# Respondents Brief — Pennsylvania Dept. of Corrections v. Yeskey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0128%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 206 ## Text r 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 i 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 iv 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 41 43 55 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 S 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 2 5 S > Aa 85 S Editorial Note E22 5 * aa “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 8 S * 8 * BHSRERR RR N > * 28 SNN 9 © © 8 * 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 ) 15 37 31 31 1 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 2 Register. Excerpts from the Federal Register are set forth 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). 3 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. 4 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 5 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 | 5 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. 6 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 I. INTRODUCTION Congress enacted the ADA after twenty years of experience with six other disability discrimination statutes demonstrated that a comprehensive remedy was necessary. 7 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. 8 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 9 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. 10 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. 11 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...) 12 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) 13 ‘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...) 14 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). 15 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...) 16 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. 17 “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 18 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). 19 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 20 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). 21 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). 22 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). 23 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). 24 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...) 25 “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. 26 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 27 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). 28 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)) 29 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...) 30 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). 31 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). 32 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”). 33 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). M 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 | 35 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 36 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 37 634, 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. 38 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. 39 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. 40 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. 41 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. 42 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. 43 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, 44 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. 45 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 46 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...) 47 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). 48 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. (c) Health and other services 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. (c) Accessibility standards. Design, construction, or 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. A-9 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0128%3A07. Public record. Not legal advice.