# Amicus Curiae Brief — Goodman v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0079%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 544 U.S. 1031 ## Text Supreme Court, US} ¥ FILED Nos. 04-1203, 04-1236 SUL 2:9 2005 ; ] } ERK | 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 eee = ap + KOZ med, » res é 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