Amicus Curiae Brief — Goodman v. Georgia

Supreme Court, US}

¥ FILED

Nos. 04-1203, 04-1236 SUL 2:9 2005

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In the Supreme Court of the United States

UNITED STATES,

Petitioner.

V.

STATE OF GEORGIA, et al.

TONY GOODMAN,

. Petitioner,

v.

STATE OF GEORGIA, et al.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF AMICI CURIAE FOR PARALYZED

VETERANS OF AMERICA, EASTER SEALS AND

TEN OTHER ORGANIZATIONS SUPPORTING

PETITIONERS

LISA C. SULLIVAN JERROLD J. GANZFRIED*

HOWREY LLP *Counsel of Record

321 North Clark Street ELIZABETH B. MCCALLUM

Suite 3400 HOWREY LLP

Chicago, I] 60610 1299 Pennsylvania Avenue, NW

(312)595-1239 Washington, DC 20004-2402

(202)783-0800

Attorneys for Amici Curiae

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TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAB .........0000000+0000000000000 1

SUMMARY OF ARGUMENT........ccccsscsssssssssssesssssseeessesseen

ai iiiciiseseieietarsdigiohichinaldaieibibiinnaltiia Paik 4

The States Have Historically Deprived Americans

With Disabilities Of Their Constitutional Rights.............. 4

A. Patterns of Unconstitutional State

Treatment of Persons with Disabilities in

the Administration of Justice.....................cccccceecee ee 6

1. State Mistreatment of Persons with

Disabilities in Penal Institutions. ..................... 7

2. State Interference with Other Asp cts of

the Administration of Justice. ........................ 14

a. States Exclude People with

Disabilities as Litigants...................00000 14

b. States Have Excluded People with

EPABRERIISS CO GUTGUD. ccccccesccccccccsccccccsccseees 16

B. Patterns of Unconstitutional State

Interference with Constitutional Rights in

Contexts other than the Administration of

| ERE TES AREY oN PACT OD Oe SEEN ROE 17

1. State Treatment of Institutionalized

Persons with Disabilities................................. 17

2. State Interference with the Right to

Wo iiivdecesiesileeilicmanianiviitalaiitiatiniduaiaiti alia ialieataiaaaasissiil 21

3. State Interference with the Rights to

Marry and to Form Families. .......................... 22

4. State Discrimination in the Provision of

BURIGIGID, .cnccceccccosccnsisssseceesescussnsneaeanananenee 25

ot oF 8} ner 28

THE AMICT ORGANIZAT IONB..cccccccsccscgeesccssccccccccccecees l(a)

TABLE OF AUTHORITIES

CASES

In re A.W.,

a 24

In re Adoption of Richardson,

A 25

Armstrong v. Davis,

275 F.3d 849 (9th Cir, 2001), cert. denied,

EE 15

Beckford v. Irvin,

49 F. Supp. 2d 170 (W.D.N.Y. 1999).................:cc00000 13

Bednarski v. Bednarski,

366 N.W.2d 69 (Mich. Ct. App. 1985) ......................... 25

Bradley v. Puckett,

157 F.3d 1022 (Sth Cir. 1998) ......................00000000 12, 13

Brown v. Board of Education,

ce 25

Candelaria v. Coughlin,

787 F. Supp. 368 (S.D.N.Y. 1994) .0000.........::ccccccceeeeeee 13

Carey v. Population Services International,

EE 24

Carter v. Jury Commission,

EE 17

City of Cleburne v. Cleburne Living Center, Inc.,

a crenenenenens 21

iV

| Clark v. Cohen.

is } , |. 5 = canes 20

Coleman v. Wilson.

912. F. Supp. 1282 (E.D. Cal. 1995)............................. 12

Cook v. State.

a I, ie, 24

DeLong v. Brumbaugh.

703 F. Supp. 399 (W.D. Pa. 1989) ...00000000 cece 16

Durham v. Nu'Man.

ff | 5 |. eee 11

Eisenstadt v. Baird.

UR, Ch 23

Estelle v. Gamble.

ae Se ee cernsnensiniictihinnanicntansnbninsinnanenuntinmmaaiai 7

Faretta v. California,

Sr aii innicntilcticintnieeneininieieeialiaell 14

Galloway v. Superior Court,

we GK re ee 16

Gary W. v. Louisiana,

437 F. Supp. 1209 (E.D. La. 1976)...................0ccc000000- 18

Gary W. v. Louisiana,

1990 U.S. Dist. LEXIS 1746

FR ee ee ee ee 18

Gregg v. Georgia,

Gy I ticsinicrinienitmnnnuiaiieiaibnc einen 7

Harper v. Virginia State Board Of Elections,

es RTI «stn ccsterrcneninceiinaiiiaiannenitniaiaiaibitl 21

Hill v. New York State Board of Elections,

503 N.Y.S.2d 958 (Sup. Ct. 1986) .........................0000+. 21

Hill v. Shelby County,

599 F. Supp. 303 (N.D. Ala. 1984) .................0cccccceeeees 17

Honig v. Doe,

Be I isccrsternitirenentianeneinaniaveienanemsiiad 26

Inmates of the Allegheny County Jail v. Peirce,

487 F. Supp. 638 (W.D. Pa. 1980) ...................cccccceeeeeees 9

Inmates of the Allegheny County Jail v. Peirce,

699 F. Supp. 1137 (W.D. Pa. 1988) ...........-.0-ceeceesse-00e- 10

Inmates of the Allegheny County Jail v. Peirce,

848 F. Supp. 52 (W.D. Pa. 1994)..................ccccsseeeeeeees 10

Inmates of the Allegheny County Jail v. Wecht,

565 F. Supp. 1278 (W.D. Pa. 1983) ..................cccceeeeeees 9

Kaufman v. Carter,

952 F. Supp. 520 (W.D. Mich. 1996) ........................++ 12

Kentucky Association for Retarded Citizens v.

Conn, 510 F. Supp. 1233 (W.D. Ky. 1980), affd,

674 F.2d 582 (6th Cir. 1982), supplemental op.,

FEB P.B8 SEB GI Gar TED cccecesecesccssnssvecsssnsssssssssssees 20

Key v. Grayson, 179 F.3d 966 (6th Cir. 1999), cert.

xy 6

LaFaut v. Smith,

834 F.2d 389 (4th Cir. 1987) ............cccccccceeceeeeeeeeeeeeees 6,8

vi

Lewinson v. Crews,

282 N.Y.S.2d 83 (App. Div. 1967) .........................0000+. 16

Manhattan State Citizen's Group Inc. v. Bass,

_524 F. Supp. 1270 (S.D.N.Y. 1981) ....................0.....22. 21

In re Marriage of Carney,

| eee 25

In re Marriage of R.R..

575 S.W.2d 766 (Mo. Ct. App. 1978) ....................c0000+- 25

Mills v. Board of Education,

ND NI 26

Miranda v. Munoz.

pos UL 8

New York v. County of Delaware,

82 F. Supp. 2d 12 (N.D.N.Y. 2000) .....................0000200 22

New York v. County of Schoharie,

82 F. Supp. 2d 19 (N.D.N.Y. 2000) ..........................eceeeeee0 22

Olmstead v. L.C. ex rel. Zimring,

gt LTRs ener ae em 17

Owens-El v. Robinson,

442 F. Supp. 1368 (W.D. Pa. 1978) ............-...ccceceeeeees 9

Panitch v. Wisconsin,

444 F. Supp. 320 (E.D. Wis. 1977).......................222000. 26

Parrish v. Johnson,

SC, 7

vil

Pennsylvania Ass'n for Retarded v.

Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972)........ 26

People v. Guzman,

555 N.E.2d 259 (N.Y. 1990)..................ccccccccseeees onal 16

People v. Rivera,

486 N.Y.S.2d 426 (Sup. Ct. 1984) .................cccseceeeeeees 14

Plyler v. Doe,

Ee ee 25

Poe v. Lynchburg Training Sch. & Hospital,

518 F. Supp. 789 (W.D. Va. 1981).......................22ceee 24

Ramos v. Lamm,

485 F. Supp. 122 (D. Colo. 1979)......................eeceeeeeees 11

Reynolds v. Sims,

Ne 21

Robinson v. Kansas,

117 F. Supp. 2d 1124 (D. Kan. 2000), affd,

NF Es 27

Ruiz v. Estelle,

503 F. Supp. 1265 (S.D. Tex. 1980), affd in

relevant part, 679 F.2d 1115 (5th Cir. 1982)......... 12,13

Schmidt v. Odell,

64 F. Supp. 2d 1014 (D. Kan. 1999)......................... 6,12

Sites v. McKenzie,

423 F. Supp. 1190 (N.D.W.Va. 1976).......................... 10

Skinner v. Oklahoma,

EEE a Ree ae rE UT 23

vill

Society for Good Will to Retarded Children

v. Cuomo, 745 F. Supp. 879 (E.D.N.Y. 1990) ............. 19

State v. Spivey,

SD GEER Weee i bacrenscntesnicineiunamsnininnipiansanites 16

In re Sterilization of Moore,

og ER 24

Tennessee v. Lane,

gE Ee eee passim

T.E.P. v. Leavitt, 840 F. Supp. 110

Re 23

Troxel v. Granville.

I a 25

Waldrop v. Evans,

O71 F.2d IOSD (1 Reha Cie. 1GBD) .....ccccccccccccccccccccccscccceees 10

Weems v. United States,

fh re ae he 7

Wellman v. Faulkner,

iif } of: |e 5 eee fal

Westlake v. Lucas,

ee ee Ce Gy CD esiticsttnsancascbstscensensdnmseenesel 8

Wyatt ex rel. Rawlins v. Rogers,

985 F. Supp. 1356 (M.D. Ala. 1997).......2...............000+ 18

Wyatt v. Stickney,

344 F. Supp. 387 (M.D. Ala. 1972), affd in

relevant part, 503 F.2d 1305 (5th Cir. 1974).............. 19

ix

Yarbagh v. Roach,

736 F. Supp. 318 (D.D.C. 1990)................ccccccecceeceeeeees 13

Youngberg v. Romeo,

Se ee re i ertesnncenninentiminnninmenins 18

Zablocki v. Redhail,

Se ee re ee rtieninncctmenncienennmnnininiel 23

STATUTES

Bp ete SD ccgnssntnnsergneienterenimninnnenneiianel 26

rs ID eetereerenecienenmeemies 7, 2127

Ark. Code Ann. §16-31-102 (1987),

amended,1994 Ark. Acts No. 4, § 6 (1994).................. 16

Ge, Gar, GR Te QOD ccssennsnsnceseccsusssessssensessseemninsenies 23

Colo. Rev. Stat. Ann. §17-176 (West Supp. 1985)............ 20

Conn. Gen. Stat. Ann. §171-178(c)

SP, GRID, Gira rcnnessncsevccsnenspeenenntecnsensnssnentinneneties 20

D.C. Code Ann. §30-103 (1981)..............000. ccvevesocsecssononeeee 23

D.C. Code Ann. §46-403 (2001) ............:ccccseeeceeeseeeeeeenenes 23

Ue, GRR, GIR. GER, BD GOS erecccncnsnsssesscenssenssccesemsesmeemnel 26

Fla. Stat. Ann. §394.467(1)(B)(1) (Supp. 1985) ................ 20

Ill. Comp. Stat. Ch. 911/2 1-119(2) ...............scseccceseseeeseeees 20

Iowa Code Ann. §595.3 (1990) ..............ccccccccccsssserseeeeeeeeees 23

Mich. Com. Laws §551.6 (1988) .............cccccccccccssssssseseseseee dd

Miss. Code Ann. §41-21-45 (1990) .................cssssesseregeeeeeee DO

N.J. Stat. Ann. §§30:4-44, 30:4-45 (West 1977) cccccccccoose- 20

en See Is I TI scicscnsertincceeancinericiiaitinctlinsinintstinioal 20

Pa. Stat. Ann. tit. 48, §1-5 (West 1990)........ eisai 23

a a, CD citacctistccncnciecenetessncnbaducinianendiia 23

Tenn. Code Ann. §36-3-109 (2001)..........:ccccccceeceeeeeeeeeneees 23

Utah Code Ann. §30-1-2(1) (1987) .......cccccccesseseeeeeeeeeeeeees 23

Vt. Stat. Ann. tit. 18, §7101(17)(B)(ii)

Te ce 20

Se FF OE aE 23

ee ks ee I crencicccscticnnnsenctnnccimsanintesaninsneennins 23

OTHER AUTHORITIES

Debra Auspitz, Disabled Votes, PHILADELPHIA

COPY PAPER, BERR. B+ BG, BOG occcecccscccscseccsesccccccsceccsscees 22

Burgdorf & Burgdorf, The Wicked Witch Is Almost

Dead: Buck v. Bell and the Sterilization

of Handicapped Persons, 50 Temp.

FE TEA 24

Coalition for Accessible Political Elections,

Report of the National Voter Independence

es Ps CI initesitsnsctianiaiceciiaibetibiicadtendtidinieniiininstiiiaebiaaias 22

xi

Council of State Governments, Criminal Justice/

Mental Health Consensus Project (June 2002),

at http://consensusproject.Org .................ceeceeeeeeeeeeeeeees 12

Hearing Set on the Treatment of Disabled .

Prisoners, The New York Times at 43

| RENEE CLE SSO nae NO Oe 8

Human Rights Watch, Ill-Equipped: U.S. Prisons

and Offenders with Mental Illness a. Ill

(Oct. 2003) at http:

Price & Burt, Sterilization, State Action and

the Concept of Consent, 1 Law & Psych.

RO I i 24

Bruce Dennis Sales, et al., DISABLED PERSONS AND

THE LAW: STATE LEGISLATIVE ISSUES 16-20

i all 23

Study Cites Lack of Programs for Retarded

Inmates in U.S., The New York Times, p. A1l7

I, Tie. St cen cncnshccitcsicsssneadauitendinieaada Reaibabineinaiaieiatitasipbinadiind 10

United States Commission on Civil Rights,

Accommodating the Spectrum of Individual

ee Cae ee nitiiseisieedinietnnineiinniimsnasiiineed 20, 27

Voting Rights Primary Access Committee,

Exercising My Right to Vote: The Accessibility

of New Hampshire Polling Places to Citizens

with Disabilities (Apr. 1996)....................cccssescccsssssseees 22

INTEREST OF THE AMICI CURIAE!

Amici curiae are organizations of people with

disabilities, public interest grovps, and professional

organizations that advocate for the rights of people with

disabilities.2 Amici and their members have-a vital

interest in effective enforcement of Title II of the

Americans with Disabilities Act (“ADA”) and, to that end,

in the Court’s correct recognition of Congress’ abrogation

of Eleventh Amendment immunity for ADA violaticns.

That result is required in order to ensure that persons

with disabilities can vindicate and enforce their rights

and can obtain the full range of remedies Congress

enacted.

SUMMARY OF ARGUMENT

In Tennessee v. Lane, 541 U.S. 509, 524 (2004),

this Court described the “backdrop of pervasive unequal

treatment in the administration of state services and

programs, including systematic deprivations of

fundamental rights” before Congress when it enacted

Title Il of the ADA. The Court recounted State

governments’ long history of mistreating Americans with

a broad range of physical and mental disabilities. Jd. at

524-27. Among other things, the Court recognized State

| Letters of consent have been filed with the Clerk. Pursuant

to Supreme Court Rule 37.6, amici state that no counsel for a

party authored this brief in whole or in part, and no person or

entity other than amici, their members, or their counsel made a

monetary contribution to the preparation or submission of this

brief.

2 Amici are the Paralyzed Veterans of America, Easter Seals,

the American Association of Retired Persons, the American

Association of People with Disabilities, the Epilepsy

Foundation, the National Federation of the Blind, the Polio

Society, the Association on Higher Education and Disability,

United Cerebral Palsy Associations, Inc., the National Lawyers

Guild, the National Council on Independent Living, and the

National Mental Health Consumers’ Self-Help Clearinghouse.

tl

patterns “of unequal treatment in. . . the penal system,”

as well as more generally “in the administration of

justice.” Jd. at 525.

In addition to this unequal treatment within the

justice system, the Court described evidence before

Congress that States violated the constitutional rights of

people with disabilities by preventing them from voting,

marrying, and serving as jurors; by committing them to

State institutions without justification and abusing and

neglecting them while in_ those institutions; by

irrationally discriminating against them in decisions

about where they could live; and by engaging in a pattern

of discrimination in a wide range of other public services

and programs, including public education. /d.

Noting the “sheer volume of _— evidence

demonstrating the nature and extent of unconstitutional

discrimination against persons with disabilities in the

provision of public services,” id. at 528-29, the Court

unequivocally concluded that the “extensive record of

disability discrimination” existing when Congress enacted

the ADA “makes clear beyond peradventure that

inadequate provision of public services . . . was an

appropriate subject for prophylactic legislation” through

Title Il of the ADA. Indeed, as the Court recognized,

Congress described the pervasive pattern of State-

sponsored discrimination in the body of the ADA itself:

“{D]iscrimination against individuals with disabilities

persists in such critical areas as .. . education,

transportation, communication, recreation, institution-

alization, health services, voting, and access to public

services.” Id. at 529.

Lane, therefore, resolved the first part of the

“congruence and proportionality” test by which this Court

analyzes the constitutionality of Congress’ abrogation of

Eleventh Amendment immunity, viz., whether Congress

enacted Title II in response to a history and pattern of

unequal State treatment. Yet, the record of State

unconstitutional treatment of Americans with disabilities

~— including mistreatment of prisoners — is significantly

more extensive than Lane recited. Amici will focus on that

extensive historical record of discrimination. Because

amici anticipate that the parties will detail the pervasive

evidence of State-sponsored unconstitutional treatment of

imprisoned people with disabilities contained in Congress’

legislative record, this brief will avoid replowing that

ground and will therefore focus on the compelling and

well-documented history of State unconstitutional

conduct — in prisons and other contexts — reported in the

judicial decisions and the public record that predate the

ADA. Such conduct victimized persons with disabilities

not only in the context of prisons, but in many aspects of

the administration of justice, and also in additional

contexts where fundamental rights were violated. These

areas include discrimination against persons with

disabilities in such basic aspects of civic, societal and

personal endeavors as jury service, institutionalization,

education, voting rights, and the rights to marry and

raise families.

At the end of the day, the historical record amply

confirms what is also plain in Congress’ specific statutory

findings and in the legislative history: Congress properly

exercised its power under §5 of the Fourteenth

Amendment when it abrogated the States’ Eleventh

Amendment immunity for violations of Title II of the

ADA, and Title II represents a congruent and

proportional response to the longstanding pattern of State

constitutional violations.

ARGUMENT

The States Have Historically Deprived Americans

With Disabilities Of Their Constitutional Rights

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

the established test for determining whether an act of

Congress validly abrogates State immunity. After first

identifying the constitutional rights at issue, the inquiry

then focuses on whether there is a sufficient support for

Congress’ determination to regulate, and, finally whether

the act “is an appropriate response to this history and

pattern of unequal treatment.” Jd. at 530: In holding that

Congress properly abrogated state immunity from

damages in ADA claims related to appropriate access to

the court system as part of the administration of justice,

Lane concluded that Title II of the ADA responded to a

long history and pattern of pervasive, irrational,

intentional, and unconstitutional discrimination by the

States — including, specifically, unequal treatment of

prisoners with disabilities.

Lane clarified that the abrogation issue must be

analyzed based on the specific constitutional rights at

issue in each particular case. Accordingly, Lane fully

analyzed “the class of cases implicating the fundamental

right of access to the courts,” part of the system for the

administration of justice. Jd. at 533-34. This case, too,

deals with the system of the administration of justice —

after trial and in the penal system. Lane’s rationale

applies equally to the pervasive unequal treatment of

prisoners with disabilities as it does to the

unconstitutional treatment of litigants with disabilities.

Viewed in_ proper’ perspective, respondents’

position in this case seeks to create an exception to the

holding in Lane. That result is wholly unwarranted,

especially where Lane itself made several determinations

applicable to this case. First, in considering the history of

unconstitutional conduct upon which Congress based

Title Il, Lane looked at the entire range of

unconstitutional conduct that Congress considered, not

merely the conduct in the particular area at issue in the

particular case. Jd. at 524 (“Congress enacted Title Il

against a backdrop of pervasive unequal treatment in the

administration of state services and programs, including

systematic deprivations of fundamental rights”).

Second, Lane made plain that courts considering

the historical backdrop to a Congressional enactment are

not limited to reviewing only the legislative record, but

also must look to the existing judicial and public record.

Id. at 529 (reviewing judicial decisions, then-extant

statutes, and “statistical, legislative and anecdotal

evidence” of the widespread exclusion of persons with

disabilities from public services).

Third, the Court described in detail the ample

record of unconstitutional conduct that the ADA was

designed to remedy: “The ADA was passed by large

majorities in both Houses of Congress after decades of

deliberation and investigation into the need_ for

comprehensive legislation to address discrimination

against persons with disabilities.” /d. at 516. The Court

cited specific evidence of unconstitutional conduct in the

areas of prisons, voting rights, marriage, jury service,

institutionalization, access to the judicial system, and

public education. /d. at 524-25.

Finally, and most important, Lane concluded that

the “extensive record” before Congress demonstrated that

it enacted Title II in response to a history and pattern of

state-sponsored discrimination. /d. at 528 (“Given the

sheer volume of evidence demonstrating the nature and

extent of unconstitutional discrimination against persons

with disabilities in the provision of public services, the

dissent’s contention that the record is insufficient to

justify Congress’ exerciSe of its prophylactic power is

puzzling”).

In the legal context set by Lane, and to help inform

this Court's consideration of the historical record of

States’ prior mistreatment of people with disabilities,

amici will address multiple examples of the States’

unconstitutional conduct that justified Congress in

authorizing suits against States for damages under §5 of

the Fourteenth Amendment.

A. Patterns of Unconstitutional State

Treatment of Persons with Disabilities in

the Administration of Justice.

Lane noted the “pattern of unequal treatment”

within the system of the administration of justice,

including the treatment of persons with disabilities as

jurors: as litigants and criminal defendants; and as

prisoners. /d. at 525 & nn. 9,11,14. Lane has already held

that Title II “constitutes a valid exercise of Congress’ §5

authority to enforce the guarantees of the Fourteenth

Amendment” within the context of the system of justice

“implicating the fundamental right of access to the

courts.” Jd. at 534. No reason exists to exclude other

components of the administration of justice, especially

where Lane expressly referenced the very conduct

involved in this case: discrimination against prisoners

with disabilities. /d. at 525 n.11 (citing and reciting the

specific “unequal treatment” in La Faut v. Smith, 834

F.2d 389, 394 (4th Cir. 1987)inaccessible toilet facilities

for inmate with paraplegia); Schmidt v. Odell, 64 F.

Supp.2d 1014 (D. Kan. 1999)(prisoner with amputated

limbs compelled to craw! on jail floor); Key v. Grayson, 179

F.3d 996 (6th Cir. 1999)(prisoner with disability denied

access to program antecedent to parole), cert. denied, 528

U.S. 1120 (2000).

1. State Mistreatment of Persons with

Disabilities in Penal Institutions.

In enacting the ADA, Congress found continuing

State-sponsored discrimination in the “critical” area of

“institutionalization,” and specifically noted pervasive

discrimination against people with disabilities. See 42

U.S.C. §12101(a)(3),(5). The record before Congress when

it passed Title Il was replete with examples of State-

sponsored discrimination in penal institutions (as well as

in civil institutions).

Such discrimination still exists (as it did when

Title Il was enacted), contrary to the Eighth

Amendment's prohibition of disproportionate

punishments, Weems v. United States, 217 U.S. 349, 366-

67 (1910), and of “unnecessary and wanton infliction of

pain,” Gregg v. Georgia, 428 U.S. 153, 173 (1976)

(plurality opinion). The Constitution also forbids State

prisons from acting with deliberate indifference to the

medical needs of prisoners with disabilities, Estelle v.

Gamble, 429 U.S. 97, 106 (1976), because this practice

subjects prisoners with disabilities to multiple

punishments: in addition to their sentences, they suffer

unnecessary pain, loss of dignity, and, in some cases, a

shortened lifespan.

Despite these constitutional protections, State

prisons nonetheless abused prisoners with disabilities,

denying them fundamental rights. For example, a

Michigan prison routinely forced two inmates with

paraplegia to sit in their own feces for hours, causing

medical complications. Parrish v. Johnson, 800 F.2d 600,

602-03 (6th Cir. 1986). Staff habitually refused to relay

the prisoners’ requests for aid to nurses, and deliberately

placed their food trays in inaccessible positions. Moreover,

prison officials did nothing to stop a guard who on

multiple occasions assaulted the inmates with a knife and

frequently called one inmate a “crippled bastard™ who

should be dead. /d. at 603. Clearly, the State's conduct

furthered “[njo legitimate penological or institutional

objective.” Jd. at 605.

Similarly, in LaFaut v. Smith, 834 F.2d 389, 392

(4th Cir. 1987), a prisoner in a wheelchair was denied

adequate toilet facilities. “[I]n order to use the toilet, he

had to lie on the floor, drag his body across it, and then

pull himself up onto the commode.” He would often “slip

down into the toilet bow! water.” Jd. On one occasion, the

plaintiff “fell off the toilet and broke his right leg.” Jd. at

393. As a result of these conditions, the prisoner relied on

a catheter and contracted a kidney infection. /d. at 392-

93. Although aware of plaintiffs situation, which could

have been avoided by “the simple mounting of a handicap

bar.” the prison took no action for months. /d. at 393. The

court concluded that this “neglect constituted ‘deliberate

indifference and therefore violated the Eighth

Amendment.” /d. at 394. See also Miranda v. Munoz, 770

F.2d 255, 257 (ist Cir. 1985) (pre-trial detainee with

epilepsy “received no medical attention” and died);

Wellman v. Faulkner, 715 F.2d 269, 272, 274 (7th Cir.

1983) (prison’s medical system did not meet constitutional

standards for prisoners who had colostomies, who were

“forced to wash out and re-use [single-use waste-

collection] bags,” a “practice [that] literally stank” and for

prisoners with mental disorders who had no treatment

because the “position of staff psychiatrist has been

unfilled for over two years”); Westlake v. Lucas, 537 F.2d

857, 859 (6th Cir. 1976) (denying defendants’ motion to

dismiss §1983 claim brought by prisoner suffering from

ulcer, who was denied medical treatment, resulting in the

vomiting of blood); “Hearing Set on the Treatment of

Disabled Prisoners,” The New York Times at 43 (Jan. 17,

1974) (describing tour by chair of State Senate Select

Committee for the Mentally and Physically Handicapped

of four New York City prison wards in preparation for

upcoming hearings).

One Pittsburgh jail required almost two decades,

and repeated judicial directives, to remedy its —

“constitutionally impermissible” treatment of prisoners

with physical and mental disabilities. Owens-El v.

Robinson, 442 F. Supp. 1368, 1380 (W.D. Pa. 1978).

“Inmates with epilepsy” experiencing seizure and “those

with possible severe mental disorders were routinely and

“inappropriately” placed in restraints:

In this bleak room the inmates are placed

in a hospital gown or naked on a canvas cot

with a hole cut in the middle. Their body

wastes drop through the hole into a tub on

the floor underneath the cot. The tub is

emptied twice a day. These inmates are

shackled by leather restraints to the canvas

cots. .. . The medical logs, introduced into

evidence, revealed that inmates have been

held in such restraints for as long as

twenty-nine days.

Id. at 1380. The court held that the “present mode of

using the restraint room is_. constitutionally

impermissible.” Jd. at 1381. Two years later, the district

court, after a remand for further consideration of mental

health care for inmates, made the additional finding that

there was “no system for care of mentally ill inmates in

the jail and that the haphazard and inconsistent care and

protection now being afforded is far below minimum

standards,” which “aggravate[d] — rather than alleviate[d]

— the conditions of many of the most seriously ill. Jnmates

of the Allegheny County Jail v. Peirce, 487 F. Supp. 638,

643 (W.D. Pa. 1980). But the district court's orders were

not sufficient to remedy the problems. Years later, the

inmates were forced to seek a contempt citation for

defendants’ failure to comply with the prior orders, and to

seek additional relief, contending that “unconstitutional

conditions which existed . . . in 1978 still were extant in

1983.” Inmates of the Allegheny County Jail v. Wecht, 565

10

F. Supp. 1278, 1280 (W.D. Pa. 1983). One of these

conditions was defendants failure to maintain a log

documenting the use of restraints. /d. at 1285. Another

was defendants’ failure to comply with the mental health

standards set forth in the 1980 order. Jd. at 1287-88. Five

vears later, the inmates again sought sanctions, in part

because “the quality of the physical and mental health

care provided to inmates [was] deteriorating.” Jnmates of

the Allegheny County Jail v. Peirce, 699 F. Supp. 1137,

1141 (W.D. Pa. 1988). The unconstitutional conditions

were not ultimately resolved until the construction of a

new jail in 1994, eighteen years after the plaintiffs first

filed suit. Inmates of the Allegheny County Jail v. Peirce,

848 F. Supp. 52 (W.D. Pa. 1994).

West Virginia “denie[d] prisoners [transferred to]

mental institutions the equal protection of the law” by

refusing to consider them for parole until they had

recovered from their mental illness, instead of when they

were “no longer likely to cause serious harm” to

themselves or others. Sites v. McKenzie, 423 F. Supp.

1190, 1194-95 (N.D.W.Va. 1976). And these are but a few

of the frequently recurring instances of mistreatment of

prisoners with mental disabilities or illnesses.4

3 In its 1994 order, the trial judge responded to criticism that

he had coddled inmates: “I need only remember the stench

which assailed the nostrils when | entered the jail for the first

time in 1976. or recali the sight of human beings strapped down

on canvas cots, their wrists and ankles held tight by leather

thongs. to take comfort in believing that regardless of what the

critics said, what | ordered was the right thing to do.” Jd. at 53.

4 See, e.g., Waldrop v. Evans, 871 F.2d 1030, 1032 (11th Cir.

1989) (denying defendant prison doctors motions for summary

judgment on issue of qualified immunity on Eighth Amendment

claim after prisoner with mental illness “slashed his own

forearm.” “gouged out his left eye.” used a prison-issued razor

blade to cut his scrotum, losing both testicles,” and “damaged

{his right eye] so badly that he lost sight”); “Study Cites Lack of

Even after enactment of the ADA, unconstitutional

treatment of prisoners with disabilities by the States

persists. In Durham v. Nu'Man, 97 F.3d 862, 866 (6th

Cir. 1996), a mentally ill inmate in shackles was beaten

for ten minutes and had his arm broken by two guards

because he refused to clean up his urine from the floor

after a nurse refused access to a bathroom. And in several

cases brought after enactment of the ADA, prisoners with

amputated limbs or who used wheelchairs sought redress

for their inability to access showers, use the toilet, or even

Programs for Retarded Inmates in U.S.,” The New York Times,

p. Al7 (June 14, 1982) (describing survey by the National

Criminal Justice Reference Service of deficiencies in prisons

nationwide to accommodate prisoners with mental retardation).

The court in Ramos v. Lamm, 485 F. Supp. 122, 142 (D.

Colo. 1979), affd in relevant part, 639 F.2d 559 (10th Cir. 1980),

examined the appalling conditions in a Colorado maximum

security prison, including the “emergency situation” in

existence for prisoners with mental health needs, which

situation amounted to a “time bomb ready to explode.” Not only

did the prison lack “adequate staff trained in psychology or

psychiatry,” but in fact the “psychology department was

abolished.” Id. at 144. “Acutely psychotic patients, suicidal

patients, patients on psychotropic medication and mentally

retarded prisoners [were] housed in the most restrictive

cellhouse .. . along with prisoners in administrative and

punitive segregation who are being punished for disciplinary

violations.” Jd. at 145. In this cellhouse, “prisoners are locked in

their cells for more than 22 hours a day,” id. at 138; in “small

cells that [were] filthy, inadequately ‘ighted, improperly

ventilated and infested with vermin and rodents.” Jd. at 145.

Rather than remedying these prisoners’ conditions, “[s}uch

restrictive confinement cause{d] irreparable disabilities.” /d.

Condition. were so uorrible that the defendants did not even

“attempt[] vo defend by asserting that plaintiffs’ constitutional

rights have not been violated,” but instead argued “that

Colorado has made substantial and good faith efforts to resolve”

the unsafe conditions. /d. at 167.

]?

move about within the prison or jail; several were forced

to ambulate on the stumps of their knees or even to

crawl.°

By any measure, the suffering endured by inmates

with disabilities is reaching crisis proportions. A recent

class action in California is but one illustration of State-

wide systemic and unconstitutional abuse of prisoners

with mental disabilities.6 As explained in Coleman v.

Wilson, 912 F. Supp. 1282, 1305-23 (E.D. Cal. 1995),

California failed to: screen inmates for basic needs:

maintain basic medical records and medication policies;

maintain adequate and competent staffing; appropriately

use mechanical restraints; and prevent inappropriate

disciplinary and behavior control measures on prisoners

* See Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998)

(Mississippi prisoner with leg brace stated claim by alleging he

was denied shower chair, leaving him “unable to bathe for

several months . . . [and] he was therefore forced to clean

himself using toilet water . . . result{ing] in a fungal infection”);

Schmidt v. Odell, 64 F. Supp. 2d 1014, 1018, 1021 (D. Kan.

1999) (prisoner with double amputation denied wheelchair was

forced to “ambulate[] through the jail on his knees” and to

“craw! [through] the jail parking lot”); Kaufman v. Carter, 952

F. Supp. 520 (W.D. Mich.- 1996) (prisoner with bilateral

amputation unable to use shower. toilet, drinking fountain, or

sink).

® California is not alone in unconstitutionally discriminating

against persons with disabilities in state-run institutions. See

Council of State Governments, Criminal Justice/Mental Health

Consensus Project (June 2002), at http://consensusproject.org:

Human Rights Watch, /ll-Equipped: U.S. Prisons and Offenders

with Mental Iliness _ ch. Ill (Oct. 2003), = at

http://www _.hrw_org/reports/2003/usal1003/. Once incarcerated,

inmates with disabilities are more likely to be victimized,

exploited, and injured than are other inmates. See, e.g., Ruiz v.

Estelle, 503 F. Supp. 1265, 1344 (S.D. Tex. 1980), affd in

relevant part, 679 F.2d 1115 (5th Cir. 1982).

13

with mental disabilities, including use of isolation and

taser guns. /bid.’ To ensure an effective remedy for well-

documented state discrimination against prisoners with

disabilities, Congress abrogated Eleventh Amendment

immunity in ADA Title II.

7 See also Bradley v. Puckett, 157 F.3d at 1025-26 (failure for

several months to provide means to bathe led to infection);

Beckford v. Irvin, 49 F. Supp. 2d 170, 180 (W.D.N.Y. 1999)

(plaintiff “was regularly deprived use of his wheelchair for

extended periods of time [and] . . . was unable to shower’);

Candelaria v. Coughlin, 787 F. Supp. 368, 374 (S.D.N.Y. 1994)

(prisoner with paraplegia was transferred to a prison without

adequate facilities for no reason and while there was denied

catheter and had to rely on other inmates to help him use the

standard toilet; while on a trip to the State hospital, he fell out

of his wheelchair and was left on the floor of a holding pen for

several hours); Yarbagh v. Roach, 736 F. Supp. 318, 320 (D.D.C.

1990) (prisoner with multiple sclerosis was incarcerated for

more than a year before he was seen by a physician and did not

receive assistance in daily activities; as a consequence, he had

not showered in more than a year and had fallen repeatedly

when attempting to move from his wheelchair to his bed); Ruiz,

503 F. Supp. at 1274-1391 (126-page opinion describing Texas’

unconstitutional treatment of prisoners with disabilities,

including routinely denying prescribed treatments for prisoners

who use asthmatic inhalers and wheelchairs; systematic refusal

to provide individualized treatment to inmates, regardless of

their type of disability; failure to maintain medical records;

failure to screen inmates for psychiatric care; segregation of

inmates with acute psychological disorders; and disciplining

prisoners with mental retardation for infractions of rules they

did not understand).

14

2. State Interference with Other

Aspects of the Administration of

Justice.

a. States Exclude People with

Disabilities as Litigants.

States historically denied persons with disabilities

an equal opportunity to litigate. Such discrimination has

taken various forms: from the lack of interpreters or other

necessities for effective communication, to the imposition

of architectural barriers that exclude persons with

mobility or sensory impairments from using the court

system. Due process principles are violated when people

with disabilities are unable effectively to access the

judicial system, either in the civil or the criminal context.

See, e.g., Lane, 541 U.S. at 523 (Due Process Clause

protects “the right of access to the courts” for both civil

litigants and for criminal defendants).

For criminal defendants, due process guarantees

that the “accused has a right to be present at all stages of

the trial where his absence might frustrate the fairness of

the proceedings.” Faretta v. California, 422 U.S. 806, 820

n.15 (1975). As Lane illustrated, however, state criminal

justice systems have perpetuated barriers that exclude

persons with disabilities from participating in judicial and

related administrative proceedings, even when their own

liberty is at stake. In People v. Rivera, 480 N.Y.S.2d 426

(Sup. Ct. 1984), a pre-ADA case that constitutes part of

the history of discrimination supporting Congress’

determination to regulate, the court held that a criminal

defendant with hearing impairment who had been twice

convicted without the assistance of a qualified sign-

language interpreter had been deprived of his

constitutional rights. As an accommodation in one of his

criminal trials, the court provided a Spanish interpreter,

despite the fact that the defendant could not “read, write

or lip-read in either English or Spanish,” and in fact was

15

“so severely hearing impaired that he is and has been. . .

incapable of adequately expressing himself without the

aid of qualified [sign-language] interpreters.” Jd. at 430.

Although the Spanish interpreter attempted in good faith

to translate, “the conclusion [was] inescapable that [the

defendant] did not adequately comprehend or participate

in the .. . trial at which he was convicted.” Jd. at 431.

Additionally, the defendant believed that he was.

“obligated to take the stand . . . on pain of going to jail.”

Id. at 434. At the second trial, “it was conceded that no

interpreter was present.” Jd. at 431. The court concluded

that the defendant had been denied the effective

assistance of counsel in violation of the Sixth

Amendment, forced to testify in violation of the Fifth

Amendment, and that his conviction was

unconstitutionally obtained in violation of the Fourteenth

Amendment. /d. at 434.

Similar abuses persisted even after Congress

enacted the ADA. In Armstrong v. Davis, 275 F.3d 849

(9th Cir. 2001), cert. denied, 537 U.S. 812 (2002), for

example, California failed to provide prisoners with

disabilities adequate access to, and a meaningful

opportunity to participate in, parole hearings. The process

depended “to a great extent” on written forms; prisoners

and parolees with disabilities were “provided with

inadequate accommodations to help them understand the

contents of those forms, and as a consequence some

plaintiffs waived their rights to a hearing and others

failed to invoke their rights on appeal.” Jd. at 857

(footnote omitted). The system did not provide American

Sign Language interpretation services, Braille copies of

documents, qualified readers, or staff capable of

effectively communicating with prisoners and parolees

with mental disabilities or mental illnesses. Jd. at 858

n.10. Affirming on ADA grounds, the Ninth Circuit held

that the “minimal due process measures taken [by the

defendant parole board] were insufficient to comply with

16

the ADA or to enable plaintiffs properly to invoke or

assert their rights.” /d. at 862. Furthermore, there was no

reasonable relation to any legitimate penal interest that

could justify the impingement on the prisoners’ and

parolees’ constitutional rights. Jd. at 873-74.

b. States Have Excluded People

with Disabilities as Jurors.

When Congress passed the ADA, it was relatively

common for State courts categorically to exclude persons

with certain disabilities from serving on juries. See Lane,

541 U.S. at 525 & n.9 (citing statutes disqualifying

persons who are “infirm,” “decrepit,” or “mentally and

physically disabled”). New York, for example, barred

persons with disabilities from serving on juries for more

than 150 years. See Lewinson v. Crews, 282 N.Y.S.2d 83,

87-88 (App. Div. 1967) (Hopkins, J., dissenting) (noting

that law excluding blind jurors had been in place since

1829); People v. Guzman, 555 N.E.2d 259, 261 (N.Y. 1990)

(noting that New York state courts ceased excluding

people with disabilities only after passage of ADA). New

York was far from an anomaly.®

8 States with discriminatory jury service laws in place at the

time of the passage of the ADA include Arkansas, Ark. Code

Ann. §16-31-102 (1987), amended 1994 Ark. Acts No. 4, §6

(1994) (barring those with “substantial impairments” to hearing

or sight from jury service); the District of Colombia, Galloway v.

Superior Court, 816 F. Supp. 12, 16-17 (D.D.C. 1993) (the

“conclusion that blind jurors are not qualified appears based on

exactly the archaic attitudes and unsubstantiated prejudices

Congress wished to eradicate” in passing the ADA); Missouri,

State v. Spivey, 700 S.W.2d 812, 813-14 (Mo. 1985) (permitting

the exclusion of “deaf, mute, deaf-mute, and blind persons, from

inclusion in the jury pool” on the grounds that they did not have

“a community of attitudes or ideas”); and Pennsylvania, DeLong

v. Brumbaugh, 703 F. Supp. 399, 406 (W.D. Pa. 1989) (Superior

17

Of course, these laws were on the books almost two

decades after this Court held that “the State may no more

extend it [jury service] to some of its citizens and deny it

to others .. . than it may invidiously discriminate in the

offering . . . of the elective franchise.” Carter v. Jury

Comm'n, 396 U.S. 320, 330 (1970). There is no compelling

interest in, nor any rational basis for, excluding people

with physical and mental disabilities from jury service

without regard to their individual ability to function as

jurors. Nevertheless, in 1984, county officials in Alabama

“conceded that Shelby County is not equipped to

accommodate jurors who have severe physical disabilities,

and that the Shelby County courts routinely excuse such

persons from jury service, as do all of the State’s courts.”

Hill v. Shelby County, 599 F. Supp. 303, 304 (N.D. Ala.

1984).

B. Patterns of Unconstitutional State

Interference with Constitutional Rights in

Contexts other than the Administration of

Justice.

The historical record that informed enactment of

the ADA was not limited to the system of justice.

Accordingly, unconstitutional State mistreatment of

persons with disabilities in other contexts provides

additional illumination of Congressional intent to

abrogate state immunity.

1. State Treatment of

Institutionalized Persons with

Disabilities. ~-

Singling out persons with disabilities for

unnecessary’ institutionalization is a form of

Court judge testified “he would disqualify a deaf person under

all circumstances’ ).

18

discrimination. Olmstead v. L.C. ex rel. Zimring 527 U.S.

581, 600 (1999), and id. at 613-14 (Kennedy, J.,

concurring); see also Lane, 541 U.S. at 524-25 (the court

has “identified unconstitutional treatment of disabled

persons by state agencies in a variety of settings,

including unjustified commitment . . . [and] the abuse and

neglect of persons committed to state mental health

hospitals”). State discrimination of this sort violates the

due process rights of persons in civil institutions

articulated in Youngberg v. Romeo, 457 U.S. 307, 345-19

(1982): safe conditions, freedom from unnecessary bodily

restraints, and the training necessary to assist them in

securing those rights. Lane noted particular examples of

patients in state mental health hospitals being physically

abused and drugged. 541 U.S. at 524 n.10. Despite

Youngberg and the ADA, States have _ resisted

ameliorating the unconstitutional conditions in their civil

institutions.

A case brought by a class of children with mental

retardation, emotional disturbance, and_ physical

disabilities against the State of Louisiana exemplifies a

State’s persistent unconstitutional behavior. In 1976, the

plaintiffs established physical abuse, neglect, and

unnecessary restraint of its wards, and the judge ordered

remedial action. Gary W. v. Louisiana, 437 F. Supp. 1209,

1219, 1213 (E.D. La. 1976). In 1990, twenty-five years

later, and notwithstanding the judge’s efforts “to

facilitate, cajole, and even coerce compliance,” the State

institutions were still unable to prevent outright abuse of

patients, or to provide minimally adequate treatment,

consistent with constitutional standards. Gary W. v.

Louisiana, No. 74-2412, 1990 U.S. Dist. LEXIS 1746, at

*81 (E.D. La. Feb. 15, 1990).

Many other state-run institutions also continue to

deprive persons with disabilities of liberty and dignity,

while exposing residents to dangerous conditions. For

example, a federal judge described Alabama’s institutions

19

as “essentially warehousing patients in an inhumane

environment.” Wyatt ex rel. Rawlins v. Rogers, 985 F.

Supp. 1356, 1361-62 (M.D. Ala. 1997). These conditions

existed even after Alabama entered into a consent decree

to improve the state’s record on institutionalization. The

institutions were the subjects of similar findings as early

as 1971 for “grossly substandard” instances including

examples of residents being scalded to death and

restrained in a straightjacket for nine years, among

others. Wyatt v. Stickney, 344 F. Supp. 387, 391 (M.D.

Ala. 1972), affd in relevant part, 503 F.2d 1305 (5th Cir.

1974). By 1991, a court-appointed expert concluded that

“there remain| | significant probiems and noncompliance .

. . most significantly, unnecessary institutionalization.”

985 F. Supp. at 1367.

The same year in which Congress passed Title II of

the ADA, children at a New York facility for people with

mental retardation were regularly left unclothed and

unattended in their own bodily wastes on cold floors while

the staff watched television. Society for Good Will to

Retarded Children v. Cuomo, 745 F. Supp. 879, 879

(E.D.N.Y. 1990). The federal court described New York's

Long Island Development Center in grim terms (id. at

879):

“[V]isits by the court to the Center revealed

a deplorable situation. Clients lay half-

naked and unattended in their own urine

and feces on cold floors in dismal

surrounding’ while untrained attendants

watched velevision. The facility's

inadequate professional personne! failed to

provide suitable training or educational

programs for residents. Entry into the

institution often led to swift physical and

emotional deterioration and loss of skills.

The huge population of some fifteen

hundred clients made effective

management and control impossible.”

Similarly, Kentucky's Outwood Institution has been

described as “atrocious.” Kentucky Ass'n for Retarded

Citizens v. Conn, 510 F. Supp. 1233, 1237 (W.D. Ky.

1980), affd, 674 F.2d 582 (6th Cir. 1982), supplemental

op., 718 F.2d 182 (6th Cir. 1985).

In addition to mistreating people with disabilities

while they are in institutions, the States have a long

history of institutionalizing people unnecessarily. See, e.g.

Clark v. Cohen, 794 F.2d 79, 85-87 (3d Cir. 1986)

(documenting ten-year effort to secure the release of a

woman with mild retardation who had _ been

institutionalized for 40 years: even after repeal of

commitment statute and after doctors recommended her

release, State officials did not review her case). In the

decade before Congress enacted Title II, several States

still allowed commitment of people with “gravel]

disab{ilities]” without considering the alternative of care

by the individual's family or other State programs.

Congress was fully aware of such unnecessary and

unconstitutional civil commitment practices when it

passed the ADA. See United States Commission on Civil

Rights, Accommodating the Spectrum of Individual

Abilities 29, 34 (1983).

9% See, e.g., Colo. Rev. Stat. Ann. §§17-176, 177 (West. Supp.

1985); Conn. Gen. Stat. Ann. §171-178(c) (West. Supp. 1985);

Fla. Stat. Ann. §394.467(1)(B)(1) (Supp. 1985); Ill. Comp. Stat.

Ann. Ch. 911/2 1-119(2) Smith-Hurd Supp. 1985); N.J. Stat.

Ann. §§30:4-44, 30:4-45 (West 1977); N.Y. Mental Hyg. Law

§9.32 (McKinney 1978 & Supp. 1985); Vt. Stat. Ann. tit. 18,

7101(17)(B)ii) (Supp. 1985).

21

2. State Interference with the Right to

Vote.

When it passed the ADA, Congress found

persistent discrimination in the “critical” area of “voting.”

See 42 U.S.C. §12101(a)(3). The fundamental right to vote

is “preservative of other basic civil and political rights.”

Reynolds v. Sims, 377 U.S. 533, 562 (1964).

Despite the rule that classifications infringing the

ability to exercise the right to vote must be examined with

strict scrutiny, Harper v. Virginia State Bd. Of Elections,

383 U.S. 663, 666 (1966), States historically prevented

Americans with disabilities from exercising that right

through a host of laws. See, e.g., City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 464 (1985)

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

(citing 1979 article finding that “most States still

categorically disqualified ‘idiots’ from voting”). These

laws, facially or as applied, categorically excluded people

with disabilities from voting, without reference to

individual competence. See Manhattan State Citizen's

Group Inc. v. Bass, 524 F. Sapp. 1270 (S.D.N.Y. 1981)

(New York statute prohibiting individuals involuntarily

committed to mental institution from voting was

unconstitutional as applied). As the Court recently

observed “[t]he majority of these laws remain on the

books.” Lane, 541 U.S. at 524 nn.6,13 (noting both the

“categorical [disqualifi[cation]” of those deemed “idiots”

from voting, and the inability to access polling places by

voters with impaired mobility).

Additionally, States denied individuals with

disabilities physical access to both polling places and

voting machines. In Hill v. New York State Bd. of

Elections, 503 N.Y.S.2d 958 (Sup. Ct. 1986), for example,

the court noted that the New York State elections board

permitted local entities to position polling places in sites

inaccessible to people with disabilities.

Discrimination is pervasive and ongoing. Even

studies within the past decade have concluded that, in

some states, a significant portion of voting sites were

inaccessible to voters with physical disabilities.

Confronted with evidence that in two New York counties,

all polling places but one were inaccessible to persons

with disabilities, a federal court ordered access pursuant

to the ADA. New York v. County of Schoharie, 82 F. Supp.

2d 19 (N.D.N.Y. 2000); New York v. County of Delaware,

82 F. Supp. 2d 12 (N.D.N.Y. 2000). 1°

Because the States’ categorical disenfranchisement

of persons with disabilities and interference with such

persons rights to vote are themselves unconstitutional,

the reasonable accommodation requirements of Title Il

represent a congruent and proportional legislative

response in such circumstances.

3. State Interference with the Rights

to Marry and to Form Families.

States also have interfered with the rights of

persons with disabilities to marry, one of the “basic civil

rights,” without the requisite showing of a compelling

interest. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942);

see also Zablocki v. Redhail, 434 U.S. 374, 381 (1978).

10 See also Voting Rights Primary Access Committee,

Exercising My Right to Vote: The Accessibility of New

Hampshire Poll'ng Places to Citizens with Disabilities (Apr.

1996) (in 1996. 59% of New Hampshire's polling places

physically inaccessible); Coalition for Accessible Political

Elections, Report of the National Voter Independence Project

(Feb. 1999) (nationwide survey showed that 47% of polling

places lacked accessible path to voting area, and 52% of polling

places lacked a booth large enough to accommodate a

wheelchair); Debra Auspitz, Disabled Votes, PHILADELPHIA CITY

ParerR, Mar. 9-16, 2000 (survey found that only 27% of

Philadelphia polling places were accessible).

23

Numerous States categorically restricted the rights of

persons with disabilities to marry, without any

determination of individual capacity, in a manner that

cannot withstand strict scrutiny. Many States maintained

such restrictive statutes when the ADA was enacted.!!

Some of these statutes remain on the books. See Tenn.

Code Ann. §36-3-109 (2001) (forbidding issuance of a

marriage license “when it appears” that an applicant may

be “insane or an imbecile”); D.C. Code Ann. §46-403

(2001) (marriage of “an idiot or of a person adjudged to be

a lunatic” is illegal and void); cf. Utah Code Ann. §30-1-

2(1) (1987) (marriage of person infected with AIDS is

“prohibited” and “void”) (declared void and invalid in

T.E.P. v. Leavitt, 840 F. Supp. 110, 111 (D. Utah 1993)).

Lane observed that States continue to engage in

“systematic deprivations of fundamental rights,”

including maintaining statutes that criminalize or declare

void and illegal the marriages of persons with mental

disabilities. 541 U.S. at 524.

The States also share a long pattern of depriving

Americans with disabilities of the right and ability to

procreate.'2 When Congress enacted the ADA, some

1! See Lane, 541 U.S. at 524 & n.8; Bruce Dennis Sales, et al.,

DISABLED PERSONS AND THE LAW: STATE LEGISLATIVE ISSUES 16-

20 (Plenum Press 1982) (as of 1980, forty-two States and the

District of Columbia had statutes restricting marriage for

persons with disabilities). See also Cal. Civ. Code §4201 (1987):

D.C.Code Ann. §30-103 (1981); lowa Code Ann. §595.3 (1990):

Mich. Com. Laws §551.6 (1988); Miss. Code Ann. §41-21-45

(1990); Pa. Stat. Ann. tit. 48, §1-5 (West 1990); R.I. Gen. Laws

§15-1-5 (1988); Vt. Stat. Ann. tit. 15, §514 (1989); W. Va. Code

§48-2-2 (1990).

12 The right to procreate is a fundamental right that is “free

from unwarranted governmental intrusion.” Eisenstadt v.

Baird, 405 US. 438, 453 (1972). Limitations of this

fundamental right are subject to heightened scrutiny. Carey v.

Population Servs. Intl, 431 U.S. 678, 684-86 (1977).

24

states still had laws authorizing involuntary sterilization

of persons with disabilities. See Cook v. State, 495 P.2d

768 (Or. 1972) (upholding state statute mandating

sterilization). In 1981, former patients of Virginia

institutions who were involuntarily sterilized under a

1924 statute articulated a continuing constitutional

violation, based on the State's continuing failure to notify

them that they had been sterilized — causing them to

suffer “medical, emotional, and mental problems, arising

in large part from unsuccessful and uninformed attempts

to deal with their infertility.” Poe v. Lynchburg Training

Sch. & Hosp., 518 F. Supp. 789. 793 (W.D. Va. 1981).

Many state courts continued to uphold these statutes.

See, e.g., In re Sterilization of Moore, 221 S.E.2d 307 (N.C.

1976); Cook v. State, 495 P.2d 768 (Or. 1972). And even

after compulsory sterilization laws were repealed, some

States enacted statutes that allowed sterilization on the

consent of a superintendent of a custodial care institution

or a guardian.'3 Contemporaneous commentators, in

contrast, had concluded that “compulsory sterilization

laws, no matter what their rationale, [weljre

unconstitutional in the absence of evidence that

compulsory sterilization [was] the only remedy available

to further a compelling governmental interest.” In re

A.W., 637 P.2d 366, 368-69 (Colo. 1981) (citing Burgdorf &

Burgdorf, The Wicked Witch Is Almost Dead: Buck v. Bell

and the Sterilization of Handicapped Persons, 50 Temp.

L.Q. 955 (1977)).

With respect to people with disabilities who bear

children, States have interfered with the constitutional

right to raise those children. This Court has repeatedly

“recognized the fundamental right of parents to make

decisions concerning the care, custody, and control of

their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000).

13 Price & Burt, Sterilization, State Action and the Concept of

Consent, 1 Law & Psych. Rev. 57 (1978).

25

Yet, in matters involving the parent-child relationship,

States have historically treated parents with mental or

physical disabilities quite differently from other parents.

This discrimination often’ relies on _ unjustified

stereotypes, rather than actual individual differences in

capacity. In Bednarski v. Bednarski, 366 N.W.2d 69, 73

(Mich. Ct. App. 1985), a Michigan trial court terminated a

deaf woman's custody of her “[t}wo normal children,”

citing her deafness, a holding the appellate court

reversed. In another case a California appellate court

condemned the trial court’s conclusion that a father was

“deemed forever unable to be a good parent simply

because he is physically handicapped” and observed that,

“{llike most stereotypes, this is both false and

demeaning.” Jn re Marriage of Carney, 598 P.2d 36, 42

(Cal. 1979). See also In re Marriage of R.R., 575 S.W.2d

766, 768 (Mo. Ct. App. 1978) (reversing custody order that

had been based on unsubstantiated fear that the children

would be “emotionally damaged because of [the father’s]

handicap”); In re Adoption of Richardson, 59 Cal. Rptr.

323, 329-30 (Ct. App. 1967) (reversing trial court's refusal

to allow a deaf couple to adopt a child “solely because they

were deaf-mutes’”).

4. State Discrimination in the ~

Provision of Education.

“[E]ducation is perhaps the most important

function of state and local governments.” Brown v. Board

of Educ., 347 U.S. 483, 493 (1954). The categorical

exclusion of any class of children from the educational

system poses serious equal protection concerns. See Plyler

v. Doe, 457 U.S. 202, 221-22 (1982) (“denial of education

to some isolated group of children poses an affront to one

of the goals of the Equal Protection Clause”). States

nevertheless have historically discriminated against

people with disabilities by excluding them from

educational opportunities. See Lane, 541 U.S. at 524 & n.

26

12 (citing examples of the segregation and exclusion of

children with physical and mental disabilities from

schools). Prior to the ADA, a number of States

categorically excluded children with disabilities from

public education. See, e.g., Del. Const. art. 10, §1 (1975)

(establishing free public schools for all children except

those who were “physically or mentally disabled”). When

Congress enacted the Education for All Handicapped

Children Act (EAHCA) in 1975, it compiled an extensive

record that States simply did not educate children with

disabilities. Based on this record, Congress found that one

million children were “excluded entirely” from the public

school system, and “more than one-half” of the 8 million

children with disabilities did not receive appropriate

educational services. 20 U.S.C. §1400(c)(2).

Contemporaneous judicial decisions confirm

Congress’ conclusion. In Pennsylvania Ass'n for Retarded

v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972); The

court found that plaintiffs who challenged Pennsylvania

statutes excluding them from school had articulated

equal protection and due ovrocess claims under the

rational basis test. See also Honig v. Doe, 484 U.S. 305,

310 (1988) (“by the time of the EHA’s enactment, parents

had brought legal challenges to similar exclusionary

practices in 27 other States”); Mills v. Board of Educ., 348

F. Supp. 866 (D.D.C. 1972) (due process violation when

defendant excluded students with disabilities from public

education); Panitch v. Wisconsin, 444 F. Supp. 320 (E.D.

Wis. 1977) (even after passage of EAHCA, Wisconsin

excluded students with disabilities from educational

opportunities). In passing the ADA, Congress relied upon

a Civil Rights Commission Report finding that “a great

many handicapped children continue[d] to be excluded

from the public schools” after the EAHCA.!4 Congress

14 United States Commission on Civil Rights, Accommodating

the Spectrum of Individual Abilities 29 (1983).

27

therefore found that States were still discriminating

against children with disabilities in the “critical area” of

“education.” 42 U.S.C. §12101(a)(3). Instances of

unconstitutional State exclusion still persist. See, e.g.,

Robinson v. Kansas, 117 F. Supp. 2d 1124 (D. Kan. 2000),

affd, 295 F.3d 1183 (10th Cir. 2002) (students with

disabilities stated actionable due process and equal

protection claims alleging inadequate school funding).

In short, Congress’ specific findings, the well-

established judicial history, and the legislative history all

provide extensive and compelling evidence that States

participated in and_ perpetrated a _ pattern of

unconstitutional discrimination, including their

treatment of prisoners with disabilities. This historical

record amply supports Congress’ abrogation of the

Eleventh Amendment for Title II of the ADA.

28

CONCLUSION

The judgment should be reversed.

Respectfully submitted.

LISA C. SULLIVAN JERROLD J. GANZFRIED*

HOWREY LLP *Counsel of Record

321 North Clark Street ELIZABETH B. MCCALLUM

Suite 3400 HOWREY LLP

* Chicago, I] 60610 1299 Pennsylvania Avenue, NW

(312)595-1239 Washington, DC 20004-2402

(202)783-0800

Attorneys for Amici Curiae

JULY 29, 2005

I(a)

THE AMICI ORGANIZATIONS

Paralyzed Veterans of America (“PVA”) is a

congressionally chartered veterans’ service organization

founded in 1946 with more than 20,000 members, all of

whom are veterans of the armed forces with spinal cord

injury or dysfunction. PVA has developed a unique

expertise on a wide variety of issues involving the special

needs of its members and uses that expertise to be the

leading advocate for civil rights and opportunities which

maximize the independence of its members. Virtually all

PVA members use wheelchairs for mobility and have a

significant interest in the broadest possible

implementation and enforcement of the Americans with

Disabilities Act of 1990. ;

Easter Seals has been providing services that

help individuals with disabilities and special needs, and

their families, live better lives for more than 80 years.

Easter Seals promotes the passage and enforcement of

federal legislation, including the ADA, that enables

people with disabilities to achieve greater independence.

Its primary services—medical rehabilitation, job training

and employment, inclusive child care, adult day services,

and camping and recreation—benefit more than 1 million

individuals and their families each year through one of

450 centers nationwide.

The American Association of Retired Persons

(“AARP”) is a _ nonprofit, nonpartisan membership

organization with more than thirty-five million persons

age 50 and older that is dedicated to addressing the needs

and interests of older Americans. Countless AARP

members with disabilities rely on Title II of the ADA to

assure access to public programs and services, including

those provided by states and state entities, in a manner

free from discrimination. These protections are especially

important to AARP members because older persons have

a higher incidence of disabilities than other populations.

2(a)

The American Association of People with

Disabilities (AAPD) is a national nonprofit, non-

partisan membership organization whose mission is to

promote the political and economic power of children and

adults with disabilities in the United States. Founded on

the fifth anniversary of the Americans with Disabilities

Act (ADA), AAPD has a strong interest in full” and

effective enforcement and implementation of that

landmark law. With more than 115,000 members, AAPD

is the largest cross-disability membership organization in

the United States.

The Epilepsy Foundation is the sole national,

charitable voluntary health organization dedicated to

advancing the interests of the more than 2.5 million

people with epilepsy and seizure disorders. The term

"epilepsy" evokes stereotyped images and fears in others

that affect persons with this medical condition in all

aspects of life, including the delivery of public services

and participation in public programs. Since its inception,

the Foundation has worked to dispel the stigma

associated with seizures and has_ supported the

development of laws, such as the ADA, that protect

individuals from discrimination based on _ these

stereotypes and fears.

The National Federation of the Blind (NFB) is

the leading national organization of blind persons, with

affiliates in all 50 states, the District of Columbia and

Puerto Rico. Most of its approximately 50,000 members

are blind. NFB is recognized by the public, Congress,

governmental agencies, and the courts as a collective and

representative voice of blind Americans and their

families. NFB promotes the general welfare of the blind

by (1) assisting the blind to integrate themselves into

society on terms of equality and (2) removing barriers and

changing social attitudes, stereotypes and mistaken

beliefs concerning blindness that are held by sighted and

3(a)

blind persons and that result in the denial of opportunity

to blind persons in virtually every sphere of life.

The Polio Society serves its nationwide

membership with information and referral services,

training in self-advocacy to enforce the civil rights of

persons with disabilities, and support for legislation of

benefit to polio survivors and the disability community at

large. The ADA is a key element of the Polio Society's

advocacy. The members are persons with disabilities as a

result of polio and post-polio syndrome.

The Association on Higher Education and

Disability (‘AHEAD") is a_ non-profit organization

committed to full participation in higher education and

equal access to all opportunities for persons with

disabilities, including public services, professional

licensing and employment, among other state activities.

Its membership includes approximately 2,000 institutions

including colleges, universities, and not-for-profit service

providers, professionals, and college and _ graduate

students planning to enter the field of disability practice.

Many of its members are actively engaged in assuring

ADA compliance and _ in_ providing reasonable

accommodations to both students and employees at

institutions of higher education and in _ high-stakes

standardized testing. AHEAD publishes numerous

resources on the implementation of the Americans with

Disabilities Act and Section 504 of the Rehabilitation Act

of 1973 by post-secondary educational institutions.

United Cerebral Palsy Associations, Inc. is

one of the oldest and largest national health

organizations dedicated to improving the lives of people

with disabilities. Founded in 1949, the organization

advances the independence, productivity and _ full

citizenship of people with disabilities through a

nationwide network of approximately 100 affiliates in 37

States and the District of Columbia. United Cerebral

- 4(a)

Palsy was one of the major leaders in supporting

enactment of the Americans with Disabilities Act.

The National Lawyers Guild, founded in 1937

as an alternative to the then-racially segregated

American Bar Association, is a national non-profit legal

and political organization dedicated to using the law as

an instrument for social amelioration. Through its

members — lawyers, law students, jailhouse lawyers and

legal workers united in chapters and committees — the

Guild works locally, nationally and internationally as an

effective political and social force in the service of the

people. The central aims of the Guild _ include

safeguarding and strengthening the rights of minority

and oppressed groups, including people with disabilities;

maintaining and protecting civil and human rights and

liberties in the face of persistent attacks; and using the

law as an instrument for the protection of the people,

rather than for their repression.

The National Council on Independent Living

(*“NCIL”) is the oldest cross-disability, national

grassroots organization run by and for people with

disabilities. NCIL’s membership is comprised of centers

for independent living, statewide independent living

councils, people with disabilities and other disability

rights organizations. NCIL’s mission is to advance the

independent living philosophy and to advocate for the

human rights of, and services for, people with disabilities

to further their full integration and participation in

society.

The National Mental Health Consumers’ Self-

Help Clearinghouse is a national technical assistance

center established in 1986. It is run by and for people

who are consumers of mental health services and

‘survivors of _ psychiatric illness (known = as

consumers/survivors). Its mission is to promote

consumer/survivor participation in planning, providing

and evaluating mental health and community support

5(a)

services, to provide technical assistance and information

to consumers/survivors interested in developing self-help

services, and advocating to make traditional services

more consumer/survivor-oriented. The Clearinghouse has

an interest in helping people with mental illness live to

their full potential as active members of the community.

FILED

SEP 22 2005

No. 04-1203 OFFICE OF THE CLERK

No. 04-1 SUPREME COURT, U.S.

IN THE

Supreme Court of the Anited States

UNITED STATES OF AMERICA,

Petitioner,

v.

STATE OF GEORGIA, ef ai.,

Respondents.

TONY GOODMAN,

Petitioner,

Vv.

STATE OF GEORGIA, ef al. _

Respondents.

On Writs of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

BRIEF FOR RESPONDENTS

GREGORY A. CASTANIAS THURBERT E. BAKER

JONES DAY Attorney General

51 Louisiana Avenue, N.W. KATHLEEN M. PACIOUS

Washington, D.C. 20001 Deputy Attorney General

(202) 879-3939 JOHN C. JONES

JORDANA R. STERNBERG Senior Assistant Attorney General

JONES DAY DAVID E. LANGFORD*

1420 Peachtree Street, N.E. Assistant Attorney General

Atlanta, GA 30309 STATE OF GEORGIA ~ =~

(404) 521-3939 Georgia Department of Law

40 Capitol Square SW

Atlanta, GA 30334

(404) 463-8850

*Counsel of Record

aR ninco cE Tt

QUESTION PRESENTED

Whether Title II of the Americans with Disabilities Act of

1990, 42 U.S.C. §§ 12131 to 12165, validly abrogates state

sovereign immunity for suits for damages by inmates

alleging disability-based discrimination by state prison

officials.

TABLE OF CONTENTS

Page

See EE isicttesiitndenithestndiniiionciaiihuinutsisivmsian i

ee ee iesicerccsscchinescnieideaiinpesentienneniginn iv

STATEMENT .........-0secuse-sssssoscnsonssnesveessnrncossncevenssssansorssseoees l

SUMMARY OF THE ARGUMENT ..........ccccccccceeeseeeeeseeeees 6

PO wisdinhilsitiinibscstanuaabeuertiichiitnemiihsiihinpiniviadiiigatenmctibansvasant 9

I. MOST ACTIONS BY STATE PRISON

OFFICIALS, AND DISTINCTIONS BASED

ON DISABILITY, ARE SUBJECT TO

DEFERENTIAL CONSTITUTIONAL

TD altiadinnhilaciininnsinduatebiiitianiiacbinidiempieteninnotgcbies 10

A. Disability-Based Classifications Are

Subject To Rational-Basis Review...................+. 11

B. Constitutional Review Of Disability-Based

Classifications In The Prison Context Is

Further Constrained By The Essential

Nature Of incarceration And The Rule Of

Deference To Prison Officials’ Actions............. 14

Il. IN ENACTING TITLE II OF THE ADA, CON-

GRESS DID NOT IDENTIFY A HISTORY

AND PATTERN OF UNCONSTITUTIONAL

DISCRIMINATION BY THE STATES

AGAINST DISABLED STATE PRISON

ED vinidinctiscnsttnenniniietgeiuibnapnibtinibevinnanestnnerins 19

A. The Proper Context For Evaluating The

Abrogation Claim In This Case Is The

Specific Prison Context, Not The General

Area Of “State Services And Programs”............ 20

TABLE OF CONTENTS

(continued)

Page

B. The Legislative Record Does Not Show

That Congress Enacted The ADA On The

Basis Of Fourteenth Amendment Violations

In The State Prison Context ..............0.::ccccceeeeeees 22

C. Petitioners’ Reliance On Eighth Amend-

ment Decisions To Support Their Abroga-

tion Claims Is Without Merit .................0.:000006 27

D. Petitioners’ Collection Of Judicial

Decisions Demonstrates No History Of

“Widespread And Persisting Deprivation

Of Constitutional Rights” Regarding

Disabled State Prisomers................cccccceeseceeeeesees 29

1. Two-Thirds Of Petitioners’ “Massive

Body” Of Cases Could Not Have Been

Considered By Congress Because

They Postdate The 1990 Enactment Of

Pe ee hathaiesintnasciicscteiathiaienabediacdbtabtaiatsbinaddsvis 30

2. Most Of Petitioners’ Pre-ADA Cases

Are Facially Inapposite ......................ccc00000 31

3. The Few Judicial Decisions Remaining

Are Too Isolated And Sporadic To

Demonstrate A “Widespread And

Persisting” Pattern Of Unconstitutional

Treatment Of Disabled State Prisoners........ 36

Ill. TITLE I! OF THE ADA IS NOT A PROPOR-

TIONATE OR CONGRUENT REMEDY

RIS PEG GULF IEEIUT D veccstscsiinetesniciststndnsecenisesanescbesigns 38

SINE saidiesertienccnsccbonctsiniipeincaupideeibebeipiabendhigiebaibindde 45

iV

TABLE OF AUTFORITIES

Page

Cases

Alden v. Maine, 527 U.S. 706 (1999) .0......ccccccccccceeceeeeeeeees 10

Allegheny Pittsburgh Coal Co. v. County

Commission of Webster Cty., 488 U.S. 336 (1989)........ 16

Balla v. Idaho State Board of Corrections,

595 F. Supp. 1558 (D. Idaho 1984)... eeeeeseeee es 33

Battle v. Anderson, 376 F. Supp. 402 (E.D. Okla.

1974), aff'd in part, rev'd in part, 993 F.2d 1551

CE GUE, Rei csscitechcterienieeniinieepnivaiteapuiahdiamaieksangiaitin’ 33

Baumann vy. Ariz. Department of Corrections,

Fe Bele OE: Cae GR, Fe oectievescotnccsttdusicienitesintcnesnictes 17

Board of Trustees of University of Ala. v. Garrett,

See Woe ne GED ceitciciecisepniaineshcieiniapliantitaaibimietiods passim

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

TET cvsediniddescitarncneuiptaiiathiaiaesiembaidstiaietiiciiaiiinatie lidenibied 42, 43

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

City of Cleburne v. Cleburne Living Center,

SER Ge Ie Cee ee ersihnrcisninintbitaioniniashbainiih 7, 11, 16, 40

Civil Rights Cases, 109 U.S. 3 (1883).........:ccccccccceeseeeenseees 38

Correctional Services Co. v. Malesko, 534 U.S. 61

CET D <icciscasesebinhanineesapeicisbiuinniicimaibighcaeiisiinsiatieaiiiiad Da dli lanl 19

Cortes-Quinones v. Jiminez-Nettleship, 842 F.2d 556

EAE Cas EE seccvvsisinisttinsscoiestiisnilintinatantaanadeinditihinaaai’ 17,18

Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986)............ 34

Edelman v. Jordan, 415 U.S. 651 (1974) ......ccccccccceceeeeeeeeee 10

Elliott v. Brooks, 188 F.3d 518 (10th Cir. 1999)................ 17

Eng v. Smith, 849 F.2d 80 (2d Cir. 1988) ..............ccceeeees 34

Estelle v. Gamble, 429 U.S. 97 (1976) ........ccccccceeseeeeees 18, 42

Farmer v. Brennan, 511 U.S. 825 (1994).............::::00 18, 19

Fla. Prepaid Postsecondary Education Expense

Board v. College Sav. Bank, 527 U.S. 627

EEUU D sosncitimtbientinsegadiastacvemnulabiendtamnidgiiinidessenenii passim

Gibson v. Federal Bureau of Prisons, 121 Fed.

PG, SUE Le Cae. Be ecseeitnninnarnicbiinainaibndaiaviidicians 17

Vv

TABLE OF AUTHORITIES

(Continued)

Page

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

Griffin v. Breckenridge, 403 U.S. 88 (1966)................ 42, 43

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

Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982)................ 17

Johnson v. California, 125 §. Ct. 1141 (2005)..............006. 15

Jones v. N.C. Prisoners’ Labor Union, 433 U.S.

EE SIRES Se ee 14, 41

Kelo v. City of New London, 125 S. Ct. 2655

EEE EEE EEE 2 16

Key v. Grayson, 179 F.3d 996 (6th Cir. 1999) 00.00.0000... 21

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

EROS SEES RS EE NO ee passim

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) .................. 21

Lewis v. Casey, 518 U.S. 343 (1996)...........ccccccccccceseeseeeeees 16

Mathews v. Lucas, 427 U.S. 495 (1976)........cccccccccceeesceeeees 40

MeMiillian v. Monroe County, 520 U.S. 781 (1997)........... 35

McNeil v. United States, 508 U.S 106 (1993) ............00006 4]

Meachum v. Fano, 427 U.S. 215 (1976) ........ccccccccceeccceeees 15

Miller v. King, 384 F.3d 1248 (1 1th Cir. 2004).........0000.0..... 6

More v. Farrier, 984 F.2d 269 (8th Cir. 1992)..........00..0.. 17

Nevada Department of Human Resources v.

Ns GEE PUES PANE CII Pocccccecccccetsccocscccsscnccsessesue passim

O'Lone v. Estate of Shabazz, 482 U.S. 342

EER SEN ee ee 10, 14, 15

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 ’

EES ELE IER GILL OPT ETO 27

Overton v. Bazzetta, 539 U.S. 126 (2003) ............ccccccccees 15

Palmer v. Hudson, 468 U.S. 517 (1984) ...........000004. 7, 14, 22

Penn. Department of Corrections v. Yeskey,

LL TL 16

Richardson v. Ramirez, 418 U.S. 24 (1974) .........ccccc0cc00e. 14

Roberts v. United States Jaycees, 468 U.S. 609

EE NEES SE ELE LTO OT AOE 15

vi

TABLE OF AUTHORITIES

(Continued)

Page

Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan.

PETRIE Eee. 10 ao ae ree Some ve WR SOS OE en OTT aES 21

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ..........cccccc000 ]

Smith v. City of Jackson, 125 S. Ct. 1536 (2005)............... 28

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

STE iiielitatiintnastisdiensabiahedidebinatalbaatinialeeiiinasiinbiebiteaadionlanin 10

Tennessee v. Lane, 541 U.S. 509 (2004) ..0......cccccceccees passim

Turner v. Safley, 482 U.S. 78 (1987).......cccccccc0e- 7, 15, 16, 40

United States v. Booker, 125 S. Ct. 738 (2005)...........0000. 43

United States v. Carolene Products Co., 304

Se IT diiichiciancitttirinittaamntinntadaiinteeninasntinetcensinadildian 39

United States v. Raines, 362 U.S. 17 (1960) ................ 42, 43

Wilson v. Seiter, 501 U.S. 294 (1991) .o..cccccccccceieccereeeenenee 44

State Cases

Goodman v. State, 237 Ga. App. 795, 516 S.E.2d

ee RE ISIS at EM ese emma CS 2,3

Federal Statutes

is ae eee 5, 6

ee BS ee passim

Se CIs NEE, AU g © 8 ccscsacocenaccoscscnenssscasesensoeossnns 9,27

PR | ae eee passim

Civil Rights of Institutionalized Persons Act of 1980

(“CRIPA”\(Pub. L. No. 96-247, 94 Stat. 349) ..000000000.... 25

Rehabilitation Act of 1973 (Pub. L. No. 93-112, 87

EES RL, 5 SSO aw Ow 25

Civil Rights Act of 1957, 42 U. Se OP ire ditierstbasaiuenniies 42

ee ee I ectiiietictediadceiccctaniisndiitiactiiiiacanicerk tinh aisiaads 5,29

Prison Litigation Reform Act of 1995, P.L. 104-134,

a Re ss GDS sccnitencrnenisestinentsscnnssieiaddaitinn 28

TT Ce Ee AD 39

Americans with Disabilities Act of 1990, 104 Stat.

997, 42 UBC. GE UZUSD-IZIGS ..........ccccocsccccccseccccceses 1,39

Re ees UF ID vitptadilcnians bn aninictontnncésieqoenndsdnuniineduneitnngtl passim

Vii

TABLE OF AUTHORITIES

(Continued)

Page

Legislative Materials

H.R. Rep. No. 101-485 (Pts. 1-4) (1990) ........... 7, 22, 24, 25

S48 | SSCS eae e as 22, 24

136 Cong. Rec. $9527-02 (daily ed. July 11, 1990)........... 25

141 Cong. Rec. $7256 (daily ed. May 25, 1995)................ 28

ADA: Joint Hearing on S. 2345, 100th Cong. 1190 .....23, 24

ADA: Joim Hearing on H.R. 2273 (July 18, 1989)............ 24

Miscellaneous

ep Gas Sin PEIITII icicciteiciarestititeeasitimindiepeernupninieansicubanensitimemensees 4)

Karen M. Blum, Support Your Local Sheriff: Suing

Sheriffs Under § 1983, 34 STETSON L. REV. 623

iii sicnnecccenetndniininisdetbieatesadiibiiidincennitidinttagsutitpsinnteees 35

“Task Force on the Rights and Empowerment of

Americans with Disabilities, From ADA to

gg ES ee Te 26

U.S. Civil Rights Commission, Accommodating the

Spectrum of Individual Abilities (1983) .................. 25, 26

STATEMENT

This case asks whether Congress validly abrogated the

States’ Eleventh Amendment immunity in Title II of the

Americans With Disabilities Act of 1990 (the “ADA”), 104

Stat. 337, 42 U.S.C. §3 12131-12165, as applied to suits for

damages brought by disabled state-prison inmates. More

specifically, it presents the question whether Tennessee v.

Lane, 541 U.S. 509 (2004), which held that Congress, in

enacting Title Il of the ADA, validly abrogated state

sovereign immunity “as applie[d] to the class of cases

implicating the accessibility of judicial services,” id at 531,

extends to state prison inmates who challenge the actions and

omissions of state prison administrators.

As this Court’s decisions in City of Boerne v. Flores, 521

U.S. 507 (1997), and its progeny have demonstrated, one of

the few limitations imposed by the United States

Constitution on such otherwis.-sensible measures as the

ADA arises where one sovereign attempts to impose a

money-damages remedy on another sovereign. No State

could impose such an obligation upon the federal

government, or upon another State. In our government of

“dual sovereigns,” Gregory v. Ashcroft, 501 U.S. 452, 457

(1991), the Eleventh Amendment similarly cabins (though it

does not absolutely forbid) the power of Congress to pass

laws that seek to give citizens the ability to sue an

unconsenting state for damages. See, e.g. Board of Trs. of

Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).

A State’s Eleventh Amendment immunity may be

abrogated only when Congress expresses its intent to do so,

and properly acts pursuant to a constitutional provision

granting it the right to abrogate. Section 5 of the Fourteenth

Amendment, also known as the Enforcement Clause,

provides the primary avenue through which Congress can

abrogate a state’s Eleventh Amendment immunity. See

Seminole Tribe v. Florida, 517 U.S. 44, 59-66 (1996).

Under § 5, Congress may enact legislation allowing private

2

individuals to sue the States for damages only if such

legislation is limited to the purpose of “enforcing, by

appropriate legislation” the substantive guarantees of the

Fourteenth Amendment. City of Boerne, 521 U.S. at 517-18;

Lane, 541 U.S. at 554 (Scalia, J., dissenting). That, in turn,

requires the Court to determine what constitutional guarantee

required remediation, whether Congress was in fact

responding to a widespread and intractable problem of

unconstitutional state discrimination, and if so, whether

Congress’s chosen remedy was proportional and congruent

to these constitutional violations.

The resolution of each of these questions should lead the

Court to conclude that Congress did not validly abrogate

state Eleventh Amendment immunity as applied to the class

of cases where disabled state inmates seek money damages

for denial of access to “services, programs, or activities.”

See 42 U.S.C. § 12132. Accordingly, the Court of Appeals’

judgment should be affirmed.

Briefly stated, the facts of this case are as follows:

1. Petitioner Tony Goodman, a paraplegic with a prior

felony conviction, returned to a state prison in 1995 after

being convicted of aggravated assault, possession of cocaine

with intent to distribute, and possession of a firearm by a

convicted felon. Goodman had a domestic dispute with his

live-in girlfriend outside their home, and he shot at her with

a gun. Goodman v. State, 237 Ga. App. 795, 516 S.E.2d 824

(1999). When the shot missed, the woman ran inside and

called 911. According to trial testimony, the gun jammed

and Goodman chased her down, got out of his wheelchair, -

and beat her with the gun. When police arrived, they found a

fight in progress. The woman was cut and bruised and “her

blood was splattered on the wall.” /d, 516 S.E.2d at 825.

Police officers then found 22 pieces of crack cocaine. /d at

795-96, 516 S.E.2d at 825. Goodman claimed at trial that he

did not know where the drugs had come from, but “theorized

that [his brother and girlfriend] were having an affair and

3

that they placed the gun and cocaine on him in an elaborate

scheme to frame him.” /d at 796, 516 S.E.2d at 826. The

jury convicted Goodman and he was sentenced to a term of

years in the Georgia state prison system.

2. Goodman, who has filed more than 60 lawsuits since

his incarceration in the Georgia State Prison (see Br. in Opp.

to Cert. 1-2 n.1), filed this civil action in federal district court

in January 1999. J.A. 27.

a. Goodman’s pro se complaint alleged a variety of

wrongs, ranging from the temperature in his cell in the

Georgia State Prison (J.A. 38) to the lighting in the facility.

J.A. 48. Relevant to the question before this Court are the

following claims and allegations:

— That the Department of Corrections violated his ADA

rights when they transferred him from a “medical prison” to

Georgia State Prison and denied or excluded him from

participation in Mental Health/Mental Retardation programs

and activities. J.A. 34.

—That he is entitled to relief for “his continued

confinement in segregated environment, on the grounds of

unlawful disability-based discrimination. Defendants have

confined Plaintiff to [the Georgia State Prison] where that

Plaintiff could be appropriately treated in more integrated

community setting.” Goodman added that “the failure to

provide the most integrated services appropriate to the needs

of disabled persons constitutes unlawful disability-based

discrimination. Here the Defendants has [sic] violated the

core principle underlying the A.D.A.’s integration mandate.”

J.A. 35.

—That the unit he lived in “lacks facilities for the

disabled ‘for hygiene, drinking and performing body

excretion functions.’” J.A. 39.

— That he was given no assistance by staff in using the

toilet and getting to his bed and has thus suffered injuries.

J.A. 39.

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—That he was kept “in a very small cell (12 feet long

and 3-feet wide) which he can not [turn] his wheelchair

around in side of this cell.” J.A. 38-39.

—That he has “been forced to sit in his own waste,

denied of catheter, denied of rehabilitative exercises, denied

of assistance in being transferred from his w/c [sic], to the

bed all of which resulted, among other things, in the Plaintiff

not getting a bath or a shower for (10) months.” J.A. 43.

— That he could not access the prison law library. J.A.

41-42.

b. In other papers, which the Court of Appeals also

considered, Goodman alleged that he was injured in

transferring to or from his toilet. He says he fell and broke

his right toe and crushed his right knee on five different

occasions between August 1998 and April 1999. J.A. 55.°

He alleges that within one month between mid-March and

mid-April 1999, he broke the same toe and crushed the same

knee three times from toilet-transfer falls. J.A. 55. He also

claims that, on August 26, 1998, the toilet seat in his cell was

not stable, and so he fell when he “hurl[ed]” himself onto the

toilet, in turn causing an epileptic seizure. J.A. 55. He

alleges he once defecated and urinated on himself and, when

he requested cleaning supplies and assistance from staff

members, they refused. J.A. 65.

c. Finally, in his Statement of Undisputed Facts in

support of his motions for Summary Judgment, Goodman

alleged he had been denied certain “Privileges and Rights”

granted to other inmates at his security level, including

“counseling services, educational services, college program,

vocational training, recreation activities, freedom of

movement in the unit and institution, television, phone calls,

entertainment, and religious rights, also we are being denied

of medical supervision and education concerning ‘diabetes

and hypertension.’” J.A. 65, 83-84.

d. The State has continually denied Goodman’s factual

allegations (J.A. 72-73, 93-95), and has pointed out to the