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

SUPREME COURT OF THE UNITED STATES

October Term, 1997

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF CORRECTIONS, et al.,

. Petiti

v.

RONALD R. YESKEY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

BRIEF OF AMIC1 CURIAE

THE NATIONAL ADVISORY GROUP FOR JUSTICE,

AMERICAN FOUNDATION FOR THE BLIND, DISABILITY

RIGHTS COUNCIL OF GREATER WASHINGTON,

NATIONAL ALLIANCE FOR THE MENTALLY ILL AND

NATIONAL ASSOCIATION FOR PEOPLE WITH AIDS IN

SUPPORT OF RESPONDENT

Barbara E. Ransom, Esquire

Judith Gran, Esquire*

125 S. 9th Street

Suite 700

Philadelphia, Pennsylvania 19107

(215) 627-7100

Counsel for The Amici Curiae

*Counsel of Record

BEST AVAILABLE COPY |

1.

FABER GP REFUMMMEUMED co ccccccrsceccnaseneses ii

INTERESTS OF AMBCICURIAER ... wc ccc ccccccccnne 2

SUMMARY OF THE ARGUMENT ................-. 3

PRES occ vceversecsnsntweceveseunaeess 4

I. PETITIONERS’ ATTEMPT TO EXEMPT PRISONS

FROM THE ADA Is INCONSISTENT WITH THE PRIMARY

PURPOSE OF CONGRESS TO CREATE A COMPREHENSIVE

STATUTE THAT WOULD ROOT OUT UNCONSTITUTIONAL

DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES

IN EVERY ASPECT OF AMERICAN SOCIETY. .......... 4

A. States Have Historically Sponsored,

Supported, and Enacted Policies Which

Purposely Discriminate Against Persons With

PT Te re ee ee ere ee 8

B. Congress Carefully Considered This History

of Unconstitutional Discrimination When It Drafied

—F Srrvrevery vires: eee 10

C. The Broad Scope of Title Il of the ADA Was

Designed to Address the History of Discrimination

and Exclusion of Persons With Disabilities by

Meer eee 17

D. Title Il Does Not Permit Exclusions or

Exceptions for Certain State Entities, Services,

Pe, GPR bs kc kaceznecedeusers 21

OAM cc ee ieevasens sans tedheenetee 27

TABLE OF AUTHORITIES

Cases Page

Alexander v. Choate, 469 U.S. 287 (1985) .......... 21, 22

Alexander S. v. Boyd, 876. F. Supp. 773 (D. $.C. 1995) .... 21

Allison v. Dep't of Corrections, 94 F.3d 494

ee csc ccccceccecece 26

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) . . . 24

Baker v. Seabold, No. 87-5486, 1987 WL 38691 (6th Cir.

Ce ccene 20

Brown v. Bd. of Educ. , 347 U.S. 483 (1954) ............. 5

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988)........... 20

City of Cleburne, Texas v. Cleburne Living Ctr., Inc.

6, 8, 10

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

(9th Cir.1991), petition for cert filed

ES 18, 20, 24, 26

Crowder v. Kitagwa, 81 F.3d 1480 (9th Cir. 1996) ........ 22 |

Doe v. Gaughan, 808 F.2d 871 (ist Cir. 1986) .......... 24

EEOC v. Wyoming, 460 U.S. 226 (1983) .............. 22

Eric L. v. Bird, 848 F.Supp. 303 (D.N.H.1994) .... 22... 22

Evans v United States, 504 U.S. 255 (1992)... ......... 19

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 2... 22

Franklin v. Dist. of Columbia, 960 F.Supp. 394

(D.C.D.C. 19PT) 2. ccc ccc cc cece 21

ii

Galloway v. Superior Court of Dist. of Columbia,

816 F. Supp. 12 (D.C. 1993)... 22

Garcia v. San Antonio Metrcpolitan Transit Authority,

469 U.S. 528 (1985). ee 22

Gregory v. Ashcroft, 501 U.S. 452 (1991) ............ 18-19

Grove City College v. Bell, 465 U.S. 555 (1984) ........., 12

Hilton v. South Carolina Public Rys. Comm. , 502 U.S. 197

GD hove cceSe vecenccnccccavacceccccec 18

Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994)... 00... 2]

Journey v. Vitek, 685 F.2d 239 (8th Cir. 1982)........... 20

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) ........ 20, 26

Lee v. Washington, 390 U.S. 333 (1968)............... 24

Parrish v. Johnson, 800 F.2d 600 (6th Cir. eee 25

Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 343

F.Supp. 279 (E.D. Pa. 1972) .... 2... 2... 8

People v. Agnew, 68 Misc.2d 128; 326 N.Y .S.2d 477

ee NE 66 6 Kobe Weade soe eek 10

Ruiz v. Estelle, S03 F.Supp. 1265 (S.D.Tex. 1980),

aff'd in part and rev'd in part, 679 F.2d 1115 (Sth Cir.

1982), cert. denied, 460 U.S. 1042 (1983) ......... 26

Salinas v. United States, 118 S.Ct. 469(1997). .......... 18

School Bd. of Nassau County, Florida v. Arline.

480 U.S. 273 (1987)... 2... 8, 21, 22

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) .... 19

Sites v. McKenzie, 423 F.Supp. 1190 (N.D. W.Va.1976) . 10, 20

United States v. Albertini, 472 U.S. 675 (1985). .......... 19

Wolff v. McDonnell, 418 U.S. 539 (1974) .............. 26

Statutes d

24 C.F.R., Part 40, App. A (1989) .................. 21

28 C.F.R. § 39.170)... eee eee eee 20

ED vas ss oa. 8b wee Oks deen 20

GEE, nc cob ood sccnsbaiea danas 2,17

en ee ac cenbeudbaweledane eee 12

ERAT RS VOU Relea a 5 24

ng ey re eg emia 17

American with Disabilities Act of 1988: Joint Hearing on S.2345

Before the Senate Subcomm. on the Handicapped if the

Committee on Labor and Human Relations, 100th Cong.

SS GE, Se Wc chebeceeoceéee 14

Americans with Disabilities Act of 1988: Hearings on

H.R. 4498 Before the House Subcomm. on Select

Education of the Comm. on Education and Labor, 100th

SG SPU, ctkvecuckcececscuse: 15

Americans with Disabilities Act of 1989: Hearings on

S. 933 Before the Senate Comm. on Labor and Human

Relations and the Subcomm. on the Handicapped, 10\st.

Ss CLE oie tcedeeeeebeceberice 14

Architectural Barriers Act, 42 U.S.C.§§ 4151-4157

Sade sbdtbeekwes ctw ebawetecks 5, 20-21

Civit Rights Restoration Act of 1987 ................. 12

IV

Civil Rights of Institutional Persons Act, 42 U.S.C. § 1997

RO ca Pitti ge ees 5, 21

Civil Rights Act of 1964 ......................... 22

Developmental Disabilities Assistance and Bill of Rights Act,

42 U.S.C. §§ 6000-6083 (1994) ................. 5

Education for All Handicapped Children Act,

20 U.S.C. §§ 1401-1485 (1970) ................. 5

Fair Housing Amendments Act, 42 U.S.C.

I 5

Mass Gen. Laws ch. 127,§ 133A ................... 10

Urban Mass Transportation Act, 49 U.S.C. | REBAR 5

Section 504 of the Rehabilitation Act of 1973,

ES rari Pees ee passim

Congressional Reports

136 Cong. Rec. S 9695 (daily ed. i, re 7

Committee Reports of the Senate Comm. on Labor and

Human Relations, S.Rep. No. 101-116 at 8 (1989) _._.. 9

H.R. 101-485, 101st Cong., 2d Sess, reprinted in 1990

EE 2 ot pb dares u cutee. passim

President's Commission on the HIV Epidemic

NY ich” ee nar 6,7, 11

S. Rep. No. 64, 100TH Cong., Ist Sess. 1987 .......... 12

S. Rep. No. 101-116, 101st Cong. Ist Sess. 1989 ...... passim

Other Sources

Bringing Disabled Americans into the Mainstream (March 1986)

(surveying 1000 disabled persons) ..........-++-+- 11

Timothy M. Cook, The Scope of the Right to Meaningful

Access and the Defense of Undue Burdens Under

Disability Civil Rights Laws, 20 Loy. L.A. L. Rev. 1471

GERD oo cece ceed eecn cee seseedecescooese 5

J. Ellis & R. Luckasson, Mentally Retarded Criminal

Defendants, 53 Geo. Wash. L.Rev. 414, 479-480 (1985) . 4

From ADA to Empowerment: The Report of the

Task Force on the Rights and Empowerment of

Americans with Disabilities (Oct. 12, 1990) ........ 11

Louis Harris and Associates, The ICD (International

Center for the Disabled) Survey of Disabled Americans:

Bringing Disabled Americans into the Mainstream

GENES cc cecctcccsecswestedesccoces ll

Louis Harris and Associates, Employing The ICD

Sa eee

Joint Report of the National Alliance for the Mentally Ill

and Public Citizen's Health Group, Criminalizing the

Seriously Mentally Ill: The Abuse of Jails as Mental

rrr eee 11, 24

J. Landman, Human Sterilization 302-303 (1932) ......... ll

A. Moore, The Feeble-Minded in New York 3 (1911) ...... 8-9

National Council on the Handicapped, Toward Independence

GED 6 coc SR a cccesciseoacscecseceves 11

National Council on the Handicapped, On the Threshold of

Independence (Jan.1988) ... 2... 6 eee eee 1]

vi

Ira P. Robbins, George Bush's America Meets Dante's

Inferno: The Americans with Disabilities Act in Prison,

1S Yale L. & Pol'y Rev. 49 (1996) .............. 25

U.S. Commission on Civil Rights, Accommodating

the Spectrum of Individual Abilities

Pe scedéleteaeedueacse cee 9, 10, 11, 12

M.C. Weber, Disability Discrimination By StateAnd

Local Government: The Relationship Between

Section 504 Of The Rehabilitation Act And Title II

of the Americans With Disabilities Act, 36 Wm. & Mary L.

ey St deters beeceacecescs sees ox 12

Vil

No. 97-634

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

Vv.

RONALD R. YESKEY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

BRIEF OF AMICI CURIAE

THE NATIONAL ADVISORY GROUP FOR JUSTICE, AMERICAN

FOUNDATION FOR THE BLIND, DISABILITY RIGHTS COUNCIL OF

GREATER WASHINGTON, NATIONAL ALLIANCE FOR THE

MENTALLY ILL AND NATIONAL ASSOCIATION FOR PEOPLE WITH

AIDS IN SUPPORT OF RESPONDENT

INTERESTS OF AMICIC CURIAE

Amicus curiae National Advisory Group for Justice has been

granted consent to participate in the briefing by all the parties and

is joined by amici curiae American Foundation for the Blind,

Disability Rights Council of Greater Washington, National Alliance

for the Mentally Ill, and National Association for People with

AIDS. All these amici curiae are deeply familiar with our Nation's

disabilities and with the various legislative efforts to redress this

discrimination, particularly the Americans with Disabilities Act, 42

U.S.C. §§ 12101- 12213 (ADA) (1990).'

The amici curiae are: organizations comprised of persons

with disabilities and their families; organizations instrumental in the

drafting and enactment of the ADA and other civil rights

legislation; organizations involved on a daily basis in shaping

national policy on disability and other anti-discrimination issues,

including the implementation of the ADA; and, organizations

advocating for the rights and interests of persons with disabilities.

A short description of each organization appears in the Addendum.

These organizations and their members have direct

experience with the state sponsored discriminatory activities and

attitudes which informed Congress in its drafting of the ADA.

They have a direct stake in the interpretation of the Act, including

both its scope and its constitutionality. Finally, these orga izations

and their members include families with loved ones in prison who

would be immediately and negatively affected by the limitations

proposed by the petitioners in this case.

‘No Counsel for a party authored this brief in whole or in part. no person

or entity other than the amnici curiae, its members, and its counsel made any

monetary contribution to the preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

Throughout the history of our Nation, individuals with

disabilities have been subjected to a regime of segregation,

invidious discrimination, and exclusion. That regime is reflected in

a tapestry of state laws, policies, and practices. It reveals a legacy

of state sponsored and codified prejudice grounded in stereotypes

and inaccurate perceptions of the abilities and limitations of many

of our citizens. Despite piecemeal legislative efforts to eradicate

these deeply-rooted patterns of discrimination over five decades,

the regime has remained pervasive and wide-spread. Congress

sought to redress this national problem with the passage of the

ADA.

Congress, the voice of the States speaking in unison on issues

that affect the Nation, is a body of duly elected representatives of the

people. Congress passed the Americans with Disabilities Act to

move existing Constitutional protections within the grasp of

individuals with disabilities and remedy the effects of the invidious

Congress intended that the Act reach any State or local government

department or agency, including the Pennsylvania Department of

Corrections.

Amici curiae recognize that State prisons are penal

institutions, the responsibility for and management of which are

peculiarly within the province of the legislative and executive

branches of the respective States, and do not suggest otherwise in

its argument. The administrators of State prisons must overcome

Herculean obstacles as they seek to maintain order and discipline ,

secure their institutions, and rehabilitate, to the extent possible, the

inmates placed in their custody. Amici in no way seek to minimize

or reassign those task nor do they portend to seek special privileges

for persons with disabilities.

Amici merely ask that this Court consider only that Ronald

Yeskey asked to participate in a program established and

implemented by administrators of the Pennsylvania Department of

Corrections to the same extent as his similarly situated non-disabled

peers. Ronald Yeskey was not allowed to participate solely on the

basis of his disability. Petitioners’ denial is consistent with reports

that persons with disabilities receive longer and harsher sentences,

serve more of their sentences than do their non-disabled peers and

are more unlikely to receive any habilitation while incarcerated.’

ARGUMENT

1. | PETITIONERS' ATTEMPT TO EXEMPT PRISONS FROM THE

ADA Is INCONSISTENT WITH THE PRIMARY PURPOSE OF

CONGRESS TO CREATE A COMPREHENSIVE STATUTE THAT

WOULD Root OUT UNCONSTITUTIONAL DISCRIMINATION

AGAINST PEOPLE WITH DISABILITIES IN EVERY ASPECT OF

AMERICAN SOCIETY.

The ADA was the culmination of a prolonged legislative

initiative begun in earnest more than twenty years earlier with the

passage of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §

794, which prohibits discrimination in any program or activity --

including programs operated by State agencies -- that receives

Federal financial assistance.” Congress intended the Rehabilitation

*See, e.g., J. Ellis & R. Luckasson, Mentally Retarded Criminal

Defendants, 53 Geo. Wash. L.Rev. 414, 479-480 (1985).

*In addition to the Rehabilitation Act, the ADA was built on the foundation

established by Congress through the enactment of numerous other statutes in

the two decades preceding the ADA that prohibited discrimination against

4

Act to cure the Nation’s “failure to recognize the intrinsic rights of

the handicapped.” Timothy M. Cook, The Scope of the Right to

Meaningful Access and the Defense of Undue Burdens Under

Disability Civil Rights Laws, 20 Loy. L.A. L. Rev. 1471, 1478

(1987). Three years of hearings prior to the enactment of § 504

made clear to the lawmakers that “although accessibility would

entail burdens, eliminating the evil of exclusion would

economically and morally outweigh the costs.” Jd. at 1478-79.

Despite the intent behind the Rehabilitation Act to extend

protection to persons with disabilities, discrimination persisted.

After extensive consideration of continuing and pervasive

discrimination faced by people with disabilities, Congress came to

the conclusion that existing federal and state laws were not

adequate, that its piecemeal approach to legislating in different

people with disabilities. These included: the Education for All Handicapped

Children Act, 20 U.S.C.§§ 1401-1485 (1970), enacted despite this Court's

opining that *[Education] is perhaps the most important function of state and

local governments...required in the performance of our most basic public

responsibilities” Brown v. Bd of Educ., 347 U.S. 483, 493 (1954), and in the

wake of judicial decisions holding that the exclusion of children with

disabilities from public schools violated the Equal Protection Clause: the

Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C.

$§ 6000-6083 (1994) (amending Mental Retardation Facilities and Community

Mental Health Centers Construction Act of 1963), enacted because Congress

found that government funded agencies “tend to overlook or exclude persons

with developmental disabilities in their planning and delivery of services,”

$ 6000(a)(4), and which required States to assure protection of civil rights and

the provision of treatment, services, and habilitation; the Fair Housing

Amendments Act, 42 U.S.C. §§ 3601-3631 (1988), that prohibits

discrimination on the basis of disability in the sale or rental of housing; the

Architectural Barriers Act, 42 U.S.C. §§ 4151-4157 (1968), that requires

federally funded or leased buildings to be accessible; the Urban Mass

Transportation Act, 49 U.S.C. §§ 1612-1625 (1970) (repealed July 5, 1994),

requiring eligible jurisdictions to provide accessibility plans for mass

§ 1997 (1980), which gives discretionary authority to the U.S. Attorney

General to bring an action against “any State or political subdivision of a State

official, employee, or agent thereof, or other person acting on behalf of a etate

for depriving institutionalized persons of rights secured under the constitution

or federal laws.” 42 U.S.C. § 1997a(a).

5

substantive areas was ineffective and confusing, and that

comprehensive federal legislation was imperative to protect all

people with disabilities against all forms of discrimination, whether

public or private. H.R. Rep. No. 101-485, pt. 2, at 47-48,

reprinted in, 1990 U.S.C.C.A.N. at 330.* As Attorney General

Richard Thornburgh, speaking on behalf of President Bush, told

Congress:

One of its (the ADA's) most impressive strengths is its

comprehensive character. Over the last 20 years civil rights

laws protecting disabled persons have been enacted in a

piecemeal fashion. Thus, existing federal laws are like a

patchwork quilt in need of repair. There are holes in the

fabric, serious gaps in coverage that leave persons with

disabilities without adequate civil rights protection.

H.R. Rep. No. 101-485, pt. 2, at 48; S. Rep. No. 101-116, at 19

(1989).° :

The need for additional comprehensive Federal legislation

was also recognized by State officials who testified about the ADA

before Congressional committees. For example, the Committee

Reports cite the testimony of Neil Hartigan, the Attorney General

from Illinois, who stated:

“See City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432,

443 (1985) (six years prior to these hearings, this Court recognized the need

for Federal legislative protections for persons with disabilities because of the

historical failure of states to ensure individual rights).

was one of the major recommendations made by the National Council on

Disability in its two reports to Congress, and was recommended by the

President's Commission on the HIV Epidemic, as well. H.R. Rep. 101-485, pt.

2, at 48; S. Rep. No.101-116, at 19.

Under the current federal law, the Rehabilitation Act's non-

discrimination requirements are tied to the receipt of federal

financial assistance. Unfortunately, what this translates to is

total confusion for the disability community and the inability

to expect consistent treatment. Where there is no state law

prohibiting discriminatory practices, two programs that are

exactly alike, except for funding sources, can treat people

with disabilities completely differently from those who don't

have disabilities.

S. Rep. No. 101-116, at 12.° Congress’ intent was to ensure that

all decisions based on disability, public or private, were guided by

facts, not myths, fears, and stereotypes. As Senator Dole stated:

We have included in this legislation all people with all

disabilities, no matter how misunderstood, because that is

what this bill is about--replacing misunderstanding with

understanding.

136 Cong. Rec. $ 9695 (July 13, 1990) (statement of Sen. Dole).

“Further evidence of State support for the ADA came from the Chairman of

the President's Committee on the Employment of Persons with Disabilities who

informed Congress that:

the fifty State Governors’ Committees, with whom the President's

Committee works, report that existing State laws do not adequately

counter such acts of discrimination.” $. Rep. No. 101-116, at 18.

discrimination on their own. The Committee Reports cite the testimony of

Admiral James Watson, Chairperson of the President's Commission on the

HIV Epidemic, who stated:

[E}nough time has, in my opinion, been given to the States to

legislate what is right. Too many States, for whatever reason, still

perpetuate confusion, It is time for Federal action. Id.

7

A. States Have Historically Sponsored, Supported, and

Enacted Policies Which Purposely Discriminate Against

Persons With Disabilities.

Congressional consideration of the ADA took place against

an historical backdrop of longstanding State sponsored

discrimination against people with disabilities that can only be

called "grotesque." Cleburne, 473 U.S. at 438. This

discrimination arose not only from deep-seated prejudice against

individuals with disabilities, but from archaic laws that reflect

inaccurate stereotypes about disabilities. School Bd. of Nassau

County v. Arline, 480 U.S. 273, 279 (1987). For example, during

the early part of the 20th century, practically every state adopted a

policy of segregating and isolating individuals with disabilities for

life in massive custodial institutions. Cleburne, 473 U.S. at 461-

462 (Marshall, J., concurring and dissenting in part). The States

actively inculcated fear of mentally retarded persons and undertook

major outreach efforts to identify and remove them from the

community. The State of Pennsylvania excluded mentally retarded

children from public schools by enacting laws which relieved the

State Board of Education “from any obligation to educate a child

whom a public school psychologist certifies as uneducable and

untrainable.” Pennsylvania Ass'n for Retarded Children v.

Pennsylvania, 343 F.Supp. 279, 282 (E.D. Pa. 1972).

The virulence and bigotry directed by the States towards

people with disabilities "rivaled, and indeed paralleled, the worst

excesses of Jim Crow." Cleburne, 473 U.S. at 461, (Marshall, J,

concurring and dissenting in part). People with disabilities were

blamed for all of society's worst evils, from crime to poverty. The

goal was not merely to separate them from the community, but to

prevent them from reproducing so as to literally “nearly extinguish

their race." Jd. at 462 (citing A. Moore, The Feeble-Minded in

New York 3(1911)). “To assure this end, twenty-nine states

enacted compulsory eugenic sterilization laws between 1907 and

1931." dd. at 463 (citing J. Landman, Human Sterilization 302-303

(1932)). State legislation also prohibited people with mental

retardation from marrying. Similar laws were directed at

individuals with epilepsy and mental illness. Most states

categorically disqualified “idiots” and other persons labeled as

disabled from voting, without regard to individual capacity and

with discretion to exclude left in the hands of low-level election

officials. Id. at 464.

Although one might have hoped that archaic state laws and

practices that blatantly discriminated against people with disabilities

would have disappeared by the 1980's, this was not the reality

confronting Congress as it began to draft the ADA. For example,

even in 1983 fifteen states still had laws authorizing the compulsory

sterilization of individuals with mental illness or retardation, and at

least four states authorized the sterilization of persons with

epilepsy.’ Thousands of individuals with disabilities remained

unnecessarily segregated in large institutions where abuse by staff,

and other dangerous physical conditions, were common. U.S.

Commission Report at 33-35. Moreover, people with disabilities

continued to be denied basic civil rights that other citizens take for

granted. For example, many states unjustifiably restricted the right

of persons with disabilities to vote, to hold public office, or to

obtain a license to hunt or fish. /d. at 40. Many states also

"U.S. Commission on Civil Rights, Accommodating the Spectrum of

Individual Disabilities at 37 (1983) (hereinafter U.S. Commission Report]. As

petitioners recognize the U_S. Commission Report was heavily relied upon by

Congress in assessing the nature and extent of the discrimination that still

existed against persons with disabilities. Petitioners’ Brief at 16-17. The

Report was entered into testimony before House and Senate subcommittees and

was quoted in the Committee Reports of the Senate Comm. on Labor and

Human Relations, $.Rep. No. 101-116, at 8 (1989) and the House Comm. on

Educ. and Labor, H.R. Rep. No. 101-485, pt. 2, at 28, 31 (1990).

9

prohibited individuals with disabilities from marrying or entering

into contracts. /d. Indeed, several states continued to make

marriages of the mentally retarded a criminal offense. Cleburne, |

473 U.S. at 463. Many states mandated that parents with

to terminate parental rights. U.S. Commission Report at 40, 167.

Governmental discrimination was pervasive throughout the

criminal justice system." Jd. at 168.

B. Congress Carefully Considered This History of

Unconstitutional Discrimination When It Drafted the ADA.

Before enacting the ADA, Congress carefully explored the

problems of discrimination against people with disabilities. It

conducted numerous hearings on the ADA and considered

testimony by hundreds of people about discrimination across the

entire spectrum of governmental functions, including education,

law enforcement such as police, courts, and jails. In its extensive

deliberations on the ADA,’ Congress also reviewed authoritative

patients from seeking parole, even though the courts had long since declared

that such laws violate the Equal Protection Clause. See Mass. Gen. Laws ch.

127, § 133A. See also Sites v. McKenzie, 423 F.Supp. 1190 (N._D. W.Va.

1976), People v. Agnew, 68 Mise.2d 128, 133-134; 326 N.Y.S.2d 477, N.Y.

Sup. Ct. (1971).

*The Senate Committee on Labor and Human Resources and the Senate

Subcommittee on the Handicapped held five hearings on the bill. On

September 7, 1989, the bill passed the Senate with overwhelming support by a

vote of 76 to 8. In the House, over twenty hearings were held before four

House committees’ subcommittees. The House and Senate Conference

Committee convened twice. The conference bill passed by an overwhelming

majority in both the House (by a vote of 377 to 28) and the Senate (by a vote of

91 to 6). The ADA was signed by President Bush on July 26, 1990.

10

status of people with disabilities, all of which concluded that

comprehensive civil rights legislation was necessary to combat

pervasive discrimination against people with disabilities. '°

Contrary to petitioners’ claim, however, the report does

not focus simply on the warehousing of disabled people in

segregated institutions. It also describes discrimination in more

than 20 broad categories of state provided or supported programs

or services, and refers specifically to prisons and jails as settings

types of discrimination by the criminal justice system, including:

Disproportionate number of mentally retarded people in

"° Both the House and the Senate cited seven substantive studies or reports

to support the conclusion that discrimination against the disabled is a serious

and pervasive problem. S.Rep. No. 101-116, at 6; H.R.Rep. No. 101-485,

pt. 2, at 28 (both citing National Council on the Handicapped: On the

Threshold of Independence (Jan. 1988) (updating the legislative changes

recommended in Toward Independence)); Report of the President's

Commussion on the HIV Epidemic (June 1988) (reviewing the medical,

financial, ethical, policy, and legal issues that affect those afflicted with HIV):

Louis Harris and Associates, Employing The ICD (International Center for the

Disabled) Survey II: Disabled Americans (1987) (surveying 210 top managers,

301 equal employment managers, 210 department heads and line managers,

and 200 top managers in companies employing 10-49 people); Louis Harris

and Associates, The ICD Survey of Disabled Americans: Bringing Disabled

Amencans into the Mainstream (March 1986) (surveying 1000 disabled

persons), National Council on the Handicapped, Toward Independence

(Feb. 1986) (reviewing different laws and programs that affect disabled persons

and offering recommendations for legislative changes); U.S. Commission on

Civil Rights, Accommodating the Spectrum of Individual Abilities (Sept. 1983)

(reporting on, among other things, the history, nature, and extent of

discrmination against the disabled); From ADA to Empowerment: The Report

of the Task Force on the Rights and Empowerment of Americans with

Disabilites (Oct. 12, 1990) (compiling findings and recommendations

following the formation of a Task Force, which conducted 14 Washington,

D C , teleconference meetings with participants from across the country, held

63 public forums in the 50 states and some territories, held other meetings

involving 25,000 participants, testified in congressional hearings, met with

and vanous Cabinet members, and met with opponents of the ADA).

11

communication with handicapped persons by law

enforcement personnel; Insufficient availability of

interpreters; Inadequate treatment and rehabilitation

programs in penal and juvenile facilities; Inability to deal

with physically handicapped accused persons and convicts,

(e.g. accessible jail cells and toilet facilities); and, abuse of

handicapped persons by other inmates.

U.S. Commission Report at 168."

Title II was the least dramatic of the ADA's additions to

existing law; its primary purpose was to extend to all State entities

the non-discrimination requirements already applicable to most

governmental agencies under § 504 of the Rehabilitation Act.’

Nonetheless, as petitioners concede, Congress heard a wealth of

"The legislative history of the Civil Rights Restoration Act of 1987,

enacted to overturn the Supreme Court's 1984 decision in Grove City College

v. Bell, 465 U.S. 555 (1984), shows that Congress understood that the

Rehabilitanon Act applies to pnsons. The Senate Report explained the need

for acuon as follows:

Clear violations of federal law go uncorrected while students lose

valuable educational benefits that can rarely be recovered and

employees lose jobs or job opportunities. Prolonged debate takes

place over what constitutes a “program or activity” under the civil

rights law, while the universities, schools, and correctional facilities

receive millions of federal dollars.

S. Rep. No. 64, 100th Cong., ist Sess. 24 (1987) (emphasis supplied).

"See M.C. Weber, Disability Discrimination By State And Local

Government. The Relationship Between Section 504 Of The Rehabilitation Act

and Title Il of the Americans With Disabilities Act, 36 Wm. & Mary L. Rev.

1089, 1117 (1995) (suggesting that Title II's legislative history is, in reality, a

form of subsequent legislative history for section 504). Further, the ADA itself

provides that “[nJothing in the ADA shall be construed to provide a lesser

standard than the standard applied under Title V of the Rehabilitation Act.” 42

U.S.C.§ 12201(a). The legislative history of Title II also displays strong

support for § 504 and its regulations. See, H.R. Rep. No. 101-485, pt. 1, at

26.

12

——

testimony from a wide range of people, including “mothers,

fathers, and children; from students and workers", who all “spoke

eloquently about the daily problems they encounter in society as a

result of their disabilities." Petitioners’ Brief at 13. Congress

heard powerful accounts of discrimination by many types of public

entities, including the courts, schools, voting, police and fire

departments, mental retardation institutions, as well as about

prisons and jails.

For example, the House Reports describe discrimination

against people with epilepsy in the criminal justice system:

In order to comply with the non-discrimination mandate, it

is often necessary to provide training to public employees

about disability. For example, persons who have epilepsy ,

and a variety of other disabilities, are frequently

inappropriately arrested and jailed because police officers

have not received proper training in the recognition of and

deprived of medications while in jail, resulting in further

seizures. Such discriminatory treatment based on disability

can be avoided by proper training.”

Similarly, Belinda Mason, a board member of the National

Association of People with AIDS, testified:

A man passing through a central Kentucky town was

stopped for drunk driving. After he told the arresting

officers that he had AIDS, the man's car was driven to a

parking lot of the jail. Instead of putting the man in jail,

"H.R. Rep. No. 101-485(IIl), at 50, reprinted in 1990 U.S.C.C.A.N. vol.

4, 473.

13

the officers locked him inside his car to spend the night.

The car was eventually surrounded by sightseers, staring

and pointing at the man.

A woman in another part of Kentucky had managed a

school cafeteria for a number of years. Her adult son, who was

living in California, became ill with AIDS. The woman went to

California to bring her son home so she could care for him. But

when she returned, she was abruptly fired from her job."

Justin Dart, the Chairperson of the Task Force on the

Rights and Empowerment of Americans with Disabilities, related

the following account, which had been told to the Task Force by a

ider to hearing impaired individuals in Illinois:

We have clients who have been arrested and held in jail

over night without ever knowing their rights nor what they

are being held for. We have clients whose children have

been taken away from them and told to get parent

information, but have no place to go because the services

are not accessible. What chance do they ever have to get

their children back?”

Cindy Miller, a Massachusetts rehabilitation counselor,

testified about the abominable treatment of individuals with

disabilities in state institutions and by police across the country:

“Americans with Disabilities Act of 1988: Joint Hearing on S.2345 Before

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

Relations, 100th Cong., 2nd Sess. (1988).

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

Senate Comm. on Labor and Human Relations and the Subcomm. on the

Handicapped, 10st. Cong., 1st Sess. (1989).

i4

As a rehabilitation counselor, I have seen these institutions.

The smell of human waste and detergent has stuck in my

throat. I have looked into the vegetative eyes of its

inmates in their sterile environments. . . . I have

witnessed their jailers rationalize taking away their

wheelchairs as a form of “punishment” -- as if that is

different then punishing prisoners by breaking their legs. |

have witnessed their jailers taking away their food as form

of “punishment” -- as if that is different than starvation. |

have witnessed their jailers talk about them in the third

person and leave them naked to the public — as if this

doesn't strip them of their human dignity. We have laws

to protect animals from these conditions, while Americans

with disabilities continue to suffer.

Crimes against Americans with disabilities is an ignored

epidemic in America. The Police do not provide crime

prevention, apprehension or prosecution because they see it

as fate that Americans with disabilities will be victims. I

have given up on police protection because of their attitude

that Americans with disabilities are natural victims. Never

was this so graphic as when an officer pointed his gun at

my head, cocked it, and unknowingly to me pulled the

trigger on an empty barrel because he thought it would be

“funny” since I have quadraparesis and couldn't flee or

fight."

deliberately excluded people with disabilities from the court

“Americans with Disabilities Act of 1988: Hearings on H.R. 4498 Before

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

Labor, 100th Cong., 2nd Sess. (1988).

15

system, voting, and jury service.'’ For example, Emeka Nwojke,

a Massachusetts resident, testified about his experience in court,

where he went to pursue a complaint that he had been unlawfully

discriminated against because of his disability:

First of all, I could not get into the building because there

were about 500 steps to get in there. Then I called for the

security guard to help me, who happened to be a

policeman. He told me there was an entrance at the back

door for the handicapped people... . I readily agreed

and I went to the back door. I went to the back door and

there were three more stairs for me to get over to be able

to ring a bell to announce my arrival so that somebody

would come and open the door and maybe let me in. I was

not able to do that. So, I was at the back door for an hour

waiting for somebody to come back so I could call for

help. This is the court system that is supposed to give me a

fair hearing. It took me 2 hours to get in."

Based on its exhaustive and meticulous consideration of

this and similar testimony and reports, Congress made nine general

Findings about the widespread discrimination against persons with

disabilities that existed in virtually every aspect of society.'? These

"Id. Testimony of Nancy Turkin, executive director of the Center for

Independent Living.

* Id. Testimony of Nancy Husted-Jensen, Chairman of the Governor's

Commission on the Handicapped in Rhode Island. She recanted the

Constitutional deprivation experienced by persons with disabilities who tried to

vote. The Board of Election Commission's director told her that even though

they were registered, voters with disabilities had been turned away at the

polling place for “not looking competent.”

"These findings include, inter alia, that 43,000,000 Americans with

physical or mental disabilities have been isolated, segregated and discriminated

against in such critical areas as employment, public accommodations,

16

Findings provide the rationale for the purpose, sc»pe, and remedial

standards of the ADA. They represent the factual and legal

predicate for Congress’ actions. They more than support

Congress’ conclusion that it was necessary to “provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” 42 U.S.C. §

12101(a). Nota single one of the Congressional Findings is

incompatible or irrelevant to prisons.”

C. The Broad Scope of Title Il of the ADA Was Designed

to Address the History of Discrimination and Exclusion of

Persons With Disabilities by States and State Entities.

The ADA's universal mandate applies to every agency and

official of state government.” There is no exception for prisons or

education, institutionalization, and access to public services; individuals who

have been discriminated against on the basis of disability often have no legal

recourse to redress discrimination that has tended to relegate them to lesser

services, programs, activities, benefits, jobs, or other opportunities, the

Nation's proper goals regarding individuals with disabilities are to assure —

equality of opportunity, full participation, independent living, and economic

self-sufficiency for such individuals; and the continuing existence of unfair and

compete on an equal basis and to pursue those opportunities for which our free

society is justifiably famous, and costs the United States billions of dollars in

unnecessary expenses resulting from dependency and nonproductivity. 42

U.S.C. § 12101(a).

*Contrary to petitioners’ argument, the term “public services,” as used in

Finding 3 and in the heading of Title II, is not limited to services available to

the general public. By definition, Title Il, encompasses all the programs and =

services of a “public entity,” many of which are not open to the general public.

Further, the phrase “our free society” in Finding 9 is a reference to America’s

political tradition and values, and was hardly meant to draw a distinction

between people in prison and those in the community.

"Title I prohibits discrimination in the “services, programs, or activities of

a public entity,” and defines a “public entity” to include “any department,

agency, special purpose district, or other instrumentality of a State or States

local government.” 42 U.S.C. §§ 12131(1)(B), 12132 (1990).

17

any other unit of state government. In fact, Congress deliberately

chose not to list all of the different state functions covered by Title

II in order to ensure that there would be no gaps in its universal

coverage of all units of state and local government.”

There is no merit to petitioners’ contention that the ‘clear

statement rule,” articulated by the Court in Gregory v. Ashcroft,

501 U.S. 452, 460 (1991), removes state prisons from the scope of

Title II. Even if the clear statement doctrine is relevant to the

interpretation of a federal statute that impinges on the operations of

a State prison, it only applies if the statute is ambiguous. Salinas v.

United States, 118 S.Ct. 469, 475 (1997); Hilton v. South Carolina

Public Rys. Comm. , 502 U.S. 197, 205-06 (1991); Gregory, 501

U.S. at 467. It does not permit the courts to take seriously every

far-fetched interpretation of a statute offered by litigants. As the

Court explained in Salinas:

A statute can be unambiguous without addressing every

interpretative theory offered by a party. It need only be

“plain to anyone reading the Act” that the statute applies to

™See H.R. 101-485, 101st Cong., 2d Sess., pt. 2, at 84.

“It is doubtful whether the “clear statement rule” has any applicability at all

to Title II's regulation of state prisons. In Gregory, the Court justified its

apy ‘ication of the rule, previously invoked only to assess a purported

abrogation of Eleventh Amendment immunity, because the federal statute at

issue impinged on a state constitutional provision governing the qualifications

of state judges, a subject which "goes beyond an area traditionally regulated by

the States; it is a decision of the most fundamental sort for a sovereign entity.”

Gregory, 501 U.S. at 460. As Judge Posner stated in Crawford v. Indiana

Dep't. of Corrections, 115 F.3d 481, 483 (7th Cir. 1997), petition for cert.

filed, (Dec. 19, 1997):

Maybe there is an inner core of sovereign functions, such as the

balance of power between governor and state legislature, that if

somehow imperiled by the ADA would be protected by the

clear-statement rule, but the mere provision of public services, such

as schools and prisons, is not within that inner core.

18

the conduct at issue.

118 S.Ct. at 475 (quoting Gregory, 501 U.S. at 467). No matter

how much the Federal statute may intrude on a traditional state

function, a court "cannot press statutory construction to the point of

disingenuous evasion." Id. (quoting Seminole Tribe of Florida v.

Florida, 517 U.S. 44, n.9 (1996)). Otherwise, the clear statement

rule, “while purporting to be an exercise in judicial restraint,

would trench upon the legislative powers vested in Congress by

Art. I, § 1, of the Constitution." United States v. Albertini, 472

U.S. 675, 680 (1985).

The clear statement rule does not warrant a departure from

the terms of Title II to exclude prisoners from its protection. No

ordinary reader could plausibly conclude that the definition of

“public entity” excludes a state department of corrections, or any

other state entity for that matter.“ When it uses language that is

plainly comprehensive, Congress does not have to list by name

each particular state function it intends to regulate.” Gregory, 501

U.S. at 467. As Judge Posner stated:

We doubt, moreover, that Congress could speak much more

clearly than it did when it made the Act expressly applicable

to all public entities and defined the term “public entity" to

include every possible agency of state or local government.

*Title Il is not per se ambiguous just because some courts have strained to

find ambiguity where none exists.

* By contrast, the statute at issue in Gregory (the ADEA) was “sweeping

or. its face, and our task was to construe an exception from that otherwise

broad coverage.” Evans v United States, 504 U.S. 255, 294, n.8 (1992)

(Thomas J., dissenting). The court invoked the clear statement rule only

because the exception — for "an appointee on the policy making level” — was

susceptible of two plausible constructions. Gregory, 501 U.S. at 456.

19

Crawford, 115 F.3d at 485.

Furthermore, the ADA expressly requires that the Act be

construed to provide at least the protections available under the

standards and regulations of the Rehabilitation Act. In its

deliberations on the ADA, Congress took great pains to study § 504

of the Rehabilitation Act to determine its inadequacies and make

changes where it thought appropriate.” By the time Congress

enacted the ADA, every court considering the question had ruled

that the Rehabilitation Act applied to prisons,” and the Department

of Justice had promulgated regulations setting forth the

requirements imposed by the Act in prison.” This Court had also

**The report of the Committee on Energy and Commerce, for example, in

explaining the origins of Title II, stated:

Seventeen years of experience with section 504 - in the developmen’

and issuance of regulations, guidelines, and standards, in the

implementation of those requirements, and in the interpretation of |

law - have demonstrated the need for further legislative action in this

areca.

H.R. 104-485, 101 Cong., 2d Sess., pt. 4, at 24.

"Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988); Journey v. Vitek, 685

F.2d 239, 242 (8th Cir. 1982); Baker v. Seabold, No. 87-5486, 1987 WL

38691 (6th Cir. Oct. 15, 1987); Sites v. McKenzie, 423 F.Supp. 1190 (N.D.

W.Va.1976). See also LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987)

(vacating as moot judgment of district court that prison officials violated

Rehabilitation Act).

"See 28 C.F.R. § 42.540(h) (program includes a "department of

corrections”); 28 C.F.R. § 39.170(d)(ii) (setting forth procedure for prisoner to

file a complaint). Significantly, this regulation was submitted to Congress

during its consideration of the ADA. Further, the ADA requires the Attorney

General to promulgate regulations governing "program accessibility, existing

facilites” that are consistent with the Rehabilitation Act regulations set forth in

28 C.F.R. Part 39, 42 U.S.C. § 12134(b). In turn, 28 C.F.R. Part 39.150,

which governs “program accessibility, existing facilities”, mandates that state

agencies covered by the Rehabilitation Act "meet accessibility requirements to

the extent compelled by the Architectural Barriers Act of 1968, as amended (42

U.S.C. §§ 4151-4157), and any regulations implementing it." At the time the

ADA was passed, the regulations promulgated under the Architectural Barriers

20

repeatedly emphasized that the federal regulations are "an

important source of guidance on the meaning of § 504." School Bd.

of Nassau County, 480 U.S. at 279 (quoting Alexander v. Choate,

469 U.S. 287, 304 n.24 (1985)). There is nothing in either the text

or legislative history of the ADA to suggest that Congress

disapproved of the application of the Rehabilitation Act to prisons,

or that it wished the ADA to be interpreted differently.

Application of Title II to persons in State prisons is consistent

with other civil rights legislation passed by Congress, such as the

Civil Rights Institutionalized Persons Act (CRIPA), which

empowers the U.S. Attorney General to initiate civil actions to

protect the constitutional and statutory rights of persons residing in

institutions, including correctional facilities. 42 U.S.C. 1997

(1)(B)(ii). Although Congress amended CRIPA in 1997 to limit

prisoner litigation, it could have, but did not seek to eliminate the

ADA from the scope of its protection. The broad language of Title

II also parallels that in other federal anti-discrimination statutes,

such as Title VI and Title [X of the Civil Rights Act and the

Individuals with Disabilities Education Act, that have been applied

to correctional facilities. See Jeldness v. Pearce, 30 F.3d 1220 (9th

Cir. 1994) (Title IX); Franklin v. District of Columbia, 960

F.Supp. 394, 432 (D.C. D.C. 1997) (Title VI); Alexander S. v.

Boyd, 876. F. Supp. 773 (D. S.C. 1995) (IDEA).

D. Title Il Does Not Permit Exclusions or Exceptions

for Certain State Entities, Services, Functions, or

Locations

The petitioners contend that because prison management is a

Act included the Uniform Federal Accessibility Standards accessibility

guidelines, then set forth in 24 C.F.R. Part 40, App. A (1989), which, at §

4.1.4{9)(c), explicitly refer to "detention or correctional facilities.

21

core function traditionally left to the discretion of the States, the

Court should invent an exception from Title II specifically for this

State program. Although there is no question that prison

management is one of a state's most significant responsibilities, it is

no more vital than any other important government function, such

as education, public health, voting, child protection services, or the

courts, all of which are routinely understood to be covered by both

the ADA and the Rehabilitation Act.” The interpretative strategy

urged by the petitioners lacks rational boundaries and could

eviscerate Title II if it were applied to remove other important

State programs and services from the scope of the ADA.

As this Court recognized in Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 539 (1985), it is

“difficult, if not impossible, to identify an organizing principle" to

distinguish those federal statutes that "trench on traditional

gO-crnmental functions" from those that do not. Petitioners’

approach could therefore threaten to exclude significant segments

of State and local governmental activities from the reach of other

federal statutes, such as Title VI, Title VII and Title IX of the Civil

Rights Act of 1964. This would require the reversal of an

enormous body of settled law, since federal courts have regularly

applied civil rights statutes that are phrased in general terms to a

variety of governmental activities that could be characterized as

"core state functions." See Fitzpatrick v. Bitzer, 427 U.S. 445

(1976); EEOC v. Wyoming, 460 U.S. 226 (1983).

*See, ¢.g., Crowder v. Kitagwa, 81 F.3d at 1480, 1485 (9th Cir. 1996)

(state public health and safety legislation); Galloway v. Superior Court of Dist.

of Columbia, 816 F. Supp. 12, 15 (D.C. 1993) (courts and jurors); Eric L. v.

Bird, 848 F.Supp. 303 (D. N.H. 1994) (state foster care services). This Court

has also concluded that § 504 of the Rehabilitation Act applies to public schools

and public health, School Bd. of Nassau County, 480 U.S. 273 and medical

care, Alexander, 469 U.S. 287.

22

Like prisons, a number of essential State entities are not

specifically mentioned by Title II, do not always provide services

to people who participate voluntarily, and are not necessarily open

to the general public. For example, every day thousands of

individuals with disabilities have business in the state courts — both

civil and criminal — as parties, witnesses, jurors, employees, or

citizens observing the proceedings. Yet Title II makes no explicit

mention of the courts, and they are not expressly referred to in any

of the Congressional Findings.” Further, many psychiatric and

forensic facilities provide mental health and restoration services to

committed patients in locked settings that are closed to the public.

The same is true of developmental centers for persons with

retardation that provide custodial and rehabilitation services to

programs, such as State operated group homes, public health

hospitals, child protection services, and numerous government

offices, are well within the scope and purpose of Title II even

though not open to the public in any meaningful sense.

Even within the general category of law enforcement, it

might be difficult to carve out an exemption limited to state

prisons. Other state law enforcement programs, such as forensic

hospitals, juvenile delinquency programs, community corrections,

treatment centers for sex offenders who have completed their

sentences, probation, parole, and jails could arguably be

Many other examples of core state functions that are not explicitly listed in

cuher Title ll or in the Congyessional Findings demonstrate the fallacy of

petitioners’ tortured reading of Title II. Could a fire department allow an

unwanted group home for people with mental retardation to burn to the ground

without nsking a lawsuit under the ADA? Are police free to ignore crimes

cerebral palsy from its galleries because it thought them too disturbing to look

at? None of these state entities are mentioned by name in Title Il.

23

excluded.” Whether the ADA was applicable or not could depend

on whether the program at issue was run by the department of

correction Or a separate state agency in that particular state. For

example, Congress clearly intended that facilities like Atascadero

State Hospital -- a maximum security forensic institution operated

by the California Department of Mental Health -- be covered by

the Rehabilitation Act and the ADA.” Yet in many states identical

facilities are run by the Department of Correction even though they

can hold patients who have not committed any crime.” Petitioners’

concession that certain activities within the prison, such as visiting

rooms and administrative buildings, are properly within the reach

of Title II further illustrates the difficulties and arbitrariness of the

effort to write exemptions into Title II that have no basis in its

textual language.

There is nothing “absurd” or at odds with the purposes of the

ADA to extend its protections to prisoners. See Crawford, 115

F.3d at 485-487. Just as the prohibition of discrimination on the

basis of race applies to the segregation of prisoners, Lee v.

Washington, 390 U.S. 333 (1968), it is reasonable to proscribe

discrimination on the basis of disability in the programs available in

“Although jails pnmarily hold people who are awaiting trial and presumed

innocent, forty-five states use jails to detain people with mental illness who are

wailing for a psychiatne evaluation or mental health services in the community,

and have not even been charged with a crime. See Joint Report of the National

Alliance for the Mentally Ill and Public Citizen's Health Group, Criminalizing

the Serwousty Mentally Ill: The Abuse of Jails as Mental Hospitals (1992).

“Congress responded to this Court's decision in Atascadero State Hospital

v. Scanlon, 473 U.S. 234, 242 (1985), by amending the Rehabilitation Act to

ensure that discruminauon of the sort alleged in that case would be covered.

Moreover, the ADA includes a waiver of sovereign immunity, 42 U.S.C., §

12202, that was expressly designed to comply with standards set forth in

Atascadero. S.Rep. No. 101-116, 101st Cong., Ist Sess. at 86.

"See, e.g., Doe v. Gaughan, 808 F.2d 871 (1st Cir. 1986) (describing

Bridgewater State Hospital in Massachusetts).

24

state correctional facilities. Prisoners suffer from the same wide

range of disabilities experienced by individuals with disabilities in

the community. Some use wheelchairs, some are blind, mentally

retarded, or deaf, and others suffer from AIDS, epilepsy, mental

iliness, diabetes, or cerebral palsy. Within the prison environment,

they are vulnerable to identical, if not worse, discrimination and

oppression than that faced by people with disabilities in the

community or other institutional settings.“ This may include

intentional mistreatment resulting from bias and stereotypes, as

well as the denial of the opportunity to participate in programs,

services, and activities within the prison. For example, a deaf

prisoner who cannot communicate with the prison doctor about a

medical issue is in exactly the same desperate position as a deaf

person in a psychiatric institution with a similar need. Both are at

a considerable disadvantage compared to a deaf person in the

community who has the option of seeking another doctor.

Similarly, a prisoner who cannot access rehabilitative programs

because he uses a wheelchair, and therefore cannot earn "good

time” or satisfy the prerequisites of the parole board, suffers the

same harm as a person with the identical disability who remains

unnecessarily institutionalized because she cannot attend vocational

programs in a mental hospital.

Application of Title II of the ADA to prisons is no more

complex nor no less critical than it is in any other institution where

people are held involuntarily and virtually every aspect of their

lives is controlled. Most of the problems facing individuals with

disabilities have exactly the same solutions in prison as in the

“Ira P. Robbins, George Bush's America Meets Dante's Inferno. The

Americans with Disabilities Act in Prison, 15 Yale L. & Pol'y Rev. 49 (1996).

See also Parrish v. Johnson, 800 F.2d 600, 605 (6th Cir. 1986) (prison guard

repeatedly assaulted paraplegic inmates with knife, forced them to sit in own

feces, and taunted them with remarks like "you crippled bastard you should be

dead”).

25

community: make buildings and bathrooms accessible, provide

interpreters and auxiliary communication devices, and ensure that

or services by eligibility requirements produced by erroneous

stereotypes.” Nor are prisons unique in confronting conflicts

between competing goals in the management of difficult people.

Similar conflicts arise whether the institution is a conventional

mental hospital where patients may be both violent and mentally ill,

Or an institution for people with mental retardation where fiscal

constraints make it difficult to satisfy the treatment and habilitation

needs of all residents. Even in a state university, the administration

faces complicated operational and budgetary issues that affect

every aspect of the daily lives of the students, staff, and faculty.

The ADA does not require prison administrators, anymore

than any other public official, to do anything that is unreasonable

or unduly burdensome or that would fundamentally alter its

programs. What is “reasonable” will depend on the circumstances,

and in the prison context, important management concerns such as

security are “highly relevant to determining the feasibility of the

accommodations disabled prisoners need in order to have access to

desired programs and services." Crawford, 115 F.3d at 487.*

*Many of the accommodations required by the ADA are also mandated by

the Constitution. See, ¢.g., LaFaut v. Smith, 834 F.2d at 394 (finding

unconstitutional, in an opinion written by retired Supreme Court Justice

Powell, the failure to provide paraplegic inmate with handicap toilet in cell and

work area); Ruiz v. Estelle, 503 F.Supp. 1265, 1346 (S.D.Tex. 1980), aff'd in

part and rev'd in part, 679 F.2d 1115 (Sth Cir. 1982), cert. denied, 460 U.S.

1042 (1983) (mentally retarded prisoners facing disciplinary charges must be

provided with “counsel substitute” under Wolff v. McDonnell, 418 U.S. 539,

570 (1974), even though non-disabled inmates have no such right).

“Courts have consistently applied Title I of the ADA to employment of

prison guards hy taking into account prison management and security

concerns. See, e.g., Allison v. Dep't of Corrections, 94 F.3d 494 (8th Cir.

1996).

26

Thus, the ADA will no more wreak havoc within the prison system

than it has in any other state program.

CONCLUSION

Amici curiae ask this Court to focus on the harm that

occurred when the Pennsylvania department of corrections denied

Ronald Yeskey, a person with a disability, solely on the basis of his

disability, equal access to a program authorized by the General

Assembly. The Legislature's charge to the Department of

Corrections was to implement the State Motivational Boot Camp

program. The Legislature authorized a program to rehabilitate

youthful offenders by providing them, inter alia, continuing

education, vocational training and pre-release counseling as a hedge

against reincarceration. Ronald Yeskey's participation in a

program, authorized by legislation and implemented by the

department, does not impinge on the State's authority to manage its

correctional facilities.

Petitioners have taken a hard line in pressing their asserted

right to determine who can and cannot participate in the program.

Petitioners have made no claim that Mr. Yeskey was not in all

respects, save his disability, an appropriate candidate for the

program. To its discredit, petitioners did and continues to seek

relief from the judiciary to continue the unequal treatment that the

States spoke with a single voice to eradicate.

27

Public Interest Law Center of Philadelphia

we athela Leahy

_ Barbara E. Ransom, Esquire

Judith Gran, Esquire*

125 S. 9th Street

Suite 700

Philadelphia, Pa. 19107

(215) 627-7100

Counsel for The Amici Curiae

* Counsel of Record

28

—_—_—~

ADDENDUM

DESCRIPTIONS OF AMICI CURIAE

The National Advisory Group for Justice (NAG) is a Project

of National Significance funded by the Administration for

Developmental Disabilities, U.S. Department of Health and

Human Services to assist that federal agency in fulfilling its

mandate to prevent discrimination against persons with

developmental disabilities. Persons with developmental disabilities,

whether accused of, victims of, or witnesses to crimes, are denied

full access to the services, supports and programs in the criminal

justice system to the same degree as their non-disabled peers. The

NAG was established, therefore, to examine nationwide legal

trends in the criminal justice system as they affect persons with

developmental disabilities and directs its resources to the

enforcement ot the Americans with Disabilities Act. The NAG

seeks reasonable accommodations for persons with disabilities

throughout the criminal justice system.

The grantee organization, the Public Interest Law Center of

Philadelphia (PILCOP), is a non-profit law firm established in

1974 which has responded on a national level to the needs of

persons with disabilities. For more than 25 years, PILCOP has

maintained close and productive working relationships with

disability rights organizations and is well-known for its mission.

With Self Advocates Becoming Empowered (SABE), a national,

non-profit, grassroots organization of Self-advocates, PILCOP

implements the NAG’s programs.

The American Foundation for the Blind’s (AFB) mission is

to enable persons who are blind or visually impaired to achieve

equality of access and opportunity that will ensure freedom of

choice in their lives. AFB accomplishes this mission by taking a

national leadership role in the development and implementation of

public policy and legislation, informational and educational

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programs, and quality services.

The Disability Rights Council of Greater Washington

(DRC), established in 1992 as a regional advocacy organization,

addresses systemic discrimination against people with disabilities in

every aspect of society. The DRC’s goals are to promote, secure

and protect the full participation of people with disabilities in the

community, which the DRC believes will strengthen society as a

whole.

The National Alliance for the Mentally Ill (NAMI) is a

national organization of families of people with severe mental

illnesses and people with severe mental illnesses themselves.

Comprised of 172,000 members and more than 1,100 affiliates

nationwide, NAMI’s goals are to educate the public about severe

mental illnesses such as schizophrenia, manic-depressive illness

and major depression as treatable brain disorders, and to advocate

for the advancement of treatment services for people with these

disorders. An important part of NAMI’s mission is to advocate on

behalf of people with severe mental illnesses involved in the

criminal justice systems. In this capacity, NAMI, along with

Public Citizens’ Health Research Group, published a report in 1992

entitled Criminalizing the Seriously Mental Ill that documented the

serious treatment needs of people with severe mental illness who

are inmates in jails and prisons.

The National Association of People with AIDS (NAPWA),

founded in 1983, advocates on behalf of all people living with HIV

and AIDS in order to end the pandemic and the human suffering

caused by HIV/AIDS.

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