Amicus Curiae Brief — Tennessee v. Lane

| Supreme Coun. US” 7

riLED

j P 44

No. 02-1667 | NOV 122003 |

In The

Supreme Court of the Gnited States

¢

STATE OF TENNESSEE,

Petitioner,

v.

GEORGE LANE, BEVERLY JONES, AND

UNITED STATES OF AMERICA,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

+

BRIEF OF THE STATES OF KANSAS

AND DELAWARE AMICI CURIAE

IN SUPPORT OF RESPONDENTS

¢

STATE OF KANSAS STATE OF DELAWARE

Office of the Attorney General Office of the Attorney General

Memorial Bldg., 2nd Floor 820 N. French Street

120 SW 10th Avenue Wilmington, Delaware 19801

Topeka, Kansas 66612-1597 (302) 577-8400

(785) 296-2215

Put KLINE M. JANE BRADY

Kansas Attorney General Delaware Attorney General

RALPH JAMES DEZAGO

Assistant Attorney General

Counsel of Record

DAvID W. DAVIES

Deputy Attorney General

HARRY KENNEDY

Assistant Attorney General \

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE STATES ........ 1

SUMMARY OF THE ARGUMENT ................ccceeeeeees 2

QE ctcitnteniennsenriennsiiinnmamenenennsmtinenen 4

I. Fundamental Rights Under The Due Process

II.

III.

Clause Are Distinguishable From Equal Pro-

tection-Based Concerns And Are Entitled To

Greater Protections From Interference By

Government, Including A Protection Against

Application Of Eleventh Amendment Immu-

TR ccccseccsenceconcsnssenstnenetencsenmmsnmmnenenaninnimnatins

Congress Found Ample Evidence Of A Prob-

lem Of Unconstitutional Treatment Of Indi-

viduals With Disabilities, Specifically As To

The Exercise Of Fundamental Rights, And,

Therefore, When Enacting Title II Of The

ADA, Validly Abrogated The States’ Eleventh

Amendment Immunity As To Fundamental

BIO. accosccsceccensncssanmesnenssesnessecenetmammenenements

A. Historic and Enduring Discrimination of

Fundamental Rights..................:cscssseeeeee

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Smo oO ow

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G. Eighth Amendment Violations.................

Congress Validly Abrogated The States’

Eleventh Amendment Immunity In Terms Of

Violations Of Fundamental Rights.................

li

TABLE OF CONTENTS - Continued

Page

A. Congress Made its Intention Clear in the

Language of the Act....... (hevenesnnipnitetmaniens 15

B. Congress Acted in Accordance with its

Enforcement Power Under Section 5 of

the Fourteenth Amendment. ................... 16

C. Abrogation of States’ Immunity Is

Congruent and Proportional.................... 16

ese enE TUTTE iniatiniiinnsiintetdnceinasatadaiidembeenincs oss: 18

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712

EET 2

Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001).......... passim

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct 780

TIT os tinsttesactehenaeiataitehiniehi einen aemeremppeemnemennnnel 5,9

City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct.

EE 5,16

City of Cleburne v. Cleburne Living Ctr., Inc., 473

ON 2,8

Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910 (1998).......... 17

Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752

EE 10

Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970

eee een 14

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011

Ee 13

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S.Ct.

a EEE 15

Lane v. Tennessee, 315 F.3d 680 (6th Cir.

ee 2, 9, 10, 17, 18

Memorial Hospital v. Maricopa County, 415 US.

an 5

Moore v. City of East Cleveland, 431 U.S. 494, 97

A, BE nreccsssencsnenmmmmmeinnieeeamnen 2

Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986).............. 15

iv

TABLE OF AUTHORITIES — Continued

Page

Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382 (1982)............. 4

Popovich v. Cuyahoga County Court of Common

Pleas, 276 F.3d 808 (6th Cir. 2002) ........... 2, 3, 16, 17, 18

Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439 (1993)........... 4

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362

Gave ceserensncnsnenisiesnennunennsenmeninnnienimeniinctaniinnmmmmsiiieadial 5, 10

Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392

[Gere hcicencnvensnnsisuicnnmenpsinensenantnsuannisitusiineneeinasititaeaataliiiml 14

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

ey es Be CD ccccecnceccsnesscecnnsensennncccuninentiltnenes 9

San Antonio Independent School Dist. v. Rodriguez,

8 a eee 5

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

ae SL 2

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116

Ss SEU hirrctssteiieciiriseheiinssieecmensenicniniiniiinhiicalaaiaiamatbaiitias 15

Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322

a ee ee 17

Skinner v. State of Okla. ex rel. Williamson, 316

U.S. 535, 62 S.Ct. 1110 (1942) .............cccccccccccccccececccccseee 5

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208

I ne 13

Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099

Gia eel inessicnsensccinesioracincnrencansttiaintataneieciannnneeeniiiseainamaiiatamtaiaaaaiaiaaia 8

v

TABLE OF AUTHORITIES — Continued

Page

Vacco v. Quill, 521 U.S. 793, 117 S.Ct. 2293 (1997) ........... 5

Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct.

SSS 2,4

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064

Ee 10

Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673

Se 5

STATUTES/OTHER AUTHORITIES

roa 0g DO | 10

0, ———————————————— 10

GRE, Bp a Se ccc cccecsccnnsennqnsessssctescsestenm 1

GE. 6 Fe ccectennnnnseeererieesimmemnsenanenitiinionni 15

i, Br scecccsccmerecesnmanrimmemnmmnnnnntiianiats 7

RO Be i iicncsccncetemmmnmnnn 7

Americans with Disabilities Act of 1989: Hearings

on S. 933 before the Subcomm. on the Handi-

capped and the Senate Comm. on Labor & Hu-

man Res., 101st Cong., lst Sess. 76 (1989) (May

Ee 11

California Att’y Gen., Comm’n on Disability: Final

Rapart 17 Clas. BEGDD........20cc..cccerecscccccsesccscssccccscccnseoconss 13

Equal Access to Voting for Elderly & Disabled

Persons: Hearings Before the Task Force on Elec-

tions of the House Comm. on House Admin., 98th

Cates... Bat Gee, BG (RGGI) q.222eccccccecessccerscccccescccccsccsceeess 11

vi

TABLE OF AUTHORITIES - Continued

Page

M. Burgdorf & R. Burgdorf, A History of Unequal

Treatment, 15 Santa Clara lawyer 855, 863

Sasa ionstletincsBbbidguchebidieniisbbidddbabieiibbbdddidmatscataseassssitbodtetseen 7

Governor 4 Kitzhaber, Proclamation of Human

Rights Day and caer for Oregon’s Forced

Sterilization (Dec. 2, 2002) ...............cccssecceccerceccescereecees 5

New Mexico, Official 2002 General Election Results

I cncrcnnscuiitishttilingneastahiiteth Ssemetenioceiite 8

P. Reilly, The Surgical Soliutiion 2, 148 (1991).................... 8

National Public Radio, Look Back at Oregon’s

History of Sterilizing Residents of State Institu-

TTT PEELE 1 TT 8

2 Staff of the House Comm. on Educ. and Labor,

101st Cong., 2d Sess., Legislative History of Pub.

L. No. 101-336: The Americans with Disabilities

Act 1040 (Comm. Print 1990) .0.....0.....c.:.0ccccccecseeeee passim

Task Force on the Rights and Empowerment of

Americans with Disabilities, From ADA to Em-

powermoent 16 (1900)..........................cccccceeese 6, 12, 13, 14

I 14

I Cini tetincnsitainiiicahnicntnciittliaiiariiliaatiniiapi a 11

1

INTEREST OF THE AMICI CURIAE STATES

This amici curiae brief is submitted on behalf of the

amici curiae States of Kansas and Delaware. The amici

curiae States support a finding by the United States

Supreme Court in favor of Respondents on a limited basis.

In this brief, the amici curiae advocate that Congress

validly abrogated the various states’ Eleventh Amendment

sovereign immunity when it enacted Title II of the Ameri-

cans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-

12165 (“ADA”). However, the amici curiae also advocate

that Congress abrogated Eleventh Amendment immunity

protection relative to Title II of the ADA only to the extent

said immunity obstructs the pursuit or enforcement of

fundamental due process rights. Moreover, the amici

curiae advocate that Congress did not validly abrogate the

states’ Eleventh Amendment immunity protection as to

equal protection-based claims under Title II because doing

so would not have been a “congruent and proportional”

remedy, would have overstepped Congress’ enforcement

powers, and would have been in direct conflict with long-

The amici curiae recognize that fundamental due

process-based rights such as access to the courts, voting,

and privacy issues, represent crucial and historically

significant rights. The amici curiae also recognize that the

states should be leading the fight to eliminate discrimina-

tion against persons with disabilities as to the exercise of

their fundamental rights. Therefore, in order to encourage

full pursuit and protection of fundamental rights, the

staan should not be tesmmune from damage claims brought

2

by individuals under Title II of the ADA for violations that

implicate a citizen’s fundamental due process rights.

+

SUMMARY OF THE ARGUMENT

This Court has recognized that people with disabili-

ties suffer discrimination resulting from irrational fears,

prejudices and ignorance. See, e.g., Alexander v. Choate,

469 U.S. 287, 105 S.Ct. 712 (1985); City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 482 (1985); School Bd.

of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123

(1987). Unfortunately, people with disabilities have suf-

fered discrimination in areas that directly affect funda-

mental due process rights. See Popovich v. Cuyahoga

County Court of Common Pleas, 276 F.3d 808 (6th Cir.

2002) and the instant case Lane v. Tennessee, 315 F.3d 680

(6th Cir. 2003). These fundamental rights are “deeply

rooted in this Nation’s history and tradition.” See Wash-

ington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258,

2267-68 (1997) (qwotimg Moore v. City of East Cleveland,

431 U.S. 494, 503, 97 S.Ct. 1982, 1938 (1977)). As such, it

is imperative that the states strive to eliminate discrimi-

nation that affects these fundamental rights. One way of

doing so is %o recognize the fact that Congress validly

abrogated the states’ Eleventh Amendment immunity, in

terms of these fundamental rights, when it enacted Title II

of the ADA.

It is clear that Congress, when enacting the ADA, held

numerous hearings and documented the past history of

discrimination against disabled persons, including signifi-

cant testimony in the legislative record regarding in-

fringement of fundamental rights. It is also clear that, in

addition to hearing testimony and gathering evidence

3

related to infringement of fundamental rights, Congress

also heard testimony and gathered evidence related to

equal protection-based concerns.

While any discrimination exhibited against a class of

persons is abhorrent, Congress does not have the author-

ity, as Respondents and certain amici suggest, to create

new suspect or quasi-suspect classes in order to address

equal protection-based concerns like those reviewed and

documented in the legislative record during passage of the

ADA. However, Congress does have the authority to

address barriers or discrimination affecting fundamental

rights due to the heightened scrutiny attributed to funda-

mental rights.

In enacting Title II, Congress provided for a congruent

and proportional remedy for widespread constitutional

violations by the states in terms of fundamental rights. It

is clear that Congress initiated Title II legislation to

remedy and deter continued discrimination against people

with disabilities with respect to governmental functions in

the area of fundamental rights. Accordingly, as limited to

these fundamental rights, Title II was a valid exercise of

Congress’ Section 5 power.

In enacting Title II, Congress did not go so far as

enacting the game congruent and proportional legislative

remedies when equal protection-based purposes are

concerned. This is so, because any attempt to do so would

have exceeded Congress’ enforcement powers — essentially

carving out a new protected class of persons — and would

have been in direct violation of the Constitution. See

Popovich v. Cuyahoga County Court of Common Pleas, 276

F.3d 808 (6th Cir. 2002).

4

ARGUMENT

I. Fundamental Rights Under The Due Process

Clause Are Distinguishable From Equal Protec-

tion-Based Concerns And Are Entitled To Greater

Protections From Interference By Government,

Including A Protection Against Application Of

Eleventh Amendment Immunity.

Fundamental rights under the Due Process clause, as

documented in the legislative record during passage of the

ADA, are distinguishable from equal protection-based

concerns documented in the same record.

This Court has “long recognized that the Fourteenth

Amendment’s Due Process Clause, like its Fifth Amend-

ment counterpart, ‘guarantees more than fair process.’”

Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060

(2000) (quoting Washington v. Glucksberg, 521 U.S. 702,

719, 117 S.Ct. 2258, 2267 (1997)). The Due Process Clause

also includes a substantive component that “provides

heightened protection against government interference

with certain fundamental rights and liberty interests.” Jd.;

see also Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct.

1439, 1447 (1993). Statutes affecting fundamental consti-

tutional rights must be drawn with precision and must be

tailored to serve their legitimate objectives; if there are

other, reasonable ways to achieve those goals with a lesser

burden on constitutionally protected activity, a state must

choose the least restrictive means. Plyler v. Doe, 457 U.S.

202, 102 S.Ct. 2382 (1982), reh’g denied, 458 U.S. 1131

(1982).

In determining whether a particular state law in-

fringes on a fundamental right or interest so as to require

strict judicial scrutiny, the United States Supreme Court

5

does not pick out particular human activities or conduct,

characterize them as “fundamental,” and give them added

protection, rather, the Court simply recognizes, as it must,

an established constitutional right, and gives to that right

no less protection than the Constitution itself demands.

San Antonio Independent School Dist. v. Rodriguez, 411

U.S. 1, 31, 93 S.Ct. 1278, 1296 (1973), reh’g denied, 411

U.S. 959 (1973). The equal protection clause “creates no

substantive rights,” but rather, “it embodies general rule

that states must treat like cases alike but may treat

unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799,

117 S.Ct. 2293, 2297 (1997). This Court has also confirmed

“the long-settled principle that it is the responsibility of

the Court, not Congress, to define the substance of consti-

tutional guarantees.” Board of Trustees of the University of

Alabama v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 963

(2001) (citing City of Boerne v. Flores, 521 U.S. 507, 519-

24, 117 S.Ct. 2157, 2163-67 (1997)).

The amici curiae advocate that fundamental rights

that must be protected by eliminating the States’ applica-

tion of Eleventh Amendment Immunity include: the right

to vote Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct.

1362, 1381 (1964); access to the courts Boddie v. Con-

necticut, 401 U.S. 371, 378-79, 91 S.Ct 780, 786-87 (1971);

certain privacy rights, including the right of procrea-

tion Skinner v. State of Okla. ex rel. Williamson, 316 U.S.

535, 62 S.Ct. 1110 (1942), and the right to marry

Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673 (1978); and

interstate travel Memorial Hospital v. Maricopa County,

415 U.S. 250, 94 S.Ct. 1076 (1974).

Violations of these fundamental rights, including acts

of discrimination affecting these fundamental rights, must

be eliminated. That is exactly what Congress attempted to

6 7

do when it enacted Title II of the ADA and validly abro- | A. Historic and Enduring Discrimination of

gated the States’ Eleventh Amendment immunity as to | Fundamental Rights

fundamental rights. Numerous States have restricted the rights of physi-

+ cally disabled people tc enter into contracts. United States

Civil Rights Comm’n Accommodating the Spectrum of

II. Congress Found Ample Evidence Of A Problem Individual Abilities (Spectrum) 40. Until 1977, the State of

% Of Unconstitutional Treatment Of Individuals Kansas prevented marriage between developmentally

With Disabilities, Specifically As To The Exer- disabled persons. See K.S.A. 23-120.

cise Of Fundamental Rights, And, Therefore, a : P

When Enacting Title II Of The ADA, Validly Ab- Amazingly, some cities enacted ugly laws,’ that

rogated The States’ Eleventh Amendment Im- prohibited the physically disabled from appearing in

munity As To Fundamental Rights. ; public. M. Burgdorf & R. Burgdorf, A History of Unequal

Treatment, 15 Santa Clara lawyer 855, 863 (1974). Chi-

Congress engaged in extensive study and fact-finding cago's law provided:

concerning the problem of discrimination against persons

with disabilities and set forth in the legislative record a No person who is diseased, maimed, mutilated or

in any way deformed so as to be an unsightly or

history of discrimination against disabled persons as to . , ;

their fundamental rights.’ disgusting object or improper person to be al-

lowed in or on the public ways or other public

places in tivis city, shall therein or thereon expose

, ; ; ; himself to public view, under a penalty of not less

Congress held 13 hearings devoted specifically to consideration of

the Disabilities Act. See Garrett, 531 U.S. at 389-90 (Breyer, J., than one dollar nor more than fifty dollars for

dissenting) (listing hearings). In addition, a congressionally designated each offense.

Task Force held 63 public forums across the country that were attended : ;

by more than 30,000 individuals. See Task Force on the Rights and Id. (quoting ordinance).

Empowerment of Americans with Disabilities, From ADA to Empower- 7 . _

ment 16 (1990) (Task Force Report). The Task Force presented evidence Additionally, until 1968, the State of Kansas requir

to Congress submitted by nearly 5,000 individuals documenting the a disabled person to provide a doctor’s note or statement if

roblems with discrimination persons with disabilities face daily — often . :

—" the hands of state and local governments. See 2 Staff of A anes that person could not register to vote in person. See K.S.A.

Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History 25-1234.

of Pub. L. No. 101-336: The Americans with Disabilities Act 1040

(Comm. Print 1990) (Leg. Hist.). See also Task Force Report 16. The

Task Force submitted those “several thousand documents” evidencing

“massive discrimination and segregation in all aspects of life” to Pee

Congress, 2 Leg. Hist. 1324-25, as part of the official legislative history States lodged with the Clerk a complete set of those submissions. Sce

of the Disabilities Act. See id. at 1336, 1389. In Garrett, the United 531 U.S. at 391-424 (Breyer, J., dissenting).

(Continued on following page)

8

The involuntary sterilization of the disabled is not

distant history; it continued into the 1970s, and occasion-

ally even into the 1980s — well within the lifetime of many

current governmental decision makers. P. Reilly, The

Surgical Solution 2, 148 (1991) (Reilly); National Public

Radio, Look Back at Oregon’s History of Sterilizing Resi-

dents of State Institutions (Dec. 2, 2002). As recently as

1983, fifteen States continued to have compulsory sterili-

zation laws on the books. Spectrum 37; see also Stump v.

Sparkman, 435 U.S. 349, 351, 98 S.Ct. 1099 (1978) (Indi-

ana judge ordered the sterilization of a “somewhat re-

tarded” 15 year old girl); Reilly at 148-60.

Until the late 1970s, “peonage was a common practice

in [Oregon] institutions.” Governor J. Kitzhaber, Procla-

mation of Human Rights Day and Apology for Oregon’s

Forced Sterilization (Dec. 2, 2002). As of 1979, “most

States still categorically disqualified ‘idiots’ from voting,

without regard to individual capacity and with discretion

~ to exclude left in the hands of low-level election officials.”

Cleburne, 473 U.S. at 464 (Marshall, J., concurring). New

Mexico recently reaffirmed its unqualified exclusion of

“idiots [and] insane persons” from voting. New Mexico,

Official 2002 General Election Results by Office (Dec.

2002).

It is evident from the legislative record that Congress

discerned a substantial risk that persons with disabilities

will be unconstitutionally denied the opportunity to

exercise fundamental rights. Therefore, the amici curiae

advocate that the enactment of Title II abrogated the

States’ sovereign immunity regarding fundamental rights.

9

B. Access to the Courts

The Fourteenth Amendment protects the rights of

civil litigants, criminal defendants, and members of the

public to have access to the courts. See, e.g., Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814

(1980); see also Boddie v. Connecticut, 401 U.S. 371, 378-

79, 91 S.Ct 780, 786-87 (1971). Yet Congress learned that

“(t]he courthouse door is still closed to Americans with

disabilities” — literally. 2 Legislative History of the Ameri-

cans with Disabilities Act (Leg. Hist.) 936 (Sen. Harkin).

“I went to the courtroom one day and *** I could

not get into the building because there were

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

the security guard to help me, who *** told me

there was an entrance at the back door for the

handicapped people. *** I went to the back door

and there were three more stairs for me to get

over to be able to ring a bell to announce my ar-

rival so that somebody would come and open the

door and maybe let me in. *** This is the court

system that is supposed to give me a fair hear-

ing. It took me 2 hours to get in. *** And when

[the judge] finally saw me in the courtroom, he

could not look at me because of my wheelchair.

*** The employees of the courtroom came back to

me and told me, ‘You are not the norm. You are

not the normal person we see every day.’”

Id. at 1070-1071 (Emeka Nwojke).

Such differential treatment affects not only the ability

to get into the courthouse, but also the ability to be heard

and participate effectively and meaningfully in judicial

proceedings. For instance, in this case, Respondent Lane

was summoned to appear at the Polk County Courthouse

in Benton, Tennessee. Lane v. Tennessee, 315 F.3d 680 (6th

10

~

Cir. 2003) (No. 98-6730). All court proceedings in that

courthouse took place on the second floor. Jd. At his first

appearance, Lane crawled up the stairs to the courtroom

where he was arraigned and ordered to appear at a later

date for his hearing. Jd. Lane returned for the hearing, but

refused to climb to the courtroom and refused to be carried

by officers. Jd. The court then ordered Lane’s arrest and he

was jailed. Jd. Such egregious intrusion on a person’s

fundamental rights should not be protected under the

guise of Eleventh Amendment immunity.

C. Voting

This Court has stated that “[uJndoubtedly, the right of

suffrage is a fundamental matter in a free and democratic

society. Especially since the right to exercise the franchise

in a free and unimpaired manner is preservative of other

basic civil and political rights, any alleged infringement of

the right of citizens to vote must be carefully and meticu-

lously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 561-

62, 84 S.Ct. 1362, 1381 (1964); Evans v. Cornman, 398

U.S. 419, 422, 90 S.Ct. 1752, 1755 (1970) (“moreover, the

right to vote, as the citizen’s link to his laws and govern-

ment, is protective of all fundamental rights and privi-

leges” citing Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct.

1064, 1071 (1886)).

However, in making its findings relative to enactment

of the ADA, Congress found that persons with disabilities

have been “relegated to a position of political powerless-

ness,” 42 U.S.C. § 12101(a)\(7), and continue to be sub-

jected to discrimination in voting. 42 U.S.C. § 12101(a)(3).

Congress made such findings after hearing testimony that

“people with disabilities have been turned away from the

11

polling places after they have been registered to vote

because they did not look competent.” 2 Leg. Hist. 1220

(Nancy Husted-Jensen).

Furthermore, Congress learned that when one witness

turned in the registration card of a voter who has cerebral

palsy and was blind, the “clerk of the board of canvassers

looked aghast and said to me, ‘Is that person competent? .

Look at that signature,” and then invented a reason to

reject the registration. Jd. at 1219. Additionally, one deaf

voter was told that “you still have to be able to use your

voice” to vote. Equal Access to Voting for Elderly & Dis-

abled Persons: Hearings Before the Task Force on Elec-

tions of the House Comm. on House Admin., 98th Cong.,

lst Sess. 94 (1984) (Equal Voting Hearings).

Another voter with a disability was “told to go home

once when I came to the poll and found the voting ma-

chines down a flight of stairs with no paper ballots avail-

able;” on another occasion that voter “had to shout my

choice of candidates over the noise of a crowd to a precinct

judge who pushed the levers of the machine for me, feeling

all the while as if I had to offer an explanation for my

decisions.” Equal Voting Hearings 45. See also Garrett, 531

U.S. at 391-424 (Breyer, J., dissenting) (citing additional

examples).

The legislative record also documented that many

persons with disabilities “cannot exercise one of your most

basic rights as an American” because polling places or

voting machines are inaccessible. See S. Rep. No. 116 at

12. As a consequence, persons with disabilities “were

forced to vote by absentee ballot before key debates by the

candidates were held.” Id.; see also Americans with Disabili-

ties Act of 1989: Hearings on S. 933 before the Subcomm. on

12

the Handicapped and the Senate Comm. on Labor &

Human Res., 10lst Cong., lst Sess. 76 (1989) (May 1989

Hearings). Voting by absentee ballot also “deprives the

disabled voter of an option available to other absentee

voters, the right to change their vote by appearing person-

ally at the polls on election day.” 2 Leg. Hist. 1745

(Nanette Bowling).

D. Fourth Amendment Rights

The legislative history of the passage of the ADA,

demonstrated that persons with disabilities have been

victimized in their dealings with law enforcement, in

violation of their Fourteenth Amendment right to due

process and Fourth Amendment protection from unrea-

sonable searches and seizures.

When police in Kentucky learned that a man they

arrested had AIDS, “{iJnstead of putting the man in jail,

the officers locked him inside his car to spend the night.” 2

Leg. Hist. 1005 (Belinda Mason). Police also refused te

accept a rape complaint from a blind woman because she

could not make a visual identification. Task Force Report

(NM 1081).’ A person in a wheelchair was given a ticket

and six months probation for obstructing traffic on the

street, even though the person could not use the sidewalk

because it lacked curb cuts. Jd. (VA 1684).

* See supra footnote 1, describing Task Force on the Rights and

Empowerment of Americans with Disabilities, From ADA to Empower-

ment (Task Force Report). In Garrett, the complete set of Task Force

submissions were cited by state and bates stamp number. See Garrett,

531 U.S. at 391-424.

13

Task Force Chairman Justin Dart testified, moreover,

that persons with hearing impairments “have been ar-

rested and held in jail over night without ever knowing

their rights nor what they are being held for.” 2 Leg. Hist.

1331. A parole agent “sent a man who uses a wheelchair

back to prison since he did not show up for his appoint-

ments even though *** he could not make the appoint-

ments because he was unable to get accessible

transportation.” California Att’y Gen., Comm’n on Disabil-

ity: Final Report 17, 81 (Dec. 1989). Other instances of

discrimination revealed in the legislative record included

situations where 1) a sheriff threatened persons with

disabilities who stop in town due to car trouble, 2 Leg.

Hist. 1115 (Paul Zapun); 2) a police officer taunted witness

by putting a gun to her head and pulling the trigger on an

empty barrel, “because he thought it would be ‘funny’ since

I have quadraparesis and couldn’t flee or fight;” Jd. at 1197

and 3) six wheelchair users arrested for failing to leave

restaurant after manager complained that “they took up

too much space.” Task Force Report 21.

E. Parenting Rights

This Court has long recognized that the Constitution

protects and respects the sanctity of the parent-child

relationship. See, ¢.g., Troxel v. Granville, 530 U.S. 57

(2000); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208

(1972). In addition, the Due Process Clause requires

States to afford individuals with disabilities fair child

custody proceedings, including the opportunity to be heard

“at a meaningful time and in a meaningful manner.”

Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011 (1970).

Another government agency refused to authorize a cou-

ple’s adoption of a child solely because the woman had

14

muscular dystrophy. Task Force Report (MA 829). “(Being

paralyzed has meant far more than being unable to walk —

it has meant being *** deemed an ‘unfit parent’” in

custody proceedings. H.R. Rep. No. 485, Pt. 2, at 41.

“Historically, child-custody suits almost always have

ended with custody being awarded to the non-disabled

parent.” 2 Leg. Hist. 1611 n.10 (Arlene Mayerson).

F. Licensing

The hearings on the ADA documented evidence of a

woman who was denied a teaching credential, not because

of her substantive teaching skills, but because of her

paralysis. H.R. Rep. No. 485, supra, Pt. 2, at 29. See also 2

Leg. Hist. 1611 n.9 (Arlene Mayerson) (teaching license

denied “on the grounds that being confined to a wheelchair

as a result of polio, she was physically and medically

unsuited for teaching”); Task Force Report (CA 261)

(discrimination in licensing teachers); Jd. (TX 1549) (state

licensing requirements for teaching deaf students include

the ability to hear); Jd. (TX 1528 & 1542) (interpreters and

readers not allowed for licensing exams); Jd. (TX 1543)

(blind applicant not allowed to take state chiropractor’s

exam because she could not read x-ray without assis-

tance).

G. Eighth Amendment Violations

The Eighth Amendment protects inmates with dis-

abilities against treatment that is deliberately indifferent

to their serious medical needs and safety or imposes

wanton suffering. Farmer v. Brennan, 511 U.S. 825, 114

S.Ct. 1970 (1994); Rhodes v. Chapman, 452 U.S. 337, 347,

101 S.Ct. 2392 (1981). But Congress heard that “their

jailers rational[ize] taking away their wheelchairs as a

15

form of punishment as if that is different than punishing

prisoners by breaking their legs.” 2 Leg. Hist. 1190 (Cindy

Miller). Another prison guard repeatedly assaulted

paraplegic inmates with a knife, forced them to sit in their

own feces, and taunted them with remarks like “crippled

bastard” and “[you] should be dead.” Parrish v. Johnson,

800 F.2d 600, 603, 605 (6th Cir. 1986).

III. Congress Validly Abrogated The States’ Elev-

enth Amendment Immunity In Terms Of Vio-

lations Of Fundamental Rights.

Congress validly abrogated state sovereign immunity

in Title II with regard te the fundamental rights discussed

above. Congress may abrogate the States’ Eleventh

Amendment immunity from suit in federal court if two

requirements are met. First, Congress must make its

intention to abrogate “unmistakably clear in the language

of the statute.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62,

73, 120 S.Ct. 631 (2000) (citations omitted). Second,

Congress must act in accordance with its enforcement

power under Section 5 of the Fourteenth Amendment.

Garrett, 531 U.S. at 364; Kimel, 528 U.S. at 80; Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 59, 116 S.Ct. 1114

(1996).

A. Congress Made its Intention Clear in the

Language of the ADA.

In adopting Title II, Congress clearly stated its inten-

tion to abrogate the States’ Eleventh Amendment immu-

nity: “A State shall not be immune under the Eleventh

amendment to the Constitution of the United States from

an action in Federal or State court of competent jurisdic-

tion for a violation of this chapter.” 42 U.S.C. § 12202.

16

Therefore, the remaining issue before the Court is whether

Title II of the ADA constitutes a valid exercise of Congress’

Section 5 power.

B. Congress Acted in Accordance with its En-

forcement Power Under Section 5 of the

Fourteenth Amendment.

To be valid under Section 5, Congressional enactments

“must exhibit ‘congruence and proportionality between the

injury to be prevented or remedied and the means adopted

to that end.’” Garrett, 531 U.S. at 365 (quoting City of

Boerne v. Flores, 521 U.S. 507, 520 (1997)). As discussed,

Congress, in enacting Title II of the ADA, identified the

history of discrimination as to fundamental rights. Con-

gress then sought to remedy discrimination against those

fundamental rights by enacting legislation that was

“congruent and proportional” in light of the heightened

standard of scrutiny attributed to those fundamental

rights.

C. Abrogation of States’ Immunity Is Congru-

ent and Proportional.

In Garrett, this Court found that Title I is not congru-

ent with the Equal Protection Clause because it greatly

expands “discrimination” liability by creating a very large

new suspect class of plaintiffs. Popovich, 276 F.3d at 812.

Further, in the Garrett decision the majority of this Court

established that disability discrimination deserves a

rational basis review and that Congress may not go beyond

this standard in applying the Equal Protection Clause by

imposing new liabilities on the States by creating a new

17

suspect class. Jd. This rationale should apply equally to

Title I and Title II of the ADA.

The constitutional balance under Title II, however, is

quite different. Title IJ, unlike Title I, encompasses vari-

ous due process type claims with varying standards and is

not limited to Equal Protection. Much of the identified

state conduct interferes with or threatens the fundamental

rights of individuals with disabilities. Such violations are

subject to a more intense scrutiny and persons, regardless

of class status, cannot be excluded from voting, participat-

ing in court proceedings or raising their children “unless

shown to be necessary to promote a compelling govern-

mental interest.” Shapiro v. Thompson, 394 U.S. 618, 634,

89 S.Ct. 1322 (1969), overruled in part on other grounds,

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347 (1974); see

also Troxel, 530 U.S. at 65 (plurality opinion); Clark v.

Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910 (1988). Congress

is well within its express authority under Section 5 to

require states to accommodate disabilities as Congress is

enforcing the Due Process right rather than expanding it.

Popovich, 276 F.3d at 815.

In the present case before the Court, Respondent

Lane, who is a person with quadriplegia and uses a wheel-

chair for mobility, found himself in the Polk County

Courthouse. Lane v. Tennessee, 315 F.3d 680. The court

room in which Respondent was to appear was located on

the second floor, with no elevators to provide access to the

upper floors of the Courthouse. Jd. The Respondent at a

previous hearing faced with this circumstance was forced

to drag himself up two flights of stairs. Jd. On the occa-

sion, which led to this cause of action, the Respondent,

when given the choice to either again drag himself to the

second floor or endure the prospect of being carried,

refused and was subsequently arrested and jailed upon the

18

court’s order. Jd. Respondent was denied the opportunity

to meaningfully participate in an adversary court proceed-

ing. Id. Consequently, as evidenced in the instant case, a

state’s failure to accommodate Plaintiff’s disability may

greatly increase the risk of error in proceeding, precluding

one side from responding to charges made by the opposing

party, an essential element of our adversary proceeding.

Popovich, 276 F.3d at 815.

Congress properly abrogated States’ Eleventh

Amendment immunity for citizens’ fundamental rights.

Such an abrogation would be congruent and proportional

as Congress was not creating a new suspect class as cited

in Garrett; or creating new liabilities for the states.

Rather, it was merely enforcing rights that already exist

for all citizens, due to the heightened scrutiny associated

the those rights, that are expressly contained within or

implicitly implied in the text of the Constitution.

The Petitioner’s action should be barred by th» Elev-

enth Amendment insofar as the action relied on Congres-

sional enforcement of the Equal Protection Clause,

however, it should not be barred insofar as any ab:ogation

would rely upon the congressional enforcement for the Due

Process Clause. Popovich, 276 F.3d at 812.

+

CONCLUSION

Faced with well-documented incidents of state

discrimination against people with disabilities affecting

fundamental Due Process rights, Congress enacted a

comprehensive and legislative response that recognized

the States’ central role in the provision of fundamental

government functions, such as access to the courts, voting,

and the ability to petition government officials.

19

Title II involves, in part, an area of regulation for

which people with disabilities have no options. That is,

governments have a central role in providing fundamental

government functions, and should strive to ensure that

those functions are performed in a manner that does not

impede the fundamental rights of its citizens.

Because of the states’ central role, a limitation on the

ability of people with disabilities to enforce Title II against

the States, in terms of pursuing the enforceinent and protec-

tion of fundamental rights, may substantially diminish Title

II's effectiveness. In this limited situation, the Court should

grant Congress reasonable latitude in crafting remedies that

people with disabilities can use without restriction.

For the foregoing reasons, this Court should find in

favor of the Respondents and hold that Congress, pursuant

to Section 5 of the Fourteenth Amendment, in enacting Title

II of the ADA, validly abrogated the states’ sovereign immu-

nity as to issues affecting fundamental due process rights.

Dated: November 12, 2003

Respecifully submitted,

PHILL KLINE M. JANE BRADY

Kansas Attorney General Delaware Attorney General

RALPH JAMES DEZAGO

Assistant Attorney General

Counsel of Record

DavID W. DAVIES

Deputy Attorney General

HARRY KENNEDY

Assistant Attorney General

Attorneys for Amici Curiae States Kansas and Delaware