Amicus Curiae Brief — Olmstead v. LC

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8 Supreme Court, U.S.

\ FILED

: MAR 15 1999

No. 98-536

—— — AN MN CLE ENR NEN ROR OC

In the Supreme Court of the Uni 8

OCTOBER TERM, 1998

TOMMY OLMSTEAD, COMMISSIONER,

GEORGIA DEPARTMENT OF HUMAN RESOURCES,

ET AL., PETITIONERS

L.C., BY JONATHAN ZIMRING, GUARDIAN AD LITEM

AND NEXT FRIEND, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

GREGORY B. FRIEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Title II-A of the Americans With Disabilities Act of 1990

(ADA), 42 U.S.C. 12132, provides that “no qualified in-

dividual with a disability shall, by reason of such disability,

* * * be subjected to discrimination by any [public] entity.”

The Attorney General’s “integration regulation,” 28 C.F.R.

35.130(d), provides that “a public entity shall administer

services, programs, and activities in the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.” The Attorney General interprets that regula-

tion to require a State that offers treatment to persons with

disabilities to provide such treatment in a community setting

that offers opportunities for interaction with persons with-

out disabilities, rather than in an institution, when (1) the

State’s treatment professionals have determined, in the

exercise of reasonable professional judgment, that com-

munity placement of the individual is appropriate, and (2)

such a placement would not require an unreasonable change

in state policy or a fundamental alteration in the nature of

the State’s treatment program. The question presented is

whether the regulation as so interpreted validly implements

the ADA.

TABLE OF CONTENTS

Interest of the United States u

REESE ER oS Se 0 MES A SE ey a

Summary of argument 11

Argument:

The Attorney General reasonably interpreted the

integration regulation to prohibit the unjustified

segregation of persons in institutions, and the

regulation as so construed falls within the Attorney

General's authority to implement Title II .........ccccccoe. 7

A. The Attorney General has reasonably inter-

preted the integration regulation to prohibit

the unjustified segregation of persons in

% 9

B. The Attorney General was warranted in con-

cluding that the unjustified segregation of

persons in institutions constitutes a form of

discrimination based on disability prohibited by

„ 11

C. The integration regulation does not intrude on

the professional judgment of state treatment

professionals and does not impose undue costs

on the states = 18

D. Petitioners’ remaining arguments are

unpersuasive

Conclusion

Appendix

on =

7 & 8

TABLE OF AUTHORITIES

Cases:

Alexander v. Choate, 469 U.S. 287 (1985) occcccccccccccseoesoee 12, 25

Auer v. Robbins, 519 U.S. 452 (1997) ...ccccccccccessssesesveeevnee 10

Bragdon v. Abbott, 118 S. Ct. 2196 (1998) ..... 11, 23

Central Bank v. First Interstate Bank, 511 U.S.

164 (1994) . 26

(IID)

Cases—Continued:

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

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

City of Boerne v. Flores, 521 U.S. 507 (1997) cocccccccccsoee

City of Cleburne v. Cleburne Living Ctr., 478 US.

U.S. 482 (1985)

City of Edmonds v. Oxford House, Inc., 514 US.

725 (1995)

Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta,

458 U.S. 141 (1982)

Garrity v. Gallen, 522 F. Supp. 171 (D.N.H. 1081)

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

Guardians Ass'n v. Civil Serv. Comm n, 463 U.S.

582 (1983)

Halderman v. Pennhurst State Sch. & Hosp.,

446 F. Supp. 1295 (E. D. Pa. 1978), aff d in part and

rev'd in part, 612 F.2d 84 (3d Cir. 1979), rev'd, 451

U.S. 1 (1981)

Helen L. v. DiDario, 46 F. ad 325 (3d Cir.), cert.

denied, 516 U.S. 813 (1995)

Homeward Bound, Inc. v. Hissom Mem’! Ctr.

No. 85-C-437-E, 1987 WL 27104 (N.D. Okla. July 24,

1987)

Jackson v. Fort Stanton Hosp. & Training Sch.,

757 F. Supp. 1243 (D.N.M. 1990), rev'd on other

grounds, 964 F. 2d 980 (10th Cir. 1992)

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

Kentucky Ass'n for Retarded Citizens, Inc. v. Conn,

674 F 2d 582 (6th Cir.), cert. denied, 459 U.S.

1041 (1982)

Lynch v. Maher, 507 F. Supp. 1268 (D. Conn.

1981) ....:

F. C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) ...........

Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1 (1981)

Cases—Continued: Page

Pennsylvania Dep't of Corrections v. Yeskey, 118

S. Ct. 1952 (1998) 10

People First v. Arlington Dev. Ctr., 878 F. Supp. 97

(W.D. Tenn. 1992)

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265

(1978) 12

S.H. v. Edwards, No. C81-877A (N.D. Ga. Apr. 10,

1987), aff'd, 860 F.2d 1045 (11th Cir. 1988), cert.

denied, 491 U.S. 905 (1989) 24

Salinas v. United States, 522 U.S. 52 (1997) 27, 29

School Bd. v. Arline, 480 U.S. 273 (1987 . 9, 19, 25, 29

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

397 (1979) 12, 25

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

(1994) 9, 10

Traynor v. Turnage, 485 U.S. 535 (1988) 24, 25

Youngberg v. Romeo, 457 U.S. 307 (1982) 9,19

Constitution, statutes and regulations:

U.S. Const. Amend. XIV, § 5 29, 30

Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq. 26

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

12101 et seq.:

42 U.S.C. 12101(a\(2) 12, 13, 30, la

42 U.S.C. 12101(a)(3) 4, 6, 12, 13, 30, la

42 U.S.C. 12101(aX5) 4, 6, 12, 18, 30, la

42 U.S.C. 12101(aX7) 18, 30

42 U.S.C, 12101(aX8) 17-18, la

42 U.S.C. 12101(d) 26

Tit. I. 42 U.S.C, 12111 et seq. 7, 15

42 U.S.C. 121110600) la

42 U.S.C. 12111010B) 19, la

42 U.S.C. 12112 7

Tit. II. 42 U.S.C. 12131 et seq. passim

42 U.S.C, 12132 3, 7, 17, 28, 4a

42 U.S.C, 12133 5a

Statutes and regulations Continued: Page

42 U.S.C. 12134 7-8, 27, 28, 5a

42 U.S.C. 12134(a) 5a

42 U.S.C. 12134(b) 14-15, 28, 5a

Tit. III. 42 U.S.C, 12181 et seg. 7,15

42 U.S.C. 12182(b) 7

42 U.S.C, 12182(b)\(1(B) 15, 6a

Developmental Disabilities Assistance and Bill of

Rights Act, 42 U.S.C. 6000 et seq.:

42 U.S.C, 6001(10)(A) (Supp. II 1984) : 16

42 U.S.C. 6001(10)B) (Supp. II 1984) 16

42 U.S.C. 6001(15)( A) 16

42 U.S.C. 6001015\(B) 16

42 U.S.C. 6001(15K(C) 16

42 U.S.C. 6010(2) (1976) 28

Fair Housing Act, 42 U.S.C. 3601 et seq. 27

Individuals with Disabilities Education Act,

20 U.S.C. 14125) 15-16

Medicare Act, 42 U.S.C. 1395 et seq.:

42 U.S.C. 1396d(b) 21

42 U.S.C. 1396n(c) 20

Rehabilitation Act of 1973, § 504, 29 U.S.C. 794 .......... „ 66

15, 23, 24, 25, 28, 29

Ga. Code Ann. § 37-4-121 (Mitchie 1995) 19

28 C. F. R.:

Pt. 35 8

Section 35. 130 7a

Section 35. 1300b 07) 5, 7, 8, 19, 22, 10a

Section 35. 1300d) 3, 4, 5, 8, 19, 28, 10a

Section 35.130(e)(1) 26, lla

App. A, § 35.130 8

Pt. 41:

Section 41.51(d) (1997) 4

Section 41.51(d) 15

Vil

Miscellaneous:

134 Cong. Rec. 85116 (daily ed. Apr. 28, 1988)

135 Cong. Rec. 84986 (daily ed. May 9, 1989)

136 Cong. Rec. H2447 (daily ed. May 17, 1990)

136 Cong. Rec. H2608 (daily ed. May 22, 1990) ccc. |

Americans with Disabilities Act of 1989: Hearings

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

Human Resources and the Subcomm. on the

Handicapped, lolst Cong., Ist Sess. (1989)

H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3 (1990)

Rosalie A. Kane et al., The Heart of Long-Term Care

(1998)

Oversight Hearing on H.R. 4498, Americans with

Disabilities Act of 1988: Hearing Before the Subcomm.

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

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

S. Rep. No. 139, 97th Cong., Ist Sess. (1981)

S. Rep. No. 273, 101st Cong., 2d Sess. (1990)

U.S. Comm'n on Civil Rights, Accommodating the

Spectrum of Individual Abilities (Clearinghouse

Pub. No. 81, 1983)

William G. Weissert et al., Cost Savings From

Home And Community-Based Services: Arizona's

Capitated Medicaid Long-Term Care Program,

22 J. of Health Pol., Poly & L. 1829 (1997)

13, 20

21, 22

In the Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-536

TOMMY OLMSTEAD, COMMISSIONER,

GEORGIA DEPARTMENT OF HUMAN RESOURCES,

ET AL., PETITIONERS

L. C., BY JONATHAN ZIMRING, GUARDIAN AD LITEM

AND NEXT FRIEND, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The Attorney General has authority to enforce Tide II of

the Americans With Disabilities Act of 1990, 42 U.S.C. 12131

et seq. See 42 U.S.C. 12133. In addition to that enforcement

responsibility, Congress has directed the Attorney General

to issue regulations to set forth the forms of discrimination

prohibited by Title II. 42 U.S.C, 12134(a). Pursuant to that

mandate, the Attorney General has issued such regulations.

See 28 C. F. R. Pt. 35. One of those regulations requires a

public entity to “administer services, programs, and activi-

ties in the most integrated setting appropriate to the needs

of qualified individuals with disabilities.” 28 C. F. R.

35.130(d). The Attorney General has interpreted that regu-

lation to require the State, in some circumstances, to treat

(1)

persons with disabilities in a community setting rather than

an institution. The validity of that interpretation is at issue

here. The United States participated as an amicus curiae in

this case in the court of appeals.

STATEMENT

1. Respondents L.C. and E.W. are mentally retarded

individuals who also have mental disorders. Pet. App. 32a-

33a. Before the present litigation began, L.C. and E.W.

were voluntary patient at the Georgia Regional Hospital at

Atlanta (GRH-A) and were confined in a locked psychiatric

unit. J. A. 2, 5, 45, 48, 62-63, 78-79. GRH-A is a large, state-

run psychiatric institution whose programs are designed

primarily to stabilize individuals during the acute phase of a

mental illness so that treatment can be continued in the

community on an outpatient basis. J. A. 13, 48-49.

L.C. was most recently admitted to GRH-A in May 1992.

J. A. 14, 51. By May 1993, L.C.’s psychiatrie condition had

stabilized, and petitioners and L.C.’s treating physician

agreed that she could appropriately be treated in a

community setting. J.A. 5, 46, 120, 205-207. I. C.

nonetheless remained at GRH-A until after the present

litigation began in May 1995. In July 1995, petitioners

discharged L.C. to a state-run institution for treatment of

persons with mental retardation, and in February 1996,

petitioners released L.C. to a community-based program.

Pet. App. 33a.

E. W. was most recently admitted to GRH-A in February

1995. J. A. 64, 80. In March 1996, E.W.’s treating physician

concluded that she could be appropriately treated in the

community. J. A. 88-89, 210-212. In that same year, a clinical

psychologist at GRH-A reached the same conclusion. J.A.

213-214; see also J.A. 101. E.W. nonetheless remained insti-

tutionalized until a few months after the district court issued

its judgment in 1997, at which point she was placed in a

community-based program. Pet. App. 2a-3a n.2.

2. In 1995, L.C. filed suit against petitioners, alleging,

inter alia, that petitioners had violated Title II of the ADA

and its implementing regulations by failing to offer her treat-

ment in a community-based residential program after treat-

ment professionals determined that such a placement was

appropriate. J. A. 26, 28; Pet. App. 3la. E W. intervened,

raising the same claim. J. A. 61-73. The district court

granted summary judgment in part in favor of respondents.

Pet. App. 3la-42a. The court held that petitioners’ refusal to

place vespondents in a community-based program violated

Title II of the ADA, which prohibits a public entity from

subjecting any qualified individual with a disability to

discrimination by reason of such disability, 42 U.S.C. 12132,

as well as the Title II integration regulation, 28 C.F.R.

35.130(d), which requires a public entity to “administer

services, programs, and activities in the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.” Pet. App. 37a-39a. The court rejected peti-

tioners’ defense that they lacked funds to provide such

placements to L. C. and E. W. Id. at 38a-39a.

3. The court of appeals affirmed the distriet court's

judgment, but remanded for a reassessment of the State's

cost- based defense. Pet. App. la-30a. The court held that

when “a disabled individual’s treating professionals find that

a community-based placement is appropriate for that

individual, the ADA imposes a duty to provide treatment in

a community setting,” unless such a placement would require

a “fundamental alteration” in the State’s treatment program.

Id. at 21a-25a.

In reaching that conclusion, the court relied on the

Attorney General’s Title II integration regulation. The

court concluded that “the plain language of § 35.130(d) pro-

hibits a state from providing services to individuals with

disabilities in an unnecessarily segregated setting” and that

a State violates that mandate when “the State confines an

individual with a disability in an institutionalized setting

when a community placement is appropriate.” Pet. App. 7a,

Sa.

The court rejected petitioners’ contention that the inte-

gration regulation conflicts with the requirement in Title II

that an individual must prove discrimination by reason of a

disability. The court noted that Congress had instructed the

Department of Justice to issue regulations that are con-

sistent with the coordination regulations issued under

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794,

and that one of those regulations requires integration in

terms that are substantially the same as those in Section

35.130(d). Pet. App. 9a (citing 28 C.F.R. 41.51(d) (1997)).

The court further concluded that the integration regulation

was consistent with Congress’s specific findings that Title II

was intended to overcome discrimination in “institutionaliza-

tion,” and discrimination that takes the form of “segrega-

tion.” Id. at 10a-1la (quoting 42 U.S.C. 12101(a)(3) and (5)).

The court also determined that “the legislative history

makes clear that Congress considered the provision of

segregated services to individuals with disabilities a form of

discrimination prohibited by the ADA.” Id. at lla. The

court of appeals concluded that “because § 35.130(d) finds

direct support in the plain language of the ADA, its

congressional findings, and the Act’s legislative history, we

must apply it here.” Id. at 12a.

The court held that, under Title II and its implementing

regulations, a State’s duty to provide integrated services

when a patient’s care warrants such services is not absolute.

Pet. App. 25a. In reaching that conclusion, the court relied

on the Attorney General’s “reasonable-modification” regula-

tion, which provides that Ha] public entity shall make rea-

sonable modifications in policies, practices, or procedures

when the modifications are necessary to avoid discrimination

on the basis of disability, unless the public entity can

demonstrate that making the modifications would funda-

mentally alter the nature of the service, program, or

activity.” Pet. App. 25a-26a (quoting 28 C. F. R. 35.130(b)(7)).

The court concluded that the key question was whether

petitioners had shown that treating respondents in the

community would cause a fundamental alteration in their

program. Pet. App. 26a. Resolving that question, the court

concluded, involves an assessment of several factors,

including “whether treating [respondents} would require

additional expenditures and if so, whether the State had met

its burden of proving that those expenditures were unrea-

sonable in light of the State’s mental health budget.” Id. at

28a. Because the district court had not addressed those

questions, the court of appeals remanded for further pro-

ceedings. Id. at 29a-30a.'

SUMMARY OF ARGUMENT

A. The Attorney General’s Title II “integration regula-

tion,” 28 C. F. R. 35.130(d), provides that a] public entity

shall administer services * * * in the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.” By its terms, the integration regulation applies

to all services administered by a public entity, including

those that are offered exclusively to persons with dis-

abilities. The Attorney General therefore interprets the

regulation to require a State to provide services to persons

Following this Court’s grant of the petition for a writ of certiorari,

the district court issued a decision on remand, rejecting petitioners’

fundamental alteration defense. 1/29/99 Order at 1. The court found that

the annual cost to the State of providing community-based treatment to

L. C. and E.W.—about $20,000 each—was not unreasonable in relation to

the State’s overall mental health budget, which was $706.8 million in fiscal

year 1998. Id. at 5.

with disabilities in a community setting, rather than in an

institution, when a State’s treatment professionals have

determined, in the exercise of reasoned professional judg-

ment, that community placement of the individual is

appropriate. Because that interpretation accords with the

text of the regulation, it is entitled to controlling weight.

B. The Attorney General was warranted in concluding

that the unjustified segregation of persons in institutions,

when community placement is appropriate, constitutes a

form of discrimination prohibited by Title II. In the text of

the ADA, Congress found that persons with disabilities

suffer from various forms of discrimination, including “segre-

gation,” and that discrimination persists in several contexts,

including “institutionalization,” 42 U.S.C. 12101(a)(3) and (5).

Those findings demonstrate that Congress understood the

concept of discrimination under the ADA to include the

unjustified segregation of disabled persons in institutions.

Equally important, Congress instructed the Attorney

General to adopt regulations that are consistent with

coordination regulations that had been issued by the

Department of Health, Education, and Welfare (HEW) to

implement Section 504 of the Rehabilitation Act, 29 U.S.C.

794. One of HEW’s coordination regulations required

integration in substantially the same terms as the Attorney

General’s integration regulation. Congress therefore virtu-

ally mandated the integration regulation at issue here.

Congress had ample basis to conclude that the unjustified

segregation of persons in institutions constitutes a form of

discrimination based on disability. First, such segregation

can stigmatize persons with disabilities as incapable or

inworthy of participating in community life. Second, such

segregation can result in a form of dissimilar treatment:

Persons with disabilities must give up participation in com-

munity life in order to receive the services they need, while

persons without disabilities can receive the services they

need without sacrificing that important interest. Finally,

when persons with disabilities must obtain the services they

need in an institution, they are effectively deprived of their

right under the ADA to equal access to other public services.

C. The integration regulation does not impose undue

costs on the State. By virtue of the Attorney General’s

“reasonable-modification” regulation, 28 C. F. R. 35.130(b)(7),

the integration obligation does not apply when compliance

would require an unreasonable change in state policy or a

fundamental alteration in the nature of the State’s treatment

program. Costs have a bearing on those inquiries. Congress

anticipated that the placement of persons in the community,

rather than in an institution, would not impose undue costs.

If a State can show that any additional costs of providing

placement in a community setting are unreasonably high in

comparison to a State’s overall mental health budget, how-

ever, a State would not be required to provide placement in

a community setting.

ARGUMENT

THE ATTORNEY GENERAL REASONABLY INTER-

PRETED THE INTEGRATION REGULATION TO PRO-

Har THE UNJUSTIFIED SEGREGATION OF PERSONS

In INSTITUTIONS, AND THE REGULATION AS SO CON-

STRUED FALLS WITHIN THE ATTORNEY GENERAL’S

AUTHORITY TO IMPLEMENT TITLE Il

Title II, Part A of the ADA provides that “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 entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

12132. Unlike Titles I and III of the Act, Title II-A does not

spell out the forms of discrimination that are prohibited.

Compare 42 U.S.C. 12112 and 42 U.S.C. 12182(b). Instead,

Congress directed that “the Attorney General shall pro-

mulgate regulations in an accessible format that implement

this part.“ 42 U.S.C. 12134. That Section required the

Attorney General “to issue regulations setting forth the

forms of discrimination prohibited.” H.R. Rep. No. 485,

101st Cong., 2d Sess., Pt. 3, at 52 (1990).

The Attorney General issued regulations in 1991. 28

C. F. R. Pt. 35. One of those regulations, the integration

regulation, provides that Ha] public entity shall administer

services, programs, and activities in the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.” 28 C. F. R. 35.130(d). In the preamble to the

regulations, the Attorney General explained that “the most

integrated setting” is “a setting that enables individuals with

disabilities to interact with non-disabled persons to the

fullest extent possible.” 28 C.F.R. Pt. 35 App. A § 35.130, at

469 (1996).

The obligation set forth in the integration regulation is not

absolute. When compliance would require a change in state

policy, the integration obligation is subject to the reasonable-

modification standard set forth in 28 C. F. R. 35.130(b)(7).

That regulation provides that “[aj public entity shall make

reasonable modifications in policies, practices, or procedures

when the modifications are necessary to avoid discrimination

on the basis of disability, unless the public entity can demon-

strate that making the modifications would fundamentally

alter the nature of the service, program, or activity.” Thus, a

State must provide services to a person with a disability in

an integrated setting when appropriate to that person's

needs, unless it would require an unreasonable change in

state policy or fundamentally alter the program.

Consistent with its text, the Attorney General interprets

the integration regulation to require States, in certain cir-

cumstances, to place persons with disabilities in a community

setting that offers opportunities for interaction with persons

without disabilities, rather than in an institution, where such

opportunities are far more limited, if they exist at all. In

particular, when state treatment professionals determine, in

the exercise of reasoned professional judgment, that place-

ment in a community setting is appropriate (Youngberg v.

Romeo, 457 U.S. 307, 323 (1982); see also School Bd. v.

Arline, 480 U.S. 273, 288 (1987)), and such a placement would

not require an unreasonable change in state policy or a

fundamental change in the State’s treatment program, a

State must offer the individual an opportunity for placement

in a community setting.

Petitioners challenge the Attorney General’s interpreta-

tion of the integration regulation on two grounds. First,

they argue that it reflects an impermissible reading of the

regulation itself. Second, they argue that it exceeds the

Attorney General’s authority to define the forms of dis-

crimination that are prohibited by Title II. As we demon-

strate below, both arguments are without merit.

A. The Attorney General Has Reasonably Interpreted

The Integration Regulation To Prohibit The Un-

justified Segregation Of Persons In Institutions

Petitioners contend (Br. 41-42) that the integration

regulation applies only to services that a State provides to

non-disabled persons. That limitation, however, cannot be

found in the text of the regulation. The regulation facially

appli to all services administered by a public entity,

including those that are offered only to persons with dis-

abilities. Under this Court’s decisions, an agency’s inter-

pretation of its own regulations is “controlling,” unless it is

“plainly erroneous” or “inconsistent with the regulation.”

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).

Because the Attorney General's interpretation accords with

the plain language of the regulation, that deferential stan-

dard is satisfied.

Petitioners incorrectly assert (Br. 41-42) that the

Attorney General originally interpreted the integration

regulation to apply only to those services that are offered to

non-disabled persons. As netitioners note (Br. 41), the

Attorney General has state that requiring a disabled

person to eat in the back of a government cafeteria, or re-

quiring a blind person to go on a special museum tour rather

than on the tour that is offered to the general public would

violate the integration regulation. See also Pet. Br. App.

18a-20a. But the Attorney General never intimated that

those are the only contexts in which the integration regu-

lation applies. When an agency adopts a regulation, it has no

obligation to list all conceivable examples of the contexts in

which the rule will apply. Indeed, such a requirement would

be completely unworkable. See Pennsylvania Dep't of

Corrections v. Yeskey, 118 S. Ct. 1952, 1955-1956 (1998).

Petitioners therefore err in treating the particular examples

discussed by the Attorney General as a limitation on the

terms of the regulation. See Thomas Jefferson Univ., 512

U.S. at 516.

Nor is there any merit to petitioners’ suggestion (Br. 41-

42) that the Attorney General's interpretation of the regulat-

ion is not entitled to deference because it was publicly

articulated for the first time in a brief filed in Helen L. v.

DiDario, 46 F.3d 325 (3d Cir.), cert. denied, 516 U.S. 813

(1995). This Court rejected a similar contention in Auer v.

Robbins, 519 U.S. 452 (1997). There, the Court deferred to

an agency’s interpretation of its own regulation that

appeared for the first time in a brief submitted to the Court.

Id. at 462-463. The Court explained that the Secretary's

position was not “a post-hoc rationalization advanced by an

agency seeking to defend past agency action against attack,”

and that there was “simply no reason to suspect that the

interpretation does not reflect the agency's fair and con-

sidered judgment on the matter in question.” Id. at 462.

Those requirements for deference are satisfied here. The

Department of Justice brief in Helen L. was not a post-hoc

effort to defend a previous agency action, but was instead a

fair and considered judgment on the issue.

Thus, as the court of appeals concluded (Pet. App. 8a), the

“express terms of § 35.130(d), supported by the Attorney

General’s consistent interpretation, plainly prohibit a state

from treating individuals with disabilities in a segregated en-

vironment, where a more integrated setting would be

appropriate.”

B. The Attorney General Was Warranted In Concluding

That The Unjustified Segregation Of Persons In Insti-

tutions Constitutes A Form Of Discrimination Based

On Disability Prohibited By Title II

Because the Attorney General issued the integration

regulation pursuant to an express grant of authority to give

content to the general statutory prohibition against dis-

crimination, it is entitled to “controlling weight,” unless it is

“arbitrary, capricious, or manifestly contrary to the statute.”

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

Inc., 467 U.S. 837, 844 (1984). This Court has also held that,

Aal the agency directed by Congress to issue implementing

regulations, * * * to render technical assistance explaining

the responsibilities of covered individuals and institutions,

* * * and to enforce [the ADA] in court, * * the

Department’s views are entitled to deference.” Bragdon v.

Abbott, 118 S. Ct. 2196, 2209 (1998).

Petitioners contend that the Attorney General acted

outside the permissible limits of her authority to implement

Title II. In particular, they argue (Br. 21) that Title II's

prohibition on “discrimination” based on disability requires

proof that similarly situated persons have been treated

differently, and that, when a State offers a service only to

persons with disabilities, such a showing of dissimilar

treatment cannot be made. The term “discrimination,” how-

ever, does not have a single meaning; its meaning therefore

must be derived from the statutory context in which it

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

(Section 504 ban on discrimination reaches practices that

have the effect of denying meaningful access to persons with

disabilities); Southeastern Community College v. Davis, 442

U.S. 397, 413 (1979) (refusal to make a reasonable modifica-

tion to accommodate persons with disabilities constitutes

discrimination under Section 504); Guardiays Ass'n v. Civil

Serv. Comm in, 463 U.S. 582, 592 (1983) (Wh. ce, J.) (the term

“discrimination” is “inherently” ambiguous); Regents of the

Univ. of Cal. v. Bakke, 438 U.S. 265, 284 (1978) (Powell, J.)

(the concept of discrimination “is susceptible of varying

interpretations”). The Attorney General was warranted in

concluding that, in the context of the ADA, “discrimination”

based on disability includes the unjustified segregation of a

disabled person in an institution.

I. a. That statutory context includes the specific find-

ings that Congress enacted as part of the ADA. Among

other things, Congress found that “historically, society has

tended to isolate and segregate individuals with disabilities,

and * * * such forms of discrimination * * * continue to

be a serious and pervasive social problem.” 42 U.S.C.

12101(a\(2). It found that “individuals with disabilities

continually encounter various forms of discrimination, in-

cluding * * * segregation.” 42 U.S.C. 12101(a)(5). And

it found that such discrimination persists in a variety of

contexts, including “institutionalization.” 42 U.S.C.

12101(a)(3). Those findings make clear that Congress under-

stood the concept of discrimination under the ADA to

include the unjustified segregation of disabled persons in

institutions.

b. The genesis of Congress's findings supports that con-

clusion. The relevant findings were drawn from the almost-

identical findings made by the U.S. Commission on Civil

Rights in a report entitled Accommodating the Spectrum of

Individual Abilities (Clearing House Pub. No. 81, 1983).

Compare id. at 159 with 42 U.S.C. 12101(a)(2) and (3)). One

section of the report includes “institutionalization” among

the areas in which discrimination against persons with dis-

abilities occurs. Accommodating the Spectrum of Individual

Abilities, supra, at 32-34. The report observed that

Ainstitutionalization almost by definition entails segre-

gation and isolation.” Ibid. The report further noted that,

while “there has been increasing acceptance in recent years

of the fact that most training, treatment, and habilitation

services can be better provided to handicapped people in

small, community-based facilities rather than in large,

isolated institutions, * * * a great many handicapped

persons remain in segregative facilities.” Jd. at 34-35.

Another section of the report identifies “segregation” as a

form of discrimination based on disability, explaining that

“(slegregation singles out handicapped people and separates

them from the rest of society, frequently as a condition for

receiving some service or benefit.” Accommodating the

Spectrum of Individual Abilities, supra, at 41. The report

further states that “[mJental health and mental retardation

institutions that house residents in almost complete isolation

from the non-handicapped community are perhaps arche-

typal examples of segregation.” Ibid.

c. The legislative debates and hearings confirm that

Congress’s findings concerning “segregation” and “insti-

tutionalization” reflect an understanding that the unjustified

segregation of persons with disabilities in institutions con-

stitutes a form of disability-based discrimination. Numerous

statements attest to that understanding. E.., 136 Cong.

Rec. H2447 (daily ed. May 17, 1990) (statement of Rep.

Miller) (It has been our unwillingness to see all people

with disabilities that has been the greatest barrier to full and

meaningful equality. Society has made them invisible by

shutting them away in segregated facilities.”); 134 Cong.

Rec. 85116 (daily ed. Apr. 28, 1988) (statement of Sen.

Simon) (persons with disabilities “remain{] substantially

hidden. They are hidden in institutions. They are hidden in

nursing homes. * * * Because they are hidden, we too

easily ignore the problem and the need for change.”); 135

Cong. Rec. 84986 (daily ed. May 9, 1989) (statement of Sen.

Harkin) (a purpose of the ADA is get disabled persons “out

of institutions”); Americans with Disabilities Act of 1989:

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

Human Resources and the Subcomm. on the Handicapped,

101st Cong., Ist Sess. 215 (1989) (statement of former

Senator Weicker) (“For years, this country has maintained a

public policy of protectionism toward people with dis-

abilities. We have created monoliths of isolated care in

institutions and in segregated educational settings. It is that

isolation and segregation that has become the basis of the

discrimination faced by many disabled people today.

Separate is not equal.”); Oversight Hearing on H.R. 4498,

Americans with Disabilities Act of 1988 Before the Sub-

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

Labor, 100th Cong., 2d Sess. 193 (1988) (statement of Phillip

Campbell, Ass’n for Retarded Citizens of Mass.) (“Persons

with mental retardation have experienced some of the

grossest examples of discrimination during the last 100

years. They have been relegated to segregated congregate

facilities across the Nation.”).

2. Congress’s understanding that Title II would prohibit

the unjustified segregation of persons in institutions is also

reflected in its express instruction to the Attorney General

to promulgate regulations consistent with (1) existing

regulations under a related statute, and (2) the definitions of

discrimination that appear in other titles of the ADA.

Congress specified, 42 U.S.C. 12134(b), that, except for

‘program accessibility, existing facilities’, and communica-

tions’, regulations under subsection (a) of this section shall

be consistent with this chapter and with the coordination

regulations under part 41 of title 28, Code of Federal

Regulations (as promulgated by the Department of Health,

Education, and Welfare [HEWI on January 13, 1978),

applicable to recipients of Federal financial assistance under

section 794 of title 29 [Section 504 of the Rehabilitation

Act].“ That language requires the Attorney General, in

issuing regulations to enforce Title II, to make the

regulations consistent with other parts of “this chapter“, I. e.,

Titles I (employment) and III (public accommodations) of the

ADA, and with the coordination regulations that had been

issued by HEW to enforce Section 504 of the Rehabilitation

Act.

In adopting the integration regulation, the Attorney

General adhered to that mandate. The integration regula-

tion tracks a Section 504 coordination regulation that pro-

vides that Arlecipients shall administer programs and

activities in the most integrated setting appropriate to the

needs of qualified handicapped persons.” 28 C.F.R. 41.51(d).

The integration regulation also parallels a requirement in

Title III of the ADA, which provides that Ig joods, services,

facilities, privileges, advantages, and accommodations shall

be afforded to an individual with a disability in the most

integrated setting appropriate to the needs of the in-

dividual.” 42 U.S.C. 12182(b)(1)(B). By requiring the

Attorney General to adopt regulations “consistent” with the

HEW coordination regulations and with the ADA, Congress

virtually mandated the integration regulation at issue here.”

2 Congress expressed the same integration mandate in the Individuals

with Disabilities Education Act (IDEA), 20 U.S.C. 1412(5\B), requiring

States that receive federal funds under that statute to “assure that, to the

Moreover, like the Attorney General's integration regula-

tion, HEW’s comparable coordination regulation and the

requirement in Title III are not, by their terms, limited to

those services that are offered to persons without dis-

abilities; instead, they apply to all services that are offered.

Nor is there any reason to believe that Congress understood

the regulation or the statutory provision to contain an

implicit limitation not found in the text. To the contrary, in a

1984 statute Congress had previously used the term “inte-

gration” in regard to individuals with developmental dis-

abilities, and defined it to include not only the opportunity

for persons with disabilities to use the same services and

participate in the same activities as non-disabled persons, 42

U.S.C. 6001(10)(A) (Supp. IT 1984), now codified at 42 U.S.C.

6001(15)(A) and (C), but also “the residence by persons with

developmental disabilities in homes or home-like settings

which are in proximity to community resources, together

with regular contact with nonhandicapped citizens in their

communities.” 42 U.S.C. 6001(10)(B) (Supp. II 1984), now

codified at 42 U.S.C. 6001(15)(B). In light of Congress’s

mandate to formulate an integration regulation, and Con-

gress’s understanding of that term, the Attorney General

was warranted in concluding that Congress viewed a State’s

unjustified decision to place a disabled person in an insti-

tution, rather than in a community setting, as a form of

discrimination based on disability.

3. Congress had ample basis to conclude that such a de-

cision constitutes discrimination based on disability. Segre-

gating persons with disabilities into institutions when they

can be appropriately placed in community settings can have

several distinct discriminatory effects. First, the unjustified

segregation of persons with disabilities can stigmatize them

maximum extent appropriate, children with disabilities * * * are

educa.ed with children who are not disabled.”

as incapable or unworthy of participating in community life.

See 136 Cong. Rec. H2603 (daily ed. May 22, 1990) (state-

ment of Rep. Collins) (“To be segregated is to be mis-

understood, even feared,” and “only by breaking down bar-

riers between people can we dispel the negative attitudes

and myths that are the main currency of oppression.”).

Segregation always has the potential to engender or per-

petuate negative attitudes, and when the segregation is

unnecessary for treatment purposes, it is especially likely to

result from and reinforce negative attitudes.

Second, the unjustified segregation of persons with dis-

abilities into institutions imposes a substantial burden on

persons with disabilities that the State does not impose on

persons without disabilities: In order to obtain the medical

or therapeutic services that they need, persons with dis-

abilities must sacrifice their interest in community life, while

persons without disabilities can obtain the services from the

State that they need without sacrificing that important

interest.

Finally, the unjustified segregation of persons with

disabilities into institutions can defeat the statutory

requirement—not disputed by petitioners—that the State

make available to persons with disabilities the same services

that they provide to non-disabled persons. 42 U.S.C. 12132.

When persons with disabilities must obtain the services they

need in an institution, rather than in a community setting,

they are effectively deprived of equal access to parks,

beaches, museums, and other similar public services.

4. The integration regulation’s prohibition against un-

justified segregation of persons in institutions is well-

designed to serve the important goals that Congress sought

to further through enactment of the ADA. In the text of the

Act, Congress stated that its goals “regarding individuals

with disabilities” were to “assure” not only “equality of

opportunity,” but also “full participation, independent living,

and economic self-sufficiency for such individuals.” 42 U.S.C.

12101(a)(8). The Attorney General’s integration regulation

serves all those purposes, while petitioners’ interpretation of

Title II does not.

Indeed, as Congress knew, the isolation of persons with

disabilities can breed fear and stereotypes about persons

with disabilities, which in turn can generate additional

discrimination that spills over into other areas, such as

employment, public accommodations, and transportation.

See 42 U.S.C. 12101(a)(5) (finding persistent discrimination

in those areas); 42 U.S.C. 12101(a)(7) (finding that persons

with disabilities face discrimination as a result of “stereo-

typie assumptions”). The Attorney General properly recog-

nized, as did Congress, that this cycle of discrimination could

perpetuate itself indefinitely unless efforts were taken to

increase interaction between persons with disabilities and

non-disabled persons. The integration regulation promotes

such interaction and thereby helps to erode the negative

stereotypes that continue to impede equality of opportunity.

Prohibiting unjustified segregation of persons in institutions

thus goes hand-in-hand with all the other portions of

the ADA, including the barrier-removal obligations, the

reasonable-accommodation requirements, and the prohibi-

tions on denial of equal benefits and services. All those

provisions promote the common objective of integrating

persons with disabilities into the mainstream of society.

C. The Integration Regulation Does Not Intrude On The

Professional Judgment Of State Treatment Pro-

fessionals And Does Not Impose Undue Costs On

The States

1. Petitioners mistakenly assert (Br. 38) that the integra-

tion regulation intrudes on the treatment decisions of the

State’s health professionals. The integration regulation does

not require a State to provide a community placement when

the State’s treatment professionals determine that such a

placement is not “appropriate,” and that determination is

based on a reasonable professional judgment that is not

affected by extraneous considerations such as administrative

convenience and costs. 28 C.F.R. 35.130(d); see Youngberg,

457 U.S. at 323; Arline, 480 U.S. at 288. Petitioners’ com-

plaint that the integration regulation interferes with state

treatment policy has a particularly hollow ring in this case,

since the State’s own treatment professionals determined.

that the placement of respondents in a community setting

would be appropriate. See p. 2, supra. And Georgia law

expresses a preference for treatment in the most integrated

environment appropriate. Ga. Code Ann. § 37-4-121 (Mitchie

1995) (“It is the policy of the state that the least restrictive

alternative placement be secured for every client at every

stage of his habilitation. It shall be the duty of the facility to

assist the client in securing placement in noninstitutional

community facilities and programs.”).

2. Petitioners are similarly mistaken in their assertion

(Br. 13) that the integration regulation imposes “massive”

costs on the States. As we have noted, the integration

mandate does not apply when compliance would require an

unreasonable change in state policy or a fundamental altera-

tion in the nature of the State’s treatment program. 28

C. F. R. 35.130(b)(7). Costs have a bearing on those inquiries.

As the court of appeals concluded (Pet. App. 28a), if any

additional costs of providing treatment in a community

setting, rather than an institution, were shown to be unrea-

sonable in comparison to a State’s overall mental health

budget, a State would not be required to provide the

treatment in a community setting. Cf. 42 U.S.C. 12111(10)

(B) (factors for determining undue hardship under Title I

include cost and overall financial resources of the covered

entity).

Unsubstantiated claims of such costs, however, are no

substitute for proof. Congress has found that community

placements are less expensive, on average, than institutional

care, S. Rep. No. 139, 97th Cong., Ist Sess. 481 (1981); 8.

Rep. No. 273, 101st Cong., 2d Sess. 7, 25-26 (1990), and

numerous studies have reached the same conclusion.

Accommodating the Spectrum of Individual Abilities,

supra, at 78 (“Virtually all the relevant literature documents

that segregating handicapped people in large, impersonal

institutions is the most expensive means of care.”). Peti-

tioners also acknowledge (J.A. 84-85, 171) that community-

based care of mentally retarded persons is generally less

expensive, on a per-patient basis, than institutional care.

For example, Georgia has estimated (J.A. 171) that it would

cost $30,000 to $60,000 more per person per year to keep

mentally retarded individuals in an institution than it would

cost to move them to a community program and provide

necessary support services.

Moreover, in 1981, Congress enacted a Medicaid “waiver”

program that permits States to apply to the Department of

Health and Human Services (HHS) for a waiver of certain

Medicaid rules in order to offer community-based services.

See 42 U.S.C. 1396n(c). Under the program, the federal

government provides between 50% and 83% of the total

Medicaid costs for community-based care, the same federal

3 It would also be a fundamental alteration to require a State to create

an entirely new community-based program. For example, a State that has

a community-based program that serves persons with mental retardation

would not be required to create a program to serve mentally ill individuals

who are not mentally retarded. A State, however, could be required to

expand existing community-based programs to serve additional eligible

individuals to the extent that such an expansion did not require an unrea-

sonable change in state policy or a fundamental alteration.

contribution that is available for institutional care. 42 U.S.C.

1396d(b). By 1996, HHS had authorized (at Georgia’s re-

quest) matching funds for up to 2109 community placements.

Georgia, however, used only 700 of its “waiver slots.” J.A. 93.

When petitioners ultimately moved respondents to

community placements, they used federal money from the

waiver program to offset a significant portion of the cost of

such care. J.A. 161-164.

At the same time, the federal government’s experience in

operating the Medicaid waiver program has revealed costs

that States may incur in the aggregate in moving persons

from institutions to more integrated settings. If a State is

unable to close or consolidate facilities, it may experience in-

creased overall expenses by funding community placements

without being able to take advantage of the savings

associated with the closure of institutions. If a State is able

to consolidate or close facilities in response to community

placements, the State may still incur the transitional cost of

operating institutions that are only partially full until the

closure or consolidation can be completed. The fixed over-

head costs involved in operating those facilities may negate

the cost savings that States could otherwise achieve by

treating persons in the community rather than in insti-

tutions. See Pet. App. 28a-29a; J.A. 171-172. The availability

of community placements may also increase the aggregate

demand for community services among those not currently

in institutions. For example, persons eligible for treatment

may not have sought it in the past because they were unwill-

ing to receive it in an institution. The increased availability

of community services may prompt such persons to seek

treatment for the first time. See William G. Weissert et al.,

Cost Savings From Home And Community-Based Services:

Arizona's Capitated Medicaid Long-Term Care Program,

22 J. of Health Pol., Pol'y & L. 1329, 1337-1339, 1344 (1997);

Rosalie A. Kane et al., The Heart Of Long-Term Care (1998).

Nonetheless, studies dealing with the elderly suggest that

those concerns can be anticipated and that it appears

possible to design a community placement program that

manages costs and need not produce unreasonable increases

in the overall cost to the State of providing long-term care.

Weissert, supra, 22 J. of Health Pol., Pol'y & L. at 1343,

1345-1347; Kane, supra, at 70-71.

In addition, nothing in the ADA suggests that courts must

ignore the States’ legitimate administrative concerns in

accomplishing the transition of eligible individuals from

institutional to community-based care. The transfer of

eligible persons from institutions to the community is a

multifaceted process that sometimes cannot be accomplished

all at once. Even when treating professionals have evalu-

ated eligible individuals and determined that a community

setting is appropriate, States will need to locate proper

community placements and determine which eligible in-

dividuals should receive priority for available slots. In order

to ensure that this occurs in an orderly fashion, States may

appropriately adopt a plan that addresses various admini-

strative issues, including the order in which eligible persons

will be placed in the community, so as to proceed in a

systematic and prompt way. In determining whether a

public entity has a defense under 28 C.F.R. 35.130(b)(7), a

court may appropriately take into account whether the

publie entity has adopted such a plan to achieve compliance

with the ADA. Ifa State establishes that it has such a plan,

that plan woald serve as a valid defense in situations where a

particular request for a community placement was incon-

sistent with the plan and responding to such a request and

similar requests would so disrupt the orderly implementa-

tion of the plan as to create an unreasonable change in state

policy or a fundamental alteration not required by the ADA.

Petitioners conceded below (J.A. 159) that the costs of

providing services to respondents in the community “are, by

definition, not unreasonable, nor could they ‘fundamentally

alter’ the services provided by the State.” Petitioners con-

tend, however, that the relevant inquiry is the cost of pro-

viding services to all persons who desire it and that the court

of appeals erred in limiting the inquiry to the costs of

providing treatment to respondents. Br. 37-38. In their

question presented to this Court, petitioners did not chal-

lenge the court of appeals’ ruling on that ground. In any

event, the court of appeals did not preclude petitioners from

introducing evidence that they had devised a comprehensive

plan that takes into account the aggregate costs of moving

persons from institutions to community settings, and that

placement of respondents would fundamentally alter that

plan. While the court of appeals instructed the district court

to consider the costs of providing services to the respon-

dents, it also stated that At he district court may also

consider any other factors it believes are relevant to the

fundamental alteration inquiry.” Pet. App. 30a.

D. Petitioners’ Remaining Arguments Are Unpersuasive

Petitioners offer a series of additional arguments intended

to show that the Attorney General’s integration regulation

exceeds the authority conferred by Congress to implement

the Title II mandate against discrimination based on dis-

ability. None is persuasive.

1. Petitioners first contend (Br. 22-29) that, prior to

enactment of the ADA, courts uniformly rejected claims that

Section 504 required placement of persons with disabilities

in the community. Petitioners further contend that Con-

gress intended to incorporate that settled interpretation

when it enacted the ADA. See Bragdon, 118 S. Ct. at 2208.

The premise of petitioners’ argument is incorrect: prior to

enactment of the ADA, there was no settled judicial under-

standing concerning whether Section 504 prohibited the

unjustified segregation of persons with disabilities in insti-

tutions.

Petitioners rely (Br. 26) on several lower-court decisions

to support their view that there was a judicial consensus

rejecting any right to community placement under Section

504. But of the decisions cited by petitioners, three were

decided after Congress enacted the ADA, P.C. v. Me-

Laughlin, 913 F.2d 1033 (2d Cir. 1990); Jackson v. Fort

Stanton Hosp. & Training Sch., 757 F. Supp. 1243 (D. N. M.

1990), rev’d on other grounds, 964 F.2d 980 (10th Cir. 1992);

People First v. Arlington Dev. Ctr., 878 F. Supp. 97 (W.D.

Tenn. 1992)), and one of the cases did not decide the issue,

S. H. v. Edwards, No. C81-877A N. D. Ga. Apr. 10, 1987),

aff'd, 860 F.2d 1045 (11th Cir. 1988), cert. denied, 491 U.S.

905 (1989). More important, petitioners ignore the decisions

that held or assumed that Section 504 requires community

placement in certain circumstances. Kentucky Ass’n for

Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 585 (6th Cir.),

cert. denied, 459 U.S. 1041 (1982); Homeward Bound, Inc. v.

Hissom Mem ! Ctr., No. 85-C-437-E, 1987 WL 27104, at *20-

21 (N.D. Okla. July 24, 1987); Garrity v. Gallen, 522 F. Supp.

171, 213-215 (D.N.H. 1981); Lynch v. Maher, 507 F. Supp.

1268, 1278-1280 (D. Conn. 1981); Halderman v. Pennhurst

State Sch. & Hosp., 446 F. Supp. 1295 (E. D. Pa. 1978), aff'd in

part and rev'd in part, 612 F.2d 84 (3d Cir. 1979), rev'd, 451

U.S. 1 (1981). Thus, before enactment of the ADA, the

question whether Section 504 prohibited unjustified segrega-

tion of persons in institutions was an open one.

Traynor v. Turnage, 485 U.S. 535 (1988), relied upon by

petitioners (Br. 23), does not hold otherwise. That case held

that Section 504 did not repeal a statute that prevented

persons with a disability resulting from their own willful

misconduct (in this case alcoholism) from using educational

benefits provided by the GI bill after the statutory deadline.

The Court found “nothing in the Rehabilitation Act that

requires that any benefit extended to one category of

handicapped persons, also must be extended to other cate-

gories of handicapped persons.” 485 U.S. at 549. Traynor

does not remotely suggest that Section 504 permits the un-

justified segregation of persons in institutions.

Petitioners are also incorrect in their assertion (Br. 28)

that, prior to enactment of the ADA, no federal administra-

tive agency had interpreted Section 504 to prohibit segre-

gation of persons in institutions. The Department of Justice .

argued in the Pennhurst litigation that, in certain circum-

stances, Section 504 prohibits unnecessary institutionaliza-

tion of persons with disabilities. See U.S. Br. at 36-45,

Halderman v. Pennhurst State Sch. & Hosp., No. 78-1490

(filed Oct. 2, 1978). Following Southeastern Community

College v. Davis, 442 U.S. 397 (1979), the Department again

argued that Section 504 prohibits unnecessary institutionali-

zation, but indicated that, in light of Davis, a State could not

be required to create a new system of community facilities

where none existed before. See U.S. Br. at 29, Halderman

v. Pennhurst State Sch. & Hosp., No. 78-1490 (filed Oct. 14,

1981). The Department did not address the question after

Alexander, 469 U.S. at 300-301, and Arline, 489 U.S. at 287

n.17, clarified the meaning of Davis. Because there was no

settled judicial or administrative construction of Section 504

on the question presented in this case prior to enactment of

the ADA in 1990, the fact that Congress generally patterned

Title II of the ADA on Section 504 has no significance here.

2. Petitioners contend (Br. 30-32) that the Attorney

General’s interpretation of Title II conflicts with the Medi-

caid Act, because that Act establishes a preference for care

in institutions rather than the community. As we have

noted, however, the Medicaid Act provides a mechanism by

which States may obtain waivers to treat persons in the

community. Moreover, HHS has a policy of encouraging

States to take advantage of the waiver program, and often

approves more waiver slots than a State ultimately uses.

For example, as we have noted, HHS approved up to 2109

waiver slots for Georgia, but Georgia used only 700. In any

event, nothing in the Medicaid Act prevents the State from

fulfilling its obligations under Title II. To the extent that

the State is unable to utilize funding obtained under the

Medicaid Act to serve all those who are eligible for treat-

ment in the community, it may use its own resources for that

purpose.

Petitioners also contend (Br. 30-32) that the Attorney

General's interpretation of Title II conflicts with the Medi-

caid Act because the Medicaid Act does not provide funding

for the community placement of persons who prefer insti-

tutional care. Neither Title II nor the Attorney General’s

regulations, however, require a State to treat an individual

in the community if that individual prefers treatment in an

institution. See 42 U.S.C. 12201(d); 28 C. F. R. 35.130(e)(1).

Petitioners also err (Br. 32) in attributing “great weight”

to Congress’s failure to pass legislation that would have

made the treatment of persons in the community a require-

ment for receiving Medicaid funds. That legislation would

have gone significantly beyond the requirements in Title II

and the integration regulation. More fundamentally, failed

legislative proposals do not provide a sound basis for deter-

mining the meaning of another statute. Central Bank v.

First Interstate Bank, 511 U.S. 164, 187 (1994).

3. Petitioners contend (Br. 32-33) that the Attorney

General’s interpretation of the integration regulation is

inconsistent with the “clear statement” rule set forth in

Gregory v. Ashcroft, 501 U.S. 452 (1991). In that case, the

Court refused to construe ambiguous language in the Age

Discrimination in Employment Act of 1967, 29 U.S.C. 621

et seq., to require States to alter their practices concerning

when state judges must retire. The Court relied on a canon

of statutory construction that, absent an “unmistakably

clear” expression of intent to “alter the usual constitutional

balance between the States and the Federal Government,” a

court should interpret a statute to preserve rather than

destroy the States’ “substantial sovereign powers.” 501 U.S.

at 460-461. Gregory is inapplicable here for three reasons.

First, contrary to petitioners’ understanding (Br. 33), the

Gregory clear statement rule does not apply simply because

a proposed interpretation of a federal statute would affect

“an area traditionally regulated by the States.” City of

Edmonds v. Oxford House, Inc., 514 U.S. 725, 732 n.5 (1995)

(refusing to apply a clear statement rule to decide whether

the Fair Housing Act, 42 U.S.C. 3601 et seg., applies to

zoning restrictions that limit the number of unrelated

persons that can occupy a home in a residential community).

The clear statement rule applies only when the proposed

interpretation would implicate “a decision of the most

fundamental sort for a sovereign entity.” Ibid. The present

case does not implicate the type of core sovereignty concerns

that were at issue in Gregory. Instead, it is much more akin

to the kind of imposition on traditional state functions at

issue in City of Edmonds.

Second, Gregory's clear statement rule is merely “a rule of

statutory construction to be applied where statutory intent

is ambiguous.” 501 U.S. at 470; Salinas v. United States, 522

U.S. 52, 59-61 (1997). As explained above, Congress’s find-

ings concerning “segregation” and “institutionalization” re-

flect Congress’s clear understanding that the unjustified

segregation of persons in institutions constitutes a form of

discrimination based on disability. And Congress’s instruc-

tion to the Attorney General in 42 U.S.C. 12134, in essence,

required the Attorney General to adopt an integration

regulation covering all services provided by public entities,

including the type of treatment services offered by peti-

tioners in this case. Because there is no ambiguity with

respect to Congress’s intent on the question presented in

this case, the Gregory clear statement rule does not apply.

Finally, even assuming that Congress’s intent is am-

biguous, Congress directed the Attorney General to issue

regulations that would resolve any ambiguities on the scope

of Title II’s nondiscrimination prohibition. 42 U.S.C. 12134.

Since the clear statement rule is nothing more than an aid to

resolving Congress's intent on an issue, that rule is inappli-

cable when Congress expressly delegates authority to an

administrative agency to give content to a general statutory

prohibition. Cf. Fidelity Fed. Sav. & Loan Ass'n v. de la

Cuesta, 458 U.S. 141, 154 (1982) (agency acting within the

scope of its delegated authority may preempt state law, even

though a court acting on its own would not conclude that

Congress preempted state law unless Congress clearly mani-

fested such an intent).

4. Petitioners’ reliance (Br. 33-35) on Pennhurst State

School & Hospital v. Halderman, 451 U.S. 1 (1981), is also

misplaced. The statutory provision at issue there stated that

treatment “should be provided in the setting that is least

restrictive of the person’s personal liberty.“ 42 U.S.C.

6010(2) (1976) (emphasis added). In the absence of any clear

indication that Congress intended through that language to

impese a mandatory obligation on the States, the Court held

that the provision was merely precatory. 451 U.S. at 19. By

contrast, Title II of the ADA, 42 U.S.C. 12132, provides that

“no qualified individual with a disability shall, by reason of

such disability * * * be subjected to discrimination by any

[public] entity” (emphasis added). And the integration

regulation provides that “[a] public entity shall administer

services, programs, and activities in the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.” 28 C.F.R. 35.130(d) (emphasis added). “The

contrast between the congressional preference at issue in

Pennhurst and the antidiscrimination mandate of [Title II

and the integration regulation] could not be more stark.”

Arline, 480 U.S. at 286 n. 15. Pennhurst is therefore inappli-

cable here. See Arline, 480 U.S. at 286 n.15 (holding that

Pennhurst is not applicable to statutes, like Section 504, that

clearly mandate action).

5. Finally, petitioners assert (Br. 44) that the Attorney

General’s interpretation should be rejected in order to avoid

the constitutional question whether Title II as so construed

would exceed congressional authority under Section 5 of the

Fourteenth Amendment. The principle that a statute should

be construed to avoid constitutional doubt is only implicated,

however, when the statute is genuinely ambiguous. Salinas,

522 U.S. at 59-61. For the reasons we have given, there is no

such ambiguity here.

In any event, the prohibition against unjustified segrega-

tion of persons in institutions readily satisfies constitutional

standards. Legislation will be upheld as a valid exercise of

Congress’s power under Section 5 of the Fourteenth Amend-

ment if there is a “congruence and proportionality between

the injury to be prevented or remedied and the means

adopted to that end.” City of Boerne v. Flores, 521 U.S. 507,

520 (1997). The integration mandate of Title II readily

satisfies that test.

Irrational and invidious discrimination on the basis of

disability violates the Equal Protection Clause. City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). More-

over, this Court in Cleburne recognized that “irrational pre-

judice,” 473 U.S. at 450, “irrational fears,” id. at 455

(Stevens, J., concurring), and “impermissible assumptions or

outmoded and perhaps invidious stereotypes,” id. at 465

(Marshall, J., concurring in part and dissenting in part),

existed against persons with disabilities and, at times,

infected governmental decisionmaking. Congress similarly

found that discrimination against persons with disabilities

persists in many contexts and that such discrimination is

often the product of impermissible stereotypes and miscon-

ceptions. 42 U.S.C. 12101(a)(2), (3), (5) and (7).

The integration regulation is a measured response to the

discrimination identified by Congress. It is designed to

increase the interaction between persons with disabilities

and their non-disabled counterparts, thus hastening the

breakdown of the stereotypes that have impeded full

equality. The regulation also serves as a prophylactic safe-

guard against intentionally discriminatory efforts to exclude

persons with disabilities from residential communities. Cf.

Katzenbach v. Morgan, 384 U.S. 641, 654 (1966). At the

same time, the regulation is carefully crafted to avoid undue

burdens on the States. The Title II integration mandate is

therefore well within Congress’s power under Section 5 of

the Fourteenth Amendment.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

GREGORY B. FRIEL

Attorneys

MARCH 1999

APPENDIX

1. Section 12101 of Title 42 of the United States

Code provides in pertinent part:

§ 12101. Findings and purpose

(a) Findings

* * * * *

(2) historically, society has tended to isolate

and segregate individuals with disabilities, and,

despite some improvements, such forms of dis-

crimination against individuals with disabilities

continue to be a serious and pervasive social pro-

blem;

(3) discrimination against individuals with

disabilities persists in such critical areas as em-

ployment, housing, public accommodations, educa-

tion, transportation, communication, recreation,

institutionalization, health services, voting, and

access to public services;

* ** * * *

(5) individuals with disabilities continually

encounter various forms of discrimination, includ-

ing outright intentional exclusion, the discrimina-

tory effects of architectural, transportation, and

communication barriers, overprotective rules and

policies, failure to make modifications to existing

facilities and practices, exclusionary qualification

(la)

2a 3a

standards and eriteria, segregation, and relegation covered entity, factors to be considered

to lesser services, programs, activities, benefits, include

jobs, or other opportunities;

* * * * *

(8) the Nation’s proper goals regarding

individuals with disabilities are to assure equality

of opportunity, full participation, independent

living, and economic self-sufficiency for such in-

dividuals; and

(i) the nature and cost of the accom-

modation needed under this chapter;

(ii) the overall financial resources of

the facility or facilities involved in the

provision of the reasonable accommoda-

tion; the number of persons employed at

such facility; the effect on expenses and

resources, or the impact otherwise of such

accommodation upon the operation of the

facility;

(iii) the overall financial resources of

the covered entity; the overall size of the

business of a covered entity with respect

* * * * *

2. Section 12111 of Title 42 U.S.C. provides in

relevant part as follows: to the number of its employees; the

number, type, and location of its facilities;

§ 12111. Definitions and

8 (iv) the type of operation or opera-

As used in this subchapter: tions of the covered entity, including the

composition, structure, and functions of

the workforce of such entity; the geo-

graphic separateness, administrative, or

(10) Undue hardship fiscal relationship of the facility or

3. Section 12131 of Title 42 of the United States

* * * * *

The term “undue hardship" means an Code provides as follows:

action requiring significant difficulty or expense,

when considered in light of the factors set forth $ 12131. Definitions

in subparagraph (B).

As used in this subchapter:

(B) Factors to be considered

(1) Public entity

In determining whether an accommoda- 2

tion would 'mpose an undue hardship on a The term “public entity” means—

4a 5a

(A) any State or local government;

(B) any department, agency, special

purpose district, or other instrumentality of

a State or States or local government; and

Corporation, and any commuter authority

(as defined in section 24102(4) of title 49).

5. Section 12133 of Title 42 of the United States

Code provides as follows:

§ 12133. Enforcement

. The remedies, procedures, and rights set forth

in section 794a of title 29 shall be the remedies,

procedures, and rights this subchapter provides to

any person alleging discrimination on the basis of

(2) Qualified individual with a disability disability in violation of section 12132 of this title.

The term “qualified individual with a

disability” means an individual with a disability

who, with or without reasonable modifications

to rules, policies, or practices, the removal of

6. Section 12134 of Title 42 of the United States

Code provides as follows:

architectural, communication, or transportation § 12134. Regulations

barriers, or the provision of auxiliary aids and

services, meets the essential eligibility require- (a) In general

ments for the receipt of services or the partici-

pation in programs or activities provided by a

public entity.

Not later than 1 year after July 26, 1990, the

Attorney General shall promulgate regulations in

an accessible format that implement this part. Such

regulations shall not include any matter within the

scope of the authority of the Secretary of Trans-

portation under section 12143, 12149, or 12164 of

this title.

4. Section 12132 of Title 42 of the United States

Code provides as follows:

§ 12132. Discrimination

Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by

reason of such disability, be excluded from partici-

pation in or be denied the benefits of the services,

programs, or activities of a public entity, or be

subjected to discrimination by any such entity.

(b) Relationship to other regulations

Except for “program accessibility, existing

facilities”, and “communications”, regulations under

subsection (a) of this section shall be consistent

with this chapter and with the coordination regu-

lations under part 41 of title 28, Code of Federal

Regulations (as promulgated by the Department of

Health, Education, and Welfare on January 13,

1978), applicable to recipients of Federal financial

assistance under section 794 of title 29. With

respect to “program accessibility, existing faci-

lities”, and “communications”, such regulations

shall be consistent with regulations and analysis as

in part 39 of title 28 of the Code of Federal Regu-

lations, applicable to federally conducted activities

under section 794 of title 29.

7. Section 12182 of Title 42 of the United States

Code provides in pertinent part:

§ 12182. Prohibition of discrimination by public

accommodations

* * * * *

(b) Construction

(1) General prohibition

* * * * *

(B) Integrated settings

Goods, services, facilities, privileges, advant-

ages, and accommodations shall be afforded to an

individual with a disability in the most integrated

setting appropriate to the needs of the individual.

8. Section 35.130 of Title 28 of the Code of

Federal Regulations provides as follows:

§ 35.130 General prohibitions against discrimina-

tion.

(a) No qualified individual with a disability

shall, on the basis of disability, be excluded from

participation in or be denied the benefits of the

services, programs, or activities of a public entity,

or be subjected to discrimination by any public

entity.

(b\1) A publie entity, in providing any aid,

benefit, or service, may not, directly or through

contractual, licensing, or other arrangements, on

the basis of disability—

(i) Deny a qualified individual with a dis-

ability the opportunity to participate in or benefit

from the aid, benefit, or service;

(ii) Afford a qualified individual with a dis-

ability an opportunity to participate in or benefit

from the aid, benefit, or service that is not equal to

that afforded others;

(iii) Provide a qualified individual with a dis-

ability with an aid, benefit, or service that is not as

effective in affording equal opportunity to obtain

the same result, to gain the same benefit, or to

reach the same level of achievement as that

provided to others;

(iv) Provide different or separate aids, bene-

fits, or services to individuals with disabilities or to

any class of individuals with disabilities than is

provided te others unless such action is necessary

to provide qualified individuals with disabilities

with aids, benefits, or services that are as effective

as those provided to others;

(v) Aid or perpetuate discrimination against a

qualified individual with a disability by providing

significant assistance to an agency, organization, or

person that discriminates on the basis of disability

in providing any aid, benefit, or service to bene-

ficiaries of the public entity’s program;

(vi) Deny a qualified individual with a dis-

ability the opportunity to participate as a member

of planning or advisory boards;

(vii) Otherwise limit a qualified individual with

a disability in the enjoyment of any right, privilege,

advantage, or opportunity enjoyed by others re-

ceiving the aid, benefit, or service.

(2) A public entity may not deny a qualified

individual with a disability the opportunity to parti-

cipate in services, programs, or activities that are

not separate or different, despite the existence of

permissibly separate or different programs or

activities.

(3) A public entity may not, directly or

through contractual or other arrangements, utilize

criteria or methods of administration:

(i) That have the effect of subjecting quali-

fied individuals with disabilities to discrimination

on the basis of disability;

(ii) That have the purpose or effect of defeat-

ing or substantially impairing accomplishment of

the objectives of the public entity’s program with

respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of

another public entity if both public entities are

subject to common administrative control or are

agencies of the same State.

(4) A public entity may not, in determining

the site or location of a facility, make selections—

(i) That have the effect of excluding in-

dividuals with disabilities from, denying them the

benefits of, or otherwise subjecting them to discri-

mination; or

(ii) That have the purpose or effect of

defeating or substantially impairing the accomp-

lishment of the objectives of the service, program,

or activity with respect to individuals with dis-

abilities.

(5) A public entity, in the selection of pro-

curement contractors, may not use criteria that

subject qualified individuals with disabilities to

discrimination on the basis of disability.

(6) A public entity may not administer a

licensing or certification program in a manner that

subjects qualified individuals with disabilities to

discrimination on the basis of disability, nor may a

public entity establish requirements for the pro-

grams or activities of licensees or certified entities

10a

that subject qualified individuals with disabilities to

discrimination on the basis of disability. The

programs or activities of entities that are licensed

or certified by a public entity are not, themselves,

covered by this part.

(7) A public entity shall make reasonable

modifications in policies, practices, or procedures

when the modifications are necessary to avoid

discrimination on the basis of disability, unless the

public entity can demonstrate that making the

modifications would fundamentally alter the nature

of the service, program, or activity.

(8) A public entity shall not impose or apply

eligibility criteria that screen out or tend to screen

out an individual with a disability or any class of

individuals with disabilities from fully and equally

enjoying any service, program, or activity, unless

such criteria can be shown to be necessary for the

provision of the service, program, or activity being

offered.

entity from providing benefits, services, or advant-

ages to individuals with disabilities, or to a parti-

cular class of individuals with disabilities beyond

those required by this part.

(d) A public entity shall administer services,

programs, and activities in the most integrated

setting appropriate to the needs of qualified

individuals with disabilities.

lla

(e)(1) Nothing in this part shall be construed

to require an individual with a disability to accept

an accommodation, aid, service, opportunity, or

benefit provided under the ADA or this part which

such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes

the representative or guardian of an individual

with a disability to decline food, water, medical.

treatment, or medical services for that individual.

(f) A public entity may not place a surcharge

on a particular individual with a disability or any

group of individuals with disabilities to cover the

costs of measures, such as the provision of auxiliary

aids or program accessibility, that are required to

provide that individual or group with the nondis-

criminatory treatment required by the Act or this

part.

(g) A public entity shall not exclude or other-

wise deny equal services, programs, or activities to

an individual or entity because of the known

disability of an individual with whom the individual

or entity is known to have a relationship or associa-

tion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.