Amicus Curiae Brief — Pennsylvania Dept. of Corrections v. Yeskey

~ | Supreme Court, U. S.

5 11 KE 5

2 MAR 30 09

No. 97-634 = —

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In the Supreme Court of the United States

OCTOBER TERM, 1997

PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL.,

PETITIONERS

U.

RONALD R. YESKEY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

LINDA F. THOME

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the exclusion of a state prisoner from a pro-

gram of a state prison agency on the »asis of disability

may constitute a violation of the anti-discrimination provi-

sion of Title II of the Americans with Disabilities Act, 42

U.S.C. 12132.

(1)

TABLE OF CONTENTS

Argument:

Americans with Disabilities Act applies to state

entities that operate prison

B. The “clear statement” rule of Gregory v.

Ashcroft has no application to this case ...........

C. Congress directed that Title II be applied as

broadly as the Rehabilitation Act of 1973,

which had been consistently applied to state

prisons before the ADA’s enactment ................

. supports its application to state prisons ............

1 — —

F. Application of Title II to state prisons does

not raise any serious constitutional questions

— . ˙—ͤͤj——

TABLE OF AUTHORITIES

Cases:

ABF Freight Sys. v. NLRB, 510 U.S. 317

EEE

Almendarez-Torres v. United States, No. 96-6839

418 — .

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

Cannon v. University of Chicago, 441 U.S. 677

Te

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

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

(II)

16

16

Cases—Continued:

Page

City of Boerne v. Flores, 117 S. Ct. 2157 (1997) . 8, 21, 22

City of Cleburne v. Cleburne Living Ctr., 473

. ͤ ͤUſ!——

City of New York v. FCC, 486 U.S. 57 (1988)

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

...

Coolbaugh v. Louisiana, No. 96-30664, 1998 WL

84123 (Sth Cir. Feb. 27, 1998) .

Employment Div., Dep't of Human Resources v.

Smith, 494 U.S. 872 (19900 —————.——.

Fidelity Fed. Sav. & Loan Ass'n v. De La Cuesta,

II

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

21

Gregory v. Ashcroft, 501 U.S. 452 (1991) . 6, 12, 13, 17, 18

Innovative Health Sys., Inc. v. City of White

Plains, 117 F.3d 37 (2d Cir. 1997

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

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

Lebron v. National R. R. Passenger Corp.,

II

Milliken v. Bradley, 433 U.S. 267 (1977)

Mt. Healthy City Bd. of Educ. v. Doyle, 429 US.

1 0

New York v. United States, 505 U.S. 144 (1992)

North Haven Bd. of Educ. v. Bell, 456 U.S. 512

a en

Printz v. United States, 117 S. Ct. 2365 (1997) .......

Salinas v. United States, 118 S. Ct. 469 (1997) .......

Sandin v. Connor, 515 U.S. 472 (1995)

School Bd. of Nassau County v. Arline, 480 US.

ÄL,ä A

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

. —x—

Cases Continued: Page

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

. ⸗ (.=. eee 11

Turner v. Safley, 482 U.S. 78 (1987) .. 27

Turner Broadcasting Sys. v. FCC, 117 S. Ct. 1174

rr 21, 23

United States v. Gonzales, 117 S. Ct. 1032 (1997).... 8 9

Wisconsin Public Intervenor v. Mortier, 501 U.S.

D... 9s . 17

Wolff v. McDonnell, 418 U.S. 539 (1974) 27

Yee v. City of Escondido, 503 U.S. 519 (1992) .......... 20

Constitution, statutes and regulations:

U.S. Const.:

Amend. I (Free Exercise Clause 26

Amend. XIV:

§ 5 (Enforcement Clause 20, 21, 22

Age Discrimination in Employment Act sad 1967,

121 — — 12

TE LETTE TERT ET 13

— — Ee 13

Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et seq.:

Ee 22

Ee 3, 12, 23

CTE 23, 25

Z 23

1 — 24

— 1

r :

2

21

9

2

2

28

2

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42 U.S.C. 121013) —————.——

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GB UBD. TERED ncccceciccedindotecccccccccccccccscsccccccccneesece

GB URIBE cccceccscccccceccccscccsssscercssssscsescescsscoces

42 U.S.C. 1Z1BM(1MA) —. .-

42 U.S.C. 121313 E. ———————).——

460480 009 ——.9.9———————————————————— 11.

42 UBC. 12181-12196 ——————

VI

Statutes and regulations—Continued: Page

1.82 T 2, 6, 8, 9, 10, 11

ES NE ENC EN 2, 14

J — 3, 16

. —— 3, 14

J ID stinnenrntremarnnsspennsinmetnnemmasit 4

JJ Se 2

| TT 21

r 2

r 2, 14

J. 4

. „rr 2 4. 16

Education Amendments of 1972, Tit. IX, 20 U.S.C.

000 — — — 10

Rehabilitation Act of 1973, 29 U.S.C. 701 et seg.

1 ..— T8 4

§ 504, 29 U.S.C. 794 ........... 2, 3, 6, 7, 14, 15, 16, 19, 25, 26

I Ge 14, 15

Religious Freedom Restoration Act, 42 U.S.C. 2000bb

808.ͤ ————————————ĩi 24

4... 20

Pa. Stat. Ann. tit. 61 (West Supp. 1997) .....................

11 — ——ĩð 10, 12

79998 — 12

999 10

9998 — 10

8 K 10

J— e —„—-e 12

—ẽ—— —„ — 10

28 C. F. R.:

Pes GED ²˙—̃̃——„—-—— 3

SIRES —— — — 3

rr 4

— — 2⁵

. — 25

TTT TEAS TEE CELE 25

| EE SS Sa 4

2 — 3

1 — 3, 4

1K 4

VII

Statutes and regulations Continued: Page

Pt. 39:

11 —. 15

F : 15

Pt. 41:

T — j 11

EET SY SE re eee 25

Pt. 42:

7 14

E 15

eee — 4

Miscellaneous:

Americans With Disabilities Act of 1988: Joint Hear-

ing on S. 2345 Before the Subcomm. on the Handi-

capped of the Senate Comm. on Labor and Human

Resources and the Subcomm. on Select Educ. of the

House Comm. on Educ. and Labor, 100th Cong., 2d

7 . 28

Timothy M. Cook, The Americans with Disabilities

Act: The Move to Integration, 64 Temp. L. Rev.

EE 23, 24

45 Fed. Reg. (1980)

SS ͤ ͤ ů— 15

ae 15

II. 2 4

63 Fed. Reg. (1998):

1 BEEP cenpntnennnesnesecsccessccceceneaneseusessesnvseeenevsnensqnsccevese 4

1 —ç— —4— 4

Pt. 2 — — 3, 23, 24. 25

29792. ————ñ——ñ—ñ——— 3, 23, 25, 27

R28..———————ññ—ñññ— 11

Joint Hearing on H.R. 2273, The Americans With

Disabilities Act of 1989: Joint Hearing Before the

Subcomm. on Select Educ. and Employment

Opportunities of the House Comm. on Educ. and

Labor, 101ist Cong., Ist Sess. (1989) ..... ...... .

S. Rep. No. 116, 101st Cong., Ist Sess. (1989) .............

Vill

Miscellaneous—Continued:

U.S. Commission on Civil Rights, Accommodating

the Spectrum of Individual Abilities (1983) .............

U.S. Department of Justice, Title II Technical

REA — ——

9 ———ñ——— ůůů—

Lowell P. Weicker, Historical Background of the

Americans with Disabilities Act, 64 Temp. L.

BOD, GEG ———

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

No. 97-634

PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL.,

PETITIONERS

U.

RONALD R. YESKEY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The Department of Justice has responsibility for the

enforcement and implementation of Title II of the Ameri-

cans with Disabilities Act (ADA). 42 U.S.C. 12133, 12134.

Because petitioners contend that Title II does not apply to

a State’s treatment of its prisoners, and that such an

application would be unconstitutional, this case may affect

the Department of Justice’s ability to enforce Title II in

the context of state prisons.

STATEMENT

1. Congress enacted the Americans with Disabilities

Act (ADA) in 1990 as a “clear and comprehensive national

mandate for the elimination of discrimination against indi-

viduals with disabilities.” 42 U.S.C. 12101(b). An exercise

of the “sweep of congressional authority, including the

power to enforce the fourteenth amendment and to regu-

late commerce,” ibid., the ADA broadly covers, and prohib-

its discrimination in, both private and public activity,

(1)

2

including employment (42 U.S.C. 12111-12117), public acco-

modations (42 U.S.C. 12181-12189), public transportation

(42 U%S.C. 12141-12150) and, as relevant here, the full

range of activities conducted by public entities (42 U.S.C.

12131-12134). Federal agencies are given a leading role in

implementing and enforcing the ADA, in light of Con-

gress’s declared purposes to “provide clear, strong, consis-

tent, enforceable standards addressing discrimination”

against the disabled and to “ensure that the Federal Gov-

ernment plays a central role in enforcing” those standards

on behalf of the disabled. 42 U.S.C. 12101(b)(2) and (3).

This case involves the anti-discrimination provision of

Part A of Title II of the ADA, 42 U.S.C. 12132, which

prohibits discrimination on the basis of disability by public

entities. Section 12132 provides:

Subject to the provisions of this subchapter, 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 activi-

ties of a public entity, or be subjected to discrimination

by any such entity.

Title II defines “public entity” to include “any State or

local government” and “any department, agency, special

purpose district, or other instrumentality of a State or

States or local government.” 42 U.S.C. 12131(1)(A) and (B).

Title II was modeled closely on Section 504 of the

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

discrimination on the basis of disability in federally con-

ducted programs and in all of the operations of public

entities that receive federal financial assistance. Title II

provides that the remedies, procedures, and rights” for

actions brought under Section 504 shall be available to any

person alleging discrimination in violation of Title II. 42

U.S.C. 12133; see also 42 U.S.C. 12201(a) (ADA must not be

construed more narrowly than Rehabilitation Act). The

ADA directs the Attorney General to promulgate regula-

tions to implement Title II, and requires those regulations

3

to be consistent with pre-existing federal regulations that

coordinated federal agencies’ application of Section 504 to

recipients of federal financial assistance, and interpreted

certain aspects of Section 504 as applied to the federal

government itself. 42 U.S.C. 12134(a) and (b). Title II thus

extended Section 504’s pre-existing prohibition against

disability-based discrimination in programs and activities

(including state and local programs and activities) receiv-

ing federal financial assistance or conducted by the federal

government itself to all operations of state and local gov-

ernments, whether or not they receive federal assistance.

2. The Department of Justice has promulgated regula-

tions for the implementation of Title II. 28 C. F. R. Pt. 35.

Consistent with the legislative finding that discrimination

against the disabled “persists in such critical areas as

* * * institutionalization,” 42 U.S.C. 12101(a)(3), those

regulations provide for the application of Title II’s anti-

discrimination rule to state prisons. The regulations first

state that the statute’s coverage extends to “all services,

programs, and activities provided or made available by

public entities.” 28 C.F.R. 35.102(a). The preamble to the

regulations indicates that this language was intended to

apply to “{ajll governmental activities of public entities,”

i.e., “anything a public entity does.” 28 C.F.R. Pt. 35, App.

A, at 466. Section 35.190(b)(6) designates the Department

of Justice as the agency responsible for coordinating the

compliance activities of public entities that administer

Aalll programs, services, and regulatory activities relat-

ing to law enforcement, public safety, and the administra-

1 See S. Rep. No. 116, 101st Cong., Ist Sess. 44 (1989) (Senate

Report) (“The first purpose [of Title II] is to make applicable the pro-

hibition against discrimination on the basis of disability, currently set

out in regulations implementing section 504 of the Rehabilitation Act

of 1973, to all programs, activities, and services provided or made

available by state and local governments or instrumentalities or agen-

cies thereto, regardless of whether or not such entities receive Federal

financial assistance.”); H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 2,

at 84, 151 (1990) (House Report) (similar); id., Pt. 3, at 50 (similar).

4

tion of justice, including courts and correctional institu-

tions.” And the preamble’s discussion of Section 35.130,

which sets forth the general substantive prohibitions

against discrimination, notes that a public entity may be

required to provide assistance to individuals with disabili-

ties “where the individual is an inmate of a custodial or

correctional institution.” 28 C.F.R. Pt. 35, App. A, at 478.

The Department’s Title II Technical Assistance Manual,

published in accordance with Section 12206 of the ADA,

specifically lists “[jJails and prisons” as types of facilities

that, if constructed or altered after the effective date of

the ADA, must be designed and constructed so that they

are accessible to and usable by individuals with disabili-

ties. Title II Technical Assistance Manual at II-6.0000, II-

6.33006).

3. Respondent was committed by a Pennsylvania court

to petitioners’ custody for a term of 18-36 months. (Re-

spondent has sued various individuals as well as the

Department of Corrections, but for simplicity, we refer in

2 By statute, the Department of Justice’s regulations must include

standards for facilities consistent with minimum guidelines established

by the federal government’s Architectural and Transportation Barriers

Compliance Board (Access Board), which was established by the Re-

habilitation Act. 42 U.S.C. 12134(c); see 42 U.S.C. 12204(a); 29 U.S.C.

792. The Department’s regulations provide that public entities build-

ing new facilities or altering existing ones may follow either the

Uniform Federal Accessibility Standards (UFAS) or the ADA Acces-

sibility Guidelines for Buildings and Facilities (ADAAG), established

by the Access Board. 28 C.F.R. 35.151(c); see 41 C.F.R. 101-19.6, App.

A; 28 C.F.R. Pt. 36, App. A. The UFAS lists jails, prisons, re-

formatories and ſolther detention or correctional facilities” as insti-

tutions to which the accessibility standards apply. 41 C.F.R. 101-19.6,

App. A, at 154. Recent amendments to the ADAAG include specific

accessibility guidelines for detention and correctional facilities. 63 Fed.

Reg. 2000, 2009-2013 (1998). The Access Board adopted those

amendments as a final rule in 1998. Id. at 2000. As adopted by the

Access Board, they provide guidance to the Department of Justice

in establishing accessibility standards under Title II. See ibid.; 42

U.S.C. 12134(c); 12204(a). The Department of Justice has proposed

adoption of the amendments. 59 Fed. Reg. 31,808 (1994).

5

this brief to the Department as “petitioners.”) The

sentencing court recommended that respondent be placed

in petitioners’ Motivational Boot Camp program for first-

time offenders; respondent’s successful completion of that

program would have led to his release on parole in six

months. Petitioners determined, however, that respon-

dent was ineligible for the Boot Camp program because of

a medical history of hypertension. J.A. 6-7.

While still in custody, respondent brought this action,

alleging that petitioners had violated the ADA’s anti-

discrimination mandate by refusing to allow him to par-

ticipate in the Boot Camp program based upon his dis-

ability. J.A. 7-8. The district court dismissed the com-

plaint for failure to state a claim based on petitioners’

“threshold argument that the ADA does not apply to state

prisons.” J.A. 98.

The court of appeals reversed. J.A. 122-134. Following

Congress’s direetlion] that Title II of the ADA be inter-

preted in a manner consistent with Section 504,” the court

concluded that the language of both statutes “clearly

encompasses” prisons, J.A. 124. That conclusion, the

court stated, was “bolstered” by the Department of Jus-

tice’s regulations applying both statutes to prisons and

other correctional facilities, which regulations must be

accorded “controlling weight unless [they are] arbitrary,

capricious, or manifestly contrary to the statute.” J.A.

126 (internal quotation marks omitted). The court re-

jected contrary decisions suggesting that Congress was

required to refer specifically to state prisons in order to

make the ADA applicable in that context: “[iJn light of the

clear and all-encompassing language of both statutes,

there is no basis for requiring Congress to have detailed

which of the many important components of state and local

governments were to be included in the terms ‘any’ and

all.“ J.A. 130. Finally, the court rejected petitioners’

contention that prisoners cannot be “qualified individ-

ual{s] with a disability” under Title II because they are

incarcerated involuntarily; that phrasing, it heid, does not

6

“imply voluntariness or mandate that an individual seek

out or request a service to be covered”; rather, it “de-

scribes those who are fitted or qualified to be chosen,

without regard to their own wishes.” J.A. 131 (internal

quotation marks omitted).

SUMMARY OF ARGUMENT

The anti-discrimination provision of Title II of the

Americans with Disabilities Act (ADA), covering public

entities, 42 U.S.C. 12132, applies to state prisons. The

plain language of the ADA compels that conclusion; Title

II prohibits discrimination on the basis of disability by any

“public entity,” which is defined to include “any State or

local government” and “any department, agency, special

purpose district, or other instrumentality of a State or

States or local government.” That language is clearly cal-

culated to be all-encompassing. Moreover, other provi-

sions of Title II, prohibiting exclusion on the basis of

disability from the “benefits” of any “services, programs,

or activities” furnished by a public entity, and limiting

protections to “qualified individuals with a disability,”

cannot be reasonably read to exclude prisoners as a cate-

gorical matter from the scope of the ADA.

The clear-statement rule of Gregory v. Ashcroft, 501

U.S. 452 (1991), does not suggest that prisoners are not

covered by Title II. That decision construed a statute that

was ambiguous as to its coverage of the state judiciary to

exclude such coverage, in the absence of a clear intent by

Congress to include such a fundamental aspect of the

state’s governmental structure within the federal regula-

tory scheme. Gregory is inapplicable here because the

ADA unambiguously covers every state entity, necessar-

ily including prisons. Gregory does not require Congress

to list every possible application of a federal statute to

state governmental functions, nor does it permit a court to

write exceptions to unambiguous legislation.

Coverage of state prisons is consistent with Congress’s

intent that Title II read at least as broadly as Section 504

7

of the Rehabilitation Act of 1973, which prohibits disabil-

ity-based discrimination by recipients of federal financial

assistance and in federally conducted activities. When

Congress enacted the ADA, it was presumptively aware of

administrative and judicia! applications of Section 504 to

state prisons. Title II should therefore be read to cover

state prisons as well.

Application of Title II to state prisons is also supported

by the Department of Justice’s implementing regulations,

which were authorized by Congress. Those regulations

recognize the statute’s application to state prisons and

designate the Department of Justice as the federal agency

responsible for monitoring state prison agencies’ compli-

ance with Title II. Even if Title II were ambiguous as to

the coverage of state prisons, the Department’s regula-

tions would be controlling on the question, for they are at

a minimum consistent with the statute, and so are entitled

to deference.

There is no support for petitioners’ contention that

application of Title II to state prisons is inconsistent with

the statute’s purpose of integrating persons with dis-

abilities into the mainstream of American society. Indeed,

the particular program to which respondent sought access

had the precise purpose of facilitating prisoners’ reentry

into mainstream society. And petitioners’ arguments

about the burdens of compliance with the ADA go to the

wisdom of the legislation, not its applicability, and are in

any event overstated.

Finally, application of Title II to programs provided by

state prisons for their prisoners raises no serious

constitutional questions. Petitioners object only to Title

II's application to such programs; they do not dispute its

application to state entities generally, or even to state

prisons in their treatment of employees and visitors, as a

valid exercise of Congress’s power to enforce the Equal

Protection Clause of the Fourteenth Amendment, by de-

terring and remedying discrimination against persons

with disabilities by state and local actors. There was

8

ample basis for Congress to conclude that such discrimi-

nation is a serious and pervasive problem throughout

society, infecting governmental decisionmaking, and that

deterrence and remedies against such discrimination were

necessary. Title II is a proportionate and flexible re-

sponse to that problem of discrimination, for it requires

only reasonable modifications of public programs to ac-

commodate the disabled and does not require a State to

assume undue expenditures or burdens. And, unlike the

situation in City of Boerne v. Flores, 117 S. Ct. 2157 (1997),

there is no reason to believe that Congress enacted Title

II out of displeasure with, or to overturn, this Court’s con-

stitutional holdings concerning discrimination against

persons with disabilities. Congress’s power to enforce the

Equal Protection Clause is sufficient to deter and remedy

discrimination against disabled persons inside prison as

well as outside. Prisoners may claim the benefit of the

Equal Protection Clause, for they do not lose all consti-

tutional rights as a result of their incarceration. More-

over, Congress identified a need to deter and remedy

irrational discrimination against the disabled in prison.

ARGUMENT

THE ANTI-DISCRIMINATION PROVISION OF

TITLE I! OF THE AMERICANS WITH DISABILI-

TIES ACT APPLIES TO STATE PRISONS

A. The Plain Language Of Title II Applies To State

Entities That Operate Prisons

The starting point in the question of statutory con-

struction before the Court is, as always, the language of

the statute. United States v. Gonzales, 117 S. Ct. 1082,

1034 (1997). In this case, the statutory text is dispositive

of the question, for it unambiguously provides that Title II

applies to state prisons. Title II provides that no person

shall be subject to discrimination on the basis of disability

by a “public entity.” 42 U.S.C. 12132. The statute defines

the term “public entity” to include “any State or local gov-

ernment” and “any department, agency, special purpose

9

district, or other instrumentality of a State or States or

local government.” 42 U.S.C. 12131. It is difficult to con-

ceive of a more comprehensive definition of the public

entities to which Title II applies. Title II plainly uses the

word “any” in its ordinary “expansive” sense, i.e., “one or

some indiscriminately of whatever kind.” Gonzales, 117 8.

Ct. at 1035 (construing “any term of imprisonment” to

mean “all ‘term{s) of imprisonment,” where the statute

did not contain any language limiting the breadth of the

word “any”).

In the face of this all-inclusive statutory definition,

petitioners suggest a number of limitations to the scope of

Title II, all of which are without foundation in the text.

First, petitioners suggest (Br. 12) that the statute is

ambiguous because it does not specifically mention prisons

in the definition of “public entity,” or elsewhere in Title II

or the ADA. No specific mention of prisons was necessary

in light of the all-encompassing nature of the definition

itself. Having said that the statute should apply to “any

State” or “any department, agency, special purpose dis-

trict, or other instrumentality of a State,” Congress was

entitled to expect that it would be applied to all such

entities without exception.

Second, petitioners suggest (Br. 20) that Section 12132

does not apply to prisons because (they contend) it prohib-

its only discriminatory denial of the “benefits” of “ser-

vices, programs, or activities,” 42 U.S.C. 12132, which

should not be construed to include correctional functions.

That contention is incorrect for several reasons. First,

the premise of the argument is wrong, for the anti-

discrimination principle of Title II is not limited to the

discriminatory exclusion of individuals from, or denial of

the benefits of, “services, programs, or activities.” Title

II also provides that no qualified person with a disability

shall “be subjected to discrimination by any such [public]

entity.” 42 U.S.C. 12132. Thus, whether or not prisons

provide “services, programs, or activities,” they are pro-

hibited from discriminating on the basis of disability by

10

the concluding clause of Section 12132, a “catch-all phrase

that prohibits all discrimination by a public entity.”

Innovative Health Sys. v. City of White Plains, 117 F.3d

37, 44-45 (2d Cir. 1997). Cf. North Haven Bd. of Educ. v.

Bell, 456 U.S. 512, 520-521 (1982) (Title IX of Education

Amendments of 1972).

Furthermore, even if Title II prohibited only discrimi-

nation in “services, programs, and activities,” petitioners’

argument would still fail, for those terms are easily read

to include correctional functions such as eligibility

determinations for a special correctional program like

Pennsylvania’s Boot Camp program. “Program” means “a

plan of procedure: a schedule or system under which action

may be taken toward a desired goal.” Webster’s Third

New International Dictionary 1812 (1986). “Activity”

means, inter alia, “natural or normal function or opera-

tion,” and includes the “duties or function” of “an or-

ganizational unit for performing a specific function.” Id.

at 22. Certainly, the boot camp program at issue here is a

part of petitioners’ execution of a “system” designed to

accomplish a “desired goal,” and operating that program

falls within petitioners’ “duties or functions.” Indeed,

Pennsylvania’s Motivational Boot Camp Act defines the

term “motivational boot camp” as a “program” and uses

the word “program” repeatedly throughout the statute.®

Nor could prisoners be categorically excluded from

the protection of Title II on the theory that incarceration

is not the “benefit” of a service, program, or activity.

3 The statute defines “Motivational boot camp” as Aa] program in

which eligible inmates participate for a period of six months in a hu-

mane program for motivational boot camp programs which shall pro-

vide for rigorous physical activity, intensive regimentation and disci-

pline, work on public projects, substance abuse treatment services

licensed by the Department of Health, ventilation therapy, continuing

education, vocational training and prerelease counseling.” Pa. Stat.

Ann. tit. 61, § 1123 (West Supp. 1997); see also id. § 1124(b) (referring to

a defendant’s eligibility for “a motivational boot camp program”); id.

§ 1125 (entitled “{e)stablishment of motivational boot camp program”);

id. §§ 1126, 1127.

11

Whether or not incarceration itself is a benefit,“ incar-

cerated prisoners are granted or denied many benefits by

their Custodians. In this case, for example, respondent’s

successful completion of boot camp would have led to his

early release from prison, a “benefit” by any common

understanding of the term. Similarly, programs such as

work-release, education programs, and parole provide

“benefits” to prisoners. And in any event, Section 12132

prohibits the discriminatory “exclu(sion]” of persons with

disabilities “from participation in” services, programs, and

activities, as well as the discriminatory denial of their

“benefits.” There is no need, therefore, to decide whether

prison programs provide “benefits,” for it is sufficient that

respondent has alleged that he was denied the opportunity

to “participate in” the motivational boot camp program.

J.A. 7.

Third, petitioners erroneously suggest (Br. 20) that a

prisoner can never be a “qualified individual with a dis-

ability.” Section 12131(2) defines that phrase to mean “an

individual with a disability who meets the essential

eligibility requirements for the receipt of services or the

participation in programs or activities provided by a public

entity.” Nothing in that definition excludes prisoners per

se. Drawn from the Department of Justice’s Rehabilita-

tion Act regulations, the definition simply makes clear

that public entities need not discard the essential eligibil-

ity requirements of their programs or activities in order

to comply with the ADA. H.R. Rep. No. 485, 101st Cong.,

2d Sess., Pt. 4, at 38 (1990) (House Report); see 28 C.F.R.

41.32; Southeastern Community College v. Davis, 442

U.S. 397 (1979).

Petitioners argue (Br. 20) that the terms “eligible” and

“participate” in the statutory definition of “qualified in-

dividual with a disability” connote voluntariness on the

part of an applicant who seeks a benefit from the State and

therefore exclude prisoners, who are incarcerated against

their will. That reading of the statute, however, could also

exclude schoolchildren and jurors, among others, from the

12 *

ADA’s protections; it is also inconsistent with Congress’s

specific determination that the ADA was necessary be-

cause. discrimination against persons with disabilities

persists in “institutionalization.” 42 U.S.C. 12101(a)(3).

And even if prisoners are sentenced and incarcerated

against their will, their participation in many correctional

programs, such as work-release and education programs,

may well be voluntary; respondent, for example, voluntar-

ily sought to participate in the boot camp program.

Moreover, the statutory terms are not so restrictive as

petitioners suggest. “Eligible” describes those who are

“fitted or qualified to be chosen,” Webster’s Third New

International Dictionary 736 (1986), while “participate”

simply means “to take part in something,” id. at 1646. Not

surprisingly, therefore, the statutory authorization for

the boot camp program at issue here defines, at length, the

qualifications of an ſelligible inmate” who may be

selected for “participat[ion]” in the boot camp program.

B. The “Clear Statement” Rule Of Gregory v. Ashcroft

Has No Application To This Case

Relying on Gregory v. Ashcroft, 501 U.S. 452 (1991),

petitioners argue (Br. 11-22) that Title II should not be

interpreted to apply to state prisons because Congress did

not state in haec verba that the statute applies to prisons.

That argument misapprehends the role of the “clear

statement” rule articulated in Gregory, which is “a rule of

statutory construction to be applied where statutory in-

tent is ambiguous.” 501 U.S. at 470. In Gregory, the

Court examined an ambiguous exception to the Age Dis-

crimination in Employment Act of 1967 (ADEA), which

The term “eligible inmate” appears throughout the Motivational

Boot Camp Act, as do references to inmate “participants.” See, ¢.g.,

Pa. Stat. Ann. tit. 61, § 1123 (West Supp. 1997) (defining ſelligible

inmate” for “participation in the motivational boot camp program“), id.

§ 1124 (entitled “[sjelection of inmate participants”); id. § 1126(a)

(“eligible inmate may make an application” to “participate in the moti-

vational boot camp program”).

13

expressly applies to States as employers, see 29 U.S.C.

630(b)(2), but also excludes from its protections “any

person elected to public office in any State or an

appointee on the policymaking level,” 29 U.S.C. 630(f).

The issue in Gregory was whether that exception applied

to state judges who were appointed to office by the

Governor and subject to retention election. 501 U.S. at

465. The Court concluded that the ADEA was “at least

ambiguous” as to whether the judges were included within

the exception. Id. at 467. Determining that it should “not

attribute to Congress an intent to intrude on state gov-

ernmental functions” such as the state judiciary without

an unambiguous expression of that congressional inten-

tion, id. at 470, the Court declined to read the ADEA to

cover state judges “unless Congress made it clear that

judges are included.” Id. at 467.

Gregory involved the construction of an ambiguous

statute; it did not create a directive to write exceptions

into unambiguous acts. See Salinas v. United States, 118

S. Ct. 469, 475 (1997). Unlike the situation in Gregory,

there is no ambiguous exception in Title II to be con-

strued, for Congress straightforwardly made all opera-

tions of public entities subject to the ADA. Moreover,

Gregory does not require that Congress spell out each

governmental operation that is made subject to federal

legislation. Such a rule would be unworkable in practice,

and would make pointless Congress’s effort to ensure

broad coverage of statutes like the ADA by employing all-

encompassing statutory definitions of the public entities

covered by the Act. Indeed, the Court stated in Gregory

that the “clear statement” rule “does not mean that the

Act must mention judges explicitly[;} * * * [rJather, it

must be plain to anyone reading the Act that it covers

judges.” 501 U.S. at 467. That requirement is fully satis-

fied by the ADA, which is expressly applicable to all public

entities, defined in turn to include every agency of state or

local government.

14

C. Congress Directed That Title II Be Applied As

Broadly As The Rehabilitation Act Of 1973, Which

Had Been Consistently Applied To State Prisons

Before The ADA’s Enactment

Congress repeatedly provided that the ADA be inter-

preted at least as broadly as Section 504 had been

construed at the time of the ADA’s enactment. Title II of

the ADA states that rights and remedies under the two

statutes are in pari materia, see 42 U.S.C. 12133, and

requires that the Department of Justice’s ADA regula-

tions be consistent with the federal government’s existing

coordination regulations governing Section 504, see 42

U.S.C. 12134(b). Title IV also requires that nothing in the

ADA be construed to apply a lesser standard than that

applicable under Section 504 or its implementing regula-

tions, see 42 U.S.C. 12201(a). In language closely similar

to that of Title II, Section 504 provides that no otherwise

qualified individual with a disability (before the ADA, a

“handicap”) shall on that basis “be excluded from the

participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity” re-

ceiving federal financial assistance or conducted by the

federal government. 29 U.S.C. 794(a). The legislative his-

tory of the ADA amply demonstrates that Congress in-

tended at a minimum to extend the protections of Section

504 to all public entities, whether or not they received

federal funds. See p. 3, supra.

At the time of the ADA’s enactment, it was well estab-

lished that Section 504 covered both state and federal

prisons. The Department of Justice’s regulations imple-

menting Section 504 in the context of programs receiving

financial assistance from the Department defined (and still

define) “program” to mean “the operations of the agency

or organizational unit of government receiving or substan-

tially benefiting from the Federal assistance awarded, e. g.,

a police department or department of corrections.” 28

C. F. R. 42.540(h). Those regulations also defined “benefit”

to include “provision of services, financial aid or disposi-

15

tion (i. e., treatment, handling, decision, sentencing, con-

finement, or other prescription of conduct).” 28 C. F. R.

42.540(j) (emphasis added). The appendix to those regula-

tions stated further that services and programs provided

by federally assisted “jails, prisons, reformatories and

training schools, work camps, reception and diagnostic

centers, pre-release and work release facilities, and

community-based facilities” are covered by Section 504,

and that those facilities designated for use by persons with

disabilities are “required to make structural modifications

to accommodate detainees or prisoners in wheelchairs.”

45 Fed. Reg. 37,620, 37,630 (1980).

The Department’s Section 504 regulations for programs

conducted by the Department itself similarly cover federal

correctional facilities. See 28 C.F.R. 39.170(d)(1)(ii) (See-

tion 504 complaint procedure for inmates of federal penal

institutions); id. Pt. 39, Editorial Note, at 685 (Section 504

regulations requiring nondiscrimination in programs or

activities of the Department of Justice apply to the Fed-

eral Bureau of Prisons), 686 (federally conducted program

is “anything a Federal agency does”). Those regulations

are particularly authoritative on the coverage of Section

504, for they were submitted to authorizing committees of

the House and the Senate in 1984, pursuant to 29 U.S.C.

794(a), after Section 504 was amended to cover federally

conducted programs. See 28 C.F.R. Pt. 39, Editorial Note,

at 685; see also Consolidated Rail Corp. v. Darrone, 465

U.S. 624, 634 (1984); School Bd. of Nassau County v.

Arline, 480 U.S. 273 (1987).

The administrative construction of Section 504 was

confirmed by pre-ADA judicial decisions recognizing that

statute’s application in the context of litigation brought by

state prisoners. See Bonner v. Lewis, 857 F.2d 559, 562

(9th Cir. 1988); Journey v. Vitek, 685 F.2d 239, 242 (8th

Cir. 1982); Sites v. McKenzie, 423 F. Supp. 1190, 1197 (N.D.

W.Va. 1976). Given that weight of authority (and the

absence of any contrary authority at the time of the

ADA’s enactment), Congress should be deemed to have

16

codified Section 504’s application to state prisons when it

enacted the ADA. “It is always appropriate to assume that

our elected representatives * * * know the law,” and in

this case, because of the ADA’s “repeated references” to

Section 504, it is especially appropriate to conclude that

Congress extended Title II to state prisons. See Cannon

v. University of Chicago, 441 U.S. 677, 696-697 (1979). A

contrary ruling could not be squared with Congress’s

insistence that the courts and the Executive Branch apply

the ADA at least as broadly as they had applied Section

504.

D. Administrative Implementation Of Title II Also

Supports Its Application To State And Local Prisons

As we have explained above (pp. 3-4, supra), Congress

delegated to the Department of Justice the authority to

promulgate regulations implementing Title II and the

responsibility to provide technical assistance to public

entities covered by the ADA. 42 U.S.C. 12134(a), 12206.

The Department has construed Title II to apply to state

prisons, and petitioners do not contend otherwise. See p. 4,

supra. In light of Congress’s express delegation to the

Department of Justice of the authority to make legisla-

tive-type rules implementing the ADA, the Department’s

construction of Title II must be accorded “controlling

weight unless it is ‘arbitrary, capricious, or manifestly

contrary to the statute.” ABF Freight Sys. v. NLRB, 510

U.S. 317, 324 (1994) (quoting Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

844 (1984)).°

® Pursuant to its enforcement authority under both Title II and

Section 504, the Department of Justice has entered into administrative

settlement agreements with public entities that operate jails and

prisons, to resolve complaints of discrimination on the basis of dis-

ability. We are lodging several examples of those settlement agree-

ments with the Clerk and providing them to counsel for petitioners.

Department of Justice records indicate that, during Fiscal Year 1997,

the Department received 749 complaints of violations of Title II, of

which 114 involved prisons.

17

Petitioners do not contend that the Department’s inter-

pretation of Title II to apply to state prisons is contrary to

the statute. They argue, rather, that the statute is am-

biguous as to its application to state prisons, and therefore

it should be construed not to apply in that context, not-

withstanding the definitive administrative interpretation,

because that construction “would upset the usual [federal-

state] constitutional balance.” Pet. Br. 21-22. There is no

support for petitioners’ argument that an agency’s other-

wise permissible construction of a statute pursuant to an

express delegation by Congress should be denied deference

because it may affect the operation of some aspects of state

governments. This Court has made clear, for example,

that a federal agency acting within the scope of its con-

gressionally delegated authority may preempt state law,

even in the absence of any express congressional authori-

zation for such preemption. See Fidelity Fed. Sav. &

Loan Ass’n v. De La Cuesta, 458 U.S. 141, 154 (1982); City

of New York v. FCC, 486 U.S. 57, 63-64 (1988). When an

agency’s preemption decision is challenged, the question

for the courts is whether that decision represents a per-

missible implementation of the statute, not whether Con-

gress itself has manifested any intent that state law be

preempted. Id. at 64. That is so even though this Court

will not conclude that Congress has preempted state law

“unless that was [its] clear and manifest purpose.”

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605

(1991) (internal quotation marks omitted). In a similar

fashion, the Justice Department’s permissible construc-

tion of Title II to apply to state prisons is controlling in

this case.

Petitioners’ argument that Gregory v. Ashcroft, supra,

prevents the Court from deferring to that construction is

without merit. The Court concluded in Gregory that an

ambiguous provision of the ADEA should not be construed

to apply to state judges in the absence of a clear statement

from Congress to that effect. 501 U.S. at 467. The Court’s

decision did not address any question of deference, and

18

the Equal Employment Opportunity Commission (EEOC),

which enforces the ADEA, did not request deference to its

previous, litigating position that the ADEA applied to state

judges. The dissenting Justices in Gregory disagreed

among themselves whether the EEOC’s litigating position

deserved deference, see id. at 485 n.3 (opinion of White, J.),

494 (Blackmun, J., dissenting). This case, however, does

not involve only a litigating position on the part of the

agency charged with implementation of a statute, but

rather the Department of Justice’s definitive construction

of Title II pursuant to an express delegation to implement

legislative rules. That construction is entitled to defer-

ence under standard principles of administrative law re-

flected in Chevron, and establishes that Title II applies to

state prisons.

E. Petitioners’ Policy-Based Arguments Are Unpersua-

sive

Petitioners advance a number of arguments intended to

demonstrate that Congress would likely not have intended

Title II to apply to state prisons. First, they suggest (Br.

5, 13-14) that the ADA generally is aimed at the integra-

tion of persons with disabilities into mainstream society,

which purpose (they suggest) is not advanced by affording

protection against discrimination to prisoners during

their incarceration. There is no inconsistency, however,

between a policy of ending societal segregation of the

disabled and one of protecting disabled prisoners against

discrimination. Even if prisoners are sentenced under a

system that does not expressly recognize rehabilitation as

a penological goal, Congress might well conclude that

society has an interest in their obtaining access on a

nondiscriminatory basis to whatever services, programs,

and activities might be available to prepare them for life

outside prison. Most prisoners must, at some point, re-

turn to the mainstream of American life. Congress could

surely have intended that prisoners with disabilities not

be punished more than other prisoners because of their

19

disability, and be more disadvantaged than other prisoners

upon their return to society. This case presents an

excellent example of such a situation, for the Boot Camp

program is intended to strengthen first-time offenders’

connection to mainstream society; there is no evident

reason why offenders with disabilities, as a class, should

be deemed unable to benefit from such a program.

Second, petitioners emphasize (Br. 14-15) the supposed

onerousness of the ADA’s nondiscrimination and accom-

modation requirements. It bears emphasis, however, that

federal prisons and all state and local correctional insti-

tutions receiving federal assistance have long been subject

to similar requirements under Section 504, and yet

petitioners have pointed to no avalanche of litigation

arising under Section 504 or disruption of legitimate

correctional objectives resulting from its application to

the States. There is no evident reason to believe that

prisons’ experience under the ADA will be more drastic.

The ADA may require adjustments and flexibility in the

administration of some prison programs—as Section 504

also requires—but the same might be said of the statute’s

application to school systems, public transportation sys-

tems, private employment, and public accommodations.

Congress did not enact the ADA lightly, and petitioners’

arguments based on burdensomeness are really a policy-

based plea for an exemption, which should be made in a

different forum.

F. Application Of Title II To State Prisons Does Not

Raise Any Serious Constitutional Questions

Petitioners argue for the first time in this Court (Br.

22-32) that Title II should be read to exclude prisoners

from coverage because Congress lacks the constitutional

authority to prohibit discrimination against disabled state

prisoners.“ As we have explained, there is no language in

6 Petitioners did not raise that contention in either court below, see

J.A. 13-16 (motion to dismiss); J.A. 103-119 (appellate brief), nor was

the argument addressed by the court of appeals. This Court has stated

20

Title II that can be “construed” to create a state-prison

exception. And although this Court does construe ambigu-

ous statutes to avoid serious constitutional questions,

that practice does not warrant the rewriting of unambigu-

ous legislation. See Salinas, 118 S. Ct. at 475; Almen-

darez-Torres v. United States, No. 96-6839 (Mar. 24, 1998),

slip op. 13-14.

In any event, there are no serious constitutional ques-

tions raised by application of Title II in the state prison

context. Quite significantly, petitioners do not challenge

Congress’s authority under the Fourteenth Amendment

to apply the ADA to the States generally, or even to

prisons vis-a-vis employees or visitors (see Pet. 11); they

contend only that Title II cannot be applied to one

particular state function, the prison system’s treatment of

its prisoners. As we explain below, the application of the

ADA to public entities, including state prisons, is author-

ized by Section 5 of the Fourteenth Amendment.’

that lolnce a federal claim is properly presented, a party can make

any argument in support of that claim; parties are not limited to the

precise argument they made below.” Lebron v. National R.R. Passen-

ger Corp., 513 U.S. 374, 379 (1995). Although that rule might be broad

enough to permit petitioners to argue in this Court that Title II should

be construed to avoid an unconstitutional result, in our view it is not

broad enough for them to argue that Title II is actually unconstitu-

tional, should the Court agree with our submission that Title II un-

ambiguously applies to state prisons. Petitioners did not argue in the

lower courts that Title II is unconstitutional, nor does the question

presented by the certiorari petition (“Does the Americans with Dis-

abilities Act apply to inmates in state prisons,” Pet. i) fairly include a

constitutional question. Had the constitutionality of Title II been

drawn in question in this case, the courts would have invited the

United States to intervene as a party to defend the statute, pursuant to

28 U.S.C. 2403(a). Accordingly, any claim that Title II is

unconstitutional is not properly before the Court. See Yee v. City of

Escondido , 503 U.S. 519 (1992).

Because Congress’s power under the Fourteenth Amendment is

sufficient to sustain Title II, we do not address petitioners’ Commerce

Clause arguments in detail. To the extent, however, that petitioners

rely on cases such as Printz v. United States, 117 S. Ct. 2365 (1997),

21

1. Section 5 of the Fourteenth Amendment is “a

positive grant of legislative power to Congress.” City of

Boerne v. Flores, 117 S. Ct. 2157, 2163 (1997) (internal

quotation marks omitted). Under Section 5, Congress

may act to enforce the Equal Protection Clause of the

Fourteenth Amendment in order to “deter{] or remedy]

constitutional violations * * * even if in the process it

prohibits conduct which is not itself unconstitutional and

intrudes into legislative spheres of autonomy previously

reserved to the States.” Ibid. (internal quotation marks

omitted). Although Congress does not have the authority

to “decree the substance of the Fourteenth Amendment’s

restrictions on the States,” it “must have wide latitude in

determining” where to draw “the line between measures

that remedy or prevent unconstitutional actions and mea-

sures that make a substantive change in the governing

law.” Id. at 2164.

“It is for Congress in the first instance to determine

whether and what legislation is needed to secure the

guarantees of the Fourteenth Amendment, and its conclu-

sions are entitled to much deference.” City of Boerne, 117

S. Ct. at 2172 (internal quotation marks and brackets

omitted). Congress is, moreover, “far better equipped than

the judiciary to amass and evaluate the vast amounts of

data bearing upon legislative questions.” Turner Broad-

casting Sys. v. FCC, 117 S. Ct. 1174, 1189 (1997) (citations

and internal quotation marks omitted). Accordingly,

and New York v. United States, 505 U.S. 144 (1992), that reliance is

misplaced, for those cases are plainly inapposite. Title II does not

require “the forced participation of the States’ executive in the actual

administration of a federal program.” Printz, 117 S. Ct. at 2376.

Rather, Title II simply forbids States from discriminating against the

disabled in their provision of services, just as it prohibits private

employers and places of public accommodation from engaging in such

discrimination. See 42 U.S.C. 12112, 12182. Second, because Congress

enacted Title II pursuant to its Fourteenth Amendment powers, the

principles of federalism reflected in the Tenth Amendment and cases

such as Printz have little relevance here. See Milliken v. Bradley,

433 U.S. 267, 290 (1977); Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976).

22

legislation will be upheld as a valid exercise of Congress’s

Section 5 power if there is a “congruence and proportional-

ity between the injury to be prevented or remedied and the

means adopted to that end.” City of Boerne, 117 S. Ct. at

2164. Title II readily satisfies that test.

2. Title II is a proportionate response to the problem of

discrimination against persons with disabilities, which

Congress reasonably found to be serious and pervasive. As

an initial matter, there can be no serious dispute that

irrational and invidiuous discrimination on the basis of

disability violates the Equal Protection Clause. In City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 482 (1985),

this Court held unconstitutional the application of a

zoning ordinance to deny a special use permit for the

operation of a group home for mentally disabled persons. A

majority of the Court recognized that “through ignorance

and prejudice [persons with mental disabilities] have been

subjected to a history of unfair and often grotesque

mistreatment.” Id. at 454 (Stevens, J., concurring) (inter-

nal quotation marks omitted); see id. at 461 (Marshall, J.,

concurring in the judgment in part and dissenting in part).

The Court also recognized that “irrational prejudice,” id.

at 450, “irrational fears,” id. at 455 (Stevens, J.), and “im-

permissible assumptions or outmoded and perhaps invidi-

ous stereotypes,” id. at 465 (Marshall, J.), existed against

persons with disabilities in society at large and at times

infected government decisionmaking.

In enacting Title II, Congress reasonably concluded

that “appropriate legislation” under Section 5 of the Four-

teenth Amendment was necessary to remedy and deter

unconstitutional discrimination against the disabled.

First, the legislative record amply demonstrated perva-

sive, “society-wide discrimination” against the disabled

based on fear and stigma that infects both public and

private services. See S. Rep. No. 116, 101st Cong., Ist

Sess. 8-9 (1989) (Senate Report); 42 U.S.C. 12101(a)(2)

23

(discrimination a “serious and pervasive” problem). After

14 congressional hearings, 68 field hearings, the sub-

mission of myriad reports by the Executive Branch and

interested groups, and lengthy floor debates,’ Congress

found that persons with disabilities have been subject to

“a history of purposeful unequal treatment,” 42 U.S.C.

12101(aX(7), and that this discrimination “persists” in

many areas, including “public services,” 42 U.S.C.

12101(aX(3). Congress also found that this discrimination

includes “outright intentional exclusion, * * * overpro-

tective rules and policies, failure to make modifications to

existing facilities and practices, exclusionary qualifica-

tion standards and criteria, [and] segregation.” 42 U.S.C

12101(a)(5). As a result of that discrimination, Congress

found, “people with disabilities, as a group, occupy an

inferior status in our society, and are severely disadvan-

taged socially, vocationally, economically, and education-

ally.” 42 U.S.C. 12101(a)(6).

These findings are “reasonable inferences based on

substantial evidence.” Turner Broadcasting, 117 S. Ct.

at 1189 (internal quotation marks omitted). The evidence

before Congress demonstrated that persons with disabili-

8 The committee reports accompanying the ADA demonstrate that

Congress found considerable need to prevent discrimination against

disabled persons by public entities, in particular. See Senate Report 7

(public schools), 12 (voting), 19, 44 (citing need to extend protection to

state agencies that do not receive federal aid), 45 (school bus opera-

tions); House Report, Pt. 2, at 30 (zoos, public schools); 37, 84 (public

services, generally); id. Pt. 3, at 50 (jails).

% The principal hearings, reports, and studies that formed the basis

for Congress's conclusion in the ADA that irrational discrimination

against the disabled is a serious and pervasive problem are cited at

Coolbaugh v. Louisiana, No. 96-30664, 1998 WL 84123, at 6, 12

n.4 (5th Cir. Feb. 27, 1998), and Timothy M. Cook, The Americans with

Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 393-

394 nn.1-4, 412 n.133 (1991). Congress also legislated against a back-

ground of 30 years’ experience with other statutes enacted to protect

the disabled against discrimination. See Lowell P. Weicker, Histori-

cal Background of the Americans with Disabilities Act, 64 Temp. L.

Rev. 387, 387-389 (1991).

24

ties were excluded from public services and accommoda-

tions for no reason other than distaste for or fear of their

disabilities. See Senate Report 7-8 (citing instances of

discrimination based on negative reactions to sight of dis-

ability); House Report, Pt. 2, at 28-31 (same). The legisla-

tive record documented instances of exclusion of persons

with disabilities from “a whole panoply of services because

of simple prejudice.” See Timothy M. Cook, The Ameri-

cans with Disabilities Act: The Move to Integration, 64

Temp. L. Rev. 393, 408 (1991); id. at 412-414 (discussing

widespread state-imposed segregation of persons with

disabilities). After a thorough survey of the available data,

the U.S. Commission on Civil Rights documented that

prejudice against persons with disabilities manifested

itself in many ways, including “reaction{s) of aversion,”

reliance on “false” stereotypes, and stigma associated

with disabilities that lead to people with disabilities being

“thought of as not quite human.” U.S. Commission on

Civil Rights, Accommodating the Spectrum of Individual

Abilities 23-26 (1983); see Senate Report 21. Congress

thus concluded that persons with disabilities were “faced

with restrictions and limitations * * * resulting from

stereotypic assumptions not truly indicative of the individ-

ual ability of such individuals to participate in, and

contribute to, society.” 42 U.S.C. 12101(a)(7). In light of

this evidence and these findings about pervasive discrimi-

nation against persons with disabilities, the broad appli-

cability of the ADA, including its application to public

entities in Title II, is proper.

Second, the statute’s remedial provisions are a meas-

ured response to the evil identified. Unlike the Religious

Freedom Restoration Act, 42 U.S.C. 2000bb et seq.

(RFRA), at issue in City of Boerne, supra, which required

States to provide exemptions to their legitimate regula-

tions for religious practices unless they could demon-

strate that those regulations were the least restrictive

alternative necessary to promote a compelling interest,

the ADA requires only “reasonable modifications” that do

not entail a “fundamental[] alterſation in] the nature of the

service, program, or activity.“ 28 C. F. R. 35.130(b)(7).

Under the Department of Justice's implementing regula-

tions, publie entities generally need not provide accommo-

dations if they can show “undue financial and administra-

tive burdens.” 28 C.F.R. 35. 1500 a)(3). A similar rule of

reason is found in the Department’s Section 504 regula-

tions, of which Congress is presumed to have been aware

when it enacted the ADA. See 28 C. F. R. 39.150(a)(2), 41.53.

Thus, while the ADA’s nondiscrimination provision and

reasonable-accommodation requirement do impose some

burdens on the States, and while there is bound to be dis-

agreement in some cases over the extent of the modifica-

tion to a program that must be made to accommodate per-

sons with disabilities, the statutory scheme acknowledges

countervailing interests as well.

Furthermore, Congress concluded, based on the record

before it, that a particularly serious form of discrimina-

tion facing the disabled was the use of blanket exclusion-

ary rules based ultimately on unexamined stereotypes,

fear, and prejudice.” Even if some of those blanket rules,

when applied by public entities, might survive rational-

basis constitutional review, it was within Congress’s

power to conclude that, because those rules might actually

be based on gross overgeneralizations and stereotypes

about persons with disabilities rather than legitimate

regulatory objectives, they should receive closer scrutiny

under the statute. Cf. Katzenbach v. Morgan, 384 U.S.

641, 654 (1966) (although literacy tests might serve legiti-

mate interests, “Congress might well have questioned

* * * whether these were actually the interests being

served” and therefore could constitutionally suspend

them).

0 See 42 U.S.C. 12101(a)(5); Senate Report 7 (decrying discrimina-

tion “based on false presumptions, generalizations, land] mispercep-

tions”), 9 (similar); House Report, Pt. 2, at 30 (similar), 33 (dis-

crimination from “use of standards and criteria” and “presumptions,

stereotypes and myths”), 40 (similar); id. Pt. 3, at 25 (similar).

Finally, unlike the background to RFRA—which dem-

onstrated that Congress acted out of displeasure with this

Court’s decision in Employment Division, Department of

Human Resources v. Smith, 494 U.S. 872 (1990), declaring

the substance of the Free Exercise Clause—there is no

evidence that Congress enacted the ADA because of its

disagreement with any decision of this Court applying any

particular constitutional standard to claims by persons

with disabilities. And whereas the principal effect of

RFRA was to establish a new rule of decision to be applied

by the courts in constitutional litigation in place of the

Smith rule, Title II takes a quite different approach,

establishing an administrative enforcement mechanism to

investigate claims of discrimination against the disabled,

as well as authorizing a cause of action to redress

discrimination.

Moreover, this Court has recognized that legislative

remedies are particularly appropriate for persons with dis-

abilities. In City of Cleburne, the Court declined to deem

classifications based on disability as suspect or “quasi-

suspect” in part because heightened constitutional scru-

tiny could unduly limit legislative solutions to problems

faced by the disabled. 473 U.S. at 450. The Court reasoned

that “[hjow this large and diversified group is to be treated

under the law is a difficult and often a technical matter,

very much a task to legislators guided by qualified pro-

fessionals.” Jd. at 442-443. It pointed to legislation such

as Section 504, intended to protect persons with disabili-

ties, and expressed concern that requiring governmental

entities to justify their efforts under heightened scrutiny

might “lead [them] to refrain from acting at all.“ Id. at

444. That concern demonstrates the propriety of Con-

gress’s enactment of the ADA as a vigorous yet flexible

response to the pervasive but complex problem of discrimi-

nation against persons with disabilities.

3. Petitioners contend (Br. 25-32) that Title II must

be construed not to apply to state prisoners because, if it

did so apply, then it would exceed Congress’s powers to

27

enforce the Eourteenth Amendment. There is nothing

talismanic about state prison operations, however, that

places them outside the legitimate scope of Congress’s

Fourteenth Amendment power. Even though prisoners

give up many of their civilian rights when they are incar-

cerated, see Sandin v. Connor, 515 U.S. 472, 485 (1995),

and courts “accord deference to the appropriate prison

authorities” in addressing prisoners’ claims of constitu-

tional violations, Turner v. Safley, 482 U.S. 78, 85 (1987),

the Court has made clear that Iplrison walls do not form a

barrier separating prison inmates from the protections of

the Constitution.” Id. at 84; see Sandin, 515 U.S. at 485;

Wolff v. McDonnell, 418 U.S. 539, 555-556 (1974). “It is

settled that a prison inmate retains those [constitutional]

rights that are not inconsistent with his status as a

prisoner or with the legitimate penological objectives of

the corrections system.” Turner, 482 U.S. at 95 (internal

quotation marks omitted).

Prisoners with disabilities are therefore protected from

irrational and invidious discrimination by the Equal

Protection Clause, and Congress has the power under the

Fourteenth Amendment to deter and remedy such discri-

mination. In our view, Congress’s conclusions about the

need for deterrence and remedies against discrimination

against disabled persons generally is sufficient to bring

prisons within the legitimate scope of the ADA; but the

legislative record demonstrates that Congress identified a

problem of irrational discrimination against disabled

persons specifically in the law enforcement system, such

that deterrence and remedies in that context were thought

necessary. See House Report, Pt. 3, at 50 (noting that

persons with disabilities, including those with epilepsy,

are “frequently inappropriately arrested and jailed” and

“deprived of medications while in jail,” and stating that

28

“{sjuch discriminatory treatment based on disability can

be avoided by proper training“).

Moreover, nothing in the ADA is inconsistent with the

need to consider an inmate’s status as a prisoner, or the

legitimate penological needs of the institution in which

the inmate is incarcerated. Protections under Title II are

limited to individuals who can meet the “essential eligibil-

ity requirements” of the relevant program or activity,

with or without “reasonable modifications.” 42 U.S.C.

12131(2). Nor would the ADA give inmates with dis-

abilities the “right” to participate in programs such as the

boot camp program at issue here. It would simply give

inmates with disabilities the right not to be impermissibly

excluded from such programs on the basis of their

disability. Cf. Mt. Healthy City Bd. of Educ. v. Doyle, 429

U.S. 274, 283-284 (1977) (even though plaintiff could be

fired for no reason at all, he may not be fired for an

unconstitutional reason). Because of the posture of this

case, the precise application of those concepts in the

prison context is not before the Court, but whatever

standard is to be applied to inmates’ claims under Title II

of the ADA, the court of appeals correctly held that it

protects prisoners from discrimination on the basis of

disability.

1! See also Accommodating the Spectrum of Individual Abilities,

supra, at 168 (describing “major types of areas of discrimination”

against disabled in criminal justice system, including “inadequate abil-

ity to deal with physically handicapped accused persons and convicts

(e.g. accessible jail cells and toilet facilities)”; Americans With Dis-

abilities Act of 1988: Joint Hearing on S. 2345 Before the Subcomm. on

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

and the Subcomm. on Select Educ. of the House Comm. on Educ. and

Labor, 100th Cong., 2d Sess. 77 (1988) (testimony of Belinda Mason,

describing incident in which arrestee with HIV was locked inside his

car overnight); Joint Hearing on H.R. 2273, The Americans With

Disabilities Act of 1989: Joint Hearing Before the Subcomm. on Select

Educ. and Employment Opportunities of the House Comm. on Educ.

and Labor, 101st Cong., Ist Sess. 63 (1989) (testimony of Justin Dart,

describing experience of disabled persons arrested and held in jail).

29

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

LINDA F. THOME

SETH M. GALANTER

Attorneys

MARCH 1998