of Statutory Construction,

The ADA Should Be Applied To State Prisoners.

1. The ADA Incorporates Section 504 Regulations

That Have Consistently Applied To Prisons.

Title II of the ADA incorporates the Department of

Justice ("DOJ") Section 504 regulations, which have applied

to prisons for almost two decades. In enacting Title II

Congress expanded the scope of coverage of Section 504 so

that all programs, services, or activities of state and local

governments, and not just those that receive federal funds,

would operate free of disability-based discrimination. See

H.R. REP. No. 101-485 0(I), at 84 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 366. Title II explicitly adopted two sets

of DOJ Section 504 regulations: the DOJ “coordination”

regulations, codified at 28 C.F.R. pt. 41, and the DOJ

“federally conducted” regulations codified at 28 C.F.R.

pt. 39. 42 U.S.C. §12134(b).” The coordination regula-

tions direct federal agencies to promulgate their own

Section 504 regulations and to “include, where appropriate,

specific provisions adapted to the particular programs and

activities receiving financial assistance from the agency.” 28

C.F.R. §41.4(c). The DOJ’s own recipient regulations

(codified at 28 C.F.R. part 42) were consistent with that

approach, specifically referring to programs that received

”Section 12134(b) refers to “the coordination regulations under Part 41

of title 28, Code of Regulations (as promulgated by the Department of

Health, Education, and Welfare on January 13, 1978).“ These HEW

regulations were adopted by the DO] when it took over coordination

responsibilities. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634

n.14 (1984).

federal financial assistance from DOJ, including prisons. See

28 C.F.R. §42.540(h) (1980) (defining “program” to include

“operations of . . . . department of corrections”); 28 C. F. R.

§42.540(j) (1980) (“‘Benefit’ includes provision of services

(i.e... . confinement... )”); 45 Fed. Reg. 37,621 (1980)

(qualified interpreters important in correctional rehabilita-

tion settings); 45 Fed. Reg. 37,627 (1980) (“prisoners” as

covered beneficiaries); 45 Fed. Reg. 37,630 (1980) (specific

discussion of application of Section 504 to prisons).

Additionally, as of 1988, recipients of federal funds were

required to comply with the Uniform Federal Accessibility

Standards (“UFAS”), 41 C.F.R. subpt. 101-19.6, App. A.

See 28 C.F.R. §42.522(b). UFAS requires that 5% of

“residential units” in “Jails, Prisons, Reformatories, Other

detention or correctional facilities” be constructed in

accordance with the accessibility standards. 41 C.F.R.

subpt. 101-19.6, App. A §4.1.4(9)(c). For the purposes of

“program accessibility, existing facilities” and “communi-

cation” Congress codified the DOJ “federally-conducted”

regulations, 28 C.F.R. pt. 39. 42 U.S.C. §12134(b). These

regulations have also consistently been applied to pris-

ons,” and incorporate the UFAS standards which explicitly

apply to prisons. See 28 C.F.R. §39.150 (requiring alter-

ations to meet accessibility requirements of regulations

implementing Architectural Barriers Act of 1968, UFAS).

Congress explicitly directed that “nothing in [the ADA]

shall be construed to apply a lesser standard than the

standards applied under Title V of the Rehabilitation Act of

1973 (29 U.S.C. §790 et seq.) or the regulations issued by

Federal agencies pursuant to such title.” 42 U.S.C.

§12201(a).*” We must assume that Congress reviewed the

ger 28 C. F. R. pt. 39, Editorial Note at 686 (describing Federal prison

system” as “programs that provide Federal services or benefits”); 28

C.F.R. §39.170(d) (grievance procedure for federal prisoners under

Rehabilitation Act). These regulations were submitted to Congress for

approval. See 28 C.F.R. pt. 39, Editorial Note at 685.

According to the committee report, “nothing in the ADA is intended

(continued...)

“federally assisted” regulations before deciding to approve

them in the ADA (see Traynor v. Turnage, 485 U.S. 535, 546

(1988)); we know that the “federally conducted” regulations

were reviewed. See 28 C.F.R. pt. 39, Editorial Note at 685.

When Congress voices its approval of an administrative

interpretation of a statute, “Congress is treated as having

adopted that interpretation, and this Court is bound

thereby.” United States v. Board of Comm’rs, 435 U.S. 110,

134-35 (1978); see also Consolidated Rail Corp., 465 U.S. 624,

634-35 & nn.14, 16 (1984) (enforcement regulations under

Section 504 “particularly merit deference” because Congress

incorporated the substance of the regulations into the

statute).

2. The Legislative History Supports Application

Of The ADA To Prisons.

Congress intended that the ADA and Section 504 apply

to prisoners. Congress was involved in the formulation of

the Section 504 regulations which are incorporated in

Title II, and endorsed them in their final form, as this Court

recognized in Consolidated Rail Corp. v. Darrone, 465 U.S. at

634. During hearings on the progress of these regulations,

the official in charge of developing them was specifically

asked whether they would apply to convicts. He explained

that “[o]bviously, someone who is a convict or an ex-convict

who otherwise fits the definition of a handicapped person

would be covered within the definition of handicapped

persons.” Rehabilitation of the Handicapped Programs, 1976:

Hearings Before the Subcomm. on the Handicapped of the Comm.

on Labor and Public Welfare, 94th Cong. 1513 (1976).

In 1987, Congress passed the Civil Rights Restoration

Act, Pub. L. No. 100-259, to overturn the Court’s decision

continued)

or should be construed to limit the scope of coverage or to apply lesser

standards than are required under title V of the Rehabilitation Act of

1973, or the regulations implementing that title. H.R. REP. No. 101-

485(III), at 69 (1990), reprinted in 1990 U.S. C. C. AN. 445, 492.

in Grove City College v. Bell, 465 U.S. 555 (1984), which had

narrowly interpreted the prohibition on sex discrimination

in federally funded programs under Title IX, 20 U.S.C.

§1681, to apply only to the actual program that received the

federal funds. See S. REP. NO. 100-64, at 3-5 (1988), reprinted

in 1988 U.S.C.C.A.N. 3, 4-7; Consolidated Rail Corp., 465 U.S.

at 635. Because “Congress intended that Title VI as well as

its progeny—Title IX, Section 504, and the [Age

Discrimination Act]—be given the broadest interpretation”

(1988 U.S.C.C.A.N. 3, at 9), it explicitly broadened the

definition of “program or activity” to prevent application of

Grove City to a whole range of institutions that received

federal funds, including prisons:

Clear violations of federal law go uncorrected while

students lose valuable educational benefits that can

rarely be recovered and employees lose jobs or job

opportunities. Prolonged debate takes place over

what constitutes a “program or activity” under the

civil rights law, while the universities, schools, and

correctional facilities receive millions of federal

dollars. (Id. at 9 (emphasis added))

Prior to enacting the ADA, Congress heard and read

testimony about the need to end discrimination against

people with disabilities in all aspects of law enforcement,

including the treatment of arrestees and inmates. For

example, as Petitioners acknowledge (Pet. Brf. 16), Congress

relied heavily on the United States Commission on Civil

Rights report, Accommodating the Spectrum of Individual

Abilities (1983), which was entered as testimony before

several House and Senate subcommittees. See S. 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

specifically identified the criminal justice system, including

prisons, as a setting in which disability discrimination

occurs. For example, the report lists “[i]nadequate

treatment and rehabilitation programs in penal and juvenile

facilities,” “[iJmadequate ability to deal with physically

handicapped accused persons and convicts (e.g., accessible

jail cells and toilet facilities)” and “[aJbuse of handicapped

persons by other inmates.” Accommodating the Spectrum at

Appendix A. Congressional subcommittees heard or read

testimony about hearing-impaired people who were arrested

and held in jail overnight without knowing their rights or

even what they were being held for, and an HIV-positive

man arrested in Kentucky and locked outside in a car

overnight rather than being admitted into the jail.” The

House Committee Report noted that

persons who have epilepsy, and a variety of other

disabilities, are frequently inappropriately arrested

and jailed because police officers have not received

proper training in the recognition of and aid for

seizures. Often, after being arrested, they are

deprived of medications while in jail, resulting in

further seizures. (H.R. REP. No. 485(III), at 50

(1990), reprinted in 1990 U.S.C.C.A.N. 445, 473)

Moreover, when Congress enacted the ADA,

Section 504 had been applied to state prisons in several

reported cases. See Bonner v. Lewis, 857 F.2d 559, 562 (9th

Cir. 1988); Journey v. Vitek, 685 F.2d 239, 241-42 (8th Cir.

1982); Kendrick v. Bland, 541 F. Supp. 21, 39-40 (W.D. Ky.

1981); Sites v. McKenzie, 423 F. Supp. 1190, 1197 (N. D. W.

Va. 1976). Congress is presumed to be aware of existing

legal precedent and to take it into consideration when it

enacts legislation. Cannon v. University of Chicago, 441 U.S.

677, 696-98 (1979). Here such a presumption is especially

fitting, as Congress enacted the ADA specifically to

broaden—not to narrow—Section 504’s coverage.

Americans with Disabilities Act of 1989: Hearings on S. 933 Before the

Subcomm. on the Handicapped of the Senate Comm. on Labor and Human

Relations, 101st Cong. 254 (1989); Americans with Disabilities Act of 1988:

Joint Hearing on S. 2345 Before the Subcomm. on the Handicapped of the

Comm. on Labor and Human Relations, 100th Cong. 77 (1988).

3. Department Of Justice Regulations

The ADA To Prisoners Are Entitled To Great

Deference.

Congress explicitly delegated authority to the

Department of Justice to construe the ADA by regulation.

42 U.S.C. §12134(a). Therefore, courts interpreting the

ADA must give these regulations legislative and hence

“controlling weight unless they are arbitrary, capricious, or

manifestly contrary to the statute.” Chevron, U. S. A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44

(1984).

A statute’s construction by the agency charged with

administering it “may not be disturbed . . if it reflects a

plausible construction of the plain language of the statute

and does not otherwise conflict with Congress’ expressed

intent.” Rust v. Sullivan, 500 U.S. 173, 184 (1991). Because

there is nothing in the language of the statute or in the

legislative history that indicates that Congress intended to

exclude prisoners from Title II, the construction of the

Department of Justice, which is consistent with the existing

agency construction of Section 504 when Congress

incorporated it into Title II, is entitled to substantial

deference.

The ADA’s implementing regulations state that the Act

is to be applied to state prisons. The DOJ is specifically

responsible for implementing ADA compliance procedures

for “correctional institutions.” 28 C.F.R. §35.190(b)(6).

Additionally, the DOJ’s interpretative analysis discusses

state prisoners:

A public entity is not, however, required to pro-

vide attendant care, or assistance in toileting,

eating, or dressing to individuals with disabilities,

except in special circumstances, such as where the

individual is an inmate of a custodial or correctional

institution. (28 C.F.R. pt. 35, App A, at 478

(emphasis added))

Moreover, the building standards approved by the DO]

under the ADA (a choice of either UFAS or ADAAG),

contain specific guidelines for accessibility in jails and

prisons. 28 C.F.R. §§35.150(b)(1), 35.151(c); 41 C.F.R.

subpt. 101-19.6, App. A §4.1.4(9)(c); 63 Fed. Reg. 2000,

2046-2048 (Jan. 13, 1998) (to be codified at 36 C.F.R. pt.

1191, §12).

4. A Judicially Created Exemption To The ADA

For State Prisoners Is Not Warranted.

Petitioners, not having any support for their position in

the language of the statute, its legislative history, or its

implementing regulations, resort to speculation about what

might happen if the ADA were to be applied to prisoners,

and urge this Court to exempt state prison inmates from the

ADA’s protection based on an imaginary parade of

horribles. Petitioners’ purported policy justifications,

however, fail to demonstrate that application of the ADA to

state prisoners is absurd, unexpected, or even unwise.

Although this Court has the power to “amend” the

plain language of a statute, that power is to be exercised

under very limited circumstances: “[wjhere the plain

language of the statute would lead to ‘patently absurd

consequences that Congress could not possibly have

intended.” Public Citizen, 491 U.S. at 470 (Kennedy, J.,

concurring); see also United States v. Locke, 471 U.S. 84, 95

(1985). If the exception were not thus limited, it would

“allow judges to substitute their personal predilections for

the will of the Congress.” Public Citizen, 491 U.S. at 474

(Kennedy, J., concurring). Because application of the ADA

does not lead to “patently absurd” results, its plain lan-

guage cannot be ignored.

“Moreover, if this Court believes that applying the plain language

would lead to absurd results. it must look to legislative history to

determine congressional intent. Public Citizen, 491 U.S. at 454; Green v.

Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring)

(continued...)

In many relevant respects prisons are similar to

ramerous other government institutions such as mental

hospitals, universities and homeless shelters where state

officials have the responsibility under the ADA for provid-

ing basic, life-sustaining services. Petitioners’ concession

that the ADA applies to prison employees and visitors

undercuts their argue nt that the management of prisons

qua prisons is alway* different than management of other

state activities. Moreover, there are many modifications

that will not conflict with any of the security interests that

may set prisons apart from other public institutions or

agencies. For example, constructing a ramp to the infirmary

or classroom for prisoners who use wheelchairs and

providing emergency warning systems for deaf prisoners

will foster rather than hinder legitimate penological

objectives.”

Nor is there merit to Petitioners’ argument that the

purpose of the ADA is to reduce the “dependency and

nonproductivity” of people with disabilities, and that,

because prisoners are already dependent on their custodi-

ans, applying the ADA to prisoners will increase, rather

than decrease, the costs of dependency. Pet. Brf. 14.

Petitioners focus only on the purported costs of

accommodating prisoners with disabilities while in prison,

and ignore the fact that most prisoners are eventually

released from prison. See Turner, 482 U.S. at %. If

prisoners with disabilities are forced to sit idle in their cells,

rather than taking part in educational or vocational training,

(continued)

(it is appropriate to consult legislatwe history to ensure that there is not

a shred of evidence to support the purported “absurd” result)

“There undoubtedly will be cases where a security issue is presented.

See, eg. Brief of Amici Curiae Nevada, et al. at 3 (suggesting that violent

inmate using a prosthetic device as a weapon implicates security

concerns). In such a case, prison officials would not be required to allow

the inmate to continue using the device around others if this would

create a significant security risk. See School Board v. Arline, 480 U.S. 273,

286 n.15 (1987).

they are more likely to lead lives of “dependency and

nonproductivity” upon release; if they are given equal

opportunities in prison, they have a chance to compete

equally upon release.”

Chief among Petitioners’ concerns is the threat of ADA

litigation by prisoners. See Pet. Brf. 10, 14-15. However, a

statute is not absurd because it grants individuals legal

rights. Petitioners fundamentally misapprehend both the

ADA and the function of the judiciary when they contend

that “federal courts will be used to reconstruct prison cells,

to alter scheduling of inmate movements and assignments,

and to interfere with security procedures.” Pet. Brf. 10.“

The ADA does not authorize or require what Petitioners

claim to fear. To the contrary, it requires only reasonable

modifications to avoid discriminating against individuals

with disabilities. Moreover, it is Petitioners’ obligation to

obey federal law, and generally states can be expected to

follow the law without interference by courts. It is only

when Petitioners disobey the law that a federal court might

order Petitioners to do that which they should have done

“Indeed, studies in Pennsylvania and elsewhere demonstrate that

inmate participation in vocational training and prison industry programs

reduces recidivism and increases post- release employment. See, e

PENN. DET T OF Epuc. FINAL REPORT: A PROGRAM TO REINTEGRATE

PENNSYLVANIA INMATES THROUGH LIVE WORK AND COMMUNITY

INVOLVEMENT 34, 56-62 (June 30, 1996); WILLIAM G. SAYLOR & GERALD G.

Gs, U.S. FED. BUREAU OF PRISONS INTERIM REPORT: THE EFFECT OF

PRISON WORK EXPERIENCE, VOCATIONAL AND APPRENTICESHIP TRAINING

ON THE LONG-TERM RECIDIVISM OF U.S. FEDERAL PRISONS 4-5 (Nov. 1995).

“Petitioners’ reliance on the Purcell case is misplaced. Contrary to

their assertion, the district court did not hold that prison officials had

an obligation to “accommodate” Purcell’s Tourette's by permitting him

to return to his cell when he needed to release his verbal and motor

ties. Pet. Brf. 16 n.5 (quoting Purcell v. Pennsylvania Dep't of Corrections,

No. 95-6720, 1998 U.S. Dist. LEXIS 105, at *26 (E.D. Pa. Jan. 9, 1998)).

Instead, the court denied defendants’ motion for summary judgment

because punishing Purcell for remaining in his cell to release his tics,

despite the fact that prison doctors had provided Purcell with medical

authorization to return to his cell to alleviate his tics, “might violate

Title II. Id. at *27 (emphasis added).

without judicial prompting: obey the law.” Even then,

following well-established principles of judicial deference to

state prison authorities, courts are to give prison officials an

opportunity to themselves devise a remedial plan that

complies with the ADA. See Lewis v. Casey, 518 U.S. 343,

135 L. Ed. 2d 606, 625 (1996).

Nor is there any merit to Petitioners’ claim that the

sheer number of prisoners with disabilities mitigates against

applying the ADA to prisons; it simply demonstrates why

Congress enacted the ADA as an extremely broad and

comprehensive statute, designed to cover all possible places

in which people with disabilities might find themselves.

THE COURT SHOULD NOT REACH THE

CONSTITUTIONAL ISSUES.

Petitioners have not directly challenged the constitu-

tionality of the ADA, but have only raised the constitutional

issues to persuade the Court to apply the clear statement

rule. Thus, there is no reason for the Court to directly

address these issues.

There also are sound prudential reasons for not

deciding the constitutional issues. Because Petitioners did

not raise any constitutional questions in the courts below

(see JA 103), and those courts did not have an opportunity

to rule on these issues, this Court does not have the benefit

of lower court opinions squarely addressing the constitu-

Ser Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 617 (1996) (“It is

for the courts to remedy past or imminent official interference with

individual inmates’ [legal rights], it is for the political branches of the

State and Federal Governments to manage prisons in such fashion that

official interference with the [legal rights] will not occur. Of course the

two roles briefly and partially coincide when a court, in granting relief

against actual harm that has been suffered, or that will imminently be

suffered, by a particular individual or class of individuals, orders the

alteration of an institutional organization or procedure that causes the

harm”).

tional issues, nor of fully crafted arguments tested in the

crucible of the lower courts. See Taylor v. Freeland & Kronz,

503 U.S. 638, 646 (1992); Yee v. City of Escondido, 503 U.S.

519, 538 (1992). Nor is there any split of authority in the

Circuit Courts requiring dedication of the Court’s scarce

resources.” See Yee, 503 U.S. at 537-38.

IV.

PETITIONERS’ CONSTITUTIONAL ARGUMENTS

HAVE NO MERIT.

A. Petitioners’ “As Applied” Challenge To The Statute

Is Too Broad.

In addition to sound prudential reasons for not

deciding the constitutional issues, there is a fundamental

problem with Petitioners’ analysis. Petitioners have

virtually ignored the facts of Yeskey’s case in favor of a

constitutional attack against the ADA as applied to all

prisoners with disabilities in all state prisons under all

circumstances. This wide-ranging, unfocused challenge

should not be accepted by the Court because there is no

record of an actual or imminent application that would

present the constitutional question in a “clean-cut and

concrete form.” Cf. Renne v. Geary, 501 U.S. 312, 322 (1991).

Any particular application that could cause a constitutional

infirmity might require a limiting construction rather than

invalidating the protections of the ADA for an entire class.

*To our knowledge no Circuit Court has determined whether the

ADA—as applied to prisoners or otherwise—is within Congress's

Commerce Clause powers. Three Circuit Courts have held that Congress

acted constitutionally in abrogating the States’ 11th Amendment

i from suit, and in doing so held that Congress properly

exercised its 14th Amendment powers to enact the ADA. See Coolbaugh

v. Louisiana, -F.3d--, No. 96-30664, 1998 WL 84123, at *3-*8 (5th Cir.

Feb. 27, 1998); Clark v. California, 123 F.3d 1267, 1270-71 (9th Cir. 1997),

petition for cert. filed, 66 U.S.L.W. 3308 (U.S. Oct. 20, 1997) (No. 97-686);

Crawford, 115 F.3d at 487 (decided before this Court’s decision in City of

Boerne v. Flores).

Rust v. Sullivan, 500 U.S. 173, 190-91 (1991); Burson v.

Freeman, 504 U.S. 191, 210 n.13 (1992) (plurality opinion).

Even if Petitioners’ broad challenge is accepted, to

succeed on this appeal from a motion to dismiss they must

prove that there is no set of facts upon which Yeskey or any

other disabled prisoner could constitutionally prevail.

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Petitioners

cannot meet their burden. For example, at trial the evi-

dence may show that there is no sound reason for excluding

Yeskey from Boot Camp. In another case, there may be no

legitimate penological justification for prohibiting an inmate

who uses a wheelchair from eating in the dining hall. The

fact that there might conceivably be other circumstances

which raise constitutional about the application of

the ADA is insufficient reason to hold the statute

unconstitutional. See United States v. Salerno, 481 U.S. 739,

745 (1987).

Should a conflict with penological interests arise in a

specific case, the ADA is sufficiently flexible to provide

ample opportunity to adjust the relief to the prison setting,

or to deny any relief at all. See Parts I and II(C)(4), supra.

The Court need not resolve the constitutional issues since

it must presume that the lower courts will construe the

statute so that it is consistent with the Constitution.

B. Congress Properly Exercised Its Powers Under

Section 5 Of The 14th Amendment.

If the Court elects to reach the constitutional issues, the

judgment should still be affirmed because the ADA was

properly enacted by Congress.

Petitioners concede that Congress properly enacted the

ADA to enforce the Equal Protection Clause of the

Fourteenth Amendment pursuant to its express power

under Section5 of that Amendment. Pet. Brf. 26.

Petitioners claim, however, that there is a serious question

about whether Congress could constitutionally apply the

ADA to the “management of state prisons.” Id. But

Congress constitutionally enacted the ADA as a

comprehensive remedy to eliminate the undisputed evil of

pervasive invidious discrimination individuals with

disabilities, regardless of where the discrimination takes

place. The types of discrimination faced by prisoners with

disabilities are often the same as those in other

environments, and the fact that prisoners are completely

dependent upon prison officials for satisfaction of their basic

needs makes the discrimination more pernicious. There is

no constitutionally acceptable reason for the ADA's

protection against discrimination to stop at the prison gates.

1. Congress Has Broad Powers To Enact

Remedial And Preventative Legislation To

Enforce The Equal Protection Clause In State

Prisons.

Over a century ago the Court recognized Congress’s

broad powers:

Whatever legislation is appropriate, that is,

adapted to carry out the objects the amendments

have in view, whatever tends to enforce submis-

sion to the prohibitions they contain, and to secure

to all persons the enjoyment of perfect equality of

civil rights and the equal protection of the laws

against State denial or invasion, if not prohibited,

is brought within the domain of congressional

power. (Ex parte Virginia, 100 U.S. 339, 345 (1880)

(quoted with approval in City of Boerne v. Flores

--U.S.--, 138 L. Ed. 2d 624, 637 (1997))

Congressional power under Section 5 of the Fourteenth

Amendment extends beyond principles of federalism and

overrides the sovereign powers of the States. Fitzpatrick v.

Bitzer, 427 U.S. 445, 456 (1976).

Last Term the Court reaffirmed that Congress has the

power and the duty under Section 5 to use “strong remedial

and preventive measures to respond to the widespread and

persisting deprivation of constitutional rights City of

Boerne v. Flores, --U.S.--, 138 L. Ed. 2d 624, 642 (1997).

Congress must determine in the first instance what legisla-

tion is necessary to protect Fourteenth Amendment free-

doms and “its conclusions are entitled to much deference.”

Id. at 649. Congress must have the “necessary latitude to

try new techniques” to achieve the goal of equality.

Fullilove v. Klutznick, 448 U.S. 448, 490 (1980) (plurality

opinion).

2. As Applied To State Prisoners The ADA Is A

Constitutional Exercise Of Congress’s

Remedial Powers.

Petitioners concede that Congress had ample evidence

of unconstitutional discrimination against individuals with

disabilities, and that the means Congress chose to remedy

that discrimination in free society is “‘proportionate to the

ends legitimate under 85. Pet. Brf. 13, 26. They also

concede that prison employees and visitors are entitled to

protection and reasonable modifications under the ADA.

JA 114 n.8. Thus, Petitioners’ broad contention that the

ADA is entirely inconsistent with the management of state

prisons is wrong by their own admission. Moreover, the

premise of Petitioners’ position that the ADA is not

congruent and proportional when applied to prisoners—is

not correct.

Petitioners’ argument comes down to the claim that the

Court should create a special exception and hold that the

ADA does not apply to prisoners under any circumstances,

even to provide the same reasonable modifications that are

concededly required to accommodate prison guards and

visitors. This claim is contrary to the language of the ADA,

to logic and to common sense. Nor is the claim supported

by the sole authority Petitioners cite, City of Boerne.

In City of Boerne the Court held that the Religious

Freedom Restoration Act (RFRA), was unconstitutional

because it intended a substantive change in the meaning of

the Free Exercise Clause by expressly overruling one of the

Court’s decisions interpreting that clause. 138 L. Ed. 2d at

634, 644-49. Recognizing that the difference between

remedial legislation and substantive change is one of

degree, the Court looked to the essential ingredients of

remedial legislation—“congruence and _ proportionality

between the injury to be prevented or remedied and the

means adopted to that end”—to weed out statutes that

unmistakably fall on the wrong side of the line. Id. at 638.

“Strong measures appropriate to address one harm may be

an unwarranted response to another, lesser one.” Id. at

645.

The Court had little trouble recognizing that Congress

had made a drastic change in the law when it enacted

RFRA. Before RFRA all neutral state laws that had an

incidental burden on religion were constitutional under

Employment Division, Dep’t of Human Resources v. Smith, 494

U.S. 872, 888-89 (1990); after RFRA most of those same state

laws would fall. 42 U.S.C. §2000bb-1 (any incidental impact

would require government to prove that law was least

restrictive alternative that furthered compelling state

interest). And there was little doubt about Congress’s

intent—it enacted RFRA to overrule Smith. See 42 U.S.C.

§2000bb(a), (b). Thus, RFRA did not embody the same

“substantive constitutional value” that the Supreme Court

had given to the Free Exercise Clause. D.O. Conkle, The

Religious Freedom Restoration Act: |The Constitutional

Significance Of An Unconstitutional Statute, 56 MONT. L. REV.

39, 64 (1995).

In contrast to RFRA, the ADA is consistent with and

supplements the substantive values embodied in the Equal

Protection Clause, as interpreted by City of Cleburne v.

Cleburne Living Center, 473 U.S. 432 (1985). In that case the

Court unanimously applied the Equal Protection Clause to

strike down discriminatory conduct directed against

individuals with a disability (mental retardation). The Court

recognized that people with mental retardation are subject

to negative attitudes, fear and irrational prejudice, and that

invidious discrimination against them was likely to

continue. Id. at 446, 448, 450.

This observation, as applied to all individuals with

disabilities, including prisoners, expresses well the findings

and purposes that underlie the ADA. See 42 U.S.C.

§12101(a)(7), (8) and (6)(1). The heart of the statute

expresses in plain terms the meaning of the Clause as it has

been applied to people with disabilities: “no qualified

individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a

public entity, or be subject to discrimination by any such

entity.” 42 U.S.C. §12132.

This general anti- discrimination provision and its

constitutional foundation are equally applicable to prisoners.

Since Petitioners agree that prisoners retain their right to be

free of discrimination under the Constitution, Pet. Brf. 28,

Congress can enforce Section 5 so that they are. Turner v.

Safiey, 482 U.S. at 84 (prisoners retain the right to be free of

unconstitutional discrimination); Lee v. Washington, 390 U.S.

333, 333-34 (1968) (per curiam) (same).

a. Applying The ADA To Prisoners Is

Consistent With The Court's

Interpretation Of The Equal Protection

Clause.

Petitioners argue that the ADA as applied to state

prisoners is unconstitutional because Congress has changed

the meaning of the Equal Protection Clause by positioning

the level of scrutiny of prison officials’ actions above the

constitutional floor. Pet. Brf. 30. Petitioners argue that the

ADA changes the meaning of the Constitution because the

Department of Justice regulations implementing the ADA

require something more than the rational basis test

announced in City of Cleburne and the prison specific test

announced in Turner v. Safley, 482 U.S. at 89. In this way,

Petitioners argue, the ADA as applied to prisons is like

RFRA in that it changes the meaning of the Constitution.

Pet. Brf. 28.

Petitioners’ argument misses a critical distinction

between changing the substantive meaning of the

Constitution and adopting a remedy that is different than

the type and level of scrutiny employed by the judiciary in

individual cases in the absence of “controlling congressional

direction.” Cleburne, 473 U.S. at 439. As long as Congress

acts in a manner consistent with the Court’s interpretation

of the Equal Protection Clause to deter or remedy

unconstitutional violations, which it did, it has the power

under Section 5 to employ in the ADA remedies that will

prohibit “conduct which is not itself unconstitutional and

intrudes into ‘legislative spheres of autonomy previously

reserved to the states. City of Boerne v. Flores, 138 L. Ed.

2d at 637 (emphasis added); Fullilove v. Klutznick, 448 U.S.

at 483-84, 490 (plurality opinion) (Congress is not limited to

judicial remedies and has latitude to try new techniques).”

Thus, Congress has the authority, in appropriate

circumstances, to make unlawful the specific actions that the

Court has declined to find unconstitutional, and those that

the judiciary has specifically found to be constitutional. See,

e.g., South Carolina v. Katzenbach, 383 U.S. 301, 333-34 (1966);

Katzenbach v. Morgan, 384 U.S. 641, 648-49 (1966); City of

Rome v. United States, 446 U.S. 156 (1980).*

These principles and the cases that confirmed them all

met with approval in City of Boerne, 138 L. Ed. 2d at 637-38.

Nothing in the ADA requires more of state officials than the

In no organ of government, state or federal, does there repose a

more comprehensive remedial power than in the Congress” to enforce

the Equal Protection Clause. Fullilove v. Klutznick, 448 U.S. at 483

(plurality opinion). The Court owes Congress the greatest deference in

the selection of “‘instrumentalities to perform a function that is within its

power. Id. at 480.

“South Carolina v. Katzenbach and City of Rome concerned the scope of

Congress's authority under Section 2 of the Fifteenth Amendment.

Because congressional authority under this Section is the same as that

under Section 5 of the Fourteenth Amendment, the Court has relied on

cases under both sections interchangeably. South Carolina v. Katzenbach,

383 U.S. at 326.

statutes did in these cases. Thus, any perceived

enhancement of judicial scrutiny of actions by prison

officials does not by itself cause the ADA or any other

statute to fall outside the scope of Congress’s power under

Section 5 of the Fourteenth Amendment. “It has never

been seriously maintained. that Congress can do no

more than the judiciary to enforce the [Fourteenth]

Amendment’s commands.“ City of Rome, 446 U.S. at 210

(1980) (Rehnquist, J., dissenting); Clark v. California, 123 F.3d

at 1271 (Congress’s powers are not confined by the level of

judicial scrutiny).

It would be inconsistent with Congress’s institutional

capabilities to limit its remedial powers to those employed

by the judiciary. The Cleburne and Turner tests were both

adopted in large part because the Court believed that the

legislature and the executive branches, rather than the

judiciary, should have the primary responsibility for

deciding how persons with disabilities and prisoners should

be treated. Turner, 482 U.S. at 84-85 (“Running a prison is

an inordinately difficult undertaking that requires expertise,

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

peculiarly within the province of the legislative and execu-

tive branches of government”); City of Cleburne, 473 U.S. at

440 (absent congressional direction, courts devise standards

of review); id. at 442-43 (“How 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 perhaps ill-informed

opinions of the judiciary”).

The legislative and the executive branches (after

exhaustive study and long experience) have now spoken

through the ADA and the Department of Justice implement-

ing regulations, and have chosen those remedies that in

prison and elsewhere most appropriately balance the

Any other rule would confine Congress’s power to the “insignificant

role” of abrogating laws that the judiciary was prepared to find unconsti-

tutional. Katzenbach v. Morgan, 384 U.S. at 649.

competing interests. Indeed, in Cleburne the Court

applauded the national legislative response a*«' cited with

approval the ADA’s predecessor, Section 504 (which was

applied by regulations to state prisons). See Cleburne, 473

U.S. at 443-45 (“a civilized and decent society expects and

approves such legislation”). That legislative response does

not become unconstitutional, as Petitioners contend,

because the other branches of government employed a

different means of enforcing constitutional rights of disabled

persons than that adopted by the Court—particularly

because the judicially created test was specifically designed

to permit the Legislature “flexibility and freedom from

judicial oversight in shaping and limiting their remedial

efforts.” Id. at 445; see also Coolbaugh v. Louisiana, 1998 WL

84123, at *6 (deference to Congress particularly appropriate

because Cleburne held it was appropriate branch to make

findings and decisions on treatment of disabled).

b. The Legislative Record Is Sufficient To

Support The ADA’s Application To State

Prisoners.

Again relying on City of Boerne, Petitioners maintain

that no legislative response is appropriate to enforce the

Fourteenth Amendment because there is no information in

the legislative record indicating that discrimination against

state prisoners with disabilities is a widespread problem.

Pet. Brf. 26. Congress is not required to legislate so

narrowly. Prisoners with disabilities, like others in the

community and in different types of institutions, are

entitled to protection from discrimination.“ “In the

interests of uniformity, Congress may paint with a much

broader brush than may this Court, which must confine

itself to the judicial function of deciding individual cases

and controversies upon individual records.” Oregon v.

“As set forth supra, Part (C2), and in Brief for Amici Curiae the

National Advisory Group for Justice, et al., Congress had evidence of

discrimination in the criminal justice system in general and against

prisoners in particular.

Mitchell, 400 U.S. 112, 284 (1970) (Stewart, J., concurring

and dissenting).

for a co-equal branch of government demands

substantial judicial deference to the factual findings and

predictive judgments of Congress. Turner Broadcasting Sys.

v. FCC, 520 U.S.-, 137 L. Ed. 2d 369, 391-92 (1997).

“‘(Cjomplete factual support in the record for the...

judgment or prediction is not possible or required

Id. (quoting FCC v. National Citizens Comm. for Broadcasting,

436 U.S. 775, 814 (1978)). Congress would suffer an impos-

sible burden if, as Petitioners implicitly suggest, it were

required to gather evidence about each type of state agency

before it could act comprehensively. Turner Broadcasting

Sys., 137 L. Ed. 2d at 402.

Thus, when deciding to enact a national ban on literacy

tests it was sufficient for Congress to find that racial

prejudice is prevalent throughout the country and that such

tests were discriminatory. Congress was not required to

determine whether such tests had a discriminatory purpose

or effect in every state and in each jurisdiction. Oregon v.

Mitchell, 400 U.S. at 284 (Stewart, J., concurring and

dissenting); see also id. at 216 (Harlan, J., concurring and

dissenting) (Congress can decide whether to make a “more

particularized inquiry”); Katzenbach v. Morgan, 384 U.S. at

653. If Congress has the authority to enact a nationwide

remedy against discrimination without evidence of constitu-

tional violations in every state then a fortiori it must have

the same authority to enact national laws without gathering

evidence about each state agency. Cf. City of Rome, 446 U.S.

at 193 (Stevens, J., concurring) (“Congress has the

constitutional power to regulate voting practices in Rome,

so long as it has the power to regulate such practices in the

entire State of Georgia”).

An extensive record of pervasive discrimination was not

available to Congress when it enacted RFRA. The Court

held that RFRA could not be justified as a remedy for

unconstitutional conduct because the remedy was so far out

of proportion to the perceived harm. City of Boerne, 138 L.

Ed. 2d at 646. The Court reached this conclusion after

noting that the legislative record revealed no incidents of

laws passed because of religious bigotry in the last forty

years. Id. at 645 (“deliberate persecution is not the usual

problem in this country’”).

Unlike RFRA and like the voting rights statutes, when

enacting the ADA Congress found, as Petitioners properly

concede, that in our _society discrimination against the

disabled is pervasive. Pet. Brf. 13; 42 U.S.C. §12101(a)(2).

Something is pervasive when it has “become diffused

throughout every part.” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1688 (1966). Prisons are a

significant, and growing, part of our society. See Pet. Brf.

9n.1. There is no reason, and Petitioners have not

advanced one, to believe that prisoners are immune from

discrimination that has infected every other part of society.

See Briefs of Amici Curiae ACLU, et al. and ADAPT, et al.

(collecting cases of discrimination against prisoners with

disabilities). “Prejudice, once let loose, is not easily

cabined.” City of Cleburne, 473 U.S. at 464 (Marshall, J.,

concurring and dissenting).

The ADA, therefore, is a constitutionally acceptable

remedy for a well-documented and prevalent form of

discrimination.

c. The ADA Does Not Impose A

Excessive Burden On

Prison Officials.

As noted in Part I, supra, the ADA is a comprehensive

remedial statute of general application. It applies, by its

terms, to all types of state and local government entities,

such as schools, hospitals, universities, departments of

motor vehicles and prisons. It is true that prisons can be

dangerous places with security concerns that require

particular expertise to manage. But, prisoners, unlike most

other individuals with a disability, are completely

dependent upon prison officials for access to all services,

including those that meet their basic needs. See, e.g., Estelle

v. Gamble, 429 U.S. 97, 103 (1976) (medical care).

The regulations implementing the ADA make the

statute’s general non-discrimination mandate specific in a

way that is sensitive to the needs of individuals

with disabilities and the policy decisions of local and state

governments. See supra, Parts I and II(C)(4). Unlike RFRA,

which would have i certain individuals to ignore

local laws, the ADA regulations are a balanced response to

competing interests that flow in large part from the Court’s

prior decisions interpreting Section 504. These regulations

do not, like RFRA, provide all citizens, including prisoners,

with a right that necessarily conflicts with state and local laws

of general application and allow an individual to “ignore”

even criminal laws. See Employment Division v. Smith, 494

U.S. at 889.

As a matter of law these remedies do not become

disproportionate in state prison.“ Prison officials retain

considerable discretion to safely care for, treat, discipline

and rehabilitate prisoners. As Justice Posner explained in

a decision upholding the ADA against a similar constitu-

tional challenge:

Terms like “reasonable” and “undue” are relative

to circumstances, 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 prisoners’ constitutional

rights. E.g., Turner v. Safley, supra, 482 U.S. at 84-

“The Voting Rights Acts approved by the Court were much more

intrusive; no state interest was sufficient to overcome the statute, and the

restrictions were directly aimed at the heart of the States’ sovereign

powers. States were not permitted to change their voting policies and

practices without permission from the Attorney General or a federal

court. City of Rome, 446 U.S. at 163-64. Certain methods of determining

voting qualifications in all of the states were completely banned. Oregon

v. Mitchell, 400 U.S. at 118 (Black, J.); Katzenbach v. Morgan, 384 U.S. at

644-47. Federal examiners even had the authority to decide who was

eligible to vote. South Carolina v. Katzenbach, 383 U.S. at 316.

91. The security concerns that the defendant

rightly emphasizes in urging us to exclude prison-

ers from the protections of the Act are highly

relevant to determining the feasibility of the accom-

modations that disabled prisoners need in order to

have access to desired programs and services.

(Crawford v. Indiana Dey t of Corrections, 115 F.3d at

487) 7

Petitioners have no basis for claiming that the ADA will

result in a disproportionate response at this stage of the

, since the case is on appeal from a motion to

dismiss. It is significant that Petitioners did not hint at the

slightest security basis for denying Yeskey the right to

icipate in the Boot Camp. Pet. Brf. 31; see also Yeskey,

118 F.3d at 169, 174; JA 133-34 (doubting that security

concerns will be germane on remand). In fact, Yeskey’s

participation in the program would have been congruent

with an important penological objective—rehabilitation. See

PA. STAT. ANN. tit. 61, §1125(6)(1) (West Supp. 1997) (“The

objectives of the program are: (1) To . . reduce recidivism

and promote characteristics of good citizenship among

eligible inmates”).

Petitioners argue that Yeskey has no right under

Pennsylvania law and the Constitution to compel his

participation in the Boot Camp, and that the ADA would

grant him that right unless the state can prove it would

cause a fundamental alteration of the program. Pet. Brf. 31.

They are wrong. Title II of the ADA is a remedy for

unlawful government discrimination—nothing more. If

Yeskey is “otherwise qualified” for the program, then the

defendants are forbidden from excluding him by reason of his

disability. Yeskey has “no right to more services than the

able-bodied inmates, but [he has] 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.

C. Congress May Regulate Discrimination In Prison

Under The Commerce Clause.

Petitioners do not dispute Congress’s finding that

discrimination against individuals with disabilities has a

substantial effect on interstate commerce, and they concede

that “some aspects of state prison administration do affect

interstate commerce and can be regulated by Congress.

Pet. Brf. 23 n. 7. The undisputed congressional findings and

Petitioners’ concession defeats their argument that the ADA

is an invalid exercise of the commerce power with respect

to prisons.

This is not acase where Congress regulated purely local

conduct—simple possession by any person of a gun near a

school—that had nothing to do with commerce. See United

States v. Lopez, 514 U.S.-, 131 L. Ed. 2d 626, 632 (1995).

Here the Boot Camp is specifically designed to reintegrate

prisoners into the stream of commerce. Because of Yeskey’s

disability, Petitioners deprived him of the opportunity to

work on public projects, to obtain treatment and to be

trained so that he could find work upon release. Cf. PA.

STAT. ANN. tit. 61, §1123 (West Supp. 1997). The nexus

between the state’s discrimination and commerce is clear.

Nor did Congress fail to make findings or collect data

on the effect of disability discrimination on interstate

commerce. Cf. Lopez, 131 L. Ed. 2d at 639-40. Because

Congress rationally found that disability discrimination hus

a direct and immediate effect on interstate commerce,“ it

“There are good reasons for this position. In Pennsylvania alone,

on state prisons exceeded $1 billion ten years ago (Pet. Brf. at

9 n. ) and in 1996 the state’s prison industries sold goods worth $33

million. CORRECTIONAL INDUSTRIES ASSOCIATION, 1997 DIRECTORY:

PRODUCING PRODUCTIVE PEOPLE 79 (1997).

“Congress found that “the continuing existence of unfair and

(continued...)

had the authority to ban such discrimination in prisons,

which are a multi-billion dollar industry, as an “essential

5 192 9608

Petitioners’ primary argument is that Congress does not

have the authority to regulate discrimination in state

prisons. See Printz v. United States, -U.S.--, 138 L. Ed. 2d

914, 942-45 (1997); New York v. United States, 505 U.S. 144,

161, 168-69, 188 (1991). Of course, the Court need not

decide this issue because the ADA is a proper exercise of

Congress’s power under Section5 of the Fourteenth

Amendment, which was specifically designed to intrude on

the sovereign powers of the States. Fitzpatrick v. Bitzer, 427

U.S. 445, 456 (1976).

If the Court does reach this issue, Petitioners’ argument

fails. Both Printz and New York stand for the narrow

proposition that federal legislation cannot compel the States

to “enact or enforce a federal regulatory program.” Printz,

138 L. Ed. 2d at 944; New York, 505 U.S. at 161. The ADA

does not “press [state officials] into federal service.” Printz,

138 L. Ed. 2d at 966 (Stevens, J., dissenting); see id. at 940.

Nor is it, like the statute in New York, a “formal command

from the National Government directing the State to enact

a certain policy.” United States v. Lopez, 131 L. Ed. 2d at 653

(Kennedy, J., concurring).

In short, the ADA constitutionally prohibits the States

from discriminating and requires them to take certain

actions to prevent future discriminauon. It does not cross

the constitutional line by, for example, requiring the States

to operate a motivational boot camp for federal prisoners.

Thus, the ADA is well within Congress’s authority under

“(...continued)

unnecessary discrimination and prejudice . costs the United States

billions of dollars in unnecessary expenses resulting from dependency

and nonproductivity,” thus “a clear and comprehensive

national mandate for the elimination of discrimination against individuals

with disabilities.” 42 U.S.C. §12101(a)(9), (b) (emphasis added).

the Commerce and Supremacy Clauses to pass laws of

general application that displace or pre-empt state laws and

icies. Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264, 289-90 (1981).

CONCLUSION

For the reasons noted above, the Court should affirm

the judgment of the Third Circuit.

Respectfully submitted,

DONALD SPECTER

Counsel of Record

PRISON LAW OFFICE

Eve H. CERVANTEZ

KRISTAN S. MAYER

HOWARD, RICE, NEMEROVSKI, CANADY,

FALK & RABKIN

A Professional Corporation

- ARLENE MAYERSON

DISABILITY RIGHTS EDUCATION AND

DEFENSE FUND

JOHN V. WADSWORTH

McCCUTCHEN, DOYLE, BROWN &

ENERSEN, LLP

Attorneys for Respondent Ronald R. Yeskey

DATED: March 30, 1998.

APPENDIX

A-1

AMERICANS WITH DISABILITIES ACT OF 1990

42 U.S.C. §§12111, 12201, 12202, 12208, 12210

Subchapter I - Employment

42 U.S.C. §12111. Definitions

As used in this subchapter:

(5) Employer

(A) In general

The term “employer” means a person engaged in

an industry affecting commerce who has 15 or more

employees for each working day in each of 20 or more

calendar weeks in the current or preceding calendar

year, and any agent of such person, except that, for

two years following the effective date of this

subchapter, an employer means a person engaged in an

industry affecting commerce who has 25 or more

employees for each working day in each of 20 or more

calendar weeks in the current or preceding year, and

any agent of such person.

(B) Exceptions

The term “employer” does not include—

(i) the United States, a corporation

wholly owned by the government of the

United States, or an Indian tribe; or

(ii) a bona fide private membership club

(other than a labor organization) that is exempt

from taxation under section 501(c) of Title 26.

A-2

_. Subchapter IV - Miscellaneous Provisions

42 U.S.C. §12201. Construction

(a) In general

Except as otherwise provided in this chapter, nothing

in this chapter shall be construed to apply a lesser standard

than the standards applied under title V of the

Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the

regulations issued by Federal agencies pursuant to such

title.

42 U.S.C. §12202. State immunity

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. In any action against a State

for violation of the requirements of this chapter, 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 an action against any public

or private entity other than a State.

42 U.S.C. §12208. Transvestites

For the purposes of this chapter, the term “disabled” or

“disability” shall not apply to an individual solely because

that individual is a transvestite.

42 U.S.C. §12210. Illegal use of drugs

(a) In general

For purposes of this chapter, the term “individual with

a disability” does not include an individual who is currently

engaging in the illegal use of drugs, when the covered

entity acts on the basis of such use.

A-3

(b) Rules of construction

Nothing in subsection (a) of this section shall be

construed to exclude as an individual with a disability an

individual who—

(1) has successfully completed a supervised drug

rehabilitation program and is no longer engaging in the

illegal use of drugs, or has otherwise been rehabilitated

successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation

program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such

use, but is not engaging in such use;

except that it shall not be a violation of this chapter for a

covered entity to adopt or administer reasonable policies or

procedures, including but not limited to drug testing,

designed to ensure that an individual described in

paragraph (1) or (2) is no longer engaging in the illegal use

of drugs; however, nothing in this section shall be

construed to encourage, prohibit, restrict, or authorize the

conducting of testing for the illegal use of drugs.

Notwithstanding subsection (a) of this section and

section 12211(b)(3) of this title, an individual shall not be

denied health services, or services provided in connection

with drug rehabilitation, on the basis of the current illegal

use of drugs if the individual is otherwise entitled to such

services.

(d) “Illegal use of drugs” defined

(1) In general

The term “illegal use of drugs” means the use of

drugs, the possession or distribution of which is

unlawful under the Controlled Substances Act [21

U.S. C. A. §801 et seq.]. Such term does not include the

A-4

use of a drug taken under supervision by a licensed

health care professional, or other uses authorized by

the Controlled Substances Act [21 U.S.C.A. §801 et

seq.] or other provisions of Federal law.

(2) Drugs

The term “drug” means a controlled substance, as

defined in schedules I through V of section 202 of the

Controlled Substances Act [21 U.S.C.A. 8812].

A-5

CODE OF FEDERAL REGULATIONS

28 C.F.R. Ch. 1 (7-1-97 Edition)

PART 35—NONDISCRIMINATION ON

THE BASIS OF DISABILITY IN STATE AND

LOCAL GOVERNMENT SERVICES

Subpart A—General

28 C.F.R. §35.104

Qualified individual with a disability means an individual

with a disability who, with or without reasonable

modifications to rules, policies, or practices, the removal of

architectural, communication, or transportation barriers, or

the provision of auxiliary aids and services, meets the

essential eligibility requirements for the receipt of services

or the participation in programs or activities provided by a

public entity.

Subpart D—Program Accessibility

28 C.F.R. §35.149 Discrimination prohibited.

Except as otherwise provided in §35.150, no qualified

individual with a disability shall, because a public entity’s

facilities are inaccessible to or unusable by individuals with

disabilities, be excluded from participation in, or be denied

the benefits of the services, programs, or activities of a

public entity or be subjected to discrimination by any public

entity.

28 C.F.R. §35.151 New construction and alterations.

(a) Design and construction. Each facility or part of a

facility constructed by, on behalf of, or for the use of a

public entity shall be designed and constructed in such

manner that the facility or part of the facility is readily

accessible to and usable by individuals with disabilities, if

the construction was commenced after January 26, 1992.

(b) Alteration. Each facility or part of a facility altered

by, on behalf of, or for the use of a public entity in a

A-6

manner that affects or could affect the usability of the

facility or part of the facility shall, to the maximum extent

feasible, be altered in such manner that the altered portion

of the facility is readily accessible to and usable by

individuals with disabilities, if the alteration was

commenced after January 26, 1992.

alteration of facilities in conformance with the Uniform

Federal Accessibility Standards (UFAS) (appendix A to 41

CFR part 101-19.6) or with the Americans with Disabilities

Act Accessibility Guidelines for Buildings and Facilities

(ADAAG) (appendix A to 28 CFR part 36) shall be deemed

to comply with the requirements of this section with respect

to those facilities except that the elevator exception

contained in section 4.1.3(5) and section 4.1.6(1)(k) of

ADAAG shall not apply. Departures from particular

requirements of either standard by the use of other methods

shall be permitted when it is clearly evident that equivalent

access to the facility or part of the facility is thereby

provided.

(d) Alterations: Historic properties.

(1) Alterations to historic properties shall comply,

to the maximum extent feasible, with section 4.1.7 of

UFAS or section 4.1.7 of ADAAG.

(2) If it is not feasible to provide physical access to

an historic property in a manner that will not threaten

or destroy the historic significance of the building or

facility, alternative methods of access shall be provided

pursuant to the requirements of §35.150.

(e) Curb ramps.

(1) Newly constructed or altered streets, roads, and

highways must contain curb ramps or other sloped

areas at any intersection having curbs or other barriers

to entry from a street level pedestrian walkway.

(2) Newly constructed or altered street level

pedestrian walkways must contain curb ramps or other

A-7

sloped areas at intersections to streets, roads or

highways.

28 C.F.R. §35.164 Duties.

This subpart does not require a public entity to take any

action that it can demonstrate would result in a

fundamental alteration in the nature of a service, program,

or activity or in undue financial and administrative burdens.

In those circumstances where personnel of the public entity

believe that the proposed action would fundamentally alter

the service, program, or activity or would result in undue

financial and administrative burdens, a public entity has the

burden of proving that compliance with this subpart would

result in such alteration or burdens. The decision that

compliance would result in such alteration or burdens must

be made by the head of the public entity or his or her

designee after considering all resources available for use in

the funding and operation of the service, program, or

activity and must be accompanied by a written statement of

the reasons for reaching that conclusion. If an action

required to comply with this subpart would result in such

an alteration or such burdens, a public entity shall take any

other action that would not result in such an alteration or

such burdens but would nevertheless ensure that, to the

maximum extent possible, individuals with disabilities

receive the benefits or services provided by the public

entity.

Subpart G—Designated Agencies

28 C.F.R. §35.190 Designated agencies.

(b)(6) Department of Justice: All programs, services, and

regulatory activities relating to law enforcement, public

safety, and the administration of justice, including courts

and correctional institutions; commerce and industry,

— 1 — economic — — banking and

protection, insurance, and small

— planning, development and regulation (unless

assigned to other designated agencies); state and local

functions not assigned to other designated agencies.

Appendix A to Part 35—Preamble To

On Nondiscrimination On The Basis Of Disability

In State And Local Government Services

(Published July 26, 1991)

Excerpt from 28 C.F.R. Pt. 35, App. A, pp.472-73

“Qualified Individual with a disability.” The definition

of “qualified individual with a disability” is taken from

section 201(2) of the Act, which is derived from the

definition of “qualified handicapped person” in the

Department of Health and Human Services’

implementing section 504 (45 CFR §84.3(k)). It combines

the definition at 45 CFR 84.3(k)(1) for employment (“a

handicapped person who, with reasonable accommodation,

can perform the essential functions of the job in question”)

with the definition for other services at 45 CFR 84.3(k)(4) (“a

handicapped person who meets the essential eligibility

requirements for the receipt of such services”).

Some commenters requested clarification of the term

“essential eligibility requirements.” Because of the variety

of situations in which an individual’s qualifications will be

at issue, it is not possible to include more specific criteria in

the definition. The “essential eligibility requirements” for

participation in some activities covered under this part may

be minimal. For example, most public entities provide

information about their operations as a public service to

anyone who requests it. In such situations, the only

“eligibility requirement” for receipt of such information

would be the request for it. Where such information is

provided by telephone, even the ability to use a voice

telephone is not an “essential eligibility requirement,”

because §35.161 requires a public entity to provide equally

effective telecommunication systems for individuals with

impaired hearing or speech.

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For other activities, identification of the “essential

eligibility requirements” may be more complex. Where

of safety are involved, the principles established

in §36.208 of the Department’s regulation implementing

title III of the ADA, to be codified at 28 CFR, part 36, will

be applicable. That section implements section 302(b)(3) of

the Act, which provides that a public accommodation is not

required to permit an individual to participate in or benefit

from the goods, services, facilities, privileges, advantages

and accommodations of the public accommodation, if that

individual poses a direct threat to the health or safety of

others.

A “direct threat” is a significant risk to the health or

safety of others that cannot be eliminated by a modification

of policies, practices, or procedures, or by the provision of

auxiliary aids or services. In School Board of Nassau County

v. Arline, 480 U.S. 273 (1987), the Supreme Court

recognized that there is a need to balance the interests of

people with disabilities against legitimate concerns for

public safety. Although persons with disabilities are

generally entitled to the protection of this part, a person

who poses a significant risk to others will not be

“qualified,” if reasonable modifications to the public entity’s

policies, practices, or procedures will not eliminate that risk.

The determination that a person poses a direct threat to

the health or safety of others may not be based on

generalizations or about the effects of a

particular disability. It must be based on an individualized

assessment, based on reasonable judgment that relies on

current medical evidence or on the best available objective

evidence, to determine: the nature, duration, and severity

of the risk; the probability that the potential injury will

actually occur; and whether reasonable modifications of

policies, practices, or procedures will mitigate the risk. This

is the test established by the Supreme Court in Arline. Such

an inquiry is essential if the law is to achieve its goal of

protecting disabled individuals from discrimination based on

prejudice, stereotypes or unfounded fear, while giving

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appropriate weight to legitimate concerns, such as the need

to avoid exposing others to significant health and safety

risks. Making this assessment will not usually require the

services of a physician. Sources for medical knowledge

include guidance from public health authorities, such as the

U.S. Public Health Service, the Centers for Disease Control,

and the National Institutes of Health, including the National

Institute of Mental Health.

Excerpt from 28 C.F.R. Pt. 35, App. A, p.477

Paragraph (b)(6) prohibits the public entity from

discriminating against qualified individuals with disabilities

on the basis of disability in the granting of licenses or

certification. A person is a “qualified individual with a

disability” with respect to licensing or certification if he or

she can meet the essential eligibility requirements for

receiving the license or certification (see §35.104).

A number of commenters were troubled by the phrase

“essential eligibility requirements” as applied to State

licensing requirements, especially those for health care

professions. Because of the variety of types of programs to

which the definition of “qualified individual with a

disability” applies, it is not possible to use more specific

language in the definition. The phrase “essential eligibility

requirements,” however, is taken from the definitions in the

regulations implementing section 504, so caselaw under

section 504 will be applicable to its interpretation. In

Southeastern Community College v. Davis, 442 U.S. 397, for

example, the Supreme Court held that section 504 does not

require an institution to “lower or effect substantial

modifications of standards to accommodate a handicapped

person,” 442 U.S. at 413, and that the school had

established that the plaintiff was not “qualified” because she

was not able to “serve the nursing profession in all

customary ways,” id. Whether a particular requirement is

“essential” will, of course, depend on the facts of the

particular case.

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Excerpt from 28 C.F.R. Pt. 35, App. A, p.478

Paragraph (b)(8) also prohibits policies that

impose requirements or burdens on

individuals with disabilities that are not placed on others.

For example, public entities may not require that a qualified

individual with a disability be accompanied by an attendant.

A public entity is not, however, required to provide

attendant care, or assistance in toileting, eating, or dressing

to individuals with disabilities, except in special

circumstances, such as where the individual is an inmate of

a custodial or correctional institution.

Excerpt from 28 C.F.R. Pt. 35, App. A, p.484

In choosing among methods, the public entity shall give

priority consideration to those that will be consistent with

provision of services in the most integrated setting

appropriate to the needs of individuals with disabilities.

Structural changes in existing facilities are required only

when there is no other feasible way to make the public

entity’s program accessible. (It should be noted that

“structural changes” include all physical changes to a

facility; the term does not refer only to changes to structural

features, such as removal of or alteration to a load-bearing

structural member.) The requirements of §35.151 for

alterations apply to structural changes undertaken to

comply with this section. The public entity may comply

with the program accessibility requirement by delivering

services at alternate accessible sites or making home visits

as appropriate.

PART 39—ENFORCEMENT OF NONDISCRIMINATION

ON THE BASIS OF HANDICAP IN PROGRAMS OR

ACTIVITIES CONDUCTED BY THE DEPARTMENT

OF JUSTICE

28 C.F.R. §39.150 Program accessibility: Existing facilities.

(a) General. The agency shall operate each program or

activity so that the program or activity, when viewed in its

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entirety, is readily accessible to and usable by handicapped

persons. This paragraph does not—

(1) Necessarily require the agency to make each of

its existing facilities accessible to and usable by

handicapped persons;

(2) Require the agency to take any action that it

can demonstrate would result in a fundamental

alteration in the nature of a program or activity or in

undue financial and administrative burdens. In those

circumstances where agency personnel believe that the

proposed action would fundamentally alter the program

or activity or would result in undue financial and

administrative burdens, the agency has the burden of

proving that compliance with §39.150(a) would result in

such alterations or burdens. The decision that

compliance would result in such alteration or burdens

must be made by the Attorney General or his or her

designee after considering all agency resources available

for use in the funding and alteration of the conducted

program or activity, and must be accompanied by a

written statement of the reasons for reaching that

conclusion. If an action would result in such an

alteration or such burdens, the agency shall take any

other action that would not result in such an alteration

or such burdens but would nevertheless ensure that

handicapped persons receive the benefits and services

of the program or activity.

(b) Methods. The agency may comply with the

requirements of this section through such means as

redesign of equipment, reassignment of services to

accessible buildings, assignment of aides to beneficiaries,

home visits, delivery of services at alternate accessible sites,

alteration of existing facilities and construction of new

facilities, use of accessible rolling stock, or any other

methods that result in making its programs or activities

readily accessible to and usable by handicapped persons.

The agency is not required to make structural changes in

existing facilities where other methods are effective in

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achieving compliance with this section. The agency, in

making alterations to existing buildings, shall meet

accessibility requirements to the extent compelled by the

Architectural Barriers Act of 1968, as amended (42 U.S.C.

4151-4157), and any regulations implementing it. In

choosing among available methods for meeting the

requirements of this section, the agency shall give priority

to those methods that offer programs and activities to

qualified handicapped persons in the most integrated

setting appropriate.

with the obligations established under this section by

December 10, 1984, except that where structural changes in

facilities are undertaken, such changes shall be made by

October 11, 1987, but in any event as expeditiously as

possible.

(d) Transition plan. In the event that structural changes

to facilities will be undertaken to achieve program

accessibility, the agency shall develop, by April 11, 1985, a

transition plan setting forth the steps necessary to complete

such changes. The agency shall provide an opportunity to

interested persons, including handicapped persons or

organizations representing handicapped persons, to

participate in the development of the transition by

submitting comments (both oral and written). A copy of

the transition plan shall be made available for public

inspection. The plan shall, at a minimum—

(1) Identify physical obstacles in the agency’s

facilities that limit the accessibility of its programs or

activities to handicapped persons;

(2) Describe in detail the methods that will be

used to make the facilities accessible;

(3) Specify the schedule for taking the steps

necessary to achieve compliance with this section and,

if the time period of the transition plan is longer than

one year, identify steps that will be taken during each

year of the transition period; and

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(4) Indicate the official responsible for

implementation of the plan.

28 C.F.R. §39.170 Compliance procedures.

(a) Applicability. Except as provided in paragraph (b)

of this section, this section applies to all allegations of

discrimination on the basis of handicap in programs or

activities conducted by the agency.

(b) Employment complaints. The agency shall process

complaints alleging violations of section 504 with respect to

employment according to the procedures established by the

Equal Employment Opportunity Commission in 29 CFR part

1613 pursuant to section 501 of the Rehabilitation Act of

1973 (29 U.S.C. 791).

coordinate implementation of this section.

(d) Filing a complaint.

(1) Who may file.

(i) Any person who believes that he or she has

been subjected to discrimination prohibited by this

part may by him or herself or by his or her

authorized representative file a complaint with the

Official. Any person who believes that any specific

class of persons has been subjected to

discrimination prohibited by this part and who is

a member of that class or the authorized

representative of a member of that class may file a

complaint with the Official.

(ii) Before filing a complaint under this

section, an inmate of a Federal penal institution

must exhaust the Bureau of Prisons Administrative

Remedy Procedure as set forth in 28 CFR part 542.

(2) Confidentiality. The Official shall hold in

confidence the identity of any person submitting a

complaint, unless the persun submits written

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authorization otherwise, and except to the extent

necessary to carry out the purposes of this part,

including the conduct of any investigation, hearing, or

proceeding under this part.

(3) When to file. Complaints shall be filed within

180 days of the alleged act of discrimination, except that

complaints by inmates of Federal penal institutions

shall be filed within 180 days of the final administrative

decision of the Bureau of Prisons under 28 CFR

part 542. The Official may extend this time limit for

good cause shown. For purposes of determining when

a complaint is timely filed under this subparagraph, a

complaint mailed to the agency shall be deemed filed

on the date it is postmarked. Any other complaint

shall be deemed filed on the date it is received by the

agency.

Excerpt from 28 C.F.R. Pt. 39, Editorial Note, p.685

Section 504 requires that regulations that apply to the

programs and activities of Federal executive agencies shall

be submitted to the appropriate authorizing committees of

Congress and that such regulations may take effect no

earlier than the thirtieth day after they have been so

submitted. The Department has today submitted this

regulation to the Senate Committee on Labor and Human

Resources and its Subcommittee on the Handicapped and

the House Committee on Education and Labor and its

Subcommittee on Select Education pursuant to the terms of

section 504. The regulation will become effective on

October 11, 1984.

This rule applies to all programs and activities

conducted by the Department of Justice. Thus, this rule

regulates the activities of over 30 separate subunits in the

Department, including, for example, the Federal Bureau of

Investigation, the Drug Enforcement Administration, the

Immigration and Naturalization Service, the Bureau of

Prisons, Federal Prison Industries, and the United States

Attorneys.

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Excerpt from 28 C.F.R. Pt. 39, Editorial Note, p.686

Section 39.102 Application

The regulation applies to all programs or activities

conducted by the Department of Justice. Under this

section, a federally conducted program or activity is, in

simple terms, anything a Federal agency does. Aside from

employment, there are two major categories of federally

conducted programs or activities covered by this regulation:

those involving general public contact as part of ongoing

agency operations and those directly administered by the

Department for program beneficiaries and participants.

Activities in the first part include communication with the

public (telephone contacts, office walk-ins, or Interviews)

and the public’s use of the Department’s facilities (cafeteria,

library). Activities in the second category include programs

that provide Federal services or benefits (immigration

activities, operation of the Federal prison system). No

comments were received on this section.

PART 41—IMPLEMENTATION OF EXECUTIVE

ORDER 12250, NON-DISCRIMINATION

ON THE BASIS OF HANDICAP IN FEDERALLY

ASSISTED PROGRAMS

Subpart A—Federal Agency Responsibilities

28 C.F.R. §41.4 Issuance of agency regulations

(a) Each agency shall issue, after notice and

opportunity for comment, a regulation to implement

section 504 with respect to the programs and activities to

which it provides assistance. The regulation shall be

consistent with this part.

(b) Each agency shall issue a notice of proposed

rulemaking no later than 90 days after the effective date of

this part. Each agency shall issue a final regulation no later

than 135 days after the end of the period for comment on

its proposed regulation: Provided, That the agency shall

submit its proposed final regulation to the Assistant

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Attorney General, Civil Rights Division, Department of

Justice, for review at least 45 days before it is to be issued.

(1) Define appropriate terms, consistent with the

definitions set forth in §41.3 and with the standards for

determining who are handicapped persons set forth in

subpart B of this part; and

(2) Prohibit discriminatory practices against

qualified handicapped persons in employment and in

the provision of aid, benefits, or services, consistent

with the guidelines set forth in subpart C of this part.

The regulation shall include, where appropriate, specific

provisions adapted to the particular programs and activities

receiving financial assistance from the agency.

PART 42—NONDISCRIMINATION;

EQUAL EMPLOYMENT OPPORTUNITY;

POLICIES AND PROCEDURES

Subpart G—Nondiscrimination Based On Handicap

In Federally Assisted Programs—Implementation Of

Section 504 Of The Rehabilitation Act Of 1973

28 C.F.R. §42.522 New construction

(a) Design and construction. Each new facility

constructed by, on behalf of, or for the use of a recipient

shall be designed and constructed in such a manner that the

facility is readily accessible to and usable by handicapped

persons, if the construction was commenced after the

effective date of this subpart. Any alterations to existing

facilities shall, to the maximum extent feasible, be made in

an accessible manner. Any alterations to existing facilities

shall, to the maximum extent feasible, be made in an

accessible manner. 5

A-18

(b) Conformance with Uniform Federal Accessibility

Standards.

(1) Effective as of March7, 1988, design,

construction, or alteration of buildings in conformance

with sections 3-8 of the Uniform Federal Accessibility

Standards (UFAS) (appendix A to 41 CFR subpart 101-

19.6) shall be deemed to comply with the requirements

of this section with respect to those buildings.

Departures from particular technical and scoping

requirements of UFAS by the use of other methods are

permitted where substantially equivalent or greater

access to and usability of the building is provided.

(2) For purposes of this section, section 4.1.6(1)(g)

of UFAS shall be interpreted to exempt from the

requirements of UFAS only mechanical rooms and

other spaces that, because of their intended use, will

not require accessibility to the public or beneficiaries or

result in the employment or residence therein of

persons with physical handicaps.

(3) This section does not require recipients to

make building alterations that have little likelihood of

being accomplished without removing or altering a

load-bearing structural member.

28 C.F.R. §42.540 Definitions

(h) The term program means the operations of the

agency or organizational unit of government receiving or

substantially benefiting from the Federal assistance

awarded, e.g., a police department or department of

corrections.

(j) Benefit includes provision of services, financial aid

or disposition (i.e., treatment, handling, decision,

sentencing, confinement, or other prescription of conduct).

A-19

36 C.F.R. Pt. 1191

ARCHITECTURAL AND TRANSPORTATION

BARRIERS COMPLIANCE BOARD

Americans With Disabilities Act (ADA) Accessibility

Guidelines For Buildings And Facilities;

State And Local Government Facilities

12. Detention And Correctional Facilities.

12.1* General. This section applies to jails, holding cells

in police stations, prisons, juvenile detention centers,

reformatories, and other institutional occupancies where

occupants are under some degree of restraint or restriction

for security reasons. Except as specified in this section,

detention and correctional facilities shall comply with the

applicable requirements of section 4. All common use areas

serving accessible cells or rooms and all public use areas are

required to be designed and constructed to comply with

section 4.

EXCEPTIONS: Requirements for areas of rescue

assistance in 4.1.3(9), 4.3.10, and 4.3.11 do not apply.

Compliance with requirements for elevators in 4.1.3(5) and

stairs 4.1.3(4) is not required in multi-story housing facilities

where accessible cells or rooms, all common use areas

serving them, and all public use areas are on an accessible

route. Compliance with 4.1.3(16) is not required in areas

other than public use areas.

12.2 Entrances and Security Systems.

12.2.1* Entrances. Entrances used by the public,

including those that are secured, shall be accessible as

required by 4.1.3(8).

EXCEPTION: Compliance with 4.13.9, 4.13.10, 4.13.11 and

4.13.12 is not required at entrances, doors, or doorways that

are operated only by security personnel or where security

requirements prohibit full compliance with these provisions.

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12.2.2 Security Systems. Where security systems are

provided at public or other entrances required to be

accessible by 12.2.1 or 12.2.2, an accessible route complying

with 4.3 shall be provided through fixed security barriers.

Where security barriers incorporate equipment such as

metal detectors, fluoroscopes, or other similar devices which

cannot be made accessible, an accessible route shall be

provided adjacent to such security screening devices to

facilitate an equivalent circulation path.

12.3* Visiting Areas. In non-contact visiting areas

where inmates or detainees are separated from visitors, the

following elements, where provided, shall be accessible and

located on an accessible route complying with 4.3:

(1) Cubicles and Counters. Five percent, but not

less than one, of fixed cubicles shall comply with 4.32 on

both the visitor and detainee or inmate sides. Where

counters are provided, a portion at least 36 in (915 mm) in

length shall comply with 4.32 on both the visitor and

detainee or inmate sides.

EXCEPTION: At non-contact visiting areas not serving

accessible cells or rooms, the requirements of 12.3(1) do not

apply to the inmate or detainee side of cubicles or counters.

(2) Partitions. Solid partitions or security glazing

separating visitors from inmates or detainees shall comply

with 7.2(3).

12.4 Holding and Housing Cells or Rooms: Minimum

Number.

12.4.1* Holding Cells and General Housing Cells or

Rooms. At least two percent, but not less than one, of the

total number of housing or holding cells or rooms provided

in a facility shall comply with 12.5.

12.4.2* Special Holding and Housing Cells or Rooms.

In addition to the requirements of 12.4.1, where special

holding or housing cells or rooms are provided, at least one

serving each purpose shall comply with 12.5. An accessible

A-21

special holding or housing cell or room may serve more

than one purpose. Cells or rooms subject to this

requirement include, but are not limited to, those used for

purposes of orientation, protective custody, administrative

or disciplinary detention or segregation, detoxification, and

medical isolation.

EXCEPTION: Cells or rooms specially designed without

protrusions and to be used solely for purposes of suicide

prevention are exempt from the requirement for grab bars

at water closets in 4.16.4.

12.4.3* Accessible Cells or Rooms for Persons with

Hearing Impairments. In addition to the requirements of

12.4.1, two percent, but not less than one, of general

housing or holding cells or rooms equipped with audible

emergency warning systems or permanently installed

telephones within the cell or room shall comply with the

applicable requirements of 12.6.

12.4.4 Medical Care Facilities. Medical care facilities

providing physical or medical treatment or care shall comply

with the applicable requirements of section 6.1, 6.3 and 6.4,

if persons may need assistance in emergencies and the

period of stay may exceed 24 hours. Patient bedrooms or

cells required to be accessible under 6.1 and 6.3 shall be

provided in addition to any medical isolation cells required

to be accessible under 12.4.2.

12.4.5 Alterations to Cells or Rooms. (Reserved.)

12.5 Requirements for Accessible Cells or Rooms.

12.5.1 General. Cells or rooms required to be

accessible by 12.4 shall comply with 12.5.

12.5.2* Minimum Requirements. Accessible cells or

rooms shall be on an accessible route complying with 4.3.

Where provided to serve accessible housing or holding cells

or rooms, the following elements or spaces shall be

accessible and connected by an accessible route.

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(1) Doors and Doorways. All doors and doorways

on an accessible route shall comply with 4.13.

EXCEPTION: Compliance with 4.13.9, 4.13.10, 4.13.11

and 4.13.12 is not required at entrances, doors, or doorways

that are operated only by security personnel or where

security requirements prohibit full compliance with these

provisions.

(2)* Toilet and Bathing Facilities. At least one toilet

facility shall comply with 4.22 and one bathing facility shall

comply with 4.23. Privacy screens shall not intrude on the

clear floor space required for fixtures and the accessible

route.

(3)* Beds. Beds shall have maneuvering space at

least 36 in (915 mm) wide along one side. Where more than

one bed is provided in a room or cell, the maneuvering

space provided at adjacent beds may overlap.

(4) Drinking Fountains and Water Coolers. At

least one drinking fountain shall comply with 4.15.

(5) Fixed or Built-in Seating or Tables. Fixed or

built-in seating, tables and counters shall comply with 4.32.

(6) Fixed Benches. At least one fixed bench shall

be mounted at 17 in to 19 in (430 mm to 485 mm) above the

finish floor and provide back support (e.g., attachment to

wall). The structural strength of the bench attachments

shall comply with 4.26.3.

(7) Storage. Fixed or built-in storage facilities,

such as cabinets, shelves, closets, and drawers, shall contain

storage space complying with 4.25.

(8) Controls. All controls intended for operation

by inmates shall comply with 4.27.

(9) Accommodations for persons with hearing

impairments required by 12.4.3 and complying with 12.6

shall be provided in accessible cells or rooms.

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12.6 Visible Alarms and Telephones. Where audible

emergency warning systems are provided to serve the

occupants of holding or housing cells or rooms, visual

alarms complying with 4.28.4 shall be provided. Where

permanently installed telephones are provided within

holding or housing cells or rooms, they shall have volume

controls complying with 4.31.5.

EXCEPTION: Visual alarms are not required where inmates

or detainees are not allowed independent means of egress.

Published in Federal Register, Vol. 63, No. 8 (January 13,

1998)

41 C.F.R. Ch. 101 (7-1-97 Edition)

Appendix A to Subpart 101-19.6—Uniform Federal

Accessibility Standards.

I. Purpose.

This document sets standards for facility accessibility by

physically handicapped persons for Federal and federally-

funded facilities. These standards are to be applied during

the design, construction, and alteration of buildings and

facilities to the extent required by the Architectural Barriers

Act of 1968, as amended.

The technical provisions of these standards are the

same as those of the American National Standard Institute's

document A171.1-1980, except as noted in this test and on

figures by italics.

4.14

(9) Institutional. Institutional occupancy include among

others, the use of a building or structure, or portion thereof,

in which people have physical or medical treatment or care,

or in which the liberty of the occupants is restricted.

Institutional occupancies shall include the following

subgroups:

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W „ „

under some degree of restraint or restriction for security

reasons including:

Facilities Application

Jails 5 percent of residential

Prisons units available, or at least

Reformatories one unit, whichever is

Other detention or greater; all common use,

correctional facilities visitor use, or areas which

may result in employment

of physically handicapped

persons.

Excerpts from Federal Register, Vol. 45, No. 108

June 3, 1980)

28 C.F.R. Pt. 42

Nondiscrimination Based on Handicap in Federally Assisted

Programs— tation of Section 504 of the

Rehabilitation Act of 1973 and Executive Order 11914

Excerpt from p.37,621

The use of qualified interpreters in various settings

(e.g., police interrogations, court proceedings, correctional

rehabilitation programs) who are, when possible, certified

by a recognized certification agency, is another important

method of ameliorating the communications barriers

experienced by speaking and hearing impaired individuals.

A recipient’s need for an interpreter is usually not on a

continuing basis, and the overall compliance cost would not

be substantial.

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Excerpt from p.37,627

Appendix B—Analysis of Final Rule.

A. General Provisions.

This subpart prohibits discrimination on the basis of

handicap in any program, activity or facility receiving

Federal financial assistance (§42.501). Section 504 protects

not only the ultimate beneficiaries of Federal assistance

statutes (e.g. students, prisoners, general public) as

identified in the Federal grant statutes) directly or by

inference, but also nonbeneficiary participants (e. g.,

employees working in the program receiving Federal

financial assistance regardless of whether a primary

objective of the Federal assistance includes providing

employment opportunities). The subpart applies to all

Federal assistance programs administered by the

Department and requires all recipients of such assistance to

comply with the requirements of the subpart (§42.502). The

subpart not only applies to grants, contracts and cooperative

agreements entered into after the effective date of the

subpart, but also applies to any Federal financial assistance

previously extended which continues at the time the

subpart becomes effective.

Excerpt from p.37,630

2. Detention and Correctional Agencies and Facilities.

These agencies include jails, prisons, reformatories and

training schools, work camps, reception and diagnostic

centers, pre-release and work release facilities, and

community-based facilities. Where local or State policy

prohibits the detention or incarceration of wheelchair users,

no structural modification to detention or correctional

facilities to accommodate wheelchair users is required.

Where there is no such exclusionary policy, structural

modifications may be unnecessary where alternate

accessible facilities are available (e.g., short term detention

in the prisoner’s home or at a medical facility). Where local

policy precludes alternate detention facilities, a detention

A-26

agency would be required to make structural modifications

to accommodate detainees or prisoners in wheelchairs. In

such circumstances, however, not every detention facility of

the agency would have to become accessible. Only a

sufficient number of detention cells need to be accessible to

wheelchair users as can be reasonably expected to be

detained based on the agency’s prior experience. A

different problem arises, however, when accessibility

requirements are imposed on small, independently operated

community based facilities used, for example, for the

placement of juveniles in a home setting. A metropolitan

area may have a number of such homes. Each such home

receiving assistance from the Department with fewer than

fifteen employees is not required to be accessible to

handicapped persons as long as a sufficient number of

homes are accessible in the service area. If a home, after

consultation with the handicapped person concerned,

determines that its facilities are not accessible to such

person because of the person’s handicapping condition, it

is the responsibility of the home to locate an accessible

home providing equivalent services (§42.522(c)).

All detention and correctional agencies must provide

accessibility for handicapped visitors (e. g., accessible visiting

rooms, restrooms) since the prisoner’s right to receive

visitors is an element of the program administered by the

agencies. Where a facility’s visitation area is inaccessible to

the handicapped, a detention or correctional agency has the

option to (a) house the prisoner in a facility which is

accessible to handicapped visitors, (b) move the prisoner to

an alternate, accessible area either within or outside the

facility for visits from wheelchair users, (c) make structural

modifications to make the visitation area accessible. It

should be kept in mind that the benefit provided is the

right to visit rather than the right to visit in any particular

area.

Facilities available to all inmates or detainees, such as

classrooms, infirmary, laundry, dining area, recreation

areas, work areas, and chapels, must be readily accessible

A-27

to any handicapped person who is confined to that facility.

Beyond insuring the physical accessibility of facilities,

detention and correctional agencies must insure that their

programs and activities are accessible to handicapped

persons. For example, correctional agencies should provide

for the availability of qualified interpreters (certified, where

possible, by a recognized certification agency) to enable

hearing impaired inmates to participate on an equal basis

with nonhandicapped inmates in the rehabilitation

programs offered by the correctional agencies (e. g.,

educational programs).

Correctional officials should take into account any

handicaps which inmates may have in classifying them. In

making housing and program assignments, such officials

must be mindful of the vulnerability of some handicapped

inmates to physical and other abuse by other inmates. The

existence of a handicap alone should not, however, be the

basis for segregation of such inmates in institutions or any

part thereof where other arrangements can be made to

satisfy safety, security and other needs of the handicapped

inmate.

A-28

Excerpt from

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF CORRECTIONS

QUEHANNA BOOTCAMP INMATE HANDBOOK

Excerpt from pp.47-50

05:30

05:35

05:50

06:30

07:00

Inmate Program Schedule (Mon - Fri)

Quehanna Boot Camp

Wake Up Call

Official Count

Once the official count is announced, all inmates

will stand at their official count position for that

building until the official count is completed.

Physical Training

All inmates will be dressed in their physical

training attire, have their bunks made, and

standing at the designated count position. Staff,

normally the Area Commander or the Sergeant,

will have the inmates fall out for formation and

will march the inmates to an appropriate location

and supervise a twenty to thirty minute

calisthenics period. Staff will then run with the

inmates for twenty to thirty minutes.

All inmates requesting sick call will be directed to

wait in the visiting room until the screening

begins.

All inmates will be marched to their rooms to

shower, shave, and dress in the appropriate

uniform of the day.

Breakfast Meal - Medication Call - Room

inspection.

The call for breakfast meal will be by an assigned

rotation schedule which is based on competition

between the squads in inspections. After eating

the breakfast meal, each inmate will return to their

08:00

08:30

08:40

11:30

A-29

room and wait there until the next organized

movement. All inmates will be marched to the

Food Service Department for meals.

Inmates will proceed to the medical office to

receive prescribed medication after eating the

morning meal.

All inmates will be standing in their designated

count position once the command “Stand By For

Inspection” is announced. They will be called to

the position of “Attention” once the inspection

begins. Inmates will be dressed in the “Uniform of

the Day.” Shirts will be tucked in, and footwear

(boots) will be shined and properly laced. The

uniform will be neat, clean and pressed. All

personal items will be stored in the proper location

within the lockers (see diagram). The bunks will

have two sheets, one blanket, one pillow, one

pillow case and one mattress.

Flag Ceremony

Staff will have the inmates fall out for formation

and will march the inmates to the flag pole. The

National Flag will be unfolded and hoisted to the

top of the flag pole followed by the State Flag and

the Department of Corrections Flag, using the

same procedures as the National Flag.

Work Assignments.

Inmates will be broken down by squads and

assigned work with a Labor Foreman or other

duties within the Main Complex.

Morning Session of Work Programs End

Inmates working in the field will be fed in the

field. Inmates working at the Main Complex will

be marched to their rooms to clean up and wait for

the lunch meal.

11:45

12:45

13:00

14:15

15:25

15:30

A-30

Lunch Meal - Medication Call

Inmates will be marched to the Dining Room based

on the established meal rotation for the day.

Before being called for the meal and after eating

the meal, inmates will remain in their room and

work on studies, sanitation, and other required

activities. Inmates working in the field will be fed

directly after the official count is completed.

Official Count

The official count will be taken immediately after

the lunch meal. Once the official count is

announced, all inmates will stand at their official

count position for that building until the official

count is completed.

Work Crew Assignments/GED Education/Islamic

Church services on Fridays only.

All inmates will be marched to their work area and

continue their work assignments.

DATS Counselling Session - individual or group

If an inmate is scheduled for Treatment Program

he will receive a pass from the 6 - 2 Housing Unit

Officer after inspection. The inmate will notify his

Work Supervisor (Labor Foreman or Kitchen Staff)

of the appointment when reporting for the work

assignment at 08:40 hours. The Work Supervisor

will sign the pass and direct the inmate to his

appointment. All inmates must take the most

direct route to the appointment by not entering

unauthorized areas without permission.

Afternoon session of work and treatment programs

end.

Showers

Inmates are marched to their rooms to take their

daily shower and change into the evening uniform

15:50

16:00

17:00

17:15

17:45

A-31

(brown pants, white shirt, and brown tie and dress

boots).

Flag Ceremony

Supper Meal - Medication Call

Inmates will be marched to the dining room based

on the established meal rotation for the day.

Inmates will remain in their rooms until called to

the dining room and will return to their room after

eating. Before being walked for the meal and after

eating the meal, inmates will remain in their room

polishing their work boots and getting ready for

the evening treatment programs. Count will be

taken immediately following completion of the

evening meal.

Official Count

Once the official count is announced, all inmates

will stand at their official count position for that

building until the official count is completed.

Community Meeting/GED Education

Inmates will be marched to the conference room.

The foundation of the treatment program

emphasizes community living and socialization

skills. Each platoon lives as a team, meeting daily

in community meetings to resolve problems and

reflect on their progress in the program. The core

of this community is designed for inmates to

practice behaviors which will help them to develop

and to seek realistic goals through honest effort.

Educational Programming and Treatment Programs

A substance abuse program includes education,

self-help, support groups, group and individual

therapy. Inmates participate in classroom and

treatment sessions several times each week

throughout their six month program. Sessions are

related to changing attitudes and habits of

20:30

21:00

21:10

21:15

21:30

A-32

substance abuse, based on the philosophy of

abstinence and recovery.

Individual counseling w/DATS and individual

study time.

All inmates will be in their rooms working on

educational and treatment booklets, studies, and

other assigned activities unless meeting with a

DAT

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