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

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COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS, et al..

Petitioner,

v.

RONALD R. YESKEY,

Respondent.

On Writ Of Certioran

To The United States Court Of Appeals

For The Third Circuit

BRIEF OF THE NATIONAL PRISON PROJECT OF THE ACLU

FOUNDATION AND NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE ATTORNEYS, AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

MARJORIE RIFKIN STEVEN R. SHAPIRO

ELIZABETH ALEXANDER AMERICAN CIVIL LIBERTIES

NATIONAL PRISON PROJECT UNION FOUNDATION

OF THE AMERICAN CIVIL 125 Broad Street

LIBERTIES UNION FOUNDATION New York, NY 10004

1875 Connecticut Avenue, N.W., #410 (212) 549-2500

Washington, D.C. 20009

(202) 234-4830

DAVID M. PORTER

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS

Co-Chair Amicus Committee

$01 K. Street, 10th Floor

Sacramento, CA 95814

(916) 498-5700

Counsel for Amici Curiae

TABLE OF CONTENTS

I. DISABLED PRISONERS SEEK

EQUAL ACCESS TO FACILITIES,

NOT BETTER TREATMENT

A. Disabled Prisoners Face

Unnecessary Physical Barriers

to Prison Services and

to Discriminatory Exclusion

I. THE ADA UNAMBIGUOUSLY

APPLIES TO STATE PRISONS ............

A. _ The Language of the Statute is

Broadly Inclusive and Incorporates

Specific Reference to State Prisoners ....

‘3

Because Prison Management Does

Not Go to "the Heart of Representative

Government," the Regulations Applying

the ADA to Prisons are Entitled to

Il. | THE ADA INCORPORATES PRINCIPLES

A.

Officials Should Not Be

-¢ ae

ill

TABLE OF AUTHORITIES

Cases

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

Amos v. Maryland Dep't of Public Safety

& Correctional Servs., 126 F 3d 589

(4th Cir.), petition for cert. filed,

66 U.S.L.W. 3474 (US. Dec. 19, 1997)

| Seren

Block v. Rutherford, 468 U.S. 576 (1984) . ...

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

Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc.,

467 US. 837 (1984)... 2.2.6...

Clarkson v. Coughlin, 898 F. Supp. 1019

(S.D.N.Y. 1995)

Consolidated Rail Corp. v. Darrone,

465 US. 624 (1984)... 2.2... 008.

Corrections, =

115 F.3d 481 (7th Cir. 1997)........

Crawford v. Indiana Dep't of

Crowder v. Kitagawa, 81 F.3d 1480

(9th Cir. 1996)

"ee eeeeceeeee es & 6 «€

DeBord v. Board of Educ. of Ferguson-Florissant,

126 F.3d 1102 (8th Cir. 1997), reh'g en banc

denied, and petition

3532 (U.S. Feb. 6, 1998) (No. 97-1297)

for cen. filed, 66 US.L.W.

iv

Doe v. New York University, 666 F.2d 761

Gee Se SD 4.066 owGnN ee tRCeCarccvcs 18

Duffy v. Riveland, 98 F 3d 447 (9th Cir. 1996) ....... 8

Easley by Easley v. Snider, 36 F.3d 297

oo | a oe a 20

Gregory v. Ashcroft, 501 U.S. 452 (1991) ....... 3,14,15

Helen L. v. DiDario, 4 F.3d 325 (3d Cir.),

reh'g en banc denied, and cert. denied,

ee 20

Hudson v. Palmer, 468 U.S. 517 (1984) ........... 12

Kaufman v. Carter, 952 F. Supp. 520

SE POG weas beenecbescdces 6

Love v. Westville Correctional Ctr.,

103 F.3d 558 (7th Cir. 1996)... .......... 7,20

Martin v. Voinovich, 840 F. Supp. 1175

rr re 19

Noland v. Wheatley, 835 F. Supp. 476

Re SUE SGadidetdedessevecedouss 5

Olim v. Wakinekona, 461 U.S. 238 (1983) ......... 12

Onishea v. Hopper, 126 F.3d 1323 (11th Cir. 1997),

vacated, reh'g en banc granted,

133 F.3d 1377 (11th Cir. 1998) ............ 22

Randolph v. Rogers, 980 F. Supp. 1051

Se UD bevcbewestcscudeccecsds 8

Vv

Salinas v. United States, 118 S. Ct. 469 (1997) ...... 17

School Bd. of Nassau County v. Arline,

ws Sccuscceiscsees 16,17,18

Southeastem Community College v. Davis,

abs beh ebccccce cnt 4,17

Strathie v. Department of Transp.,

716 F.2d 227 (3d Cir. 1983) ............ 18,19

Thomburgh v. Abbott, 490 U.S. 401 (1989) ........ 21

Turner v. Safley, 482 U.S. 78 (1987) ............. 21

Statutes

29 U.S.C.A. § 794 (West Supp. 1997) ......... passim

42 US.CA. § 12101(a\(3) (West 1995) ........... 10

42 US.CA. § 12131 (West 1995) ............. 10,11

42 US.CA. § 12132 (West 1995) .............. 9,10

42 US.CA. § 12133 (West 1995) ............... 12

42 US.CA. § 12134(a) (West 1995) ............. 15

42 US.C.A. § 12201(a) (West 1995) ........... 11,12

Regulations

28 CFR. § 35.130(M7) ... 2.2 eee 17,20

owen du cctecdscuccckevee 17,19

Oe ee ee 14

A Es chsvaccévvedvenstctudénes 15

IIE, od Ghcwcahys cedeuss 15,18,19

Is Gh nceccses deneceeeceuns 13

SP NED dec cv kdcbecwesecs dur 13

BP Gr ie PON OA oc ccc ccc veccccvccces 13

ie 16

41 C.F.R. pt. 101, subpt. 101-19.6, app. A ......... 13

GD FUR. BU, SIMO ST Me oc cccccccccccccicces 13

Miscellaneous

Amos v. Maryland Dep't of Public Safety &

Correctional Servs., No. 96-7091,

Appellants’ Opening Br. (4th Cir. filed

FN OR a eS 6,8,9

Amos v. Maryland Dep't of Public Safety &

Correctional Servs., No. 97-1113,

Pet. for Cert. (U.S. filed Dec. 19, 1997) ..... 6,7,8

Armstrong v. Wilson, No. 97-686, Opp'n to

Pet. for Cert. (U.S. filed Nov. 19, 1997) ...... 6,9

Armstrong v. Wilson, No. C-94-2307,

Statement of Stipulated Facts

(N.D. Cal. filed July 9, 1996) ............. 8.9

vii

Crawford v. Indiana Dep't of Corrections,

No. 3:96-CV-0125AS,

(N.D. Ind. filed Feb. 21, 1996) ............. 7

Hadix v. Johnson, No. 96-2548,

Plaintiffs-Appellees’ Final Br.

(6th Cir. filed July 30, 1997).............. 6,7

H.R. Rep. No. 101-485, pt.2, reprinted in

1990 U.S.C.C.AN. Gds os kb bdus vd 10,12

S. Rep. No. 101-116 (1989) ..................., 10

Gardner, Legal Commentary: The Legal Rights

of Inmates with Physical Disabilities,

14 St. Louis U. Pub. L. Rev. 175 (1994) heewas 5

U.S. Comm'n on Civil Rights, A

the Spectrum of Individual A bilities,

eed eh os os isc occ 10

U.S. Dep't of Justice, The Americans with

Disabilities Act: Title I] Technical

Assistance Manual II-6.0000 -

EE 16

l

INTEREST OF AMICI CURIAE'

The American Civil Liberties Union (ACLU) is a

nationwide, nonpartisan organization of nearly 300,000

members dedicated to the principles of liberty and equality

embodied in the Bill of Rights and the nation's civil rights

laws. The ACLU established the National Prison Project in

1972 to protect and promote the civil rights of prisoners. In

furtherance of that goal, the National Prison Project has

brought numerous cases on behalf of prisoners, including

disabled prisoners seeking access to prison facilities, services

and programs under the Rehabilitation Act and the Americans

Project has a direct interest in the outcome of this case

because it represents Petitioners in Amos v. Maryland Dep't

of Public Safety & Correctional Servs., 126 F.3d 589 (4th

Cir.), petition for cert. filed, 66 U.S.L.W. 3474 (U.S. Dec. 19,

1997) (No. 97-1113), which also raises the issue of whether

Section 504 of the Rehabilitation Act and Title II of the

Americans with Disabilities Act apply to state prisoners.

The National Association of Criminal Defense Lawyers

(NACDL) is a nationwide, nonprofit corporation founded in

1958 to ensure justice and due process for persons accused of

crime, to foster the integrity, independence, and expertise of

the criminal defense profession; and to promote the proper and

fair administration of criminal justice. It has a membership of

‘Letters of consent to the filing of this brief have been

lodged with the Clerk of the Court pursuant to Rule 37.3.

Pursuant to Rule 37.6, counsel for anici state that no counsel

for a party authored this brief in whole or in part and no

person, other than anici, their members, or their counsel made

a monetary contribution to the preparation or submission of

2

almost 10,000 attorneys and 28,000 affiliate members in fifty

states. NACDL is recognized by the American Bar

Association as an affiliate organization, and has full

representation in the ABA's House of Delegates. As part of

its mission, NACDL strives to defend individual liberties

guaranteed by the Bill of Rights.

SUMMARY OF ARGUMENT

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

Council, Inc., 467 U.S. 837, 842-43 (1984), this Court stated:

"(I}f the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect

io the unambiguously expressed intent of Congress.”

Following this principle, the courts of appeals for the Third,

Seventh and Ninth Circuits, and many lower courts have held

that the unambiguous statutory language clearly demonstrates

Congress’ intent to apply Section 504 of the Rehabilitation Act

and Title [I of the Americans with Disabilities Act (ADA) to

state prisons.

The ADA's explicit statutory findings reflect its

purpose to eliminate discrimination in institutionalized settings.

The plain language applies the ADA to state and local

corrections agencies as "public entities" that provide

"programs, services and activities." Furthermore, the ADA

explicitly incorporates "the standards applied” under title V of

the Rehabilitation Act and its i ing regulations which,

as Congress well knew, specifically apply the statute to state

prisons.

The intent of Congress is therefore clear. It is also

ent een ee

the Department of Justice (DOJ). Like the § 504 regulations

that preceded them, they too specifically include state prisons

within the scope of the ADA. DOJ's regulations are entirely

3

consistent with the broad remedial purpose of the ADA and

are entitled to substantial deference under Chevron. Because

prison management is not an inner "core state function" as that

term is used in v. Ashcroft, 501 U.S. 452, 460

(1991), the clear statement rule is inapplicable to this case. In

any event, the statutory language is unambiguous.

Disabled prisoners experience enormous obstacles

seeking equal access to toilets and showers, as well as other

facilities and services. The ADA affords them equal access,

not special privileges. It requires public entities to make

"reasonable modifications" that do not "fundamentally alter”

their programs or impose “undue financial or administrati ive

p> ase th at tle cooly ee

ons risks into account, among

other factors, and are thus to the concerns of

responsive prison

This Court should decline petitioners’ invitation to

rewrite the statute by creating out of whole cloth a "prison

exception" to the ADA that is flatly contrary to the clearly

expressed intent of Congress.

ARGUMENT

L. DISABLED PRISONERS SEEK EQUAL

ACCESS TO FACILITIES, NOT BETTER

TREATMENT THAN OTHERS

Title II of the ADA, like Section 504 of the

Rehabilitation Act, requires the elimination of obstacles to

equal access; it does not require public entities to provide

special programs or privileges for disabled people. See

Alexander v. Choate, 469 U.S. 287, 300 & n.20 (1985);

Southeastern College v. Davis, 442 U.S. 397, 410-

Community

11 (1979) (distinguishing federal employers’ affirmative action

4

requirement in § 501 from the equal access requirement of §

504); of. Pet'r Br. at 29. Disabled prisoners “have a right, if

the [ADA] is given its natural meaning, not to be treated even

worse than those more fortunate [able-bodied] inmates."

Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 486

(7th Cir. 1997) (Posner, C_J.). Seeking equal access, not better

treatment than others, disabled prisoners have raised

substantial claims of discriminatory treatment in seeking relief

under the Rehabilitation Act and the ADA?

A. Disabled Prisoners Face

Unnecessary Physical Barriers

to Prison Services and Programs

Disabled men and women in prisons and jails

throughout the country often face dangerous physical obstacles

when seeking access to facilities and services such as toilets

and showers, dining halls, medical clinics, emergency alarms

and exits, and programs.’ Confined in facilities that are not

The cases cited herein serve to illustrate the range of

problems experienced by disabled prisoners; they do not

represent an exhaustive list of cases brought by prisoners

under the ADA and Rehabilitation Act. Amici have discussed

facts obtained from pleadings filed in prison cases throughout

the country which were not necessarily resolved by the courts.

For this reason, anici have noted plaintiffs’ allegations and

cited to relevant pleadings, even in cases where decisions were

reported on other issues.

*For a discussion of the demographics of disabled

prisoners and a description of the range of disabilities among

prisoners, see generally Gardner, Legal Commentary: The

Legal Rights of Inmates with Physical Disabilities, 14 St.

Louis U. Pub. L. Rev. 175, 176-77 (1994).

a

5

handicap-accessible, disabled prisoners suffer needlessly

because of the failure of prison administrators to make even

A wheelchair user in an Indiana county jail alleged that

v. Wheatley, 835 F. Supp. 476, 480 (N.D. Ind. 1993) (denying

defendants’ motion to dismiss and qualified immunity claim,

citing their " lack of effort and outright refusal to

accommodate" plaintiff). This semi-quadriplegic prisoner

his legs, only limited use of his hands, no bladder, and

scatters bags for removal of his body

an Id. The sheriff had evailgble other jail cells with

running water, but chose not to assign Mr. Noland to one of

them. Id. Despite the critical importance of hygiene to

eee eS

soap and water. Jd. When it was not his “bath day," Mr

Noland was often reportedly forced to eat his meals with

stn chergtean Wahlen tebe at on cnae ond

maneuver his wheelchair." Kaufman v. Carter, 952 F. Supp.

520, 524 (W.D. Mich. 1996) (denying defendants’ summary

judgment motion on qualified immunity grounds for their

Comectional Servs., No. 97-1113, Pet. for Cert. at 3 (USS. filed

Dec. 19, 1997); Armstrong v. Wilson, No. 97-686, Opp'n to

Pet. for Cert. at 2-3 (U.S. filed Nov. 19, 1997).

temperature. Kawfman, 952 F. Supp. at 523; Amos v.

Maryland Dep't of Public Safety & Correctional Servs., No.

96-7091, Appellants’ Opening Br. at 6-7 (4th Cir. filed Oct. 1,

1996).

Medication dispensaries and medical clinics are often

accessible with great difficulty, if at all. In Maryland, inmates

allege they cannot propel their wheelchairs up the steep ramp

necessary to reach the medication dispensary. Amos, No. 97-

1113, Pet. for Cert. at 3. In Michigan, a 65-year-old

wheelchair user with cancer and coronary problems reportedly

had to forego his medications because prison staff refused to

allow other prisoners to push his wheelchair and he lacked the

energy to propel himself to the clinic. Hadix, No. 96-2548,

Plaintiffs-Appellees' Final Br. at 27.

B. Disabled Prisoners are Subjected

21, 1996) Ciba iadies Pemtinr theeand bds cention vo thas of

an African-American person barred from the dining hall due

to prison staff's discriminatory treatment. Crawford v. Indiana

Dep't of Corrections, 115 F.3d 481, 486 (7th Cir. 1997).

In California, prison officials stipulated to the fact that

programs. Armstrong v. Wilson, No. C-94-2307, Statement of

Stipulated Facts at 7 (ND. Cal. filed July 9, 1996). It is

access, all of which are afforded to general population

inmates. Armstrong, No. C-94-2307, Statement of Stipulated

Facts at 9-10; Amos, No. 96-7091, Appellants’ Opening Br.

at 10-11.

cut off from essential facilities and services ranging from

walephenns, a

a ee ee

even emergency fire Without access =

wailed don Eenams hana nel

communicate with prison staff to follow orders, or with health

care staff, or to participate in educational, work, training and

substance abuse to prepare for their release.

Clarkson v. Coughlin, 898 F. Supp. 1019, 1029-32 (S.D.N-Y.

1995).

The discriminatory treatment of disabled prisoners not

only makes for harsher punishment in terms of their conditions

of confinement; it lengthens their incarceration, because

program participation often results in lower security

classification and credit toward release. Amas, No. 96-7091,

Appellants’ Opening Br. at 11; Armstrong, No. 97-686, Opp'n

to Pet. for Cert. at 3.

Inaccessible facilities and transport vehicles pose grave

risks for disabled prisoners who require accommodations to

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

(reversing grant of summary judgment for defendants on deaf

inmate's statutory claims alleging that prison officials’ failure

to provide him with qualified interpreters foreclosed his

participation in programs for which he was otherwise

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

(same); Clarkson v. Coughlin, 898 F. Supp. 1019, 1027-32

(S.D.N.Y. 1995); Randolph v. Rogers, 980 F. Supp 1051 (E.D.

Mo. 1997).

9

ensure their safe evacuation in the event of emergency.

Although disabled prisoners run the risk of being trapped in

the event of fire, prison staff do not receive special training on

their safe evacuation. A No. C-94-2307, Statement

of Stipulated Facts at 7-8.

Il. ©THE ADA UNAMBIGUOUSLY

APPLIES TO STATE PRISONS

A. _ The Language of the Statute is

Broadly Inclusive and Incorporates

Specific Reference to State Prisoners

ot agp arte gamer gm

entities from discriminatiig against disabled people.’ That

disabled prisoners were among those Congress had in mind

when it enacted the ADA is evident from the explicit statutory

findings that “discrimination against individuals with

disabilities persists in such critical areas as. .

institutionalization.” 42 U.S.C.A. § 12101(a\(3) (West 1995). 6

*Title II provides:

Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by

reason of such disability, be excluded from

participation in or be denied the benefits of the

services, programs, or activities of a public

ey ay

such entity.

42 US.CA. § 12132 (West 1995).

*Petitioners argue that institutionalization' has nothing to

do with prisons." Pet'r Br. at 16. However, the legislative

history relied upon by Petitioners demonstrates that disabled

ae a ~

US.CA. § 12132. The phrase "program or activity" is

defined in the Rehabilitation Act as “all of the operations of

agency, .. . or other instrumentality of

a department,

a State or of a local government." 29 U.S.C.A. § 794(b)(1 (A)

(West Supp. 1997). This definition is incorporated into the

ADA through 42 U.S.C.A. § 12201(a), which provides in its

Spectrum of Individual Abilities, Sept. 1983, App. A at 168.

See S. Rep. No. 101-116, at 8 (1989); H.R. Rep. No. 101-485,

pt. 2 at 31 (1990), reprinted in 1990 US.C.C.AN. 303, 312:

Petr Br. at 17.

State or States or local government.” 42 US.CA. § 12131(1).

ll

applied under title V of the Rehabilitation Act

of 1973 (29 US.C. 790 et seq.) or the

regulations issued by Federal agencies pursuant

to such title.

42 US.C.A. § 12201(a) (West 1995). In enacting the ADA,

Congress thus incorporated the standards of coverage from the

Rehabilitation Act, including the definitions of “program” and

“activity.

The ADA defines as "qualified" "an individual with a

disability who, with or without reasonable modifications . .

meets the essential eligibility requirements for the receipt of

services or the participation in programs or activities provided

by a public entity." 42 U.S.CA. § 12131(2). Under this

definition, essential program criteria need not be waived.

Contrary to Petitioners’ assertion, nothing in the statutory

language indicates that voluntariness is an essential element of

participation.’

*Title V of the Rehabilitation Act includes Section 504,

which is codified at 29 U.S.C. § 794.

*This Court's frequent references to prisoner "participation"

in “programs” and “services” reflects the plain meaning of

those terms. See, e.g., Block v. Rutherford, 468 U.S. 576, 580

(1984) (“contact visitation program"); Hudson v. Palmer, 468

U.S. 517, 552 (1984) ("rehabilitative programs and services");

Olim v. Wakinekona, 461 US. 238, 246 (1983) ("appropriate

correctional programs for all offenders"). Petitioners’ use of

these terms undercuts their argument that prisons do not

provide “services, programs, and activities." See Pet'r Br. at

31-32; Br. of Amici States Attorneys General at 5; Br. of

Amici Council of State Gov'ts at 11.

incorporated into the ADA pursuant to the

language of 42 U.S.C.A. § 12201(a)." Petitioners’ obligation

to obey those regulations, therefore, is not a matter of Chevron

op ehasttade ean? tn diteiiemant ‘onal facilities."

'°This provision incorporates the regulations issued under

29 U.S.C.A. §$§ 790 et seq., from Sections 500 through 506 of

the Rehabilitation Act, including the 1980 regulations, which

were designed to "implement section 504." Congress also

adopted in the ADA “any requirements of those

. such as program access that go beyond titles I and III."

HR. Rep. No. 101-485, pt. 2 at 84, reprinted in 1990

US.C.CAN. 303, 366-67. And the ADA further includes

"[t}he remedies, procedures, and rights set forth in section

794a of Title 29 [of the Rehabilitation Act]... to any person

alleging discrimination on the basis of disability in violation

of section 12132." 42 U.S.C.A. § 12133 (West 1995).

"45 Fed. Reg. 37,620, 37,630; 28 C.F.R. pt. 42(G), app.

B, subpt. (2) (1980). These regulations further require that:

[facilities available to all inmates or detainees,

such as classrooms, infirmary, laundry, dining

areas, recreation areas, work areas, and chapels,

must be readily accessible to any handicapped

person who is confined to that facility. . . . In

13

The regulations define "program" to include the operations of

a department of corrections, and “benefit” to include

disposition, sentencing and confinement.'?

Congress, by incorporating these regulations into the

ADA itself, expressly applied the statute to state prisons.

When, as here, “the intent of Congress is clear, that is the end

of the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress."

Chevron, 467 U.S. at 842-43.

[correctional] officials must be mindful of the

inmates in institutions or any part thereof

where other arrangements can be made to

satisfy safety, security and other needs of the

handicapped inmates.

45 Fed. Reg. at 37,630.

245 Fed. Reg. 37,620, 37,627; 28 C.F.R. § 42.540(h), (j)

(1980). In addition, regulations promulgated under Section

502 of Title V of the Rehabilitation Act, codified at 28 C.F.R.

§ 42.522(b) (1988), adopt the Uniform Federal Accessibility

facilities." 41 C.F.R. pt. 101, subpt. 101-19.6, app. A at

4.1.4(9\(c) (1997). Agencies have the choice of following

UFAS or the ADA Accessibility Guidelines for Buildings and

Facilities (ADAAG) in meeting their obligations under the

ADA, and need not follow either set of guidelines, as long as

they provide equivalent access. 28 C.F.R. § 35.151(c) (1997).

14

Because the language of the ADA is unambiguous,

there is no occasion for this Court's application of the "clear

Statement rule" of statutory construction as set forth in

Gregory v. Ashcroft, 501 U.S. 452, 470 (1991). In Gregory,

this Court found that the text of the Age Discrimination in

Employment Act of 1967 (ADEA) was ambiguous with

respect to coverage of state judges and, accordingly, held that

it did not preempt a state constitutional provision mandating

retirement of state judges at age 70.

Alternatively, the clear statement rule has been satisfied

in this case because Congress has stated that the non-

discrimination mandate of the ADA applies to all operations

of state and local governments, has authorized the DOJ to

The Court in Gregory declined to resolve the statutory

ambiguity in the ADEA in favor of coverage of state judges

because to do so would preempt Missouri's state constitutional

provision 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 US. at 460. Here, by

contrast, the statutory language is unambiguous and

explication of the ADA to priscns would not inffings upon a

core function going to the “heart of representative

government." See Crawford, 115 F.3d at 485 (Posner, C.J.)

(holding that the "mere provision of public services, such as

schools and prisons, is not within that inner core [of sovereign

15

it explicit that the regulations apply to state prisoners. 28

C.F.R. pt. 35 app. A, § 35.102 at 478 (1997) (requiring

“attendant care, or assistance in toileting, eating or dressing to

individuals with disabilities" only in "special circumstances,"

such as in correctional institutions.)'®

842 US.C.A. § 12134(a).

498 CFR. § 35.190(a), (b)(6).

‘This Court accords the same deference to the DOJ

interpretive as to the regulations themselves.

Alexander v. Choate, 469 U.S. at 305 & n.26 (1985).

“See also 36 C-F.R. § 1191.2 (1997) at 12.1 (applying the

ADA to "jails, holding cells in police stations, prisons,

juvenile detention centers, reformatories, and other institutional

occupancies where occupants are under some degree of

restraint or restriction for security reasons.") In addition, the

DOJ Title II Technical Assistance Manual specifically lists

"jails and prisons" as types of facilities that, if constructed or

altered after the effective date of the statute, must be readily

accessible to and usable by individuals with disabilities. U.S.

Dep't of Justice, The Americans with Disabilities Act: Title

16

In Chevron, this Court held that administrative agency

regulations are entitled to deference unless they are "arbitrary,

capricious, or manifestly contrary to the statute." Chevron,

467 US. at 844. Absent that showing, which cannot be made

here, "considerable weight should be accorded to an executive

department's construction of a statutory scheme it is entrusted

to administer." Jd. Moreover, this Court has repeatedly

applied the Chevron rule when interpreting the disability

discrimination statutes, stressing that the regulations, because

they were promulgated with the oversight of Congress, are an

important source of guidance and merit substantial deference.

See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634

(1984); Alexander v. Choate, 469 U.S. at 304 n.24; School Bd.

of Nassau County v. Arline, 480 U.S. 273, 279 (1987).

The ADA regulations effectuate the broad remedial

purpose of the statutes to eliminate discrimination, are entirely

consistent with the plain meaning of the statutory language

and impose no obligations on state prisons beyond those

mandated by the statutes’ broad nondiscrimination mandate.

For the courts to create by judicial fiat a "prison

exception" to the ADA that is contrary to the unambiguous

language of Congress would usurp the legislative function, and

run counter to this Court's recent admonition that:

canon is not a license for the judiciary to

rewrite language enacted by the legislature.

Any other conclusion, while purporting to be

an exercise in judicial restraint, would trench

Il Technical Assistance Manual II-6.0000 - [1-6.3300(6)

(1993).

17

upon the legislative powers vested in Congress

by Art. I, § 1, of the Constitution.

Salinas v. United States, 118 S. Ct. 469, 475 (1997) (internal

quotation marks and citations omitted).

Il. |THE ADA INCORPORATES PRINCIPLES

OF DEFERENCE TO STATE OFFICIALS

Public entities need not make accommodations that

impose "undue financial and administrative burdens" or require

“fundamental alteration in the [essential] nature of [the]

program." School Bd. of Nassau County v. Arline, 480 U.S.

273, 288 n.17 (citation omitted); Southeastem Community

College v. Davis, 442 U.S. 397, 412 (1979); 28 CF.R. §

35.130(bX(7); 28 C_F.R. § 35.150.

Individualized determinations are necessary to assess

whether public entities have discriminated in violation of the

statutes. See Arline, 480 U.S. at 287-88. This approach is

highly fact-intensive and takes into account several factors

including the program's requirements, the prospective

participant's qualifications, and the impact of the

accommodation. Such an inquiry is responsive to the security

concerns of prison administrators, for "[a] person who poses

a significant risk . . . to others . . . will not be otherwise

qualified . . . if reasonable accommodation will not eliminate

that risk." Artine, 480 U.S. at 288 n.16."’

"See also 28 CF.R. pt. 35 app. A at 472 (program

modifications are not required if participation results in a

"significant risk of a direct threat to the health or safety of

others"); Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir.

1996) (“courts will not second-guess the public health and

safety decisions of state legislatures acting within their

program

administrators. See Artine, 480 U.S. at 288 (remanding to

determine whether an elementary schoolteacher was "otherwise

qualified" for the job in spite of her tuberculosis). '*

traditional police powers. However, . . . it is incumbent upon

the courts to insure that the mandate of federal law is

achieved.") (internal citation omitted); Strathie v.

of Transp., 716 F.2d 227, 231 (3d Cir. 1983) (noting that

program administrators are entitled to deference based on their

experience and knowledge of the program at issue, but

rejecting "broad judicial deference" as applied under rational

basis scrutiny because it "would substantially undermine

Congress’ intent in enacting section 504"); Doe v. New York

University, 666 F.2d 761, 776 (2d Cir. 1981).

Contrary to Petitioners’ argument, the ADA does not

forbid prison officials from taking appropriate steps such as

placement in protective custody housing to ensure the safety

of disabled prisoners. Pet'r Br. at 29.

'*See also Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th

Cir. 1996) (remanding for factfinding regarding state's animal

quarantine law as applied to blind plaintiffs who relied on

trained guide dogs; "determination of what constitutes a

reasonable modification is highly fact-specific, requiring a

case-by-case inquiry"); Strathie v. Department of Transp., 716

F.2d 227, 231 (3d Cir. 1983) (requiring development of a

factual record to determine if a hearing-impaired school bus

driver was "otherwise qualified" for a license and if reasonable

modifications affect the "essential nature" of the job or impose

an undue burden); Martin v. Voinovich, 840 F. Supp. 1175,

1191 (S.D. Ohio 1993) (noting the prematurity at motion to

19

A. The Statute Requires Reasonable

Modifications

The ADA regulations governing existing facilities do

not "[n]ecessarily require a public entity to make each of its

existing facilities accessible to and usable by individuals with

disebilitcs," 28 CF.R. § 35.150(a(1), or bo treaty a public

entity to take any action that it can demonstrate would result

in a fundamental alteration in the nature of a service, program,

or activity or in undue financial and administrative burdens."

28 CF.R. § 35.150(a\(3)."”

Public entities are not required to make fundamental

alterations in their programs:

A public entity shall make reasonable

modifications in policies, practices, or

when the modifications are

necessary to avoid discrimination on the basis

of disability, unless the public entity can

would fundamentally alter the nature of the

service, program, or activity.

28 C.F.R. § 35.130(6)(7).

In making this assessment, the courts have largely

dismiss stage of assuming that if a § 504 violation were found,

a court would order expansion or creation of new programs).

'°This regulation was based upon the anti-discrimination

provisions of the regulations implementing Section 504 and

“therefore [is] already familiar to State and local entities

covered by Section 504. " 28 C.F.R. pt. 35 app. A at 474.

20

upheld state policies. See, e.g., DeBord v. Board of Educ. of

Ferguson-Florissant, 126 F.3d 1102 (8th Cir. 1997) (finding

that school district's refusal to give excessive doses of Ritalin

beyond the recommended level to a child suffering from

attention deficit disorder was not unreasonable), reh'g en banc

denied, and petition for cert. filed, 6 U.S.L.W. 3532 (US

Feb. 6, 1998) (No. 97-1297); Easley by Easley v. Snider, 36

F.3d 297 (3d Cir. 1994) (requiring the state to provide access

to the attendant home care program regardless of patients’

mental altertness through the use of surrogates would

But, where state agencies fail to demonstrate any

fundamental alteration of their programs or any attempt to

provide reasonable accommodations, they are not entitled to

deference. See Helen L. v. DiDario, 46 F.3d 325 (3d Cir.)

(finding that state's refusal to allow physically disabled

nt Ge

where state failed to establish undue burden, and resulting

ee ane a the

state), reh'g en banc denied, and cert. denied, 516 U.S. 813

(1995); Love v. Westville Correctional Ctr., 103 F.3d 558,

560-61 (7th Cir. 1996) (finding ADA violation where state

In applying the ADA's "reasonable modification" and

"undue burden" standards, courts have thus made

individualized determinations based upon facts that take into

account the specific operational concems of program

administrators, including prison officials. There is no basis for

exempting prisons from the statute's flexible approach.

B. The Statutory Liability of Prison

Officials Should Not Be

21

Analyzed Differently from _ that

of Other Government Officials

This Court need not define the appropriate standard of

review governing ADA claims in the state prison context

because that issue arises only after resolution of the issue

presented, that is, application of the statute to state prisons.

In the event that the Court reaches the standard of review,

prison officials should be treated no differently from other

state officials named as defendants under the statute.

In urging this Court to read into the ADA the standard

from Twmer v. Safley, 482 U.S. 78 (1987),” Petitioners

abandon their reliance on the clear statement requirement.

There is nothing in the language or history of the ADA

suggesting that Congress intended to apply a different ADA

standard in the prison context than in other contexts. The

Eleventh Circuit recently declined to apply Twmer to a

Rehabilitation Act claim in the prison context without a

congressional statement to that effect. Onishea v. Hopper, 126

F.3d 1323, 1336 (11th Cir. 1997), vacated, reh'g en banc

granted, 133 F.3d 1377 (11th Cir. 1998). In so doing, the

court in Onishea noted that the generally applicable statutory

standards take into consideration the special setting of prisons.

In Turner v. Safley, this Court established a four-part test

to determine whether regulations that impinge on prisoneis'

constitutional rights are reasonably related to a legitimate

penological objective. While the Tuner test is deferential to

prison administrators, it is "not toothless." Thornburgh v.

U bbot 490 U.S. 401, 414 (1989). Among the factors

analyzed under Tumer is the impact on other prisoners, staff

similar to the ADA standard calling for "reasonable

modifications” that do not "fundamental|[ly] alter” the program.

Td.

In short, the ADA's "reasonable modification" and

"undue burden" standards are necessarily applied in light of

the unique issues raised in the prison context. That is all that

prison officials can ask. More importantly, it is all that

Congress has required.

CONCLUSION

For the reasons set forth above, the judgment of the

court of appeals should be affirmed.

23

Respectfully submitted,

Elizabeth Alexander

of The American Civil Liberties Union Foundation

1875 Connecticut Avenue, N.W., #410

Washington, D.C. 20009

(202) 234-4830

Steven R. Shapiro

American Civil Liberties Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

David M. Porter

Nisionel Acnnaletl

of Criminal Defense Lawyers

801 K. Street, 10th Floor

Sacramento, CA 95814

(916) 498-5700

March 30, 1998