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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 206

## Text

~ | Supreme Court, U. S.
5 11 KE 5

2 MAR 30 09
No. 97-634 = —

se

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

=

42 U.S.C. 121013) —————.——
4B UBC. BBBII-BBIIT .u.ncccccccccccccccescccecccccccsccccccees
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0128%3A10. Public record. Not legal advice.