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

PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ef al.,

‘ Petitioners,

RONALD YESKEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF NATIONAL ASSOCIATION OF

PROTECTION AND ADVOCACY SYSTEMS,

JUDGE DAVID L. BAZELON CENTER FOR MENTAL

HEALTH LAW, AND NEW YORK LAWYERS FOR THE

PUBLIC INTEREST, AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

STEVEN J. SCHWARTZ

Counsel of Record

JAMEs R. PINGEON

CENTER FOR PUBLIC

REPRESENTATION

246 Walnut Street

Newton, Massachusetts 02160

(617) 965-0776

STEPHEN F. HANLON

LESLIE S. SPITALNEY

LEo C. RYDZEWSKI

HOLLAND AND KNIGHT LLP

2100 Pennsylvania Avenue

Suite 400

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE......

SUMMARY OF ARGUMENT |W.

I,

IT.

Il.

CONCLUSION ._.._...............

THE COURT SHOULD NOT REACH THE

QUESTION WHETHER TITLE II OF THE

ADA, EITHER IN GENERAL OR AS AP-

PLIED TO PRISONS, IS CONSTITUTIONAL.

THE ADA IS AN APPROPRIATE EXERCISE

OF CONGRESS’ AUTHORITY UNDER SEC-

TION 5 OF THE FOURTEENTH AMEND-

a ee ae Ps SE ee Pe

A. The Court Has Already Concluded That In-

vidious Discrimination Against Persons With

Disabilities, Based Upon Stereotypes and

Archaic Laws, Violates the Equal Protection

al biensccinechesnatiiiciiiaakeet

B. Congress Has Broad Authority Under Sec-

tion 5 of the Fourteenth Amendment to In-

trude on State Functions When Necessary

to Address Invidious Discrimination and to

Adopt a Comprehensive Approach to Prevent,

As Well As to Remediate, Discrimination...

C. The ADA Was Enacted Pursuant to Section

5 of the Fourteenth Amendment to Remedy

the Pattern of Unconstitutional Discrimina-

tion Imposed Upon Persons With Disabilities.

LIKE OTHER NONDISCRIMINATION STAT-

UTES WHICH HAVE BEEN APPLIED TO

PRISONS, TITLE II CAN BE IMPLE-

MENTED IN A MANNER THAT AFFORDS

DUE RESPECT TO VALID PENOLOGICAL

i Ey aN ae ee

10

18

&

ii

TABLE OF AUTHORITIES

Federal Cases: Page

Alexander S. By and Through Bowers v. Boyd, 876

F. Supp. 778 (D.S.C. 1995) -.....--.-----wcceem eos 28

Alexander v. Choate, 469 U.S. 287 (1985)... 9, 19, 22

Bell v. Wolfish, 441 U.S. 520 (1979) ................... 26

Chandler v. Miller, 117 S. Ct. 1296 (1997) ........ 17

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

City of Cleburne v. Cleburne Living Center, 473

Ff passim

City of Edmonds v. Oxford House, 514 U.S. 725 -

oe

om of arene v. Bolden, 446 U.S. 55 (1980). 14

City of Rome v. United States, 446 U.S. 156

0 rn 12, 14, 18

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

DIED cecechecencensensenssteteverenreeneesernecnssqreqsennccoceuasereanssapcces 24

Coolbaugh v. State of Louisiana, —— F.3d ——,

1998 WL 84128 (5th Cir., Feb. 27, 1998) ........ 24

Cooper v. Pate, 378 U.S. 546 (1964) —.................. 27

Crawford v. Indiana Department of Corrections,

115 F.3d 481 (7th Cir. 1997) ... ...24, 25, 28

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

Department of Agriculture v. Moreno, 413 US. 528 -

EEE EES EN ,

m. v. bee Department of Educ., 111 F.3d 678

(9th Cir. 1997) . EE 28

Donnell C. v. Illinois State Board of Education,

829 F. Supp. 1016 (N.D.IIl. 1993) .. ili 28

Dothard v. Rawlinson, 433 U.S. 321 (1977) . Seniedinia: 5, 14

Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996)... 5

EEOC v. Wyoming, 460 U.S. 226 (1983) ............ 6, 20, 22

Ex Parte Virginia, 100 U.S. 339 (1879)................. 10, 16

Fay v. New York, 332 U.S. 261 (1947) . eo 11

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 12, 16, 17, 22

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

SS Ee 27

Frontiero v. Richardson, 411 U.S. 677 (1978). a 8, 15

Houghton v. Shafer, 392 U.S. 639 (1968) ... 27

iii

TABLE OF AUTHORITIES—Continued

Pa

James Everard Breweries v. Day, 265 U.S. 545

SE ee ae a

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

Jenness v. Fortson, 403 U.S. 431 (1971) .

Katzenbach v. Morgan, 384 U.S. 641 (1966). ‘U1, 13, 20,

Klinger v. Department of Corrections, 107 F.3d

NN EE eee

LaF aut v. Smith, 839 F.2d 387 (4th Cir. 1987) ...... 26,

Lane v. Pena, 116 S. Ct. 2092 (1996)...

Maher v. Gagne, 448 U.S. 112 (1980)...

Mississippi University for Women v. Hogan, 458

SE eS ee ee 16

O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997)... 27

Oregon v. Mitchell, 400 U.S. 112 (1970) ..12, 18, 14, 17, 18

Paul Y. v. Singletary, 979 F. Supp. 1422 (S.D. Fla.

°

—

—

S38 888

—

aon

ESR Se PE RL ee Cee ree ee eee 28

Personnel Administrator of Mass. v. Feeney, 442

i te | 12

Printz v. United States, 117 S. Ct. 2365 (1997)... 6

Procunier v. Martinez, 416 U.S. 396 (1974) it 26

Romer v. Evans, 116 8S. Ct. 1620 (1996) 6, 15

Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.Tex. 1980),

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

I 27

San Antonio Independent School District v. Rodri-

ey ee ns &

School Board of Nassau County, Florida v. Arline,

8 ER A ean eee 6, 9, 16

Seminole Tribe v. Florida, 517 U.S. 44 (1996) __.. 6

South Carolina v. Katzenbach, 383 U.S. 301

ITED cecnseenecnccetnenesnenilltiadithdi Mila ii 10, 11, 22

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) . 5

Turner Broad. System, Inc. v. FCC (Turner 11),

117 S. Ct. 1174 (1997) 2.00. + eee 18

Turner v. Safley, 482 U.S. 78 (1987)... 26

Washington v. Davis, 426 U.S. 229 (1976) 14

Wengler v. Druggists Mutual Insurance Co., 446

GEES LOE ee ee 15

iv

TABLE OF AUTHORITIES—Continued

Page

Yeskey v. Pennsylvania Department of Correc-

tions, 118 F.3d 168 (3d Cir. 1997) .................. 4

United States Constitution:

Article I, Commerce Clause ............................---....-- 6

Pe ee 26

| | NE es AAT O ML Sem 16

EE oT 6

EE iitrctrcniintcincntsetinrcniicnnsnctiiitiiiniantiaiaiil passim

, Ce ae eee en 11, 12

ED visitinirtcciccnmnssineiititiininaniinninatiianibniaabiity 1l

United States Statutes:

EET SE I ee 27

RO passim

42 U.S.C. §§ 12101(1) and 12302(b) (2) (A) (ii). 23

42 U.S.C. §§ 12102(2) and 12131 (2)......._-»____ 23

a 19, 23

Americans with Disabilities Act, Title IIT —........... passim

Civil Rights Attorney’s Fees Act, 42 U.S.C. § 1988.. 16

Civil Rights of Institutionalized Persons Act

(CRIPA), 42 U.S.C. § 1997 et seq. ........................ 13

Education of the Handicapped Act (EHA), 20

OS fp eS ee i)

Fair Housing Act, 42 U.S.C. § 3601 et seq. —.......... 25

Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. §§ 1411-20 _...... 27-28

Rehabilitation Act, 20 U.S.C. § 794 0... 5, 7, 22

Religious Freedom Restoration Act (RFRA), 42

pT 19, 23

§ 504 of the Rehabilitation Act 0... 9

Voting Rights Act of 1966 ........................................... 18, 24

Voting Rights Act of 1970 0. 18, 24

Title VI of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000d _._... aniisittibiaaitinsiiaail 18, 24, 27

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

a eS 5, 17, 18, 24

Title IX of the Educational Amendments of 1972,

20 U.S.C. §1681(a) —.... ee TC

v

TABLE OF AUTHORITIES—Continued

United States Regulations:

ES ea

28 C.F.R. 35.150 (a) (3)

28 C.F.R. 36.164

Other Authorities:

S. Rep. No. 416, 96th Congress, Ist Sess. 42

(1980), reprinted in 1980 U.S.C.C.A.N. 783823..

Ee ORR RRO ER RRR ee ee eee eee eeeoee

SE EEE EEE OSS RSET Se KEES eee ee eeeeseeeeee

13

In THE

Supreme Court of the United States

OcTOBER TERM, 1997

No. 97-634

PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ef al.,

. Petitioners,

RONALD YESKEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF NATIONAL ASSOCIATION OF

PROTECTION AND ADVOCACY SYSTEMS,

JUDGE DAVID L. BAZELON CENTER FOR MENTAL

HEALTH LAW, AND NEW YORK LAWYERS FOR THE

PUBLIC INTEREST, AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

Amici curiae the National Association of Protection and

Advocacy Systems (NAPAS), the Judge David L. Bazelon

Center for Mental Health Law (Bazelon Center), and

the New York Lawyers for the Public Interest (NYLPI)

are organizations which advocate for the rights and inter-

ests of persons with disabilities, including their rights

under various disability statutes such as the ADA.’ Spe-

1 Counsel for the amici curiae authored this brief in its entirety.

No person or entity other than the amici curiae, its members, and

its counsel made a monetary contribution to the preparation or

submission of this brief. All parties have consented in writing to

2

cifically, NAPAS is a membership organization for the

nationwide system of protection and advocacy (P&A)

agencies. P&As are mandated under various federal stat-

utes to provide legal representation and related advocacy

services on behalf of all persons with disabilities in a

variety of settings, including prisons and other correctional

facilities. The Bazelon Center is a national legal advocacy

organization which seeks full integration into the com-

munity of people with mental disabilities by protecting

their rights to choice and dignity and expanding their

access to housing, employment, and other services under

the ADA and other statutes. NYLPI represents numerous

individuals in various institutional settings, including pris-

ons, and files amicus briefs on its own behalf and on

behalf of disability and civil rights groups on cases ad-

dressing the application of the ADA.

Amici curiae are deeply familiar with our Nation's

history of invidious discrimination against individuals with

disabilities and with the various legislative efforts to re-

dress this discrimination, particularly the Americans with

Disabilities Act, 42 U.S.C. § 12101 ef seg. (ADA).

These organizations and the individuals whom they repre-

sent have direct experience with the state sponsored dis-

criminatory activities and attitudes which informed Con-

gress in its drafting of the ADA. They have a direct

stake in the interpretation of the Act, including both its

scope and its constitutionality.

Amici curiae recognize that the petitioners generally do

not challenge the constitutionality of Title II of the ADA.

However, several of their amici do, asking the Court to

declare Title II unconstitutional with respect to all state

entities, or at least with regard to its application to prisons

and presumably other correctional activities. This brief is

submitted in response to the broad and unfounded consti-

the filing of this brief and letters of consent have been filed with

the Clerk of the Court.

3

tutional arguments of petitioners’ amici with respect to

Congress’ authority under Section 5 of the Fourteenth

Amendment.

SUMMARY OF THE ARGUMENT

Since the petitioners did not raise the constitutionality

of Title II of the ADA in the court below and since this

issue is not properly included in the Question Presented,

the Court should not reach out to decide whether Title II

is a proper exercise of Congress’ authority.

If the Court does deem it appropriate to address the

constitutional issue, it should conclude that Title II is a

reasonable and congruent response to the pervasive pat-

tern of discrimination, fear, and inaccurate stereotypes

which characterizes our Nation’s treatment of individuals

with disabilities. Title II is proportionate to the evil of

state sponsored, invidious discrimination against persons

with disabilities that this Court has recognized and Con-

gress has found. The statute, both in general and as ap-

plied to correctional settings and other institutions, is an

appropriate expression of Congress’ power under Section 5

of the Fourteenth Amendment to remediate and prevent

such discrimination in state activities.

Deference to prison administrators does not require the

abdication of judicial decisionmaking concerning the ap-

plication of federal law. The ADA can be implemented

in prisons in a manner which respects the States’ valid

penological interests. Just as other nondiscrimination stat-

utes, designed to prevent unequal treatment on the basis

of race or gender and to remedy the exclusion of students

from public education, have been applied and adjusted to

prison conditions, so too can the ADA.

4

ARGUMENT

I. THE COURT SHOULD NOT REACH THE QUES-

TION OF WHETHER TITLE II OF THE ADA,

EITHER IN GENERAL OR AS APPLIED TO PRIS-

ONS, IS CONSTITUTIONAL.

The lower court did not consider or decide the issue

of whether the ADA may constitutionally be applied to

prisons. Petitioners made no argument and the court of

appeals made no ruling on the constitutionality of the

ADA. Yeskey v. Pennsylvania Dep’t of Corrections, 118

F.3d 168 (3d Cir. 1997). Before this Court petitioners

concede the ADA legitimately applies to portions of the

prison environment and to persons who visit, work in, or

are otherwise present in prison, other than prisoners them-

selves. Pet. for Cert at 11. Petitioners also recognize that

Title II of the ADA is generally a legitimate exercise of

Congress’ authority to redress discrimination under Sec-

tion 5 of the Fourteenth Amendment, see Pet. Br. at 13,

26, although not with respect to state prisoners. /d. at 31.

The constitutionality of the ADA is not fairly within

the question presented.* Given petitioners’ concessions

about the constitutionality of Title II where Congress has

made specific findings, the question is one which requires

scrutinizing the factual record before Congress as to the

nature, scope, and persistence of discrimination against

persons with disabilities in a wide range of activities,

including correctional settings. Further, a constitutional

2 That question is “Does the Americans with Disabilities Act

apply to inmates in state prisons.” Pet. for Cert. i. The question

is framed as, and should be decided as, one of statutory construc-

tion. The analysis of the statute’s scope is not so inextricably in-

tertwined with the question of Congress’ authority as to require

a constitutional decision. The decision of the court of appeals can

be reviewed solely as a matter of statutory interpretation. Nor

should the Court reach out to decide the constitutional question,

since that issue can be addressed, if and when it is appropriately

presented.

5

analysis of the ADA would not definitively resolve the

practical questions faced by prison administrators regard-

ing their obligations to disabled prisoners because lower

courts have also prohibited discrimination against prison-

ers under the Rehabilitation Act, 29 U.S.C. § 794. See

Duffy v. Riveland, 98 F.3d 447, 453 (9th Cir. 1996).*

In light of the well-established rule that the Court

should not consider constitutional issues which are not

decided below, the Court need not and should not accept

petitioners’ or its amici’s invitation to determine whether

the application of the ADA to state prisons is a proper

exercise of Congress’ authority. Taylor v. Freeland &

Kronz, 503 U.S. 638, 646 (1992). Just as the Court

declined to address the constitutionality of extending Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

to states because it was not raised below, Dothard vy.

Rawlinson, 433 U.S. 321, 323 n.1 (1977), so here it

should reject the invitation to decide the constitutionality

of the ADA when the petitioners did not argue this issue

in the lower courts.

II. THE ADA IS AN APPROPRIATE EXERCISE OF

CONGRESS’ AUTHORITY UNDER SECTION 5 OF

THE FOURTEENTH AMENDMENT.

A. The Court Has Already Concluded That Invidious

Discrimination Against Persons With Disabilities,

Based Upon Stereotypes and Archaic Laws, Vio-

lates the Equal Protection Clause.

The issue of invidious discrimination against persons

with disabilities is not new to this Court. City of Cleburne

3 The constitutionality of the Rehabilitation Act is not subject to

question, since it was promulgated pursuant to Congress’ spending

authority and since most states receive federal funding for the

operation of their prisons. See Lane v. Pena, 116 S. Ct.

2100 (1996). Sehr

* Amici do not address a second important source of Congress’

authority to enact Title II of the ADA pursuant to the Commerce

Clause. This authority has been relied upon to sustain other anti-

6

v. Cleburne Living Center, 473 U.S. 432 (1985); School

Board of Nassau County, Florida v. Arline, 480 U.S. 273

(1987). In Cleburne the Court recognized that: “Doubt-

less, there have been and there will continue to be in-

stances of discrimination against the retarded that are in

fact invidious, and that are properly subject to judicial

correction under constitutional norms.” 473 U.S. at 446.

It concluded that the discriminatory application of a

uniquely local function—land use—could not withstand

scrutiny, despite a number of proffered justifications which

otherwise would satisfy a rational basis standard.’ 473

U.S. at 448-50. The Cleburne majority emphasized, as

this Court has in cases before and since, that decisions

based upon “mere negative attitudes, or fear” cannot meet

the constitutional requirement that governmentally im-

posed distinctions must be relevant to a legitimate state

interest. Jd. at 448. See Romer v. Evans, 116 S.Ct. 1620

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

Congress clearly enacted the ADA pursuant to this Clause. 42

U.S.C. § 12101(b). Activities covered by the ADA, including equal

access to transportation, communications, public accommodations,

employment, and many governmental services are properly within

the reach of its Commerce Clause powers, even after Printz v.

United States, 117 S. Ct. 2365 (1997). Since many applications of

Title II do not involve damages or retrospective relief, in those situa.

tions there would be no Eleventh Amendment constraint on Congress’

Commerce Clause powers. See Seminole Tribe v. Florida, 517 U.S.

44 (1996). Moreover, this Clause unquestionably provides a proper

foundation for Title II of the Act with respect to county and

municipal government entities, such as local jails, as well as with

respect to private prisons operating under contract with the states.

SIt is significant that many of the factors relied upon by the

City of Cleburne and rejected by the Court have been found in

other cases to be rational reasons for sustaining government deci-

sions. Jd. at 458-59 (Marshall, J., concurring in the judgment and

dissenting in part). The Court’s conclusion—that the city’s zoning

ordinance was unconstitutionally applied to the Cleburne Living

Center—strongly suggests the adoption of a more invigorated stand-

ard of review than deferential rationality. It is this more invig-

orated rational basis standard which really is applied by Justice

White and which is necessary to secure a majority of the Court.

7

(1996); Department of Agriculture v. Moreno, 413 U.S.

528, 534 (1973). Justice White’s opinion makes a special

point of acknowledging the many ways Congress has acted

to protect persons with disabilities from segregation, dis-

crimination, and denial of equal access, including passage

of § 504 of the Rehabilitation Act, 29 U.S.C. § 794,

which is the predecessor to the ADA. Cleburne, 473 U.S.

at 443. The opinion points to the superiority of the leg-

islative forum for determining the most appropriate

methods for addressing these issues. Jd. In fact, the

Court’s equal protection standard is justified in significant

part as a method for encouraging and accommodating

legislative judgments by not subjecting them to invalida-

aa a more rigorous standard of review. Id. at

In a separate concurring opinion, Justice Stevens stated

the relevant equal protection standard somewhat differ-

ently: whether a rational member of the disadvantaged

class could ever approve of the discriminatory application

of the rule in question. 473 U.S. at 455 (Stevens, J.,

joined by the Chief Justice, concurring). Three members

of the Court, while joining in the judgment that the city’s

zoning ordinance cannot withstand constitutional scrutiny,

catalogued a litany of state enforced segregation,* state

enacted discrimination,’ and other invidious forms of un-

7 The indefinite, involuntary confinement of persons with mental

disabilities in large, segregated institutions became the accepted

method for rendering retardation, as well as people with retarda-

tion, invisible to society. 473 U.S. at 462-63. This form of state

enacted segregation, as well as others, are explicitly noted in Con-

gress’ Findings in the ADA. See 42 U.S.C. § 12101(a) (2).

7 State statutes which required the compulsory sterilization of

persons with retardation, prevented them from marrying, deprived

them of custody of their offspring, and prohibited them from exer-

cising the usual vestiges of citizenship remain among the most

pernicious form of state sponsored discrimination. 478 U.S. at

461-64. These statutes informed Congress’ Findings on the scope

- of discrimination encountered by individuals with disabilities. 42

U.S.C. § 12101(a) (3).

equal treatment.* Id. at 461-66 (Marshall, J., joined by

Brennan, J., and Blackmun, J.) Justice Marshall's opin-

ion argues for a flexible equal protection standard that

varies with the importance of the interest affected and the

invidiousness of the basis for the classification. /d. at

460, citing San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 99 (Marshall, J., dissenting ) .

Most importantly for purposes here, it recognizes the

proper role of the Court in affording respect to legislative

judgments that reflect “evolving standards of equality,” as

it did with respect to gender. /d. at 466, citing Frontiero

v. Richardson, 411 U.S. 677 (1973).

Despite the somewhat different language used in all

three_opinions to strike down the City of Cleburne’s un-

equal treatment of persons with disabilities, the full Court

affirmed that persons with retardation have been routinely

subjected to a regime of invidious discrimination which

violates the Equal Protection Clause of the Fourteenth

Amendment. In so doing, the Court confirmed what Con-

gress was to find five years later: that persons with dis-

abilities have long been subjected to a widespread and

persistent pattern of unconstitutional discriminatory treat-

ment that is incorporated into archaic laws, that is re-

flected in public policies, practices and activities, and that

is grounded in prejudice and inaccurate stereotypes about

persons with disabilities.

Not surprising, when the Court was asked to review

two different nondiscrimination statutes adopted by Con-

gress in response to this pattern of unequal treatment of

persons with disabilities, the Court gave each an expansive

application. In interpreting the definition of handicapped

8 Persons with mental and physical disabilities traditionally were

totally excluded from public schools and other public activities and

programs. 473 U.S. at 464, nn.13, 17. It is this history of state

sponsored discrimination which guided Congress’ judgment in en-

acting Title II of the ADA and other remedial statutes and which

is specifically cited in its Findings. 42 U.S.C. § 12101(a) (5).

——_

9

person in § 504, the Court concluded that Congress was

legitimately concerned with “protecting the handicapped

against discrimination stemming not only from simple

prejudice, but also from “archaic attitudes and laws’ and

from ‘the fact that the American people are simply un-

familiar with and insensitive to the difficulties confront-

[ing] individuals with handicaps’.” Arline, 480 U.S. at

279. It found that the basic purpose of the statute “is to

ensure that handicapped individuals are not denied jobs

or other benefits because of the prejudiced attitudes or

the ignorance of others.” /d. at 284.° In Dellmuth v.

Muth, 491 U.S. 223 (1989), the Court accepted the

state’s concession ” that Congress could abrogate the state’s

Eleventh Amendment immunity through its remedial au-

thority under Section 5 of the Fourteenth Amendment, pro-

vided it had a proper record of discrimination before it and

provided that it did so clearly. Indeed, the Court ac-

knowledged that Congress had done precisely this in its

1986 amendments to the Rehabilitation Act. 491 U.S. at

228-29. While the Education of the Handicapped Act

(EHA), 20 U.S.C. § 1400 et seg., did not contain such a

clear statement of abrogation, the Court left no doubt

that Congress could legitimately accomplish this result in

light of the history of exclusion, segregation, and discrim-

inatory treatment of persons with disabilities which in-

formed its adoption of the EHA.™

* During the same Term as Cleburne, the Court reviewed the

legislative history of § 504 of the Rehabilitation Act and deter-

mined that the Act properly reached all forms of discrimination.

Alexander v. Choate, 469 U.S. 287, 297-98 (1985).

- It was an agency of the Commonwealth of Pennsylvania, a pe-

titioner here, which made that concession. _

» In fact, even before the Court’s decision in Dellmuth, Congress

did just that: it explicitly abrogated the State’s Eleventh Amend-

ment immunity for suits brought under the EHA.

oA 42 U.S.C.

10

Congress was well aware of this Court's conclusions

that persons with various disabilities have been subjected

to a regime of invidious discrimination and a denial of due

process in a broad range of public services and activities.

That regime includes purposeful segregation, persistent

patterns of hostility, prejudice and negative stereotypes,

and archaic laws which, taken together, confirm Congress’

subsequent findings of unconstitutional discrimination

against persons with disabilities by the States. This regime,

as documented and elaborated before numerous Congres-

sional committees, provides the constitutional predicate for

Title II of the ADA.

B. Congress Has Broad Authority Under Section 5

of the Fourteenth Amendment to Intrude on State

Functions When Necessary to Address Invidious

Discrimination and to Adopt a Comprehensive Ap-

proach to Prevent, As Well As to Remediate,

Discrimination.

Section 5 of the Fourteenth Amendment enlarged

Congress’ power as against the States and provided it

with the constitutional authority to adopt any rational

means to combat discrimination. South Carolina vy. Kat-

zenbach, 383 U.S. 301, 326 (1966), citing Ex Parte

Virginia, 100 U.S. 339 (1879). In interpreting Congress’

power under the Civil War Amendments, the Court has

proclaimed:

Whatever legislation is appropriate, that is, adapted

to carry out the objects the amendments have in

view, whatever tends to enforce submission to the

prohibitions they contain, and to secure to all per-

sons the enjoyment of perfect equality of civil rights

and the equal protection of the laws against State

denial or invasion, if not prohibited, is brought within

the domain of congressional power.

Ex Parte Virginia, 100 U.S. at 345-46, quoted approv-

ingly in City of Boerne v. Flores, US. ——, 117

ll

S.Ct. 2157, 2163 (1997). The Boerne Court noted that

this rule has been applied to uphold Congress’ authority

to enforce the Fourteenth Amendment, Katzenbach v.

Morgan, 384 U.S. 641 (1966), the Fifteenth Amendment,

South Carolina v. Katzenbach, 383 U.S. at 326 (collect-

ing cases), and the Eighteenth Amendment, James Ever-

ard Breweries v. Day, 265 U.S. 545 (1924). City of

Boerne, 117 S.Ct. at 2163. The rule is not limited to

state policies and practices which themselves have been

determined to violate the Fourteenth Amendment.

A construction of § 5 which would require a judicial

determination that the enforcement of the state law

precluded by Congress violated the [Fourteenth]

Amendment, as a condition of sustaining the con-

gressional enactment, would depreciate both con-

gressional resourcefulness and congressional respon-

sibility for implementing the Amendment. It would

confine the legislative power in this context to the

insignificant role of abrogating only those state laws

that the judicial branch was prepared to adjudge un-

constitutional, or of merely informing the judgment

of the judiciary by particularlizing the “majestic

generalities” of § 1 of the Amendment. See Fay vy.

New York, 332 U.S. 261, 283-84 (1947).

Katzenbach v. Morgan, 384 U.S. at 648-49.”

‘2 Morgan involved the question of whether an English literacy

test, as applied to Spanish speaking members of New York’s Puerto

Rican community, could be prohibited by Congress under its Sec-

tion 5 powers, even if such a test did not itself violate the Equal

Protection Clause and was otherwise constitutional. The Court had

little difficulty in upholding Congress’ broad remedial authority to

enjoin otherwise constitutional conduct. In doing so it reaffirmed

its early rulings that Ҥ5 is a positive grant of legislative power

authorizing Congress to exercise its discretion in determining

whether and what legislation is needed to secure the guarantees of

the Fourteenth Amendment.” Morgan, 384 U.S. at 651. While this

authority is not without limits, the proper boundaries are deter-

mined in the first instance by Congress, based upon its assessment

12

This Court only recently reviewed and affirmed the long

line of cases upholding Congress’ authority to redress and

prevent discrimination pursuant to Section 5 of the Four-

teenth Amendment. City of Boerne, 117 S.Ct. at 2163,

2167. Acting pursuant to its broad remedial powers under

Section 5, Congress can enjoin unintentional discrimina-

tion, even though only intentional discrimination is pro-

hibited by Section 1. Fitzpatrick v. Bitzer, 427 U.S. 445

(1976); City of Rome v. United States, 446 U.S. 156,

173 (1980). As this Court has recognized: “When a

neutral law has a disparate impact upon a group that has

historically been the victim of discrimination, an unconsti-

tutional purpose may still be at work.” Personnel Adminis-

trator of Mass. v. Feeney, 442 U.S. 256, 274 (1979). As

long as the federal enactment is reasonably related to the

goal of enforcing the Equal Protection Clause, Congress

may outlaw practices not themselves violative of that

Clause. City of Rome, 446 U.S. at 175-77 (reviewing

cases under the Fourteenth and Fifteenth Amendments);

City of Boerne, 117 S.Ct. at 2167.

Not only does Congress’ remedial authority extend

beyond intentional violations of the Fourteenth Amend-

ment, Congress may act in one arena to prevent discrim-

ination against a disfavored group in another. Thus, a

State requirement that voters read and write English, while

not unconstitutional on its face, was still subject to Con-

gressional prohibition under Section 5 of the Fourteenth

Amendment as a way of “gaining nondiscriminatory treat-

ment in public services for the entire Puerto Rican com-

of the record of discrimination, and only then by the Court, with

substantial deference to Congress’ superior fact-finding function.

“It is enough that we be able to perceive a basis upon which the

Congress might resolve the conflict as it did.” Jd. at 653. See

City of Boerne, 117 S.Ct. at 2170; Oregon v. Mitchell, 400 U.S. 112,

207 (Opinion of Harlan, J.) and at 247-49 (opinion of Brennan,

White and Marshall, JJ.)

13

munity.”** Morgan, 384 U.S. at 652. See also Oregon

v. Mitchell, 400 U.S. at 133 (opinion of Black, J.) (edu-

cational segregation and inequality justifies voting reme-

dies). The Morgan Court observed:

It was for Congress, as the branch that made this

judgment, to assess and weigh the various conflicting

considerations—the risk of pervasiveness of the dis-

crimination in governmental services, the effective-

ness of eliminating the state restriction on the right to

vote as a means of dealing with the evil, the adequacy

or availability of alternative remedies, and the nature

and significance of state interests. .. .

384 U.S. at 653. Congress made just such a judgment in

enacting Title II of the ADA and in applying it to all

state entities and activities, without exception or enumera-

tion.”

Nor is it essential that Congress restrict its remedy

solely to instances, areas, or locations where it has specific

evidence of unconstitutional discrimination. City of

Boerne, 117 S.Ct. at 2163. Rather, based upon its ex-

perience with the ineffectiveness of more limited ap-

proaches, it can adopt a comprehensive scheme designed

to prevent as well as remediate discrimination in places

where it does not yet exist. The full Court, in five sepa-

rate opinions, unanimously confirmed that Congress has

% This dual rationale for the Court’s opinion in Morgan was

explicitly endorsed in City of Boerne, 117 S.Ct. at 2168, thereby

confirming that Congress may act to ensure that a previously ex-

cluded group has full access to all relevant public services and

activities.

'* Congress’ remedial powers are also reflected in its enactment

of the Civil Rights of Institutionalized Persons Act (CRIPA), 42

U.S.C. § 1997 et seq., which authorizes the Department of Justice

to protect the constitutional rights of persons involuntarily confined

in state facilities, including psychiatric hospitals, prisons, and jails.

CRIPA was explicitly adopted pursuant to Section 5 of the Four-

teenth Amendment. S. Rep. No. 416, 96th Congress, Ist Sess. 42

(1980), reprinted in 1980 USCCAN 783823.

14

power to ban the use of literacy tests nationwide, after

more focused prohibitions had proven too cumbersome

and inefficient. Oregon v. Mitchell, 400 U.S. 112 (1970)

(separate opinions of Black, J., 400 U.S. at 127-28;

Douglas, J., 400 U.S. at 145; Harlan, J., 400 U.S. at 216;

Brennan, White, and Marshall, JJ., 400 U.S. at 232-33:

and Stewart, the Chief Justice, and Blackmun, JJ., 400

U.S. at 283-85). As Justice Black wrote, after noting the

extensive evidence of discrimination considered by Con-

gress: “In imposing a nationwide ban on literacy tests,

Congress has recognized a national problem for what it is

—a serious national dilemma that touches every corner

of our land.” Jd. at 133. And as Justice Brennan recog-

nized, Congress could fairly conclude that state sponsored

discrimination in one area (education) might require re-

medial action in another (voting), or that more narrow

remedies which prove to be unsuccessful or burdensome

subsequently might justify more comprehensive ones. /d.

at 235-36.

Finally, in enacting remedial and prophylactic legisla-

tion under Section 5, Congress may adopt criteria that do

not precisely mirror judicially-formulated equal protection

standards and which take into account the need to prevent

invidious discrimination which is not easily susceptible to

proof. Compare Dothard, 433 U.S. at 331, n.14 (recog-

nizing business necessity and bona fide occupational quali-

fication tests in Title VII) with Washington v. Davis,

426 U.S. 229 (1976); compare City of Rome, 446 U.S. at

163-64 (approving preclearance standards and procedures

in the Voting Rights Act) with City of Mobile v. Bolden,

446 U.S. 55 (1980). Were it otherwise, Congress would

be unable to exercise the full reach of its Section 5 au-

thority to address arbitrary and irrational discrimination

against a non-suspect class, to prevent as well as remedy

discrimination, to redress discrimination that has a dis-

parate impact on the disfavored group, and to correct the

underlying causes of the invidious discrimination that are

15

evidenced in other areas of society. In effect, Congress

would be restricted to drafting statutes which do no more

than prevent what the Constitution already proscribes.”*

It would be unable to develop appropriately tailored com-

pliance standards and flexible implementation criteria.

While Congress clearly cannot “alter the meaning” of the

clause it is seeking to enforce, City of Boerne, 117 S.Ct.

at 2164, it may do more than incorporate a judicial

standard of review as the only means of enforcing its

remedial enactments.

Neither the prohibitions of the Equal Protection Clause

nor the reach of Congress’ Section 5 powers is limited to

suspect classifications. See Cleburne, 473 U.S. at 450.

Where a legislative classification is irrational or arbitrarily

targets a specific group based upon historic and inaccurate

stereotypes, prejudice, or animus, it violates the Equal

Protection Clause regardless of the level of scrutiny em-

ployed. Romer v. Evans, 116 S.Ct. at 1627. “Respect

for this principle explains why laws singling out a certain

class of citizens for disfavored legal status . . . are a

denial of equal protection of the laws in the most literal

sense.” Jd. at 1628. Moreover, such laws “raise the in-

evitable inference that the disadvantage imposed is born

of animosity toward the class of persons affected.” /d.,

citing Department of Agriculture v. Moreno, 413 U.S. at

534. Where legislative classifications “exclude or ‘protect’

members of one gender because they are presumed to

suffer from an inherent handicap or to be innately inferior,

© In fact, Congress would be effectively precluded from legislat-

ing at all with respect to classifications other than those based

upon race, alienage, or national origin, thereby undermining its

critical fact-finding function and the very scope of Section 1 of

the Fourteenth Amendment. Its constitutional authority would

also vary with the evolving application of judicially developed stand-

ards of equal protection scrutiny. Compare Frontiero v. Richard-

son, 411 U.S. at 688 (strict scrutiny of gender classification) with

Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)

(intermediate scrutiny ) .

16

the objective itself is illegitimate.” Mississippi University

for Women v. Hogan, 458 U.S. 718, 725 (1980). These

principles are equally true regardless of the level of sus-

pectness of the classification.”

Since the Fourteenth Amendment was enacted after the

Tenth, the Court has repeatedly noted that the enlarge-

ment of Congress’ powers to remedy discrimination super-

sedes the reserved powers of the States. There are no

core State functions which are immune from Congress’

remedial authority or beyond the reach of its Section 5

powers."* The Court has recognized that even intrusions

upon the most fundamental of state functions—the elec-

torial process and the selection of its representatives—are

subservient to the equal protection mandate of the Four-

16 This history of discrimination, devaluation grounded in pejora-

tive stereotypes, exclusion, and irrational protectionism is an equally

accurate description of the State’s treatment of persons with dis-

abilites. See Cleburne, 473 U.S. at 446, 461-64, Arline, 480 U.S.

at 279.

17 For instance, in Maher v. Gagne, 448 U.S. 112 (1980) the

Court upheld the Civil Rights Attorney’s Fees Act, 42 U.S.C. § 1988

as a valid exercise of Congress’ Section 5 powers, although it covers

any person who prevails on civil rights claim, regardless of the level

of scrutiny employed under the Fourteenth Amendment.

18 Chief Justice Rehnquist quoted at length from Ex Parte Vir-

ginia in describing the scope of Congress’ authority with respect

to the State’s power over traditional functions and discretionary

activities :

The prohibitions of the Fourteenth Amendment are directed

to the States, and they are to a degree restrictions of State

power. It is these which Congress is empowered to enforce,

and to enforce against State action, however put forth, whether

that action be executive, legislative, or judicial. Such enforce-

ment is no invasion of State sovereignty. . . . Indeed, every addi-

tion of power to the general government involves a correspond-

ing diminution of the governmental powers of the States. It

is carved out of them.

Fitzpatrick, 427 U.S. at 454-55, quoting from Ex Parte Virginia,

100 U.S. at 346-48.

17

teenth Amendment and that Congress has ample authority

to remedy demonstrated violations of that Clause. Chand-

ler v. Miller, 117 S.Ct. 1295, 1302 (1997) (“We are

aware of no precedent suggesting that a State’s power to

establish qualifications for state offices—any more than

its sovereign power to prosecute crime—diminishes the

constraints on state action imposed by the Fourteenth

Amendment’ >; Oregon v. Mitchell, 400 U.S. at 249-50.

As the Chief Justice eloquently declared, in approving

the application of a damage remedy under Title VII

against the States:

When Congress acts pursuant to § 5, not only is it

exercising legislative authority that is plenary within

the terms of the constitutional grant, it is exercising

that authority under one section of a constitutional

Amendment whose other sections by their own terms

embody limitations on state authority. We think that

Congress may, in determining what is ‘appropriate

legislation’ for the purpose of enforcing the provisions

of the Fourteenth Amendment, provide for the pri-

vate suits against States or state officials which are

constitutionally impermissible in other contexts.

Fitzpatrick, 427 U.S. at 456 (footnote omitted ).

Petitioners and its amici read City of Boerne as a re-

treat from the long line of voting rights and other civil

rights decisions upholding Congress’ expansive authority

under Section 5 of the Fourteenth Amendment. Pet. Br.

at 25-26. To the contrary, the Court repeatedly reaffirmed

the holdings of those cases in City of Boerne, 117 S.Ct. at

2163, and restated its endorsement of Congress’ broad

prerogatives that concomitantly limit the States’ otherwise

reserved powers: “Legislation which deters or remedies

constitutional violations can fall within the sweep of Con-

gress’ enforcement power even if in the process it pro-

hibits conduct which is not itself unconstitutional and

intrudes into ‘legislative spheres of autonomy previously

reserved to the States’.” /d., quoting from Fitzpatrick v

18

Bitzer, 427 U.S. at 455. More properly construed, Boerne

simply reaffirms what Justice Black noted more than

twenty-five years earlier: Congress’ Section 5 authority

is not wholly unlimited. Oregon v. Mitchell, 400 U.S. at

128. Properly exercised, that authority must be rooted in

a factual foundation of unconstitutional discrimination

and must adopt approaches that are congruent and pro-

portional to Congress’ findings. Jd. at 2169. It is this

expansive, albeit not unlimited, power which Congress

exercised when it conducted extensive factual inquiries

and passed a proportionate remedial statute prohibiting

all forms of discrimination by any public entity when it

enacted Title II of the ADA.

Cc. The ADA Was Enacted Pursuant to Section 5 of

the Fourteenth Amendment to Remedy the Pattern

of Unconstitutional Discrimination Imposed Upon

Persons With Disabilities.

Title II of the ADA, like the Voting Rights Acts of

1965 and 1970, and Titles VI and VII of the Civil Rights

Act of 1964, is grounded in an extensive Congressional

factual record and findings of invidious discrimination

against persons with disabilities which required a compre-

hensive national solution. It is, of course, entitled to the

usual presumption of constitutionality. In addition, as a

legislative judgment that is based upon careful considera-

tion of empirical data concerning the present impact of

discrimination against persons with disabilities in a multi-

tude of areas, as well a thorough assessment of the Na-

tion’s treatment of persons with disabilities both historic-

ally and to date, it should be afforded particular defer-

ence. City of Rome, 446 U.S. at 181-82; Turner Broad.

Sys., Inc. v. FCC (Turner II), 117 S.Ct. 1174, 1189

(1997). Congress conducted an extensive review of a

lengthy record, and had over three decades of experience

with more tailored approaches in redressing discrimina-

tion in education, housing, employment, architectural bar-

riers, and health care services. Co igress knew what was

19

needed to remedy this tradition of invidious discrimina-

tion and knew that a comprehensive, national scheme was

essential to alter the attitudes of hostility and fear which

characterized our Nation’s treatment of persons with

disabilities.

In contrast to the Religious Freedom Restoration Act

(RFRA), 42 U.S.C. § 2000bb et seq., struck down in

City of Boerne, Congress had before it a record of cur-

rent discriminatory patterns and animus by public en-

tities which demonstrated that bigotry and discriminatory

treatment was widespread, longstanding, and deeply

rooted. Jd. 117 S.Ct. at 2167. This persistent pattern

of exclusion was incorporated in both intentional, state

sponsored disparate treatment as well as state actions that

have a grossly disproportionate burden on citizens with

disabilities. The latter as well as the former is a legitimate

basis for inferring bigotry and hostility sufficient to sup-

port Congress’ broad remedial and prophylactic authority

in enacting Title II of the ADA. City of Boerne, 117

S.Ct. at 2163. Moreover, unlike RFRA—where no actual

discrimination need be proven to state a violation of the

Act—the ADA requires claimants to demonstrate both

that they are within the specific group protected (a “quali-

fied person with a disability”, see 42 U.S.C. § 12131) and

that the defendant state entity has discriminated against

them. Such discrimination may include situations where

a public entity refuses to make a reasonable accommoda-

tion that would not place an undue burden on the entity

and would not require a fundamental alteration of its

program. This standard is not only far more flexible and

deferential to legitimate state interests, including resource

constraints, than is RFRA’s compelling state interest and

least restrictive alternative criteria, but, as a practical mat-

ter, it requires a respectful balancing of the State’s in-

terests and the individual’s claim to be afforded equal

treatment. Alexander v. Choate, 469 U.S. at 308-09. Sim-

ply put, the standards for assessing and the burden for

proving an ADA violation affords each State “discretion

20

to achieve its goals in the way it thinks best” and, rather

than entirely overriding that discretion, only subjects it

to a “reasonable federal standard.” EEOC v. Wyoming,

460 U.S. 226, 240 (1983).

The ADA, and specifically Title II, does not decree the

substance of the Fourteenth Amendment, City of Boerne,

117 S.Ct. at 2164. Instead, it is a legitimate effort to

prevent and remediate discrimination by establishing cri-

teria designed to allow persons with disabilities to com-

pete equally with other members of society. Morgan, 384

U.S. at 652. See Jenness v. Fortson, 403 U.S. 431, 442

(1971) (“Sometimes the grossest discrimination can lie

in treating things that are different as though they were

exactly alike.”). Requiring reasonable accommodation as

a method to redress a persistent pattern of invidious dis-

crimination is not a special privilege, but instead a neces-

sary and reasonable element of the remedy for the “evil

presented. City of Boerne, 117 S.Ct. at 2169. It is pre-

yventive precisely because it demands that state agencies

demonstrate that their different treatment of persons with

disabilities is not the product of inaccurate stereotypes or

irrational fears. It is remedial by ensuring that the funda-

mental interest of individuals with disabilities to partici-

pate in various governmental services and activities, rather

than being excluded or segregated, is respected. This is

particularly important given the “irrational fears or ignor-

ance, traceable to the prolonged social and cultural isola-

tion” of persons with disabilities. Cleburne, 473 U.S. at

467 (Marshall, J.).

The ADA was not enacted to reverse a prior Supreme

Court decision,” to modify an interpretative principle, or

to establish a different standard for assessing constitutional

conduct. Rather, it was a further legislative response to a

1® A careful search of the legislative history reveals no mention

of dissatisfaction with the Court’s disability cases, including its

leading equal protection decision in City of Cleburne v. Cleburne

Living Center, supra.

21

pervasive problem Congress had long recognized, and pre-

viously responded to, albeit in a piecemeal fashion. In

fact, the ADA is precisely the type of flexible legislative

judgment which the Cleburne court sought to preserve in

adopting its invigorated rational basis review.” Cleburne,

473 U.S. at 442-43. The ADA neither “changes” nor de-

fines the underlying constitutional rights set forth in Sec-

tion 1, but instead establishes a moderate, flexible, and

narrowly tailored scheme to redress the patterns of dis-

crimination suffered by persons with disabilities at the

hands of public entities. As such, it is properly preventive

and remedial, not a substantive modification of the actual

meaning of Section | of the Fourteenth Amendment.

As required by City of Boerne, Title Il reflects a

congruence between the nature and scope of the discrim-

ination which Congress considered and sought to remedy

and the means Congress chose to accomplish its constitu-

tional responsibility. It was enacted in response to nine

comprehensive Congressional Findings in order to combat

the persistent pattern of state sponsored discrimination

which has long characterized our Nation’s shameful his-

tory of disenfranchising, segregating, and excluding per-

sons with disabilities from public activities. That record

was generated by numerous hearings before multiple com-

mittees of the Congress, all of which documented a persist-

ent pattern of national scope that covered virtually every

form of public agency and activity; including law enforce-

ment, corrections, and prisons. That Congress adopted an

unconditional term—“all public entities”’—is reasonable in

light of the record of state codified and sponsored discrim-

ination which infected so many state practices for so

2° It would be ironic indeed if, as some of petitioners’ amici sug-

gest, Congress could not act to prevent discrimination against per-

sons with disabilities solely because this Court had adopted a level

of equal protection scrutiny that was designed to encourage just

those legislative enactments such as Title II. Cleburne, 473 U.S. at

444.

22

long.” Moreover, Congress could reasonably conclude

that its prior piecemeal approach to legislating with ref-

erence to subject matter or source of funding was no

longer appropriate, efficient, or likely to produce the equal

opportunity to which persons with disabilities still were

being denied. City of Boerne, 117 S.Ct. at 2167, citing

South Carolina v. Katzenbach, 383 U.S. at 308, 313-15,

333-34. That Congress continued to proscribe uninten-

tional discrimination as well as purposeful disparate treat-

ment, as it had in prior legislation, see 29 U.S.C. § 794,

is entirely consistent with the Court’s holdings in Fitz-

patrick, EEOC, and Choate. The ADA’s basic purpose

of equal access, and its reach to all state entities, reflects

an appropriate exercise of Congressional authority di-

rected to enhancing the political power of persons with

disabilities directly relevant to gaining non-discriminatory

treatment in public services. Morgan, 384 U.S. at 652.

Although comprehensive in scope and prophylactic in ap-

proach, it goes no farther than necessary to address a

national problem of longstanding and current impact.

Consistent with the command of City of Boerne, Title

II is proportionate to the persistent patterns of discrimina-

tion against persons with disabilities which Congress

found. Although proportionality does not “require{} ter-

mination dates, geographic restrictions, and egregious

predicates,” City of Boerne, 117 S.Ct. at 2170, the Con-

gressional findings of the ADA certainly reflect such predi-

21 The States enacted this disparate treatment through a tapestry

of law and policies affecting multiple aspects of the lives of persons

with disabilities, including the wholesale denial of the franchise and

the freedom to participate in the operations of government, exclu-

sion from public education and other public services, compulsory

sterilization and prohibitions on marriage, child-rearing, and inti-

mate relations, involuntary segregation in massive institutions,

and unconditional restrictions on the exercise of fundamental civil

rights.

23

cates.™ Significantly, the ADA only applies to a “qualified

person with a disability.” 42 U.S.C. §§ 12102(2) and

12131(2). Congress purposely chose to narrow its scope

to persons with impairments who were able to meet the

eligibility standards for the relevant activity. Most impor-

tantly, the responsibility of state entities is not unlimited.

States and their agencies are not required to c!iminate

every vestige of discriminatory treatment nor forebear

from ever treating persons with disabilities unequally.

Thus, Title I] and its implementing regulations properly

reflect this Court’s recognition that there are some un-

deniable differences between persons with disabilities and

those without impairments, as well as between persons

with different disabilities. Cleburne, 473 U.S. at 444. See

28 C.F.R. 35.130(b)(7), 35.150(a)(3) and 36.164.

Only when such inequality can be remedied by an accom-

modation which does not impose an undue burden on the

state entity or require a fundamental alteration of the

state’s program or service does Title II comman non-

discriminatory treatment. 42 U.S.C. §§ 12101(10) and

12302(b)(2)(A)(ii).* Finally, Title II is proportionate

precisely because it is “responsive to, or designed to pre-

vent, unconstitutional behavior,” given the indisputable

reality that many of the invidiously discriminatory state

*2 Of particular significance is the second finding:

(2) historically, society has tended to isolate and segregate

individuals with disabilities, and, despite some improvements,

such forms of discrimination continue to be a serious and per-

vasive social problem.

42 U.S.C. § 12101(a).

* Thus, unlike RFRA which is unlimited in its scope and appli-

cable to everyone, the ADA is a carefully tailored response to the

problem Congress sought to address.

** This is obviously a far more flexible and deferential standard

than the compelling state interest and less restrictive alternative

criteria that contributed to the Court’s disapproval of RFRA. City

of Boerne, 117 S.Ct. at 2171.

24

laws, policies, and practices that it was designed to correct

“have a significant likelihood of being unconstitutional.

City of Boerne, 117 S.Ct. at 2170. See Cleburne, 473

U.S. at 446.

The three courts of appeals which have directly ad-

dressed the constitutionality of Title Ii of the ADA have

concluded that the application of this non-discrimination

statute to the States is a valid exercise of Congress’ Sec-

tion 5 powers. Crawford v. Indiana Dep't of Corrections,

115 F.3d 481, 487 (7th Cir. 1997) (prisons); Clark v.

California, 123 F.3d 1267, 1269 (9th Cir. 1997) (pris-

ons); and Coolbaugh v. State of Louisiana, ——— F.3d

, 1998 WL 84123 (5th Cir. Feb. 27, 1998) (motor

vehicles).” As the Fifth Circuit explained:

In sum, the ADA represents Congress’ considered

efforts to remedy and prevent what is perceived as

serious, widespread discrimination against the dis-

abled. We recognize that in some instances, the pro-

visions of the ADA will “prohibit [ | conduct which

is not itself unconstitutional and intrude[ | into ‘legis-

lative spheres of autonomy previously reserved for

the States.’” Flores, US. , 117 S.Ct. at

2163 (quoting Fitzpatrick, 427 U.S. at 455). We

cannot say, however, in light of the extensive find-

ings of unconstitutional discrimination made by Con-

gress, that these remedies are too sweeping to survive

the Flores proportionality test for legislation that pro-

vides a remedy for unconstitutional discrimination or

prevents threatened unconstitutional actions.

Id. at *7.

Title II of the ADA, like the Voting Rights Act of 1965

and 1970 and Titles VI, VII, and IX of the Civil Rights

Act of 1964, does not threaten the independent existence

*® The latter two decisions post-dated City of Boerne and thus

reached their conclusions based upon a careful analysis of the con-

gruence and proportionality test established by this Court for eval.-

ating exercises of Congressional authority under Section 5.

25

of the States, with respect to any state entity or activity,

including prisons.” Prisons are no more a critical aspect

of state sovereignty than public education, juries, or state

employment, and arguably less than voting, all of which

are explicitly mentioned in the ADA, 42 U.S.C. § 12101

(a)(3) and cited approvingly by the petitioners as a

proper exercise of Congress’ Section 5 power. Pet. Br.

13-14. Nor is it less central than land use regulation,

which Congress restricted in the Fair Housing Act, 42

U.S.C. § 3601 et seq., and which the Court recently en-

dorsed as applied to persons with disabilities. City of

Edmonds v. Oxford House, 514 U.S. 725 (1995). The

limitations on the State's traditional regulatory power that

are imposed by Title II in the operation of government

and the provision of public services, includig prisons, were

clearly envisioned by Congress and are entirely appro-

priate to redress, as well as to prevent, the persistent pat-

tern of invidious discrimination that both the Congress

and this Court found with respect to persons with dis-

abilities. 42 U.S.C. § 12101(a); Cleburne, 473 U.S. at

446 and at 461-64.

Ill. LIKE OTHER NONDISCRIMINATION STATUTES

WHICH HAVE BEEN APPLIED TO PRISONS,

TITLE II CAN BE IMPLEMENTED IN A MANNER

THAT AFFORDS DUE RESPECT TO VALID PENO-

LOGICAL INTERESTS.

The application of civil rights and equal protection re-

medial statutes such as the ADA to state prisons is neither

novel nor unprecedented. While the Court has repeatedly

*6 While, as Chief Judge Posner noted in concluding that the ADA

did apply to state prisons, there may be some “inner core of sover-

eign functions” which go to the very balance of power between

the separate branches of state government, prisons, education, and

other public services are not amongst them. Crawford, 115 F.3d

at 483. This case does not present the question of the applicability

of the ADA to functions which define the very existence of the

States.

26

acknowledged the need to defer to prison administrators

with respect to the balancing of valid penological interests

with the exercise of inmates’ federally-protected rights, it

has never deferred to such administrators in determining

whether the Constitution or a federal statute applies in

the first instance.

The Court’s deference to prison administration is a pol-

icy of restraint, not abdication, and it does not impact an

inmate’s right to seek redress for violations of constitu-

tional and statutory law:

a policy of judicial restraint cannot encompass any

failure to take cognizance of valid constitutional

claims whether arising in a federal or state prison.

When a prison regulation or practice offends a fun-

damental constitutional guarantee, federal courts

will discharge their duty to protect constitutional

rights.

Procunier v. Martinez, 416 U.S. 396, 405-06 (1974).

See also Turner v. Safley, 482 U.S. 78, 84 (1987). Thus,

while the contours of individual rights are altered in

prison, it cannot be disputed that “constitutional and statu-

tory requirements” apply in this setting. Bell v. Wolfish,

441 U.S. 520, 562 (1979); Turner, 482 U.S. at 84.

It is significant that many forms of nondiscriminatory

treatment and related accommodations required by the

ADA are otherwise constitutionally mandated, either by

the Eighth Amendment or the Due Process Clause of

the Fourteenth Amendment. For instance, in an opinion

authored by retired Supreme Court Justice Powell, the

Fourth Circuit Court of Appeals held that the failure to

provide a paraplegic inmate with a handicap accessible

toilet constituted cruel and unusual punishment. LaFaut

v. Smith, 839 F.2d 387 (4th Cir. 1987). The court also

declared unconstitutional the failure to modify the toilet

facilities in the inmate’s work area, rejecting the claim

that this would cause the “toilets to be temporarily inoper-

ative, and this ‘would be highly inconventient for all staff

27

and inmates who work in the area.”” /d. at 393. Simi-

larly, the Due Process Clause mandates that inmates with

disabilities receive accommodations at prison administra-

tive hearings, which can include not only interpreters for

deaf inmates but also legal assistance for inmates with

mental disabilities. See 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) (mentally retarded prisoners

facing disciplinary charges must be provided “the assist-

ance of counsel substitute, a right clearly contemplated

by the due process clause. Wolff v. McDonnell, 418 U.S.

539, 570 (1974)”").”

Just as the principle of deference shown by courts to

prison administrators has never prevented the application

of § 1983,” Title VI of the Civil Rights Act of 1964,

42 U.S.C. § 2000d,” Title IX of the Educational Amend-

ments of 1972, 20 U.S.C. § 1681(a),” and the Individ-

27 The Court held in Wolff that ordinarily inmates have no right

to assistance at such hearings.

*8 Although 42 U.S.C. § 1983 does not explicitly mention prisons,

the Court frequently has allowed state prisoners to seck redress

under this statute for violations of federally-protected rights. Cooper

v. Pate, 378 U.S. 546 (1964); Houghton v. Shafer, 392 U.S. 639

(1968).

*° See Franklin v. District of Columbia, 960 F. Supp. 394, 432

(D.D.C. 1997) (Title VI would be violated where “prison programs

[were] offered based upon an inmate’s race of ethnic origin”).

%° See Klinger v. Department of Corrections, 107 F.3d 609, 615

(8th Cir. 1997) (Title IX applies to Nebrasa state prison system) :

Jeldness v. Pearce, 30 F.3d 1220, 1224-26 (9th Cir. 1994) (Title

IX applies to prison education programs). See also O’Connor v.

Davis, 126 F.3d 112, 118 (2d Cir. 1997). The Ninth Circuit, in

discussing Title IX’s application to state prisons, properly inter-

preted the separation of powers principles that should wuide a court

in considering this issue:

[a court] cannot judicially impose a special exception to these

statutes for correctional institutions. ... If there is a com-

28

uals with Disabilities Education Act (“IDEA”), 20 U.S.C.

§§ 1411-20," to state correctional facilities, it should not

prevent the application of the ADA to such facilities here.

As Judge Posner stated:

Rights against discrimination are among the few

rights that prisoners do not park at the prison gates.

Although the special conditions of the prison setting

license a degree of discrimination that would not be

tolerated in a free environment, there is no general

right of prison officials to discriminate against prison-

ers on grounds of race, sex, religion, and so forth.

If a prison may not exclude blacks from the prison

dining hall and force them to eat in their cells, and

if Congress thinks that discriminating against a blind

person is like discriminating against a black person.

it is not obvious that the prison may exclude the blind

from the dining hall, unless allowing him to use the

dining hall would place an undue burden on prison

management.

Crawford, 115 F.3d at 486.

pelling need to exempt corrections from these requirements

regarding education and employment programs, that argument

should be addressed to the legislative branch.

Jeldness, 30 F.3d at 1225.

51 See Doe v. Arizona Dep't of Educ., 111 F.3d 678 (9th Cir.

1997); Paul Y. v. Singletary, 979 F. Supp. 1422 (S.D. Fla. 1997);

Alexander S. By and Through Bowers v. Boyd, 876 F. Supp. 773

(D.S.C. 1995) ; Donnell C. v. Illinois State Bd. of Educ., 829 F. Supp.

1016 (N.D. Ill. 1993).

29

CONCLUSION

For the reasons stated above, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

STEVEN J. SCHWARTZ

Counsel of Record

JAMES R. PINGEON

CENTER FOR PUBLIC

REPRESENTATION

246 Walnut Street

Newton, Massachusetts 02160

(617) 965-0776

STEPHEN F.. HANLON

LESLIE S. SPITALNEY

Leo C. RYDZEWSKI

HOLLAND AND KNIGHT LLP

2100 Pennsylvania Avenue

Suite 400

Washington, D.C. 20037

(202) 955-3000

Attorneys for Amici Curiae