Amicus Curiae Brief — Goodman v. Georgia

| "FILED

7. g

o gZ JUL 29 2005

Nos. 04-1203 and 04-1236

eee

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

STATE OF GEORGIA, et al.,

Respondents.

TONY GOODMAN, |

Petitioner,

v.

STATE OF GEORGIA, et al.,

Respondents.

On Writs oF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BrieF Or Amici CuriAeE THe LAwyers’ COMMITTEE For

Crvit Ricuts Unper Law, NATIONAL ASIAN PACIFIC AMERICAN

LEGAL CONSORTIUM, PEOPLE For THE AMERICAN Way FOUNDATION

& Tue NATIONAL ASSOCIATION For THE ADVANCEMENT OF

COLORED Peop.e IN Support OF PETITIONERS

BARBARA R. ARNWINE CHARLES LEsTER, Jr.

Joun C. BRITTAIN Counsel of Record

MICHAEL L. FOREMAN Davip I. ADELMAN

Ossal MIAZAD ANpDREW W. Broy

THe Lawyers’ COMMITTEE SUTHERLAND ASBILL

ror Civic RiGHTs UNDER Law & BRENNAN LLP

1401 New York Avenue, NW 999 Peachtree Street, NE

Suite 400 Atlanta, GA 30309

Washington, DC 20005 (404) 853-8000

(202) 662-8600

(Additional Counsei listed on inside cover)

195777 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

or aR ae

ns

i

QUESTION PRESENTED “

Whether, and to what extent, Title II of the American

with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12165

(2002), validly abrogates state sovereign immunity for suits

by prisoners with disabilities challenging discrimination by

State-operated prisons?

TABLE OF CONTENTS

QUESTION PRESENTED .............+++04--

TABLE OF CONTENTS .......--ceeeceeeeces

TABLE OF CITED AUTHORITIES ............

INTEREST OF AMICI CURIAE ..........++++:

STATEMENT OF THE CASE .............+...--

SUMMARY OF ARGUMENT .............+.+.--.

ARGUMENT .....0++0+0000000s00nneennee

L.

TITLE II OF THE ADA GUARANTEES THE

FUNDAMENTAL RIGHTS AND LIBERTIES

OF INDIVIDUALS WITH DISABILITIES.

UNDER THE ANALYSIS SET FORTH

IN LANE, TITLE Il IS APPROPRIATE

LEGISLATION UNDER § 5 OF THE

FOURTEENTH AMENDMENT. .........

A. Title II Is Intended to Guarantee

Individuals with Disabilities Equal

Opportunity to Obtain Vital Services and

to Exercise Fundamental Rights and

Lieshes. 2c cccccccccesecescossess

Page

10

Contents

Page

B. Congress Supported Title II With Specific

Findings Concerning the Pervasiveness of

State Discrimination Against Individuals

with Disabilities in the Provision of

Programs and Services. ............. 12

C. The Substantive and Remedial Provisions

of Title II are Proportional and Congruent

to the Rights Protected by the

DE Sbnscctcestceceed Meeess 14

lil. THE RIGOROUS STANDARD OF

REVIEW RECENTLY APPLIED TO § 5

LEGISLATION SHOULD BE ABANDONED

BECAUSE IT UNDULY COMPROMISES

CONGRESSIONAL POWER. ........... 20

ET ei wbetedesbecussecdecccccscse 29

:

iv '

TABLE OF CITED AUTHORITIES

Page

CASES

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103

SED .cenacecvocaveeeeveséseesseqneahat 2

Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356 (2001) .............4.. passim

Bragdon v. Abbott, 524 U.S. 624 (1998) ......... 15

Burroughs v. United States, 290 U.S. 534 (1934) .. 29

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

Cruz v. Beto, 405 U.S. 319 (1972) .............. x

Duncan v. Louisiana, 391 U.S. 145 (1968) ....... x

Eastland v. United States Servicemen's Fund, 421 U.S.

SUR GRSEED cccceccéesstacdccceseeagsesess< 26

Estelle v. Gamble, 429 U.S. 97 (1976) ......... 8,11, 18

FCC v. Beach Communications, 508 U.S. 307

TEED ccoccesccosnsbontcescébecesesensocés 23

Field v. Clark, 143 U.S. 649 (1892) ............. 26

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ........ 28

Garcia v. San Antonio Metropolitan Transit Authority,

— JER fT) Peers ree 28

Gravel v. United States, 408 U.S. 606 (1972) ..... 26

a ll

Vv

Cited Authorities

Page

Harper v. Virginia Board of Elections, 383 U.S. 663

EOEEED wo céesvens dvuuwaledscoudecuiede dee 16, 17

Hope v. Pelzer, 536 U.S. 730 (2002) ............ 18

Hudson v. Palmer, 468 U.S. 517 (1984) ......... 8

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

Pe ee re eae 21

Johnson v. California, 125 §. Ct. 1141 (2005) . 13, 17, 18

Katzenbach v. Morgan, 384 U.S. 641 (1966) ...... 6, 21

Kimel v. Florida Board of Regents, 528 U.S. 62

Fe err Sn ea ee ee passim

LaF aut v. Smith, 834 F.2d 389 (C.A.4 1987) ...... 21

Lewis v. Casey, 518 U.S. 343 (1996) ............ 8, 18

Lopez v. Monterey County, 525 U.S. 266 (1999) ... 2

M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316

CRREED occdvenvececensbiveeuenos cuceaut 6, 20, 27

Medical Board of California v. Hason, 537 U.S. 1028

(2002), cert. dismissed, 123 S. Ct. 1779 (2003)

- leet. |

vi

Cited Authorities

Page )

Nevada Department of Human Resources v. Hibbs,

S38 UB. T28 GAGGED cc cccccccccccccccccces 2, 6, 14

Olmstead v. Zimring, 527 U.S. 581 (1999) ....... 15

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) -

Overton v. Bazzetta, 539 U.S. 126 (2003) ........ 17

Pell v. Procunier, 417 U.S. 817 (1974) .......... 17

Pennsylvania Department of Corrections v. Yeskey,

534 UB. FES CIGD ccccccccescccsccss 7, 11, 12, 13

Procunier v. Martinez, 416 U.S. 396 (1974) ...... 17

Romer v. Evans, 517 U.S. 620 (1996) ........... 10

Sandin v. Conner, 515 U.S. 472 (1995) .......... 8

Seminole Tribe v. Florida, 517 U.S. 44 (1996) .... 9

Shapiro v. Thompson, 394 U.S. 618 (1969) ....... 17

Skinner v. Oklahoma, 316 U.S. 535 (1942) ....... 17 |

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ; ,

ebhbeseccoccecseguenweeeenebeeescocabend l

Stanley v. Illinois, 405 U.S. 645 (1972) .......... 17 |

Tennessee v. Lane, $41 U.S. 509 (2004) ........ passim

ee

vil

Cited Authorities

Page

Turner v. Safley, 482 U.S. 78 (1987) ....... 5, 17, 18, 19

United States v. Ballin, 144 U.S. 1 (1892) ........ 26

United States v. Carolene Products Co., 304 U.S. 144

GEOG. occcccectoneed Gaceaeséescubeubedni 29

Ex parte Virginia, 100 U.S. 339 (1879) .......... 20, 28

Wilkinson v. Austin, 125 S.Ct. 2384 (2005) ....... 8

Zablocki v. Redhail, 434 U.S. 374 (1978) ........ 17

UNITED STATES CONSTITUTION

fg. § FS) 8 ey or ee or, 26

Fe. F SR 8 ee As eee 26

Pee ROG cc ccccsctscectsdudbevbabbes 8

POU AIG cic ccsccctscenns vecbawebsr 8

Fee GUUS o ci cvcccaceesckndabackeonre 8

PY ee ee 8

SD REE i'n cece ccacccovseesbbedae passim

Elovemtlh AmonGmemt ........ccccccccccccce’s passim

vill

Cited Authorities

Page

STATUTES

42 U.S.C. § 12101(a)(3) 2... eee eee ee eens 7,12

42 U.S.C. §§ 12101(a)(5)-(9) «2.66 eee eee ee 12

42 U.S.C. § 12101(a)(7) 0... cece eee ee eeee 12

42 U.S.C. $12101(D)(2) 2... cece eee ee eeee 13

42 U.S.C. § 12101(D)(4) «2... eee eee eee 13

42 U.S.C. § 12131, €8 $€q 2... ccc ccc ccccccccvees 4

42 U.S.C. § 12131(2) .....---- ee eee. eee eees 7,15

42 U.S.C. $§ 12131-12132 ........ cece eee eee l

42UBC. GB IZIZS ..cccccccccccccccccccscces 7,13

42 UBC. $6 IZBDR .ncccccccccccsccsccccscces 9

ADMINISTRATIVE MATERIALS

28 C.F.R. § 35.130(OM7) 2. cece reece cece eeeee 15, 16

28 C.ER. § 3S.15O(a) 2... cece ccccccccccssvees 16

28 C.FR. § 35.15O0(a)(2) .. 0... cece e cece ee eeee 16

28 C.FR. § 35.150(a)(3) . 0... eee eee eee eens 16

eo

ix

Cited Authorities

BO CPB § FSBSSGI GE) ccccccccccccccccccccs 16

BO CHa B FIEGD ccccadedcveccccccccccacses 16

OTHER AUTHORITIES

A. Christopher Bryant & Timothy J. Simeone,

Remanding to Congress: The Supreme Court's New

“On the Record” Constitutional Review of Federal

Statutes, 86 Cornell L. Rev. 328 (2001) ........ 25, 26

Philip P. Frickey & Steven S. Smith, Judicial Review,

The Congressional Process, and the Federalism

Cases: An Interdisciplinary Critique, 111 Yale L.J.

SPOU GHUGED. ceccndabdehbenecésccegnbenves 24, 25

John T. Noonan, Jr., Narrowing the Nation's Power:

The Supreme Court Sides with the States 93

GREEED cccveceducbeudieepescuescacecanees 24

Robert C. Post & Reva B. Siegel, Equal Protection

by Law: Federal Antidiscrimination Legislation

after Morrison and Kimel, 110 Yale L.J. 441

GOED onccetedssabaldas tides vébeteedeas 27

INTEREST OF AMICI CURIAE '

The Lawyers’ Committee for Civil Rights Under Law

(the “Lawyers” Committee”), National Asian Pacific

American Legal Consortium (“NAPALC”), People for the

American Way Foundation (“People For”) and The National

Association for the Advancement of Colored People

(“NAACP”) are nonprofit organizations dedicated, among

other goals, to eradicating discrimination affecting racial, and

ethnic minorities, women, and other targeted populations.

Amici have worked closely with Congress to advance

legislation on the issue of discrimination. Many of the amici

represent victims of discrimination who will be adversely

affected by any restriction on the power of Congress to

legislate in an effort to fight discrimination. For amici,

expanding the reach of the Eleventh Amendment and

curtailing Congress’ powers under § 5 signifies a threat to

the ability of its constituencies to seek redress for violations

of their federally protected civil rights. Accordingly, the

following amici, with the consent of the Parties, submit this

Brief in support of Petitioner’s argument that 42 U.S.C.

§§ 12131-12132, Title II of the Americans With Disabilities

Act, was validly enacted pursuant to the power of Congress

under § 5 of the Fourteenth Amendment.

The Lawyers’ Committee was formed in 1963 at the

request of President Kennedy to involve private attorneys in

the effort to insure the civil rights of all Americans. The

Lawyers’ Committee has been involved as amicus curiae or

counsel in several cases before the Court involving the scope

of Congress’ legislative power. See, e.g., Tennessee v. Lane,

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

No person or entity other than amici curiae, their staff, or their

counsel made monetary contribution to the preparation or submission

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

filed with the Clerk of the Court pursuant to Supreme Court Rule

37.3.

2

541 U.S. 509 (2004); Nevada Dep't of Human Res. v. Hibbs,

538 U.S. 721 (2003); Medical Bd. of California v. Hason,

537 U.S. 1028 (2002), cert. dismissed, 123 S. Ct. 1779

(2003); Adarand Constructors, Inc. v. Mineta, 534 U.S. 103

(2001); Lopez v. Monterey County, 525 U.S. 266 (1999).

The NAPALLC is a national non-profit, non-partisan

organization whose mission is to advance the legal and civil

rights of Asian Americans. Collectively, NAPALC and its

Affiliates, the Asian American Institute, the Asian Law

Caucus, and the Asian Pacific American Legal Center, have

over 50 years of experience in providing legal public policy

advocacy and community education on discrimination issues.

NAPALC was an amici in support of respondents in

Tennessee v. Lane, 541 U.S. 509 (2004) and likewise the

question presented by this case is of great interest to NAPALC

because it implicates the availability of civil rights

protections for Asian Americans in this country.

People For is a nonpartisan citizens’ organization

established to promote and protect civil and constitutional

rights. People For has supported the Americans with

Disabilities Act of 1990, and joins this brief to help vindicate

Congress’ power under § 5 of the Fourteenth Amendment

and its ability to protect individuals with disabilities against

discrimination by states and state agencies. People For has

also been involved as amicus curiae in other briefs on this

issue, including Tennessee v. Lane, 541 U.S. 509 (2004).

> The NAACP is a non-profit corporation founded in 1909

and seeks to ensure the political, educational, social and

economic equality for all persons and to eliminate racial

hatred and discrimination. The NAACP supports the rights

guaranteed by the Fourteenth Amendment and Congress’

broad powers under § 5 of that Amendment to pass legislation

that in certain circumstances abrogates state sovereignty

immunity.

3

STATEMENT OF THE CASE

In 1995, Petitioner Tony Goodman, a paraplegic who

uses a wheelchair, was incarcerated in the Georgia State

Prison (GSP), where he was confined to a cell measuring

twelve feet long by three feet wide. The size of the cell

prevented him from turning his wheelchair, rendering him

effectively immobile for twenty-three to twenty-four hours

a day. Mr. Goodman’s placement in the twelve by three cell

was unrelated to any penological justification. Because the

prison did not have accommodations to allow Mr. Goodman

access to prison facilities, Mr. Goodman could not use the

GSP chapel or law library, and was excluded from the benefits

of GSP’s educational services, including vocational training,

college programs, and recreational activities.

GSP lacks wheelchair-accessible routes or rooms, has

no transportation facilities equipped for inmates with

disabilities, and lacks facilities for disabled inmates to

perform daily functions, including personal grooming,

hygiene, and drinking. Because the toilet and showers are

without support bars, Mr. Goodman was unable to use them

without assistance. As a result, Mr. Goodman was forced to

sit in his own bodily waste for long periods of time and

suffered repeated, severe injuries when he attempted to

use the toilet. Mr. Goodman repeatedly requested

accommodations so that he could use these and other prison

facilities. His requests were denied.

In addition to the lack of reasonable accommodations

for his paraplegia, GSP also denied Mr. Goodman adequate

medical care following his injuries, which included an

epileptic seizure, a broken right toe, a crushed right knee,

and injuries to his left arm, head, neck, back, stomach, and

legs. Prison officials also excluded him from appropriate

medical care, counseling services, and rehabilitative services.

4

Mr. Goodman filed this federal action alleging Eighth

Amendment violations under § 1983 and unlawful disability

discrimination under Title II of the Americans with

Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. §

12131, et seg. (“Title II”). The District Court, adopting the

recommendations of a magistrate, dismissed his § 1983 claim

but allowed his Title II claims to proceed. The magistrate

judge thereafter granted summary judgment on Mr.

Goodman’s Title II claims. Mr. Goodman appealed, and the

United States intervened to defend the constitutionality of

Title II's abrogation of the state’s Eleventh Amendment

immunity. While the appeal was pending, this Court rendered

its decision in Tennessee v. Lane, 541 U.S. 509, 124 S. Ct.

1978 (2004). The Eleventh Circuit reversed the dismissal of

Mr. Goodman’s Eighth Amendment claim and affirmed the

dismissal of Mr. Goodman’s Title II claims for monetary

damages on Eleventh amendment grounds, relying, without

discussion, on its decision in Miller v. King, 384 F.3d 1248

(2004), which held that “Title II, as applied to prisons, would

substantively and materially rewrite the Eighth Amendment.”

Miller, 384 F.3d at 1273. Thereafter, this Court granted

Petitioner’s request for a writ of certiorari.

_SUMMARY OF ARGUMENT

Pursuant to its power to enforce § 5 of the Fourteenth

Amendment, Congress purposefully abrogated the states’

Eleventh Amendment immunity when it enacted Title II.

Congress recognized and sought to address the pervasive and

widespread violations of the due process and equal protection

rights of individuals with disabilities by the states. Title Il

operates to provide individuals with disabilities access to

the courts, to protect them from cruel and unusual

punishment, and to enable them to participate fully in

educational and other government programs. Because these

important constitutional rights were at stake, Congress had

5

wide latitude to construct legislation to remedy existing state

discrimination against individuals with disabilities and to

prevent further discrimination.

Under the congruence and proportionality test used in

Lane and Garrett, Title II’s abrogation of the states’ Eleventh

Amendment immunity is valid. First, as recognized in Lane,

the legislative history behind Title II is compelling, well-

defined, and explicit, and includes findings involving

discrimination against prisoners with disabilities.

Second, the scope of Title II is no broader than necessary

to. achieve its critical purposes. As the Court instructed in

City of Boerne v. Flores, 521 U.S. 507, 530 (1997), “{t}he

appropriateness of remedial measures must > considered in

light of the evil presented.” The scope of permissible remedial

measures is broadened here, because the discrimination

Congress and the Executive addressed in enacting Title II

includes the exercise of fundamental rights. Congress acted

in response to a widespread pattern of discrimination by states

against individuals with disabilities. Congress tailored Title

II to remedy these specific constitutional violations,

providing a series of measures designed to blunt the impact

Title Il compliance would have on the states. Title II therefore

meets the congruence and proportionality test.

Under the more deferential legitimate penological

purpose standard set forth in Turner v. Safley, 482 U.S. 78,

89 (1987), GSP can offer no legitimate penological purpose

for its refusal to provide prisoners with disabilities reasonable

access to prison facilities such as the law library and the

chapel. Questions of cost — the most likely justification are

more appropriately addressed in the application of the ADA’s

reasonable-accommodations test to particular circumstances

than in the analysis of Congress’ power under § 5. Both Title

II itself and the implementing regulations take cost into

6

account, and provide that a state need not make fundamental

alterations to its programs.

When Congress acts to protect such fundamental rights

as access to courts, a congruence and proportionality test

incorporating rational basis review — as was applied in Kimel

v. Florida Bd. of Regents, 528 U.S. 62 (2000), City of Boerne

and Board of Trustees of the University of Alabama v. Garrett,

531 U.S. 356 (2001) — is an inappropriate measure of

Congress’ constitutional authority. See Nevada Dep't of

Human Resources v. Hibbs, 538 U.S. 721, 736-37 (2003)

(acknowledging that Congress has broad discretion to

legislate to enforce constitutional principles that invoke a

heightened level of scrutiny of state conduct). Instead, as it

historically has done with legislation enacted to remedy the

effects of discrimination invoking heightened scrutiny, the

Court should apply the deferential rational means test derived

from M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819),

and applied in cases such as Katzenbach v. Morgan, 384 U.S.

641 (1966) (upholding Voting Rights Act of 1965).

While amici submit that Title II passes the congruence

and proportionality test in its applications to prisons, amici

do not endorse that test as proper for review of any legislation.

For the reasons discussed in dissenting opinions in Garrett

and Kimel, amici respectfully submit that this standard is

premised on an unworkable view of the legislative process,

effectively requires Congress to alter the way in which it

legislates, and threatens to violate separation of powers

principles by imposing judicial requirements upon Congress’

legislative procedure. Amici, therefore, respectfully urge the

Court to return to its prior rational means standard derived

from M 'Calloch.

¥ 7

ARGUMENT

I. TITLE If OF THE ADA GUARANTEES THE

FUNDAMENTAL RIGHTS AND LIBERTIES OF

INDIVIDUALS WITH DISABILITIES.

Title II 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 (2003).

In enacting Title Il, Congress sought to correct and prevent

the unequal treatment of persons with disabilities by requiring

states and other public entities to make “reasonable

modifications” to their services and programs, so as to render

them accessible. 42 U.S.C. § 12131(2). In affirming the

constitutionality of Title II in Lane, this Court recognized

the systemic discrimination faced by individuals with

disabilities in access to public programs: “Congress enacted

Title II against the backdrop of pervasive unequal treatment

in the administration of state services and programs,

including systematic deprivations of fundamental rights.”

Lane, 541 U.S. at 524. The unequal treatment cited in Lane

was not confined to historical offenses against human dignity

such as forced sterilization, but persisted, as Congress found,

“in such critical areas as . . . institutionalizaon,” 42 U.S.C.

§ 12101(a)(3), a finding this Court has noted “can be thought

to include penal institutions.” Pennsylvania Dept. of

Corrections v. Yeskey, 524 U.S. 206, 211 (1998).

Title II’s requirement of reasonable modifications is

designed to prevent deprivations of federal constitutional

rights, not only in circumstances where the state’s differential

treatment of persons with disabilities amounts to irrational

discrimination, but also where the inaccessibility of state

services Or programs impinges on a fundamental right

guaranteed by the Fourteenth Amendment. Lane, 541 U.S.

at 522. The Due Process Clause incorporates and applies to

the states most of the constitutional limits on governmental

action embodied in the First, Fourth, Fifth, Sixth, and Eighth

Amendments. See Duncan v. Louisiana, 391 U.S. 145, 148

(1968) (articulating the doctrine of incorporation).

This Court has “insisted that prisoners be accorded those

rights not fundamentally inconsistent with imprisonment

itself or incompatible with the objectives of incarceration.”

Hudson v. Palmer, 468 U.S. 517, 523 (1984). As in Lane,

the allegations in the present case involve fundamental

constitutional rights. Mr. Goodman claims that he was denied

access to the law library and to the chapel, that his conditions

of confinement amount to cruel and unusual punishment, and

that prison officials were deliberately indifferent to his

serious medical needs. These allegations implicate the right

of access to the courts considered in Lane, see Lewis v. Casey,

518 U.S. 343 (1996) (confirming that the right of reasonable

access to legal materials is a part of the right of access to the

courts), as well as rights protected under the First

Amendment, See Cruz v. Beto, 405 U.S. 319 (1972) (holding

that prisoners have a First Amendment right to “reasonable

opportunities” to practice their religion while incarcerated)

and the Eighth Amendment, see Estelle v. Gamble, 429 U.S.

97, 106 (1976) (holding that the deliberate indifference of

state custodial officials to an ‘nmate’s serious medical need

violates the Eighth Amendment).’ As this Court’s precedents

2. Mr. Goodman also claims that these deprivations occurred

as a result of his transfer to GSP from the medical prison. A transfer

to significantly more adverse conditions of confinement may also

implicate procedural due process. See Wilkinson v. Austin, 125 S.Ct.

2384, 2387 (2005) (holding that a liberty interest protected by the

Due Process Clause may be created by a transfer that “‘imposes

atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.’” (quoting Sandin v. Conner, 515

U.S. 472, 484 (1995)).

9

show, these rights are not fundamentally inconsistent or

incompatible with incarceration. It was against this backdrop

of pre-existing constitutional protections that Congress

enacted Title II.

Il. UNDER THE ANALYSIS SET FORTH IN LANE,

TITLE 1 IS APPROPRIATE LEGISLATION UNDER

§ 5 OF THE FOURTEENTH AMENDMENT.

Title II is a congruent and proportional response to the

States’ documented history of discrimination against

individuals with disabilities. Under the framework set out in

Boerne and clarified in Lane, after determining that Congress

unequivocally expressed its intent to abrogate the states’

immunity, a court turns to whether Congress properly

exercised its power to abrogate.’ To answer this question,

the Court must first “identify the constitutional right or rights

that Congress sought to enforce when it enacted Title II,”

Lane, 541 U.S. at 521, by reference to the historical

experience reflected by Title II]. Next, the Court must

determine whether the legislation is congruent and

proportional to the wrong identified by Congress.

3. The first step of this analysis questions whether Congress

explicitly expressed its intent to abrogate the states’ Eleventh

Amendment immunity. See Lane, 541 U.S. at 517; Kimel, 528 U.S.

at 73; Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996) The Act

specifically provides that the states are not immune from suit under

the Eleventh Amendment for violations of the ADA. 42 U.S.C.

§ 12202 (“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 jurisdiction for a violation of this chapter.”).

10

A. Title II Is Intended to Guarantee Individuals with

Disabilities Equal Opportunity to Obtain Vital

Services and to Exercise Fundamental Rights and

Liberties.

In accordance with Lane, it is first important to “identify

the constitutional right or rights that Congress sought to

enforce when it enacted Title II.” Lare, 541 U.S. at 521. As

discussed in Part I above, Title II is intended to prohibit and

remedy the infringement by the government of the

fundamental rights and liberties of individuals vith

disabilities. These fundamental rights and liberties, which

frequently intersect with the right to equal protection, include

the rights involved in this case: the right of access to the

courts; the right to freely exercise one’s religious beliefs;

and the right to be free from cruel and unusual punishment.

Lane’s holding that Title II is proper § 5 legislation as it

applies “to the class of cases implicating the accessibility of

judicial services, Lane 541 U.S. at 511, is fully applicable to

Mr. Goodman’ case. Indeed, discrimination such as a state’s

refusal to provide meaningful access to the courts for

individuals with disabilities, a right implicated by Georgia

prison officials’ refusal to provide reasonable access to GSP’s

law library, is presumptively unconstitutional under the Due

Process Clause and the Equal Protection Clause.

Title II also helps safeguard the equal-protection rights

of persons with disabilities, including equal access to

governmental processes such as the court system. “Central

both to the idea of the rule of law and to our own

Constitution’s guarantee of equal protection is the principle

that government and each of its parts remain open on

impartial terms to all who seek its assistance.” Romer v.

Evans, 517 U.S. 620, 633 (1996). Thus, while Congress’

power to enact Title II and to abrogate the states’ Eleventh

Amendment Immunity was rooted in its authority to enforce

the Due Process Clause of the Fourteenth Amendment,

Congress also recognized that Title II would protect the equal

protection rights of individuals with disabilities.

Central to this case are deprivations of Eighth

Amendment rights resulting from inhumane conditions of

confinement. Of all Mr. Goodman’s claims, these most

poignantly illustrate the disparate burdens that the unyielding

application of prison rules can inflict on persons with

disabilities. Because of the size and configuration of his cell

and the absence of other reasonable accommodations, Mr.

Goodman is forced to sit in the same position, facing the

same direction, for twenty-three to twenty-four hours a day,

without access to windows, in a cell that lacks a toilet he can

safely use. Amici submit that no state today would think it

constitutionally acceptable to confine its able-bodied inmates

for all or almost all of every day in cells whose size and

configuration prevent them from even turning around,

without adequate facilities for disposing of bodily wastes.

Yet without enforcement of Title II’s requirement that prisons

‘provide reasonable accommodations for his disability, these

are the conditions in which Mr. Goodman lives. As this Court

has held, Title II protects state prisoners against

discrimination suffered by reason of a disability. Yeskey, 524

U.S. 206. This protection is, in part, an expression of the

“broad and idealistic concepts of dignity, civilized standards,

humanity, and decency” embodied in the Eighth Amendment.

Gamble, 429 U.S. at 101.

Consistent with this Court’s long-held doctrine that

legislation passed to enforce the Fourteenth Amendment may

cover “a somewhat broader swath of conduct” than the

Amendment itself does, Garrett, 531 U.S. at 364, Title II’s

remedial scheme plainly bars states from treating people

irrationally and protects them from infringing fundamental

rights. It does not, however, change the contours of existing

12

constitutional law by requiring courts to apply a legal standard

that is inconsistent with this Court’s decisions and therefore

does not work a “substantive change in constitutional

protections.” Cf. City of Boerne, 521 U.S. at 529. Instead, it

merely requires states to administer their programs and services

in 4 manner that reasonably accommodates those persons who,

because of a disability, stand at a disadvantage in exercising or

defending their rights.

B. Congress Supported Title II With Specific

Findings Concerning the Pervasiveness of State

Discrimination Against Individuals with Disabilities

in the Provision of Programs and Services.

As recognized by the Court in Lane, Congress supported

Title I] with specific findings of the pervasiveness of

discrimination against individuals with disabilities. 541 U.S. at

516. The strength of this legislative history is evidenced by

Congress’ specific findings of persistent discrimination in the

provision of public services and accommodations.

42 U.S.C. § 12101(a)(3), (S19).

Congress’ finding that individuals with disabilities “occupy

an inferior status in our society and are severely disadvantaged

socially, vocationally, economically, and educationally” rings

true for disabled prisoners just as much as it does for those for

whom freedom of mobility and access to public services are

more varied. 42 U.S.C. § 12101(a)(7). Indeed, “the text of the

ADA provides no basis for distinguishing [prison] programs,

services, and activities from those provided by public entities

that are not prisons.” Yeskey, 524 U.S. at 209-10. And references

to unequal treatment of disabled prisoners appear in the

legislative record cited approvingly in Lane.* Title II's

4 These incidents include a failure to provide medical and

psychiatric treatment; a failure to provide interpretive services for

deaf prisoners; and abuse of prisoners with disabilities. See Garrett,

531 U.S. at 372 n. 7 and App. C.

13

protections take on a special significance in the pena! context,

where an individual is entirely within the custody of the state

and is entirely dependent on the state for access to services.

The Congressional findings supporting Title II have special

weight in the penal context, where all “services, programs, or

activities,” 42 U.S.C. § 12132, are controlled by the state.

This conclusion is bolstered by the goals Congress sought

to achieve in enacting Title II, which include providing “clear,

strong, consistent, enforceable standards,” 42 U.S.C.

§12101(b)(2), and addressing “the major areas of discrimination

faced day-to-day by people with disabilities.” 42 U.S.C.

§ 12101(b)(4). Prison officials affect the day-to-day lives of

disabled prisoners in the provision of various benefits, services,

programs, and activities, including educational services,

recreational services, health services, public accommodations,

and transportation, see Yeskey, 524 U.S. at 210 (noting that

modern prisons provide inmates with many recreational

activities, medical services, and educational and vocational

progranis).

As demonstrated by Mr. Goodmans inability to access vital

prison facilities and services, including those that represent the

state-provided means of exercising fundamental rights, the

protections embodied by Title II are perhaps no where as crucial

as in prison, where “the government’s power is at its apex,”

Johnson v. California, 125 S.Ct. 1141,1149-50 (2005), and

where an individual’s access to public services, programs, and

activities is wholly within the control of state officials.

14

C. The Substantive and Remedial Provisions of Title

II are Proportional and Congruent to the Rights

Protected by the Legislation.

Because Congress has “wide latitude” in defining the

bounds of § 5 through prophylactic and remedial legislation,

City of Boerne, 521 U.S. at 520, the congruence and

proportionality analysis does not require an exact match

between legislative and constitutional prohibitions. Rather,

as noted in Kimel, the affirmative grant of legislative power

contained in § 5 of the Fourteenth Amendment permits

Congress to “remedy and deter” unconstitutional acts that

violate § 5, as well as “prohibit[ ] a somewhat broader swath

of conduct, including that which is not itself forbidden by

the Amendment’s text.” Kimel, 528 U.S. at 81 (citing City of

Boerne, 521 U.S. at 518).

This Court recently reaffirmed this principle in Lane.

541 U.S. at 518; see also Hibbs, 538 U.S. at 727-28 (holding

that the abrogation of states’ Eleventh Amendment immunity

by the FMLA was a valid act of Congress under § 5 of the

Fourteenth Amendment). As noted in Lane, as long as

Congress does not attempt to redefine the obligations of the

states, Congress may exercise its § 5 power to “enact so-

called prophylactic legislation that proscribes facially

constitutional conduct, in order to prevent and deter

unconstitutional conduct.” 541 U.S. at 518-(citing Hibbs,

538 U.S. at 727-28). Accordingly, “legislation which ‘deters

or remedies constitutional violations can fall within the sweep

of Congress’ enforcement power even if in the process it

prohibits conduct which is not itself unconstitutional.’”

Hibbs, 538 U.S. at 730 (quoting City of Boerne, 521 U.S. at

518).

Title II is congruent and proportional to the evils

identified by Congress because it is tailored to remedy these

constitutional violations while placing the least burden

15

possible on states. The appropriateness of Title II should be

examined in light of the injuries that Congress was seeking

to remedy and prevent. City of Boerne, 521 U.S. at 530. As

noted, the injuries include the infringement of fundamental

rights and liberties guaranteed by the United States

Constitution as well as irrational discrimination violative of

the Equal Protection Clause. Congress enacted Title II to

ensure that individuals with disabilities would not continue

to face such discriminatory treatment. Mindful of the burdens

a strict requirement of accommodation might impose,

however, Congress allowed public entities considerable

flexibility in complying with the statute’s moderate demands.

This is made clear in the statute itself, in the implementing

regulations, and in the decisions of this Court interpreting

Title IL.

In order to comply with Title II, a state need only make

“reasonable modifications in policies, practices, and

procedures” that do not “fundamentally alter the nature of

the service, program, or activity.” 28 C.F.R. § 35.130(b)(7);

see also 42 U.S.C. § 12131(2) (defining “qualified individual

with a disability” as an individual “who, with or without

reasonable modifications . . . , meets the essential eligibility

requirements for the receipt of services”) (emphasis added);

Olmstead v. Zimring , 527 U.S. 581, 606 n.16 (1999) (making

clear that Title II does not require fundamental alterations in

State programs).

Title II’s implementing regulations, to which this Court

resorted for guidance in Olmstead, 527 U.S. at 598, and to

which this Court should defer in interpreting the statute, cf.

Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (giving Chevron

deference to Justice Department regulations implementing

the public-accommodation provisions of Title III of the

ADA), merely require a public entity to ensure that “when

viewed in its entirety, [it] is readily accessible to and usable

16

by individuals with disabilities.” 28 C.F.R. § 35.150(a). This

accessibility mandate does not “[n]Jecessarily require a public

entity to make each of its existing facilities accessible to and

usable by individuals with disabilities.” Jd. _§ 35.150(a)(2).

In the case of facilities built before 1992, for which structural

change is likely to be difficult, a public entity may comply

with Title II by adopting a variety of less costly measures,

including relocating services to alternative, accessible sites

and assigning aides to assist persons with disabilities in

accessing services. 28 C.F.R. § 35.150(b)(1). In the prison

context, this may mean making modifications to a small

number of prison cells or taking other steps to ensure that

prisoners with disabilities have access to vital prison facilities

and programs. The implementing regulations explicitly do

not require a state to take any steps that would “result in a

fundamental alteration in the nature of a service, program,

or activity or in undue financial and administrative burdens.”

Id. § 35.150(a)(3); see also 28 C.F.R. §§ 35.130(b)(7),

35.164;

Title II is thus proportional and congruent. It is designed

to protect the fundamental rights and liberties of individuals

with disabilities; yet it does not require any unreasonable

modifications or any fundamental alteration of state programs

to achieve that goal. The obligations it imposes on the states

are limited, and the states are permitted a great deal of

flexibility in meeting them. Therefore, Congress acted within

its power to abrogate the Eleventh Amendment immunity of

the states.

This result is not altered by the standard of review

applicable to some claims of constitutional-deprivations in

prison. It is well settled that state discrimination implicating

fundamental rights and liberties is ordinarily subject to strict

scrutiny, see Harper v. Virginia Bd. Of Elections, 383 U.S.

663, 670 (1996), and must be justified with a compelling

17

State interest. See Zablocki v. Redhail, 434 U.S. 374 (1978)

(right to marry); Stanley v. Illinois, 405 U.S. 645 (1972) (right

to custody of one’s children); Shapiro v. Thompson, 394 U.S.

618 (1969) (right to travel); Harper v. Virginia Bd. of

Elections, 383 U.S. 663 (1966) (right to vote); Skinner v.

Oklahoma, 316 U.S. 535 (1942) (right to procreate). This

Court has consistently affirmed the principle that “federal

courts must take cognizance of the valid constitutional claims

of prison inmates.” Turner, 482 U.S. at 84. Because prisoners

retain their constitutional rights inside prison, “[w]hen a-

prison regulation or practice offends a fundamental

constitutional guarantee, federal courts will discharge their

duty to protect constitutional rights.” Procunier v. Martinez,

416 U.S. 396, 405- 06 (1974); see also Pell v. Procunier,

417 U.S. 817, 822 (1974) (“[A] prison inmate retains those

First Amendment rights that are not inconsistent with his

Status as a prisoner or with the legitimate penological

objectives of the corrections system.”). Nevertheless, this

Court has on occasion upheld prison regulations impinging

upon certain fundamental rights of prisoners upon a showing

that they bear a reasonable relationship to a legitimate

penological purpose. Turner v. Safley, 482 U.S. 78, 89 (1987);

but see Johnson v. California, 125 S.Ct. 1141 (2005) (holding

that strict scrutiny, not the more deferential reasonable

penological purpose standard, is the appropriate standard to

review a prison’s practice of racially segregating prisoners).

This more deferential measure of constitutionality has

its basis in the understanding that prison policy is “a task

that has been committed to the responsibility of th[e]

[legislative and executive] branches, and separation of

powers concerns counsel a policy of judicial restraint.” 482

U.S. at 85. But this Court has applied the Turner standard

“only to rights that are ‘inconsistent with proper

incarceration.’” Johnson, 125 S.Ct. at 1149 (emphasis in

original) (citing Overton v. Bazzetta, 539 U.S. 126, 131

18

(2003)). While prisoners necessarily suffer some limitations

in their use of the court system, Lewis v. Casey, 518 U.S.

343 (1996), and in the exercise of their religious rights,

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), it cannot

be “inconsistent with proper incarceration” to afford

prisoners reasonable and equal access to an established prison

law library or a prison chapel, where no penological purpose

stands in the way.

In any event, the deferential Turner standard is entirely

inapplicable to Mr. Goodman’s Eighth Amendment claim.

See Johnson, 125 S.Ct. at 1149 (“[W]e have not used Turner

to evaluate Eighth Amendment claims of cruel and unusual

punishment in prison.”). Instead, violations of the Eighth

Amendment are reviewed using the “deliberate indifference”

standard, under which the court determines whether prison

officials demonstrated deliberate indifference to the inmates’

health or safety. See Hope v. Pelzer, 536 U.S. 730, 738 (2002)

(inmate subjected to cruel and unusual punishment when

prison guards handcuffed him to hitching post for disruptive

behavior). Judged by that standard, GSP’s actions in refusing

to provide Mr. Goodman with medical care after he sustained

serious injuries and in forcing him to sit in his own bodily

waste for long periods of time constitute deliberate

indifference. See Gamble, 429 U.S. at 104-05 (1996)

(“{D]Jeliberate indifference to serious medical needs of

prisoners constitutes the ‘unnecessary and wanton infliction

of pain,’ proscribed by the Eighth Amendment.) (internal

citations omitted).

Even as to the rights to which it applies, the Turner

standard should not be thought to imply a limit on Congress’

enforcement power under Section Five of the Fourteenth

Amendment, as the rational-basis test was held to do in

Garrett. In Garrett, an insufficient legislative record of state

employment discrimination against individuals with

19

disabilities supported Title I of the ADA. But Lane settled

that question in the context of Title II, concluding that the

“sheer volume of evidence demonstrating the nature and

extent of unconstitutional discrimination against persons with

disabilities in the provision of public services” supported

Congress’ chosen remedy. 541 U.S. at 528. The strength of

this record gives Congress more latitude in fashioning a

proportionate legislative response to remedy these violations.

It would be ironic indeed if the constitutional test set

forth in Turner, adopted by this Court out of deference to the

judgments of the political branches regarding the

management of prisons, were to have the unintended doctrinal

consequence of reducing this Court’s deference to those

branches in relation to the protection of the rights of disabled

prisoners. It cannot be the law that this Court defers to the

political branches only when they act to infringe prisoners’

fundamental rights as in Turner, but not when they act to

protect those rights under § 5 of the Fourteenth Amendment.

When Congress acts to protect constitutional rights of

prisoners under § 5, it must be presumed to have taken the

realities of the penal system into account, and this Court

should defer to its judgment on that point.

20

Ill. THE RIGOROUS STANDARD OF REVIEW

RECENTLY APPLIED TO § 5 LEGISLATION

SHOULD BE ABANDONED BECAUSE IT

UNDULY COMPROMISES CONGRESSIONAL

POWER.

Prior to its 1997 decision in City of Boerne, when

reviewing § 5 legislation this Court applied a rational means

test derived from M'Culloch v. Maryland. The M’Culloch

standard requires only a rational relationship between the

ends of the legislation and Congress’ chosen means. In the

words of Chief Justice Marshall:

Let the end be legitimate, let it be within the scope

of the constitution, and all means which are

appropriate, which are plainly adapted to that end,

which are not prohibited, but consist[ent] with the

letter and spirit of the constitution, are constitutional.

M’Culloch, 17 U.S. (4 Wheat.) 316, 421 (emphasis added).

The framers of the Fourteenth Amendment echoed this

language in authorizing Congress to enforce the Amendment

by “appropriate legislation,” and this Court glossed their use

of that term in Ex Parte Virginia:

Whatever legislation is appropriate, that is, adapted

to carry out the objects the amendments have in view,

whatever tends to enforce submission to the

prohibitions they contain, and to secure to all persons

the enjoyment of perfect equality of civil rights and

the equal protection of the laws against State denial

or invasion, if not prohibited, is brought within the

domain of congressional power.

100 U.S. 339, 345-46 (1879). The standards articulated in

M'Culloch and Ex Parte Virginia were expressly equated in

oe PORE

OP relw i ere

21

Katzenbach v. Morgan. As this Court held there:

“By including § 5 the draftsmen sought to grant to Congress,

by a specific provision applicable to the Fourteenth

Amendment, the same broad powers expressed in the

Necessary and Proper Clause, Art. I, § 8, cl. 18.” 384 U.S. at

650. See also South Carolina v. Katzenbach, 383 U.S. 301

(1966) (same, as to the Fifteenth Amendment); James

Everard’s Breweries v. Day, 265 U.S. 545 (1924) (Eighteenth

Amendment).

Under this deferential standard, consistently applied by

this Court until 1997, the desirability of the legislation as a

policy matter, or the extent to which Congress might have

chosen other, more narrowly tailored means, is beyond the

scope of the Court’s review. All that the Court need determine

is whether the legislation is a rational means of enforcing

the Fourteenth Amendment’s substantive guarantees.

Title II is a rational means of addressing the documented

pattern of discrimination by the states against individuals

with disabilities. When Congress passed Title II, it was well

aware that individuals with disabilities were, among other

things, burdened by inaccessible courthouses, inaccessible

polling places, inaccessible public transportation, and

inaccessible government buildings and agencies. As

recognized by the Court in Lane, this unequal treatment

extends to prisoners with disabilities, who have a long history

of being denied reasonable accommodations once

incarcerated. See Lane, 541 U.S. at 525 n.11. Title II's failure

to prevent the type of disparate treatment among prisoners

with disabilities that Mr. Goodman has experienced in GSP,

see id. (citing LaFaut v. Smith, 834 F.2d 389, 394 (C.A.4

1987) where a paraplegic inmate was unable to access toilet

facilities), is testament to the need for such prophylactic

legislation in the first instance. See also Lane, 541 U.S. at

525 n.11 (citing instances of discrimination faced by

22

prisoners with disabilities, including a “double amputee

forced to craw! around the floor of jail,” and a “deaf inmate

denied access to sex offender therapy program allegedly

required as precondition for parole”). Congress’ enactment

of Title II is a rational response to this documented history

of disparate treatment. Although, as discussed above, Title

Il is also a congruent and proportional means of addressing

discrimination against individuals with disabilities, the Court

need not conduct that more exacting analysis. State

discrimination affecting a fundamental right is presumptively

unconstitutional, and Congress’ chosen means of addressing

that discrimination need only be rational.

While Title I] meets the standard of review employed to

determine congruence and proportionality in cases like Kimel

and Garrett, amici respectfully urge the Court to return to

the traditional, deferential standard used in evaluating the

validity of all legislation enacted pursuant to Congress’ § 5

powers.

In City of Boerne and subsequent cases, the Court has

continued to recognize that it should defer to Congress’

judgments because “[i}t is for Congress in the first instance

to determin[e] whether and what legislation is needed to

secure the guarantees of the Fourteenth Amendment.” Kimel,

528 U.S. at 80-81 (quoting City of Boerne, 521 U.S. at 517).

Nevertheless, in applying the congruence and proportionality

standard, the Court has closely scrutinized the legislative

record for evidence of a “pattern” of unconstitutional state

discrimination, has insisted that attempts to deal with such

discrimination on a uniform, national basis be supported by

evidence in the record, and has questioned the quality of the

evidence that is reflected in the record and the inferences

that Congress was entitled to draw from it.

23

Respectfully, amici submit that this approach is

inconsistent with the principle of separation of powers and

unduly intrudes on Congress’ legislative function. The Court

has noted that

[a] legislative choice is not subject to courtroom

factfinding and may be based on rational

speculation unsupported by evidence or empirical

data. Only by faithful adherence to this guiding

principle . . . is it possible to preserve to the

legislative branch its rightful independence and

its ability to function.

FCC v. Beach Communications, 508 U.S. 307, 308, 315

(1993) (citations omitted). Yet, in determining congruence

and proportionality in cases such as Kimel and Garrett, the

Court has required that Congress indicate the “reasons for

[its] action” in the legislative record and support those

“reasons” with evidence of the necessity of § 5 legislation.

Kimel, 528 U.S. at 88. The Court thus appears to have

imposed an evidentiary standard more appropriate to an

administrative agency than a coordinate branch of the Federal

Government. See Garrett, 531 U.S. at 376 (dissenting opinion

of Breyer, J., joined by Stevens, Souter, and Ginsburg, JJ.).

Moreover, the Court appears to have limited the

inferences that Congress may draw through the use of

common sense from the information it has received from

multiple sources. For example, in Garrett, the Court held

that substantial evidence of society-wide stereotypes

concerning individuals with disabilities, and even

discrimination by government officials, did not provide a

sufficient basis for Congress to infer that state officials were

as likely to hold the same stereotypes and prejudices that

affected or were likely to affect their treatment of individuals

with disabilities. See id. at 377-78. And the requirement of a

24

record showing a pattern of discriminatory state action also

implies that Congress’ power “to enforce” the Fourteenth

Amendment is limited to legislation remedying past conduct

that can be reflected in a record and precludes it from

legislating prophylactically to protect against incipient or

potential conduct that threatens to undermine the guarantees

of the Fourteenth Amendment. See Joun T. Noonan, Jr.,

NARROWING THE Nation’s Power: THE SupReME Court SIDES

Witu Tue States 93 (2002).

With all respect, amici believe that the Court’s standard

of review in these cases not only violates the separation of

powers by imposing judicial requirements upon Congress’

legislative procedure, but also reflects an unworkable view

of the legislative process and, in effect, calls upon Congress

to dramatically alter the way in which it legislates.

First, the Court’s apparent requirement that Congress

‘articulate a single, coherent policy rationale and support that

rationale with evidence in the legislative record does not

accord with the reality of the legislative process. Members

of Congress represent constituencies with diverse, often

conflicting, interests. Hence, legislation is rarely, if ever,

reached through consensus, but rather, through competition

and majority vote. See Philip P. Frickey & Steven S. Smith,

Judicial Review, The Congressional Process, and the

Federalism Cases: An Interdisciplinary Critique, 111 Yale

L.J. 1707, 1741-45 (2002). Moreover, legislation is generally

the product of a competitive process of bargaining and

coalition-building as opposed to the type of deliberation

engaged in by judicial and administrative bodies.

Accordingly, in many, if not most, cases, no specific,

identifiable rationale exists. See id. at 1744-45.

In addition, the Court’s requirement of an evidentiary

predicate in the legislative record mistakenly assumes that

25

all the information upon which Congress draws in enacting

legislation is incorporated in that record. Congress is

informed through numerous sources that are not reflected in

the legislative record. For example, Members of Congress

bring to the legislature the views and experiences of the

citizens whom they represent. Thus, unlike a trier of fact in

a court or an administrative law judge, Congress is not a

“tabula rasa until it conducts on-the-record proceedings,”

but rather, “grounds its claim to legitimacy on knowledge

of and accountability to the citizens it represents.”

A. Christopher Bryant & Timothy J. Simeone, Remanding

to Congress: The Supreme Court's New “On the Record”

Constitutional Review of Federal Statutes, 86 Cornell L. Rev.

328, 385-86 (2001). In addition, Congress acquires

information from, inter alia, communications with interest

groups, information support services such as the General

Accounting Office and the Congressional Research Service

of the Library of Congress, written materials from party

leadership offices, members’ caucuses, legislators’-personal

staffs, and communications with the executive branch. See

id. at 384-87; Frickey & Smith, supra, at 1734-36.

Among the branches of the Federal Government,

Congress is uniquely capable of amassing information from

a wide range of sources, both during and outside its formal

proceedings. Reliance on the legislative record alone is

therefore an incomplete measure of the basis for Congress’

judgments. More significantly, however, it appears that if

Congress were to satisfy the congruence and proportionality

test as applied in cases like Kimel and Garrett, it must

painstakingly catalogue the information acquired from such

extra-record sources in the legislative record. For the reasons

discussed above, this would mark a dramatic alteration of

Congress’ legislative procedure.

26

Furthermore, by requiring Congress to adhere to

judicially imposed procedural requirements when it

legislates, the Court’s application of the congruence and

proportionality test conflicts with at least the spirit of a

number of constitutional provisions that limit judicial

intrusion into the legislative sphere. These include the Rules

and Journal Clauses of Article I, which provide, respectively,

that “[eJach House may determine the rules of its

proceedings” and “shall keep a journal of its proceedings,

and from time to time publish the same, excepting such parts

as may in their judgment require secrecy.” U.S. Const. art. I,

§ 5, cls. 2, 3. The Court has interpreted both of these

provisions as giving Congress wide discretion to determine

how to report and record its consideration of legislation. See,

e.g., United States v. Ballin, 144 U.S. 1 (1892); Field v. Clark,

143 U.S. 649 (1892).

The more demanding standard of review applied in cases

such as Kimel and Garrett also appears to conflict with the

Speech or Debate Clause, which provides that “for any speech

or debate in either House, [Senators and Representatives]

shall not be questioned in any other place.” U.S. Const. art.

I, § 6, cl. 1. The Court has determined that one of the Speech

or Debate Clause’s chief purposes is “to insure that the

legislative function the Constitution allocates to Congress

may be performed independently” and “reinforc[e] the

separation of powers so deliberately established by the

Founders.” Eastland v. United States Servicemen’s Fund, 421

U.S. 491, 502 (1975). See also Grave! v. United States, 408

U.S. 606, 628-29 (1972) (holding that Speech or Debate

Clause prohibited court from inquiring into conduct of, or

preparation for, congressional proceeding); Bryant &

Simeone, supra, at 376-83.

The Court’s approach, first articulated in City of Boerne

and applied in cases like Kimel and Garrett, reflects two

27

concerns: first, that in the absence of a judicially recognized

history of state discrimination, Congress actually may be

seeking to expand the substantive scope of the Fourteenth

Amendment or may be adopting a remedy that is

disproportionate to the number of instances of

unconstitutional state conduct; and second, that in such

circumstances, there is a need to protect the sovereignty of

the states against unwarranted intrusions by Congress in the

guise of enforcing the Fourteenth Amendment. Amici

respectfully submit that neither concern justifies the intrusion

into the legislative process that application of the standard

of review in cases like Kimel and Garrett has entailed.

In the absence of conduct involving a judicially

recognized history of unconstitutional state action, this Court

has limited itself to rational basis review in evaluating

whether state conduct entails arbitrary and purposeful

discrimination, in recognition of the Court’s own fact-finding

limitations and the deference due to democratically elected

legislatures. But it is precisely because Congress, as a

democratically elected legislature, is not so limited that it is

inappropriate to impose a rigorous standard of judicial review

on Congress’ determination of the existence or a threat of

unconstitutional state conduct, even if not previously

recognized by the Court. See Garrett, 531 U.S. 356, 382-85

(opinion of Breyer, J., dissenting, joined by Stevens, Souter,

and Ginsberg, JJ.); Robert C. Post & Reva B. Siegel, Equa!

Protection by Law: Federal Antidiscrimination Legislation

after Morrison and Kimel, 110 Yale L.J. 441, 467-73 (2000).

As discussed above, in making legislative judgments,

Congress relies on many sources of information and intuition

that would not support a judicial or administrative

dete: mination, but which are characteristic of a democratic

legisiative process. The Fourteenth Amendment expressly

assigns to Congress the task of enforcing its guarantees and,

under the long tradition established by M’Culloch, its

28

judgment that there exists arbitrary and purposeful state

discrimination requiring legislation, and its judgment of what

legislation is “appropriate” to enforce the Fourteenth

Amendment’s guarantees against such discrimination and its

effects, deserve deference and respect.

Concerns that Congress may be unjustifiably intruding

on state sovereignty do not support a more rigorous standard

of review of Congress’ legislative judgments under § 5. To

begin with, as the Court has recognized, the Civil War

Amendments were specifically designed as an expansion of

federal power and an intrusion on state sovereignty. See

Fitzpatrick v. Bitzer, 427 U.S. 445, 455-56 (1976) (noting

that the Amendments effected “the expansion of Congress’

powers with the corresponding diminution of state

sovereignty”) (discussing Ex parte Virginia, 100 U.S. 339,

345-46 (1879)). Moreover, the states are not an isolated

minority requiring heightened judicial protection against a

tyrannical majority. To the contrary, the political process and

the structure of the Federal Government — in particular, the

states’ equal representation in the Senate — were the principal

means intended by the Framers to prevent inappropriate

intrusions by the federal legislature on the states’ sovereignty.

See Kimel, 528 U.S. at 93-94 (opinion of Stevens, J.,

dissenting, joined by Souter, Ginsburg, and Breyer, JJ.);

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528,

550-51 (1985).

The standard recently applied by the Court to determine

congruence and proportionality substitutes the Court’s views

of how Congress should conduct its lawmaking processes in

carrying out its duty to “enforce, by appropriate legislation,

the provisions of [the Fourteenth Amendment],” U.S. Const.

amend. XIV, § 5, and ultimately substitutes the Court’s

judgment for that traditionally left to Congress alone as to

the “closeness of the relationship between the means [to be]

29

adopted and the end to be attained.” Burroughs v. United

States, 290 U.S. 534, 548 (1934). This is a departure from

the Court’s historic recognition of its own institutional

limitations and the deference due to the democratically

elected legislative branch, except in cases where the Court’s

intervention is needed to protect the rights of individuals

guaranteed by the Constitution and those “discrete and insular

minorities” who do not have access to the democratic process

_ to protect their rights against a dominant majority. United

States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).

Accordingly, for the reasons discussed above, amici curiae

respectfully urge the Court to reconsider the rigorous standard

of review it has recently applied to determine congruence

and proportionality, even in cases where the Court has not

previously recognized a history of purposeful unequal

treatment.

CONCLUSION

For the foregoing reasons, amici urge the Court to reverse

the decision of the United States Court of Appeals for the

Eleventh Circuit.

Respectfully submitted,

CHARLES LEsTER, Jr.

Counsel of Record

Davip I. ADELMAN

ANDREW W. Broy

SUTHERLAND ASBILL

& BRENNAN LLP

999 Peachtree Street, NE

Atlanta, GA 30309

(404) 853-8000

30

BARBARA R. ARNWINE

Joun C. BRITTAIN

MICHAEL L. FOREMAN

Ossal MIAZAD

THe Lawyers’ COMMITTEE

FoR Civic RiGHts UNDER Law

1401 New York Avenue, NW

Suite 400

Washington, DC 20005

(202) 662-8600

VINCENT A. ENG

AIMEE J. BALDILLO

NATIONAL ASIAN PACIFIC

AMERICAN LEGAL CONSORTIUM

1140 Connecticut Avenue, N.W.

Suite 1200

Washington, DC 20036

(202) 296-2300

Ex.uiot M. MINCBERG

PEOPLE FOR THE AMERICAN WAY

FOUNDATION

2000 M Street, N.W.

Suite 400

Washington, DC 20036

(202) 467-4999

ANGELA CICCOLO

THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

4804 Mt. Hope Drive

Baltimore, MD 21215-3297

(410) 580-5792

Attorneys for Amici Curiae