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

Supreme Court, U.S.

FILED

ey MAR 17 2000

No. 99-1240

cee

IN THE

Supreme Court of the United States

THE UNIVERSITY OF ALABAMA AT BIRMINGHAM,

BOARD OF TRUSTEES and THE ALABAMA DEPARTMENT

OF YOUTH SERVICES,

Petitioners,

v.

PATRICIA GARRETT and MILTON ASH,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourT OF APPEALS FOR THE ELEVENTH CIRCUIT

ere ate er

MEMORANDUM OF RESPONDENTS

DEBORAH A. MATTISON

SANDRA B. REIss

Counsel of Record

GorRDON, SILBERMAN,

Wiaains & CHILDs

Attorneys for Respondents

420 North 20" Street

1400 SouthTrust Tower

Birmingham, Alabama 35203

(205) 328-0640

158553 @ Counsel Press LLC

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

TABLE OF CONTENTS

Page

Table of Cited Authorities .................... li

pimbomnent OF the Caae ..... 50.0 cccncccbuccscs l

A. Appellant Patricia Garrett. .............. l

B. Appellant Milton Ash. ................. 4

I. Respondents Urge This Court To Grant Certiorari

On Question I Of The Petition For Writ Of

Certiorari Which Concerns Titles I And II Of The

a EN CEO Oe MEA RRR EAI IENE 6

II. This Court Should Deny Petitioners’ Petition For

Writ Of Certiorari As To Question IJ. There Is

No Conflict Among The Circuits As To Whether

A State May Voluntarily Waive Its Eleventh

Amendment Immunity Under Section 504 Of The

Rehabilitation Act Of 1973 By Receiving Federal

Funds Conditioned Upon Such A Waiver. ..... 8

A. Congress Unequivocally Expressed That as

a Condition of Receiving Federal Funds, A

State Must Waive Any Eleventh Amendment

Immunity as to Suits under Section 504. ... 8

B. No Conflict Exists Among the Circuits. ... 13

ERE a a a AR ee ee 15

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Alden v. Maine, 727 U.S. 706, 119 S. Ct. 2240, 144

L. Ed. 26: G36 CGF) occ dv ene vecse vance snns 12

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

105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985) ...... 11, 13

Alsbrook v. City of Maymelle, 684 F.3d 825 (8th Cir.

1999), cert. granted in part by 68 USLW 3487

(Jan. 25, 2000) (No. 99-423) .......----+00:- 6

Bell v. New Jersey, 461 U.S. 773 (1983) ........- 12

Bradley v. Arkansas Dept. of Education, 189 F.3d

745 (8* Cir. 1999) 2... cncscevevcccesedsess 14

Brown v. North Carolina Division of Motor Vehicles,

No. 99-824 ou cicucctcccocevhbshu dined s5* 7

Clark v. California, 123 F.3d 1267 (9" Cir.), cert

denied, 524 U.S. 937 (1998) ......-----+--- 12, 13

College Savings Bank v. Florida Post Secondary

Education Expense Board, 119 S. Ct. 2219 (1999)

secboceesssutndenwae dee Weueeeeeueeeeeaes 14

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

petition for cert. filed, 68 U.S.L.W. 3391 (Dec. 1,

1999) (No. 99-940) ......-. cee cece reece eeee 7

iti

Cited Authorities

Page

Delaware Dep't of Health & Soc. Servs. v.

Department of Educ., 772 F.2d 1123 (3* Cie.

RRS See ie iy yg eo te 14

Department of Educ. v. Katherine D., 727 F.2d 809

(9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985)

POPES RUNS oH ee IEE eC OEKG boa bok ES. 14

Dickson v. Florida Dept. of Corrections, 139 F.3d

1426 (11th Cir. 1998), cert. granted, 67 U.S.L.W.

3397 (Jan. 21, 2000) (No. an 6

Florida Nursing Home Ass'n vy. Page, 616 F.2d 1355

(Sth Cir. 1980), rev'd due to the absence ofa clear

statement sub nom. Florida Dep’t of Health &

Rehabilitative Servs. v. Florida Nursing Home

Ass'n, 450 U.S. 147 (1981) ................. 14

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,

oo | ar 12

George Mason University v. Litman, 120 S. Ct. 2000

WL 198966 (U.S. Feb 22, 2000) ............. 15

In re Innes, 184 F.3d 1275 (10" Cir. a ee 12

Jim C., et al. v. Arkansas Department of Education,

197 F.3d 958 (8" Cir. December 14, 1999) ..... 14

Lane v. Pena, 518 U.S. 187, 116 S. Ct. 2092, 135

SMAI coon ceo cncen, 12, 13

iv

Cited Authorities

Page

Litman v. George Mason University, 186 F.3d 544

(4th Cir. 1999) ......... cece cece reece cccees 14

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

(8® Cir. 1999) ...... cc cece cece cccecccccces 12, 14

Metropolitan Wash. Airports Auth. v. Citizens for

the Abatement of Aircraft Noise, Inc., 501 U.S.

yu ¥ oj) | eee Pewee ye ree ee ee 12

Mitten v. Muscogee Co. Sch. Dist., 877 F.2d 932 (11"

re errr Pe rene ee 13

New York v. United States, et al., 505 U.S. 144

(1998) oc vcscntcer ree veereery sd cinaeserse 12

Premo v. Martin, 119 F.3d 764 (9th Cir. 1997), cert.

denied, 522 U.S. 1147 (1998) ......--+--+eee 14

Sandoval v. Hagen, 197 F.3d 484 (1 1" Cir. 1999) .12, 14

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

(i. ) reer eee err ee 13

Zimmerman v. Oregon Department of Justice, No.

DS np seach vwanesvaceeenoveneesnuere ee 7

v

Cited Authorities

Page

Statutes:

USE. € 108, O68 io i he 11

MUS $10 2.6 Mien ee 12

UME GING sah ea ee passim

PUBL. § TMM). 65555 ee 10

WP tales EVO 6 ices Noecteeeas 9

PP Mn EERO or nc ins cavnsh bbaeiecs ee. 3

42 U.S.C. § 12101, et seg. ........ tee |

42 UBC. § BOON T occ ccc ncsecsenn 2; 11, 12,13

42 U'S.C.A. § 2000d, ef seg. .................. 10

United States Constitution:

Eleventh Amendment ....... 1, 5, 6, 7, 8, 10, 12, 13, 14

|

As will be explained herein, Respondents urge this Court

to accept certiorari under Question I of the Petitioners’ Petition

for Writ of Certiorari. Question I concerns whether a State is

entitled to Eleventh Amendment immunity relative to Titles I

and II of the Americans with Disabilities Act, 42 U.S.C. § 12101,

et seq.; (hereinafter the “ADA”). As to Question II, however,

29 U.S.C. § 794 regarding Eleventh Amendment immunity

- relative to Section 504 of the Rehabilitation Act of 1973

(hereinafter “Section 504”) 29 U.S.C. § 794, Respondents urge

this Court to deny certiorari. Article I, Section 8 of the Spending

Clause provides an independent basis for concluding that a State

is not immune from suits brought under Section 504. In fact,

Petitioners waived any Eleventh Amendment immunity relative

to Section 504 by willingly accepting federal financial

assistance.

STATEMENT OF THE CASE

A. Appellant Patricia Garrett.

Ms. Garrett began working with the University of Alabama

in Birmingham (“UAB’) in 1977. (Garrett R1-1-3; Garrett R1-

47-Aff. J 2'; Garrett R1-48-15) During her tenure with UAB,

Ms. Garrett received several promotions, the latest being in June

1992, to the position of Director of OB/GYN/Neonatal Services.

(Garrett R1-1-3) Throughout her fifteen years with UAB, Ms.

Garrett never received any written reprimands or other serious

discipline. (Garrett R1-47- Aff. § 4)

1. Ms. Garrett’s Affidavit was attached to Plaintiff's Opposition

to Defendant’s Motion to Amend its Motion for Partial Summary

Judgment. Consequently, for purposes of clarifying citations to the

Record on Appeal and for the convenience of the Court, Respondents

have inserted the abbreviation (Aff.) and have further identified the

relevant paragraph numbers when referring to Ms. Garrett’s

Affidavit.

2

On August 27, 1994, Ms. Garrett was diagnosed with breast

cancer. She immediately underwent a lumpectomy, a node

removal and a biopsy. (Garrett R 1-48-48) Following the surgery,

Ms. Garrett also began a regime of radiation treatment, followed

by six months of chemotherapy. The chemotherapy lasted

through June 1995. (Garrett R1-47- Aff. 45; Garrett R1-48-49-

50) Ms. Garrett alleges that she meets the definition of a person

with a disability, as that term is defined under the ADA and

Section 504. Even with mitigating measures, Ms. Garrett was

substantially limited her ability to, inter alia, sleep, care for

herself, and work (albeit, as described below, she was able to

perform the essential functions of her position with UAB).

In addition, Ms. Garrett has a history of disability and UAB

perceived her as disabled. (Garrett R1-1-2; Garrett R1-47- Aff.

44 7-8; Garrett R2-25) For example, after Ms. Garrett was

diagnosed with breast cancer, UAB consistently urged Ms.

Garrett to take medical leave, indicating that due to her

disability, Ms. Garrett did not look well and needed rest. (Garrett

R1-47-Aff. J 10, 14-15; Garrett R1-48-154-55, 159-60) UAB

management made these remarks despite the fact that Ms.

Garrett was fully capable of performing the essential functions

of her position. Further, Ms. Garrett actually did continue to

perform all of her job duties by taking certain proactive measures

such as scheduling her chemotherapy on Friday afternoons in

order to avoid disrupting her work schedule. (Garrett R1-47-

Aff. 9) UAB engaged in further discriminatory actions, such

as advertising Ms. Garrett’s position and locking her out of her

computer while she was undergoing ‘radiation treatment and

chemotherapy. (Garrett R1-47-Aff. J 13) UAB also repeatedly

threatened to transfer Ms. Garrett to a less demanding job, due

to the existence of her disabling condition. (Garrett R1-1-4, 5;

Garrett R1-47-Aff. J 15; Garrett R1-48-199-201, 205)

3

Despite UAB’s discriminatory conduct, Ms. Garrett

continued to perform the essential functions of her position

from September 1994 until March 1995. However, after Ms.

Uarrett’s subordinate informed Ms. Garrett that UAB

intended to transfer Ms. Garrett to a satellite hospital in a

temporary position, and that the subordinate would be

replacing her, Ms. Garrett took Family and Medical leave.

(Garrett R1-47-Aff. J§ 15-16) The leave was based on Ms.

Garrett’s physician’s recommendation that Ms. Garrett focus

- on her recovery while undergoing chemotherapy, without

the added stress created by UAB’s continuous discriminatory

acts. (Garrett R1-47-Aff. 9 16; Garrett R1-48-204-205, 249)

Upon Ms. Garrett’s return from family medical leave,

she returned to her previous position where, again, she

performed the essential functions of her position. However,

approximately one to two weeks after her return, Ms.

Garrett’s supervisor informed Ms. Garrett that UAB had

determined that Ms. Garrett could no longer fill the position

of Director of OB/GYN/Neonatal Services. Instead, UAB

gave Ms. Garrett the ultimatum of either transferring to an

inferior position or termination. (Garrett R1-1-5; Garrett R1-

47-Aff. | 17) Ms. Garrett was ultimately offered a position

in another department of the University. This transfer

represented a demotion and a substantial reduction in pay.

(Garrett R1-47-Aff. ¥ 19)

Ms. Garrett’s Complaint alleges that UAB’s actions

constitute, inter alia, intentional discrimination and

retaliation in violation of the ADA and Section 504.” (Garrett

R1-1-6) She seeks damages and equitable relief. (Garrett

R1-1-8)

2. Ms. Garrett also alleged a violation of the Family

and Medical Leave Act, 29 U.S.C. § 2614 (hereinafter “FMLA”).

As will be explained, this issue is not before this Court.

B. Appellant Milton Ash.

Appellant Ash also is a person with a disability, as that

term is defined by the ADA and Section 504. Mr. Ash has

severe chronic asthma, sleep apnea, obstructive pulmonary

disease, and diabetes. Mr. Ash must utilize an inhaler to

breathe; and he is required to utilize a respirator and mask,

when necessary. (Ash R1-1-2; Ash R1-14-1, J] 2-5) Even

with these measures, Mr. Ash is substantially limited, inter

alia, in the major life activities of breathing, sleeping, caring

for himself, and working (albeit, as described below, he was

able to perform the essential functions of his position with

ADYS).

Mr. Ash began working with the Alabama Department

of Youth Services (hereinafter “ADYS”), as a Security

Officer in 1993. (Ash R1-1-3) Mr. Ash performed his job

well. (Ash R1-14-Exhs. 5-10, 24) Consequently, in 1996,

ADYS promoted Mr. Ash to the classification of Youth

Services Security Officer. (Ash R1-14-Exh. 1, 9 10) Mr. Ash

was qualified to perform the essential functions of this

position.

As a Security Officer, Mr. Ash was required to work in

a smali gate house where he was constantly exposed to

intense cigarette fumes. (Ash, R1-14-Exh. 1, 9] 14-15)

ADYS has a “No Smoking” policy which, if enforced, would

have essentially eliminated the constant presence of cigarette

fumes in the gate house. ADYS also required that Mr. Ash

drive vehicles which, because they were not regularly

maintained, emitted excessive noxious fumes. (Ash R1-1-3;

Ash R1-14-Exh. 1, J 12)

5

Due to Mr. Ash’s disability, Mr. Ash and his physicians

repeatedly requested that ADYS provide Mr. Ash with

reasonable accommodations. (Ash R1-14-Exh. 1, J] 13-14, 16-

17) These reasonable accommodations included asking ADYS

to maintain and repair ADYS vehicles so they would not emit

toxic fumes, and to enforce its “No Smoking” policy. However,

ADYS repeatedly refused to comply with these requests. It failed

to enforce its “No Smoking” policy, and it has continued to

require Mr. Ash to drive cars which emit carbon monoxide and

other noxious fumes. (Ash R1-14-Exh. 1, YY 16-17, 21; Ash

R1-14-Exhs. 12, 17-18, 25, 32) As a result, Mr. Ash was

hospitalized for severe asthma attacks. (Ash R1-14-Exh. 1,

Tf 18-19; Ash R1-14-Exhs.13, 20)

Mr. Ash was also clearly perceived as disabled when in

November 1995, Dr. Booth, Superintendent of Youth Services

stated to Mr. Ash, “why don’t you just go ahead and quit,...

just go home and draw disability.” (Ash R1-14-Exh. 1, § 20)

Consequently, Mr. Ash filed a timely Charge of

Discrimination with the EEOC alleging that ADYS” actions

constituted a violation of the ADA and Section 504. (Ash R1-

1-4) Subsequent to the filing of his Charge, ADYS has also

retaliated against him. (Ash R1-1-5) In his Complaint, Mr. Ash

alleges that ADYS engaged in intentional discrimination and

retaliation and that it further failed to reasonably accommodate

him under the ADA and Section 504. He, too, seeks damages

and equitable relief. (Ash R1-1-6, 7)

Prior to the completion of si gnificant discovery, Petitioners

filed Motions for Summary Judgment asserting that they were

immune under the Eleventh Amendment. The District Court,

which coincidentally had both cases, granted Summary

Judgment on all counts in a Joint Opinion. Upon appeal, the

6

Eleventh Circuit Court of Appeals reversed the District’s Court’s

Opinion relative to Section 504 and the ADA. The Court of

Appeals held that Section 504 and the ADA constituted a proper

exercise of Congressional power under Section 5 of the

Fourteenth Amendment and that the State, thus, did not enjoy

Eleventh Amendment immunity. The Eleventh Circuit,

however, upheld the Court’s Opinion relative to the FMLA.’

RESPONDENTS URGE THIS COURT TO GRANT

CERTIORARI ON QUESTION I OF THE PETITION

FOR WRIT OF CERTIORARI WHICH CONCERNS

TITLES I AND II OF THE ADA.

This Court’s grants of Certiorari in Dickson, No. 98-829,

and Alsbrook, No. 99-423, both of which were settled before

oral argument, indicates that this Court wishes to resolve the

issue of whether a State enjoys Eleventh Amendment immunity

relative to both Titles I and II of the ADA. Indeed, while

Petitioners and Respondents take opposing positions with regard

to the ultimate answer to this question, Respondents

acknowledge that this issue needs resolution fo provide guidance

to the courts below. This is especially urgent given the split of

opinion among the Circuits. As these cases involve both Titles

I and II of the ADA, they are especially well situated to allow

this Court to review both Titles contemporaneously. They are

also well situated as they involve employment issues regarding

both intentional discrimination and reasonable accommodation

claims under the ADA.

3. Neither party has sought certiorari on any issue arising under

the FMLA.

7

Additionally, other cases pending before this Court do

not present as clear and simple a posture as does Garrett,

et al. For example, Zimmerman vy. Oregon Department of

Justice, No. 99-243, presents only an issue arising under Title

I. Further, the Court of Appeals dismissed the complaint on

an issue of statutory construction and not on the basis of

Eleventh Amendment immunity. Thus, the Court would have

to grant certiorari on both the Eleventh Amendment and

statutory issues in order to provide the petitioner any relief.

Moreover, the Eleventh Amendment immunity question in

the Zimmerman case was raised for the first time by the

plaintiff in his petition to this Court as a possible defense

that the State might assert. The State adopted the assertion

of immunity for the first time, only after this Court called

for a response to the petition.

Debose v. Nebraska, No. 99-940 also has difficulties not

present in Garrett, et al., as it presents a more complicated

scenario. Debose, which presents only a Title I issue

(notwithstanding an apparent typographical error in the

opinion), is before this Court after a lengthy jury trial for

which the content, quality and strength of the evidence

presented has been neither summarized nor reviewed by any

lower court. Reviewing a case in this posture allows for the

possibility that unknown factual confi gurations or procedural

irregularities in the case may vitiate consideration of the

constitutional question.

Finally, Brown v. North Carolina Division of Motor

Vehicles, No. 99-424, raises a very narrow question regarding

the validity of a particular Justice Department regulation

which was promulgated solely under Title II, which is both

unsettled and unlikely to occur on a frequently repeated basis.

8

Thus, Respondents urge this Court to accept Question I

of Petitioners’ Petition, Garrett, et al., which relates to both

Titles I and II. Additionally, Garrett, et al. does not possess

a long and complicated record and it presents factual

scenarios involving intentional discriminatory conduct and

claims regarding a State’s failure to reasonably accommodate

a person with a dis2>ility.

Il.

THIS COURT SHOULD DENY PETITIONERS’ PETITION

FOR WRIT OF CERTIORARI AS TO QUESTION II.

THERE IS NO CONFLICT AMONG THE CIRCUITS AS

TO WHETHER A STATE MAY VOLUNTARILY

WAIVE ITS ELEVENTH AMENDMENT IMMUNITY

UNDER SECTION 504 OF THE REHABILITATION

ACT OF 1973 BY RECEIVING FEDERAL FUNDS

CONDITIONED UPON SUCH A WAIVER.

A. Congress Unequivocally Express:d That as a

Condition of Receiving Federal Funds, A State Must

Waive Any Eleventh Amendment Immunity as to

Suits under Section 504.

This Court, however, should deny Petitioners’ Writ as

to Question II. Section 504 of the Rehabilitation Act,

29 U.S.C. § 794, provides a basis for subjecting a State to

Section 504 claims which is completely independent from

Section 5 of the Fourteenth Amendment.‘ In both enacting

4. However, if this Court decides to accept certiorari on this

issue, Respondents will assert their position that the statute represents

a valid abrogation of the states’ eleventh immunity pursuant to

Section 5 of the Fourteenth Amendment, in addition to Respondents’

argument herein. Further, it should be noted that Question II of the

(Cont'd)

9

Section 504, as well as amending the Act in 42 U.S.C.

§ 2000d-7, Congress relied on the Spending Clause under

Article I, Section 8. In so doing, Congress clearly conditioned

its provision of federal financial assistance upon a State’s

express waiver of immunity. 42 U.S.C. § 2000d-7.

Section 504 of the Rehabilitation Act prohibits a

recipient of federal financial assistance from discriminating

against persons with disabilities.’ 29 U.S.C. § 794, states:

No otherwise qualified individual with a disability

in the United States, as defined in Section 706(20)

of this Title shall, solely by reason of his/her

disability, be excluded from participation in, be

denied the benef) - of, or be subject to

discrimination under any program or activity

receiving federal financial assistance or any

program or activity conducted by any Executive

agency, or by the United States Postal Service. . .

(Cont’d)

Petition is inaptly worded, in that it implies that the only basis for

finding that a State is subject to suit under Section 504 is through

abrogation of a State’s immunity under Section 5 of the Fourteenth

Amendment. As explained, a separate basis for finding that States

do not enjoy immunity relative to a Section 504 claim, is Congress’

power under the Spending Clause. Finally, it should be noted that

Respondents have repeatedly argued to the courts below that

Petitioners waived immunity by accepting funds under Section 504.

However, neither Petitioner, nor the courts below, have addressed

this argument.

5. The definition of disability is the same under both the ADA

and Section 504. Likewise, the standard for determining what

constitutes employment discrimination under Section 504 is identical

to the standard under Title I of the ADA. 29 U.S.C. § 794(d).

10

Further, “program or activity” includes:

a department, agency, special purpose district, or

other instrumentality of a State or Local

government; or the entity of such State or Local

government that distributes such assistance and

each department or agency (and each other State

or Local government entity, to which the

assistance is extended, in the case of assistance

to a State or Local government; . . .

Thus, discrimination includes limiting, segregating, or

classifying either a job applicant or an employee in a way

which adversely affects his or her employment opportunities.

It also prohibits a recipient of federal financial assistance

from excluding individuals from job opportunities or benefits

or from failing to make a reasonable accommodation to the

known physical or mental limitations of a qualified

individual, unless the entity can demonstrate an undue

hardship. 29 U.S.C. § 794.

29 U.S.C. § 794a(a)(2) provides the remedial scheme

for a violation of Section 504. Notably, the “remedies,

procedures, and rights set forth in Titles VI of the Civil Ri ghts

Act of 1964 (42 U.S.C.A. § 20004, et seq.) shall be available”

to any person who has experienced discrimination under

Section 504. Significantly, 42 U.S.C. 2000d, et seqg., also

provides the remedial scheme for redressing violations of

Title VI and IX.

While it is clear that the mere receipt of federal funds

cannot establish that a State has consented to suit in Federal

Court, receipt of funds will constitute a waiver of Eleventh

Amendment immunity if the statute clearly apprizes the State

1]

of this condition. No State is ever required to accept federal

funds. However, Congress is well within its power to

condition the receipt of its provision of federal funds upon

the recipient’s assurance that it will not engage in

discriminatory actions towards persons with disabilities. As

Petitioners willingly accept federal financial assistance,

including assistance that allows them to provide services to

persons with disabilities, they must comply with such

conditions.°®

After this Court’s decision in A tascadero State Hospital

v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171

(1985), Congress amended the Rehabilitation Act, in

pertinent part, to state that, “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 og f eae SIG Tod

§ 2000d-7. This amendment also clarifies that in any suit

against the state, all remedies which would be available

against any other public or private party, including those at

law, are also available against the state. The language

of 42 U.S.C. § 2000d-7 demonstrates that Congress

unequivocally notified States that they would waive their

Eleventh Amendment immunity to Section 504 suits by

accepting federal financial assistance.

6. UAB has acknowledged that it is a recipient of federal

financial assistance. Indeed, UAB receives monies to redress issues

relative to persons with disabilities by accepting federal funds under

the State’s Medicaid and Medicare plans. ADYS has not denied its

receipt of federal financial assistance. It, too, receives money for

educating children with disabilities under the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400, et seq. and Medicaid.

12

This Court has already characterized Section 2000d-7

as meeting its requirement that Congress unambiguously

express its intent to remove the Eleventh Amendment as a

bar to private suits against States in federal court. In Lane v.

Pena, 518 U.S. 187, 116 S. Ct. 2092, 135 L. Ed. 2d 486

(1996) this Court stated that 2000d-7 constituted an

“unambiguous waiver of the State’s Eleventh Amendment

immunity.” See also Franklin v. Gwinnett County Pub. Sch.,

503 U.S. 60, 112 S. Ct. 102 (1992); Clark v. California, 123

F.3d 1267 (9" Cir.), cert denied, 524 U.S. 937 (1998). Other

Courts of Appeals that have addressed the issue agree that

the language of 42 U.S.C. § 2000d-7 is sufficient to put

recipients on notice that acceptance of federal funds

constitutes a waiver of Eleventh Amendment immunity.

See Sandoval v. Hagen, 197 F.3d 484 (11" Cir. 1999); Little

Rock Sch. Dist. v. Mauney, 183 F.3d 816, 831-832 (8" Cir.

1999) (addressing same language in 20 U.S.C. § 1403); Jn

re Innes, 184 F.3d 1275, 1282-1283 (10" Cir. 1999) (dictum).

Indeed, one of the purposes of the Eleventh Amendment

is to protect the “financial integrity of the States,” Alden v.

Maine, 727 U.S. 706, 119 S. Ct. 2240, 2264,.144 L. Ed. 2d

636 (1999). As such, it is appropriate to permit each State to

analyze and decide whether to forego the federal funds, or

accept the federal money with the condition that it can be

sued in Federal Court. But once that choice is made, “state

sovereignty is not violated by requiring the state to honor its

obligations pursuant to receipt of those funds.”

See New York, 505 U.S. at 168; Metropolitan Wash. Airports

Auth. v. Citizens for the Abatement of Aircraft Noise, Inc.,

501 U.S. 252, 271 (1991). Bell v. New Jersey, 461 U.S. 773,

790 (1983).

13

Significantly, this outcome is not inconsistent with this

Court’s Decision in Seminole Tribe because when Congress

enacted legislation under the Spending Clause, it did not

abrogate Eleventh Amendment immunity. Rather, it

conditioned the receipt of federal funds on a State’s voluntary

waiver of immunity. Thus, Section 2000d-7 does not

represent an abrogation issue, but rather, an express waiver

of immunity. Further, Section 2000d-7, embodies exactly

the type of unambiguous condition discussed by the Court

in Atascadero, placing States on express notice that part of

the “contract” for receiving federal funds is the requirement

that they consent to suit in federal court for alleged violations

of Section 504. (See also Mitten v. Muscogee Co. Sch. Dist.,

877 F.2d 932 (11 Cir. 1989))

B. No Conflict Exists Among the Circuits.

In addition, there is no conflict among the Circuits with

regard to the issue of waiver. The only courts which have

even examined this issue relative to Section 504 are the

Eighth and Ninth Circuits. In Clark v. State of California,

123 F.3d 1267 (9" Cir. 1997), the Ninth Circuit held that the

State had unequivocally waived Eleventh Amendment

immunity by accepting federal funds pursuant to the

Rehabilitation Act, 42 U.S.C. § 2000d-7. Therein the court

noted that Section 504 expressly conditions a State’s waiver

of its Eleventh Amendment immunity by accepting federal

financial assistance. Relying on this Court’s decision in

Atascadero, the Ninth Circuit found that Section 504 includes

an express statement of intent to condition a State’s receipt

of federal financial assistance on its express waiver of

Eleventh Amendment immunity. Finally, the court took note

of this Court’s characterization of 42 U.S.C. § 2000(d)-7 as

“an unambiguous waiver of the State’s Eleventh Amendment

immunity.” Lane, 518 U.S. 187 (1996).

14

While the Eighth Circuit Court of Appeals in Bradley v.

Arkansas Dept. of Education, 189 F.3d 745 (8" Cir. 1999),

initially held that Section 504 did not constitute a

valid exercise of Congress’ spending power, the portion

of the decision which relates to the spending clause issue

was specifically vacated by the Court of Appeals in

Jim C., et al. v. Arkansas Department of Education, 197 F.3d

958 (8" Cir. December 14, 1999), after granting a petition

for a rehearing en banc by the United States.

Finally, it should be noted that all the Courts of Appeals

that have addressed the issue, both before and after College

Savings Bank v. Florida Post Secondary Education Expense

Board, 119 S. Ct. 2219 (1999), have held that so long as

Congress has made its intentions clear, Congress has the

power to condition the receipt of federal funds on a State

recipient’s waiver of Eleventh Amendment immunity.’

Because the issue of waiver under Section 504 has not been

raised by either Petitioner, further review of this issue is not

warranted.

7. See Litman v. George Mason University, 186 F.3d 544

(4th Cir. 1999); Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999)

(Title VI of the Civil Rights Act of 1964); Little Rock Sch. Dist. v.

Mauney, 183 F.3d 816 (8th Cir. 1999); Department of Educ. v.

Katherine D., 727 F.2d 809, 818-819 (9th Cir. 1983) (Education for

All Handicapped Children Act of 1975), cert. denied, 471 U.S. 1117

(1985); Florida Nursing Home Ass'n v. Page, 616 F.2d 1355, 1363

(Sth Cir. 1980) (Medicaid), rev'd due to the absence of a clear

statement sub nom. Florida Dep't of Health & Rehabilitative Servs.

v. Florida Nursing Home Ass'n, 450 U.S. 147 (1981); Premo v.

Martin, 119 F.3d 764, 770-771 (9th Cir. 1997), cert. denied, 522

U.S. 1147 (1998); Delaware Dep't of Health & Soc. Servs. v.

Department of Educ., 772 F.2d 1123, 1138 (3% Cir. 1985).

15

Finally, it should be noted that just recently, this Court

denied certiorari on this issue. See George Mason University

v. Litman, S. Ct. 2000 WL 198966 (U.S. Feb 22, 2000)

(No. 99-596).

CONCLUSION

For each of the reasons stated herein, Respondents urge

this Court to grant certiorari on Petitioners’ Questions |

concerning Titles I and II of the ADA and to deny certiorari

with regard to Question II.

Lee MAE eee ee

eee ern eee Tre LG Te Baits

Rh tee aes Lin ene if

HAP RE COTA TE SAPD

Respectfully submitted,

: DEBORAH A. MATTISON

SANDRA B. REIss

Counsel of Record

4 Gorpon, SILBERMAN,

Wiccins & CuiLps

Attorneys for Respondents

420 North 20" Street

1400 SouthTrust Tower

Birmingham, Alabama 35203

(205) 328-0640

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