Opposition Brief — Board of Trustees of Univ. of Ala. v. Garrett

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No. 99-1240

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In the Supreme Court of the! ‘nip States

ae: 2 oR K

UNIVERSITY OF ALABAMA AT BIRMINGHAM,

BOARD OF TRUSTEES, ET AL., PETITIONERS

v.

PATRICIA GARRETT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether Titles I and II of the Americans with

Disabilities Act of 1990, 42 U.S.C. 12111 to 12117, 12131

to 12165 (1994 & Supp. III 1997), are proper exercises

of Congress’s power under Section 5 of the Fourteenth

Amendment.

2. Whether petitioners are subject to suits under

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

794, either because petitioners waived their Eleventh

Amendment immunity when they applied for and

accepted federal financial assistance that Congress ex-

pressly conditioned upon a waiver of Eleventh Amend-

ment immunity, or because Congress has validly abro-

gated petitioners’ immunity from suits under Section 5

of the Fourteenth Amendment.

(I)

TABLE OF CONTENTS

Page

os EE CO en 1

ITT ilies ech ea esegpleeahd as Dusbdebo enc ledesacetscasea Sede l

SIN, sche caidcks shin einecahnedicdisrladieecaonescee chats l

SNR SEAR A FE oT De ao a 8

REREAD 18

TABLE OF AUTHORITIES

Cases:

Alden v. Maine, 119S. Ct. 2240 (1999) cooccccccccccoceccoseoseeees., 16

Alsbrook v. City of Maumelle, 184 F.3d 999 (8th

Cir. 1999), cert. granted in part, 120 S. Ct. 1003 (2000),

cert. dismissed, No. 99-423, 2000 WL 230234 (Mar. 1,

NP Saadeh cetenhbgeesbcbenbliecscaittsidacbandsacodaseaiiss 8, 10

Amos v. Maryland Dep't of Pub. Safety & Correc-

tional Servs., 178 F.3d 212 (4th Cir. 1999), vacated for

reh’g en banc (Dec. 28, 1999), appeal dismissed due to

settlement, 2000 WL 248707 (Mar. 6, 2000) ..cccccccccccccoe----. 9,14

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

SNE is dalelctitedichcsebeesSeasdtetncisstelabahintaibishnseobentitaaahunsnaninesednanaonn 15

Bradley v. Arkansas Dep't of Educ., 189 F.3d 745

(8th Cir.), vacated in part for reh’g en banc, sub nom.

Jim C. v. Arkansas Dep't of Educ., 197 F.3d 958

SUITE asa tl Sishcelainelalncoeibeaeigsadcelenenbaidienebbreacansmicicscnsucs 14,17

City of Boerne v. Flores, 521 U.S. 507 (1997) cecccccccoeco.---.. 9,10

Clark v. California, 123 F.3d 1267 (9th Cir. 1997),

cert. denied, 524 U.S. 937 (1998) ........csccscssssesssssesseeesees 9, 14, 17

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 119 S. Ct. 2219 (1999) ceeceecccccccsseseeeee 16

Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir),

cert. denied, 119 S. Ct. 58 (1998) .........ce.ccccscesscscesosecesseoeeece. 9

Crawford v. Indiana Dep't of Corrections, 115 F.3d

I ID ih ae lnlaiinscinansdticagelnntinntimneds 10, 14

Dare v. California, 191 F.3d 1167 (9th Cir. 1999),

petition for cert. pending, NO. 99-1417 c.cccccccccccsssssscssssesees 10

(IIT)

IV

Cases—Continued: Page

Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) ...........0. 13

DeBose v. Nebraska, 186 F.3d 1087 (8th Cir.

1999), petition for cert. pending, NO. 99-940 .........:sseseese 10, 12

Erickson v. Board of Governors of State Colleges

& Univs., No. 95 C 2541, 1998 WL 748277 (N.D. Ii.

Sept. 30, 1998) , appeal pending, No. 98-3614 (7th Cir.

argued Apr. 27, 1999) ....secscceessseneneeesrsnsessssessesesssensnsnsnsatens 10

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ....ecsesseecesseeneenes 4

Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Sav. Bank, 1198. Ct. 2199

(190B) ..crcccscrceccosssrsonssesseerenessesessvanccssessssssnessncssoconsessoreessassesensess 10

Jackan v. New York State Dep’t of Labor, No. é

98-9589, 2000 WL 241648 (2d Cir. Mar. 3, 2000) .......-..+++ 1]

Kilcullen v. New York State Dep't of Labor,

No. 99-7208, 2000 WL 217465 (2d Cir. Feb. 24,

OD micacseccnhnsicickctsninssivisiarsienanscistenliescanoacasebminiecietniiantninianne 11,14

Kimel v. Florida Bd. of Regents, 139 F.3d 1426

(11th Cir. 1998), rev’d in part, 120 S. Ct. 631 (2000),

cert. granted sub nom. Florida Dep't of Corrections

v. Dickson, 1208. Ct. 976 (2000), cert. dismissed,

No. 98-829, 2000 WL 215674 (Feb. 23, 2000) ............. 7-8, 9,11

Litman v. George Mason Univ., 186 F.3d 544 (4th Cir.

1999), cert. denied, No. 99-596, 2000 WL 198966 (Feb.

OR NID) srsinsinivssiscocensnsivndstensicinsbccsitihantiontnansinscaininvehaccenitnatinmatonine 17

Little Rock Sch. Dist. v. Mauney, 183 F.3d 816

CBG Clr. RODD) sscsscsasitncsisnvoerennsesnnenessinistonsssavesesacieneienessnvicnorstes 17

Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999) ........... 10

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) ......00 10

Nihiser v. Ohio EPA, 979 F. Supp. 1168 (S.D. Ohio

1997), appeal pending, NO. 97-3933 .......eseessessecseesecneeneenes 10

Olmstead v. L.C., 119 S. Ct. 2176 (1999) .........cseccecccssceseres 5,13

Petty v. Tennessee Mo. Bridge Comm’n, 359 U.S. 275

CDI cceriisncnoisisivicectensinniciicesiinaivoasiseesctlinesiatateatianaccnitncnsiain 16

Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) .......... 17

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

South Dakota v. Dole, 483 U.S. 203 (1987) .....ccssceseereeees 16

Cases—Continued:

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

CRIP wisseniniscisnateiesinitateatiuhiiasiiaielaeleiieiiiilcicapsa aaa.

Torres v. Puerto Rico Tourism Co., 175 F.3d 1

CRUE Sines HEED escunaiicmiannnnciaaaiadeanmaieidna siete tet

United States Dep’t of Transp. v. Paralyzed

Veterans of Am., 477 U.S. 597 (1986) .....ccsccscessessesescessesees

Wisconsin Dep’t of Corrections v. Schacht,

OPO AS Se SUD: sictchieiicsnieianabasiinspabdicnitadiesiatian stint es

Constitution and statutes:

U.S. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) -..ccccccccoscsccsescececeeceeeees

PORN TRE vaieiciinaiatn ee oe et. ee ae

SF > sscarssoncssineticiadnedaenidintibsiaieasticiditiicharmdndesiibeadaaibeaunmibaieaiuatiaa

Age Discrimination in Employment Act, 29 U.S.C.

FEE Oe DI xscssicsercsnscsscnewssditisincapntidinieuacniaiaablan eckedneaaeis

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

Se SGT witieidnninenduaiien Gataiaamaens

42 U.S.C. 12101:

RUDD ‘acsconssssnssiseipinitintiarhdapiiomiehcnsdieudbliaiiiniaia abahiiea aaaasiaaila,

TD URE ss CRONE -Siiitclainidinmureamdeusibaalaaaens!

16

9,14

—"

—

'

we w

-~ -& & Lh hw Ww

VI

Statutes—Continued:

Tit. III, 42 U.S.C. 12181-12189 (1994 & Supp. III

a ey Tee EL OR ENT Ee ON fs

Tit. V, 42 U.S.C. 12201-12213:

OE UA SEE wich tarticenteicadaieideedae cea

Te UES, TE pitinreticmniciinriednnnancee

Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:

1M, VE, SE UR, OO ee a

Tit. VIL, 42 U.S.C. BOO ef 8G, .nrnicecocasesscscserorssassosssessese

Education Amendments of 1972, Tit. [X, 20 U. S.C.

FE 0S DD: siscsckiniercasinarivattanaeseaaiee a nee

Family and Medical Leave Act of 1993, 29 U.S.C.

2601 ef DOR, ssnnccenscsensiscpansstninnhhanacn biounaakabababiaediad aenauaieia mas

Individuals with Disabilities Education Act, 20 U.S.C.

RUD ssslaststesmsiuinensiamineumaamaamaane ean

tehabilitation Act of 1973, 29 U.S.C. 701 et seq.:

SU BL, TCO i iiicdcvienciescenlactaeiiec eee

PU IBA. FOIE sahiccinactghictndaaealidasieanansacee eae ee

SO UBC, FORE : iccaccsicccicnienaiensiaaeanadnas kaa eee

DUS BAA. TOD seestiticssninieitinieacccee ie ae eee

Rehabilitation Act Amendments of 1986, Pub. L.

No. 99-506, Tit. X, § 1003, 100 Stat. 1845 oo.

UB. SIGE cnntiacccctiakeee

CEU) BAS. SORE Fe) ciieteskndcaden deen

Rehabilitation Act Amendments of 1992, Pub. L.

No. 102-569, § 101, 106 Stat. 4346 (codified at

Se SF RAs. WEE secsisecconstea sic naneeibaiandas ei ae

SO SEA SE iatencintcsaciabelebieapn tials caeaien ines eee i ee

4S U BA, TRGRMONED scsisicsicnticatinatdaiee eas ee eee

Miscellaneous:

Timothy M. Cook, The Americans with Disabilities

Act: The Move to Integration, 64 Temp. L. Rev.

CRED wicrsnsnnsicniicnaiivinittibitninitadiiodashdaissg ih RAEN teen eae

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

Ge So: sonsesensnanstinetsisatanaisanieaiulticisicbiesiaindnaleheatae cease aaa eae

G&D soisannranihccnvintspiisteneistiisslonmonietsiuiiniataiipanaaca tea Raia eee ae

Bh, © ccnencavonaninsvesieniiniastamtemiiiinisissidaiuadiati cath iMetas ia a ee ane

VII

Miscellaneous—Continued: Page

National Council on Disability, On the Threshold of

detain. striderosaipcniat se RO TT ae Re ern 2

National Council on Disability, Towards | ndependence

TD siden inieliaihciaibiebiad Sian a a ie 2

S. Rep. No. 116, 101st Cong., Ist Sess. (1989) oe... 2

United States Civil Rights Commission, Accom modating

the Spectrum of Individual Abilitres (1983) ..................... 2

Jn the Supreme Court of the Ginited States

No. 99-1240

UNIVERSITY OF ALABAMA AT BIRMINGHAM,

BOARD OF TRUSTEES, ET AL., PETITIONERS

PATRICIA GARRETT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-48) is

reported at 193 F.3d 1214. The opinion of the district

court (Pet. App. 49-55) is reported at 989 F. Supp. 1409.

JURISDICTION

The court of appeals entered its judgment on October

26, 1999. The petition for a writ of certiorari was filed

on January 24, 2000. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Americans with Disabilities Act of 1990

(Disabilities Act), 42 U.S.C. 12101 et seq., is a “compre-

hensive national mandate for the elimination of dis-

crimination against individuals with disabilities.” 42

(1)

2

U.S.C. 12101(b)(1). Based on extensive study and fact-

finding by Congress,’ and Congress’s lengthy experi-

ence with the analogous nondiscrimination requirement

in Section 504 of the Rehabilitation Act of 1978, 29

U.S.C. 794, Congress found in the Disabilities Act that:

(2) historically, society has tended to isolate and

segregate individuals with disabilities, and, despite

some improvements, such forms of discrimination

against individuals with disabilities continue to be a

serious and pervasive social problem;

(3) discrimination against individuals with dis-

abilities persists in such critical areas as employ-

ment, housing, public accommodations, education,

transportation, communication, recreation, institu-

tionalization, health services, voting, and access to

public services;

* * * * *

(5) individuals with disabilities continually en-

counter various forms of discrimination, including

1 Fourteen congressional hearings and 63 field hearings by a

special congressional task force were held in the three years prior

to passage of the Disabilities Act. See S. Rep. No. 116, 101st

Cong., Ist Sess. 4-5, 8 (1989); H.R. Rep. No. 485, 101st Cong., 2d

Sess. Pt. 2, at 24-28, 31 (1990); ad. Pt. 3, at 24-25; id. Pt. 4, at 28-29;

see also Timothy M. Cook, The Americans with Disabilities Act:

The Move to Integration, 64 Temp. L. Rev. 393, 393 & nn.1-3 (1991)

(listing the individual hearings). Congress also drew upon reports

submitted to Congress by the Executive Branch. See S. Rep. No.

116, supra, at 6 (citing United States Civil Rights Commission,

Accommodating the Spectrum of Individual Abilities (1983),

National Council on Disability, Toward Independence ( 1986); and

National Council on Disability, On the Threshold of Independence

(1988)); H.R. Rep. No. 485, supra, Pt. 2, at 28 (same).

3

outright intentional exclusion, the discriminatory

effects of architectural, transportation, and com-

munication barriers, overprotective rules and poli-

cies, failure to make modifications to existing facili-

ties and practices, exclusionary qualification stand-

ards and criteria, segregation, and relegation to

lesser services, programs, activities, benefits, jobs,

or other opportunities;

(6) census data, national polls, and other studies

have documented that people with disabilities, as a

group, occupy an inferior status in our society, and

are severely disadvantaged socially, vocationally,

economically, and educationally; [and]

(7) individuals with disabilities are a discrete and

insular minority who have been faced with restric-

tions and limitations, subjected to a history of pur-

poseful unequal treatment, and relegated to a

position of political powerlessness in our society,

based on characteristics that are beyond the control

of such individuals and resulting from stereotypic

assumptions not truly indicative of the individual

ability of such individuals to participate in, and

contribute to, society.

42 U.S.C. 12101(a). Based on those findings, Congress

“invoke[d] the sweep of congressional authority, inciud-

ing the power to enforce the fourteenth amendment

and to regulate commerce, in order to address the

major areas of discrimination faced day-to-day by

people with disabilities.” 42 U.S.C. 12101(b)(4).

The Disabilities Act targets three particular areas of

discrimination against persons with disabilities. Title I,

42 U.S.C. 12111-12117, addresses discrimination by em-

4

ployers; Title II, 42 U.S.C. 12131-12165 (1994 & Supp.

III 1997), addresses discrimination by governmental

entities; and Title II], 42 U.S.C. 12181-12189 (1994 &

Supp. III 1997), addresses discrimination in public

accommodations operated by private entities.

This petition involves two suits brought under Titles

I and II of the Disabilities Act and Section 504 of the

Rehabilitation Act of 1973. Title I provides that “[n]o

covered entity shall discriminate against a qualified

individual with a disability because of the disability of

such individual in regard to job application procedures,

the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C.

12112(a). A “covered entity” is defined to include any

“person engaged in an industry affecting commerce

who has 15 or more employees,” 42 U.S.C. 12111(2) and

(5)(A), and the term “person” incorporates the defini-

tion from Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seq., which includes States. 42 U.S.C.

12111(7); ef. Fitzpatrick v. Bitzer, 427 U.S. 445, 449 &

n.2 (1976). The prohibition on discrimination may be

enforced through private suits against public entities. _

See 42 U.S.C. 12117(a) (incorporating the enforcement

provisions of Title VII); ef. Fitzpatrick, 427 U.S. at 452.

Title Il] of the Disabilities Act provides that “no

qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activi-

ties of a public entity, or be subjected to discrimination

_by any such entity.” 42 U.S.C. 12132. A “public entity”

is expressly defined to include “any State or local

government” and “any department, agency, special

purpose district, or other instrumentality of a State or

States or local government.” 42 U.S.C. 12131(1)(A) and

5

(B). The prohibition on discrimination may be enforced

through private suits against public entities. See 42

U.S.C. 12133; see also Olmstead v. L.C., 119 S. Ct. 2176,

2182 (1999). -

Congress intended the Disabilities Act to supple-

ment, not supplant, Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. 794, which addresses discrimi-

nation against persons with disabilities by programs or

activities receiving federal financial assistance. See 42

U.S.C. 12201(b) (nothing in the Disabilities Act “shall

be construed to invalidate or limit the remedies, rights,

and procedures of any Federal law * * * that provides

greater or equal protection for the rights of individuals

with disabilities”).” Section 504 of the Rehabilitation

Act of 1973 provides that “[n]o otherwise qualified

individual with a disability in the United States * * *

shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the bene-

fits of, or be subjected to discrimination under any pro-

gram or activity receiving Federal financial assistance

se * ” 29 U.S.C. 794(a). A “program or activity” is

expressly defined to include “all of the operations” of “a

department, agency, special purpose district, or other

instrumentality of a State or local government.” 29

U.S.C. 794(b). The prohibition on discrimination may

be enforced through private suits against public

entities. See 29 U.S.C. 794a(a)(2); cf. Olmstead, 119 S. |

Ct. at 2182 n.4.

In both the Disabilities Act and the Rehabilitation

Act, Congress expressly removed the States’ Eleventh

2 Subsequently, Congress amended its findings underlying the

Rehabilitation Act to conform, in large part, to those of the Dis-

abilities Act. See Rehabilitation Act Amendments of 1992, Pub. L.

No. 102-569, § 101, 106 Stat. 4346 (codified at 29 U.S.C. 701).

6

Amendment immunity from private suits in federal

court. 42 U.S.C. 12202 (a “State shall not be immune

under the eleventh amendment to the Constitution of

the United States from an action in Federal or State

court of competent jurisdiction for a violation of this

chapter”); 42 U.S.C. 2000d-7(a)(1) (a “State shall not be

immune under the Eleventh Amendment of the Consti-

tution of the United States from suit in Federal court

for a violation of section 504 of the Rehabilitation Act of

1973”).

2. Respondent Garrett has worked for petitioner

University of Alabama since 1977. In August 1994,

respondent was diagnosed with breast cancer and

underwent a lumpectomy and continued radiation and

chemotherapy treatment through January 1995. Re-

spondent’s supervisor made negative comments regard-

ing her illness and told her she would be permanently

replaced unless she took leave. Partially in response to

those actions, and on the advice of her doctor, re-

spondent took four months leave under the Family and

Medical Leave Act of 1993, 29 U.S.C. 2601 et seg. On

her return in July 1995, it was initially agreed that

respondent would continue in her previous position

because she remained able to perform the essential

functions of her work. Approximately one week later,

however, petitioner demoted her to a position with a

significantly lower salary. Pet. App. 9; Garrett Compl.

q4 8-11, 16.

_ Respondent Ash has worked for petitioner Alabama

Department of Youth Services since 1993. He has

several impairments, including severe chronic asthma,

that substantially limit his ability to breathe. He

informed his supervisor of his disability and of his

doctor’s recommendation that he not be exposed to car-

bon monoxide or other noxious fumes, such as cigarette

7

smoke. However, petitioner refused to enforce its

previously adopted non-smoking policy and required

respondent to drive cars which leaked carbon monoxide

fumes into the passenger compartment. After respon-

dent filed a complaint with the Equal Employment

Opportunity Commission (EEOC) concerning peti-

tioner’s failure to accommodate his respiratory dis-

ability, petitioner took adverse employment action

against him. Ash Compl. 4 5-12.

Respondents filed separate suits in the same district

court, alleging that petitioners had violated Titles I and

II of the Disabilities Act, Section 504 of the Rehabili-

tation Act, and (for respondent Garrett) the Family and

Medical Leave Act. Petitioners filed motions to dismiss

on Eleventh Amendment grounds. The district court

issued a single opinion dismissing both cases on the

ground that none of the statutes validly abrogated

petitioners’ Eleventh Amendment immunity. Pet. App.

49-55.

3. The United States intervened on appeal, pursuant

to 28 U.S.C. 2403(a), to defend the constitutionality of

Congress’s removal of Eleventh Amendment immunity.

The court of appeals reversed in pertinent part. Pet.

App. 1-49.° The Eleventh Circuit had previously upheld

the abrogation of immunity in the Disabilities Act, and

invalidated the abrogation of immunity in the Age Dis-

crimination in Employment Act, 29 U.S.C. 621 et seq., in

Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th

3’ The panel affirmed the district court’s judgment that

Congress did not validly abrogate the States’ Eleventh Amend-

ment immunity in the Family and Medical Leave Act. Pet. App. &-

13. Judge Cook dissented from that aspect of the court’s holding.

Id. at 13-48. Neither the United States nor respondents seek

further review of that portion of the court of appeals’ judgment.

8

Cir. 1998), aff’d with respect to the Age Discrimination

in Employment Act, 120 S. Ct. 631 (2000), cert. granted

with respect to the Disabilties Act sub nom. Florida

Department of Corrections v. Dickson, 120 S. Ct. 976

(2000), cert. dismissed, No. 98-829, 2000 WL 215674

(Feb. 23, 2000). Following its prior ruling in Kimel, the

court of appeals here upheld the Disabilities Act’s

abrogation of Eleventh Amendment immunity. Pet.

App. 6. The court also held that the analysis adopted

in Kimel compelled it to uphold the abrogation of

Eleventh Amendment immunity for Section 504, as

“(t]he statutes serve the same purpose and were born

of the same history of discrimination.” Id. at 7."

ARGUMENT

1. This Court should grant the petition for a writ

of certiorari limited to Question 1. On January 21, 2000,

this Court granted a writ of certiorari in Florida

Department of Corrections V. Dickson, No. 98-829, to

address the validity of the abrogation of the States’

Eleventh Amendment immunity to suits under Title I

of the Disabilities Act. On January 25, 2000, the Court

granted a writ of certiorari in Alsbrook v. Arkansas,

No. 99-423, to address the validity of the abrogation of

the States’ Eleventh Amendment immunity to suits

under Title II of the Disabilities Act. On February 23,

2000, and March 1, 2000, the writs of certiorari in No.

98-829 and No. 99-423, respectively, were dismissed in

light of the parties’ settlement of the cases.

4 Having upheld the Rehabilitation Act’s abrogation provision

as a proper exercise of Congress’s power under Section 5 of the

Fourteenth Amendment, the court did not address whether the

State had waived its Eleventh Amendment immunity by accepting

federal funds conditioned on such a waiver.

9

a. As reflected in this Court’s prior grants of writs

of certiorari to address the immunity issue in both Title

I and Title II earlier this year, the validity of the

abrogation for both Titles of the Disabilities Act is ripe

for review by this Court because there is an entrenched

split in the circuits with respect to both Titles and

because the constitutional question presented is of

great importance.

Following this Court’s decisions in Seminole Tribe v.

Florida, 517 U.S. 44 (1996), and City of Boerne v.

Flores, 521 U.S. 507 (1997), four courts of appeals held

that the abrogation of Eleventh Amendment immunity

contained in the Disabilities Act is a valid exercise of

Congress’s power under Section 5 of the Fourteenth

Amendment to “enforce” the Equal Protection Clause.

See Amos v. Maryland Dep't of Pub. Safety & Cor-

rectional Servs., 178 F.3d 212 (4th Cir. 1999) (Title II),

vacated for reh’g en banc (Dec. 28, 1999), appeal

dismissed due to settlement, 2000 WL 248707 (Mar. 6,

2000); Kimel v. Florida Bd. of Regents, 139 F.3d 1426

(11th Cir. 1998) (Title I), rev’d in part, 120 S. Ct. 631

(2000), cert. granted sub nom. Florida Dep’t of Corre-

ctions v. Dickson, 120 S. Ct. 976 (2000), cert. dismissed,

No. 98-829, 2000 WL 215674 (Feb. 23, 2000); Coolbaugh

v. Louisiana, 136 F.3d 430 (5th Cir.) (Title II), cert.

denied, 119 S. Ct. 58 (1998); Clark v. California, 123

F.3d 1267 (9th Cir. 1997) (Title II), cert. denied, 524

U.S. 937 (1998); see also Torres v. Puerto Rico Tourism

Co., 175 F.3d 1, 6 n.7 (1st Cir. 1999) (in Title ‘I case,

court states “we have considered the issue of

Congress’s authority sufficiently to conclude that, were

we to confront the question head-on, we almost

certainly would join the majority of courts upholding

10

the provision”).” The en bane Eighth Circuit in-

validated the Disabilities Act’s abrogation of Eleventh

Amendment immunity in a case arising under Title II of

that Act. See Alsbrook v. City of Maumelle, 184 F.3d

999 (1999), cert. granted in part, 120 S. Ct. 1003 (2000),

cert. dismissed, No. 99-423, 2000 WL 230234 (Mar. 1,

2000), and subsequently extended its holding to Title I

of the Act, see DeBose v. Nebraska, 186 F.3d 1087

(1999), petition for cert. pending, No. 99-940. —

In addition to the Eleventh Circuit in this case, three

other courts of appeals have considered or reconsidered

the validity of the Disabilities Act’s abrogation after

the Eighth Circuit’s decisions and this Court’s decision

last term in Florida Prepaid Postsecondary Education

Expense Board v. College Savings Bank, 119 S. Ct.

2199 (1999), and all have rejected the Eighth Circuit’s

holding and have upheld the Disabilities Act’s

abrogation as valid Section 5 legislation. See Dare v.

California, 191 F.3d 1167 (9th Cir. 1999) (Title II),

petition for cert. pending, No. 99-1417; Martin v.

Kansas, 190 F.3d 1120 (10th Cir. 1999) (Title 1); Muller

v. Costello, 187 F.3d 298 (2d Cir. 1999) (Title I.

® The Seventh Circuit upheld the Disabilities Act’s abrogation

prior to this Court’s decision in Flores, supra. See Crawford v.

Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir. 1997)

(Title II). The continuing vitality of Crawford has been challenged

in a case arising under Title I, Erickson v. Board of Governors of

State Colleges & Universities, No. 95 C 2541, 1998 WL 748277

(N.D. Ill. Sept. 30, 1998), appeal pending, No. 98-3614 (7th Cir.)

(oral argument heard April 27, 1999). The constitutionality of the

Disabilities Act’s abrogation for both Titles I and II is also pending

in a number of cases before the Sixth Circuit, for which a

consolidated oral argument was heard on October 24, 1999. See,

e.g., Nihiser v. Ohio EPA, 979 F. Supp. 1168 (S.D. Ohio 1997),

appeal pending, No. 97-3933.

—

1]

. Furthermore, after this Court’s decision in Kimel v.

Florida Board of Regents, 120 S. Ct. 631 (2000), the

Second Circuit again upheld the constitutionality of the

Disabilities Act’s abrogation in two cases arising under

Title I of the Act. See Kilcullen v. New York State

Dep't of Labor, No. 99-7208, 2000 WL 217465 (2d Cir.

Feb. 24, 2000); Jackan v. New York State Dep’t of

Labor, No. 98-9589, 2000 WL 241648 (2d Cir. Mar. 3,

2000).

The question of Congress’s authority to abrogate the

States’ Eleventh Amendment immunity for Titles I and

II of the Disabilities Act has thus been extensively

evaluated and considered by the courts of appeals. The

conflict is firmly entrenched and incapable of resolution

absent intervening action by this Court. As a conse-

quence of the split in the circuits, moreover, the opera-

tion of this important civil rights legislation has been

significantly impaired in seven States. Unlike litigants

in the six circuits where the Disabilities Act’s abroga-

tion of Eleventh Amendment immunity has been sus-

tained, persons with disabilities in the Eighth Circuit

cannot fully enforce their federal rights under the

Disabilities Act in federal court.

b. The present case provides the most appropriate

vehicle to address these issues, among the several

petitions currently pending before the Court. The case

was decided on a motion to dismiss. That clean record

permits straightforward and comprehensive considera-

tion of the constitutional questions presented, without

simultaneously requiring consideration of the occasion-

ally difficult statutory construction questions posed by

the Act. The discrimination, reasonable accommoda-

tion, and retaliation claims made by the petitioners,

moreover, present a comprehensive overview of both

the Act’s practical operation and the types of dis-

12

crimination persons with disabilities encounter in the

government workplace. Finally, it contains claims

under both Title I and Title Il of the Act.”

A petition for a writ of certiorari is also pending in

Zimmerman v. Oregon Department of Justice, No. 99-

243, which presents the question of the constitutionality

of the abrogation for Title II of the Disabilities Act. As

we previously stated in our Consolidated Supplemental

Brief for the United States at 12, Florida Dep’t of

Corrections v. Dickson, No. 98-829, et al. (filed Jan. 138,

2000), Zimmerman is a problematic vehicle for a

number of reasons. First, the Eleventh Amendment

immunity question is a late arrival to the litigation. It

was raised for the first time by the plaintiff—not the

State—in his petition to this Court. It thus was not

addressed by either the district court or the court of

appeals. The State, moreover, adopted the assertion of

immunity only after this Court called for a response to

the petition. The abrogation question thus arises in an

extraordinary posture where a State’s Eleventh

Amendment immunity is presented in the litigation for

the first time by a private party who does not believe

immunity attaches, and the immunity issue is only

belatedly adopted by the State. Cf. Wisconsin Dep't of

Corrections v. Schacht, 524 U.S. 381, 389 (1998) (“The

Eleventh Amendment * * * does not automatically

destroy original jurisdiction. * * * Unless the State

6 For those reasons this case is a better vehicle than DeBose v.

Nebraska, 186 F.3d 1087 (8th Cir. 1999), petition for cert. pending,

No. 99-940. DeBose presents only a Title I claim. Moreover,

DeBose arises from a lengthy jury trial, and the content, character,

and strength of the evidence presented have never been

summarized or reviewed by any of the lower court opinions.

Therefore the Court may prefer to hold DeBose for a decision in

Garrett.

13

raises the matter, a court can ignore it.”) (citations

omitted); see also id. at 393-394 (Kennedy, J.,

concurring).

Second, Zimmerman would require resolution of the

additional question whether Title II applies to employ-

ment decisions at all, a question on which the circuits

are also divided. See Davoll v. Webb, 194 F.3d 1116,

1130 (10th Cir. 1999) (collecting cases). The cases in-

volved in this petition, by contrast, do not necessitate

resolution of that question because Eleventh Amend-

ment immunity was the sole basis for the district

court’s ruling, it was the only issue pressed by respon-

dents in the court of appeals, and it was the sole ground

for the court of appeals’ decision. Thus, this Court

could affirm or reverse the court of appeals’ judgment

that the district court had jurisdiction over the Title II

claim without deciding whether plaintiffs stated a claim.

See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

89 (1998) (“the absence of a valid (as opposed to argu-

able) cause of action does not implicate subject-matter

jurisdiction”); cf. Olmstead, 119 S. Ct. at 2183 (interpre-

ting regulation without addressing its underlying valid-

ity or constitutionality). In contrast, the Court would

be unable to avoid the issue in Zimmerman because the

Statutory construction issue was the basis for peti-

tioner’s loss in the court of appeals and would have to

be reversed in order for him to be entitled to further

proceedings.’

‘ A petition is also pending in Brown v. North Carolina

Division of Motor Vehicles, No. 99-424. As we explained in our

Brief in Opposition in Brown (at 9-16), that case raises the quite

narrow question of whether a particular Justice Department regu-

lation as applied to an infrequently recurring factual scenario and

premised on an unsettled construction of the regulation can be

sustained under the Section 5 power. Indeed, a panel of the

14

2. No further review of the second question pre-

sented is warranted. Petitioners correctly note (Pet. 9)

that a split exists in the courts of appeals as to whether

Congress, pursuant to the Fourteenth Amendment,

validly abrogated the States’ Eleventh Amendment

immunity for claims under Section 504 of the Re-

habilitation Act. Compare Kilcullen v. New York State

Dep't of Labor, No. 99-7208, 2000 WL 217465, at *5 (2d

Cir. Feb. 24, 2000) (upholding the abrogation for Sec-

tion 504 as a valid exercise of the Fourteenth Amend-

ment); Clark v. California, 123 F.3d 1267, 1270 (9th Cir.

1997) (same), cert. denied, 524 U.S. 937 (1998); Craw-

ford v. Indiana Dep’t of Corrections, 115 F.3d 481, 487

(7th Cir. 1997) (same), with Bradley v. Arkansas Dep't

of Educ., 189 F.3d 745, 755-756 (8th Cir.) (holding that

Section 2000d-7 is not a valid abrogation for Section

504), vacated in other part for reh’g en banc sub. nom.

Jim C. v. Arkansas Dep’t of Educ., 197 F.3d 958 (8th

Cir. 1999).

This Court need not resolve the question of whether

Section 504 reflects a proper exercise of Congress’s

Section 5 power to abrogate immunity because the

removal of immunity must, in any event, be sustained

as a congressionally required waiver imposed as a con-

dition upon the receipt of federal financial assistance.”

Fourth Circuit, in a now vacated opinion, subsequently upheld the

Disabilities Act’s abrogation of immunity in another Title II case

and limited Brown to its facts. See Amos, 178 F.3d at 221 n.8.

Brown thus does not present an appropriate vehicle for con-

sideration of the important constitutional issues raised by this

petition. We are serving a copy of this brief on counsel in the

DeBose, Zimmerman, and Brown cases.

8 Petitioner University of Alabama admitted it was a recipient

of federal financial assistance. Garrett Compl. 4 4; Garrett Ans.

4 4. Petitioner Alabama Department of Youth Services has not

-

15

Section 504 was modeled on Title VI of the Civil Rights

Act of 1964, 42 U.S.C. 2000d et seq., and Title 1X of the

Education Amendments of 1972, 20 U.S.C. 1681 ef seq.

“Under * * * Title VI, Title IX, and § 504, Congress

enters into an arrangement in the nature of a contract

with the recipients of the funds: the recipient’s accep-

tance of the funds triggers coverage under the nondis-

crimination provision.” United States Dep't of Transp.

v. Paralyzed Veterans of Am., 477 U.S. 597, 605 (1986).

In response to this Court’s decision in Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 245-246 (1985),

holding that Section 504 was not clear enough to

evidence Congress’s intent to authorize private dam-

ages actions against state entities, Congress enacted 42

U.S.C. 2000d-7 as part of the Rehabilitation Act

Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003.

100 Stat. 1845. Section 2000d-7 provides, in pertinent

part:

A state shall not be immune under the Eleventh

Amendment of the Constitution of the United

States from suit in Federal court for a violation of

section 504 of the Rehabilitation Act of 1973 [29

U.S.C. 794], title IX of the Education Amendments

of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimi-

nation Act of 1975-[42 U.S.C. 6101 et-seq.], title VI

of the Civil Rights Act of 1964 [42 U.S.C. 2000d

et seq.], or the provisions of any other Federal

statute prohibiting discrimination by recipients of

Federal financial assistance.

Before the court of appeals, respondents argued that

Section 2000d-7 could be upheld on the ground that

yet responded to the allegation that it was a recipient of federal

financial assistance, Ash Compl. 4 4; Ash Ans. 4 4.

16

petitioners had waived their Eleventh Amendment

immunity by accepting federal funds after the effective

date of Section 2000d-7. See Gov’t C.A. Br. 37-38;

Appellants Br. 20-21. That position is consistent with

this Court’s recognition in Alden v. Maine, 119 S. Ct.

2240 (1999), that “the Federal Government [does not]

lack the authority or means to seek the States’ volun-

tary consent to private suits.” 1198S. Ct. at 2267 (citing

South Dakota v. Dole, 483 U.S. 203 (1987)). Similarly,

in College Savings Bank v. Florida Prepaid Post-

secondary Education Expense Board, 119 8. Ct. 2219

(1999), this Court reaffirmed that Congress can con-

dition the exercise of one of its Article I powers (the

approval of interstate compacts) on the States’ agree-

ment to waive their Eleventh Amendment immunity

from suit. Jd. at 2231 (reaffirming Petty v. Tennessee

Mo. Bridge Comm’n, 359 U.S. 275 (1959)). The Court

also indicated that Congress retained the authority

under the Spending Clause to condition the receipt of

federal funds on the States’ waiver of Eleventh

Amendment immunity. 119 S. Ct. at 2231; see also id.

at 2227 n.2. This Court explained that, unlike Con-

gress’s power under the Commerce Clause to regulate

“otherwise lawful activity,” Congress’s power to

authorize interstate compacts and spend money was the

grant of a “gift” on which Congress could place reason-

able conditions that a State was free to accept or reject.

Id. at 2231.

While the court of appeals here did not address the

Spending Clause argument, the Eleventh Circuit has

subsequently held that Section 2000d-7’s “plain lan-

guage manifests an unmistakable intent to condition

federal funds on a state’s waiver of sovereign immu-

nity” and that there is “no constitutional defect in-

herent in the explicit state immunity waiver enacted

17

pursuant to the Spending Clause in Section 2000d-7.”.

Sandoval vy. Hagan, 197 F.3d 484, 493, 494 (11th Cir.

1999). This is in aecord with almost every other court of

appeals that has addressed the issue. See Litman v.

George Mason Univ., 186 F.3d 544, 553 (4th Cir. 1999),

cert. denied, No. 99-596, 2000 WL 198966 (Feb. 22,

2000); Clark v. California, 123 F.3d 1267, 1271 (Sth Cir.

1997), cert. denied, 524 U.S. 937 (1998); see also Little

Rock Sch. Dist. v. Mauney, 183 F.3d 816, 831-832 (Sth

Cir. 1999) (same, for similar language in Individuals

with Disabilities Education Act, 20 U.S.C. 1403).” On

February 22, 2000, this Court denied a petition for a

writ of certiorari presenting the question of Congress’s

authority to effect the waiver in Section 2000d-7 under

its Spending Clause power. George Mason Univ. v.

Litman, No. 99-596, 2000 WL 198966 (Feb. 22, 2000)

Because the removal of Eleventh Amendment immun-

ity for Section 504 suits can be Sustained on this

alternative ground for which further review is not

warranted, this Court should deny a writ of certiorari

on the second question presented.”

’ A panel of the Eighth Circuit reached the opposite conclusion

in Bradley v. Arkansas Department of Education, 189 F.3d 745,

vacated in pertinent part for reh’g en bane sub nom. Jim C. vy.

Arkansas Dep't of Educ., 197 F.3d 958 (1999). The panel opinion

was based on the mistaken premise that the State was required

either to accept no federal money or to subject all of its programs

in every department to Section 504; the opinion was also based on

an unduly narrow understanding of Congress’s power under the

Spending Clause. The Eighth Circuit granted the United States’

petition for rehearing en bane to address the Section 504 Spending

Clause holding, and oral argument was heard on January 14, 2000.

'° Respondents’ Disabilities Act claims have importance inde-

pendent of their Rehabilitation Act claims for two reasons. First,

the Disabilities Act governs petitioners’ conduct regardless of

whether they are recipients of federal financial assistance. See n.8,

18

CONCLUSION

As to the first question presented, regarding the

validity of the abrogation of Eleventh Amendment im-

munity for Titles I and II of the Disabilities Act, the

petition for a writ of certiorari should be granted. As to

the second question presented, regarding the validity of

the removal of Eleventh Amendment immunity for

Section 504 of the Rehabilitation Act, the petition for a

writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General .

BARBARA D. UNDERWOOD

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

MARCH 2000

supra. Second, the standard for awarding damages under the Re-

habilitation Act for failure to reasonably accommodate is unsettled,

while Title I plainly authorizes compensatory damages for a failure

to reasonably accommodate, unless the employer undertakes “good

faith efforts” to accommodate, 42 U.S.C. 198la(a)(3). Thus,

regardless of the ultimate disposition of the Rehabilitation Act

claims, the parties have a distinct interest in resolving the dispute

over the applicability of the Disabilities Act to petitioners’ conduct.