Amicus Curiae Brief — Board of Trustees of Univ. of Ala. v. Garrett

Supreme Court, U.S.

FILED

@, JUN 2 2 on00

No. 99-1240

ee CLERK

Supreme Court of the Anited States

THE UNIVERSITY OF ALABAMA AT BIRMINGHAM,

BOARD OF TRUSTEES, ET AL.,

Petitioners,

V.

PATRICIA GARRETT AND MILTON ASH,

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE

STATES OF HAWAII, ARKANSAS,

IDAHO, NEBRASKA, NEVADA,

OHIO, AND TENNESSEE

IN SUPPORT OF PETITIONERS

EARL I. ANZAI AUDREY J. ANDERSON*

Attorney General of Hawaii HOGAN & HARTSON L.L.P.

CHARLES F. FELL 555 Thirteenth Street, N.W.

Senior Deputy Attorney Washington, D.C. 20004-1109

General (202) 637-5689

NANCY ALBANO

Deputy Attorney General * Counsel of Record

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1300

Counsel for Amici Curiae

Mark Pryor Alan G. Lance

Attorney General Attorney General

State of Arkansas State of Idaho

Don Stenberg Frankie Sue Del Papa

Attorney General Attorney General

State of Nebraska State of Nevada

Betty D. Montgomery Paul G. Summers

Attorney General Attorney General and

State of Ohio Reporter

State of Tennessee

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE..............ccssesesseeees l

SUMMARY OF ARGUMENT ..............cccessesseseessseeeeeeeees 3

I aisnaie cases nilitedtelicinasaphoribandchitinsarennniiettnnaanaae 5

I. THE ELEVENTH AMENDMENT BARS

SUITS UNDER THE ADA BY PRIVATE

CITIZENS IN FEDERAL COURT AGAINST

NON-CONSENTING STATEG............2:ccccceeeeeeees 5

A. The Legislative History of the ADA

Provides No Evidence of a Pattern of

Misconduct by the States In Violation of

the Constitutional Rights of the Disabled....... 8

B. Because the ADA Imposes a Significantly

Higher Burden on the States than Does

Rational Basis Scrutiny, the Provisions of

the ADA Cannot Be Understood as a

Response to, or as a Means to Prevent,

Unconstitutional Discrimination Against

I NI sistas icacipcediedhtcidesnbpsiavaeielinnncecenieabnanusions 12

C. By Patterning the ADA on Civil Rights

Legislation Concerning Discnmination on

the Basis of Race and Gender, Congress

Expressly Intended to Heighten the Level

of Scrutiny Provided to Classifications on

TT 16

II. LITIGATION AGAINST THE STATES

ILLUSTRATES THE ADA'S LACK OF

CONGRUENCE AND PROPORTIONALITY

TO CONSTITUTIONAL STANDARDS............. 18

il

TABLE OF CONTENTS - Continued

Page

A. Hawaii's Good Faith Attempt to Expand

Medicaid Coverage to its Needy Uninsured

Population Has Resulted in Two Class

Action Lawsuits Under the ADA Imposing

Liability for Potentially Millions of

Dollars, and the Loss of Medical Coverage

to Over 30,000 Needy Residents .................... 19

B. The State of Hawaii Was Found Liable for

Violating the ADA Through Its Facially

Neutral Century Old Animal Quarantine

I enissciceencesstsepiriiictataliichetbie pada aah aie 24

C. The State of Ohio Has Been Burdened

With Repayment of $2.5 Million in ;

Nominal Fees Charged to Obtain ;

Handicapped Parking Placards ...............0.000-. 25

D. The State of New York Was Held Liable

for $300,000 in Damages for "Retaliating"

Against a State Employee Who Was Not

Even Adjudged Disabled ..............:ccc:ccesceseeeees 26

Ce TEN iteslicessiphshlinlntcivgnlechstompietishsiaicutasneseddindis 28

ill

TABLE OF AUTHORITIES

Page

CASES:

Alden v. Maine, 527 U.S. 706 (1999)............ccccccccscccscsetesesseseeees y a

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

(TDG S) a scnsninsicosseccnensspstvascseicetnstsiontnvanetintiniibesmnanentencansanteansoetette 10

Brown v. North Carolina Div. of Motor Vehicles, 166

F.3d 698 (4th Cir. 1999), petition for cert. pending

(INO. 99-AQA),. cccocesesccccsssassesesresscsssecosevecossenesstsesoesecceovssoseasneees 1,26

Burns-Vidlak v. Chandler, 939 F. Supp. 765 (D. Haw.

TDDB) sccsaccccesteersescsrcvsvedsnvinteossacsbonensnestoniaasutenaptmenteneroucasons passim

Burns-Vidlak v. Chandler, 980 F. Supp. 1144

(D. Haw. 1997), appeal dismissed, 165 F.3d 1257

(Dthr Cir. 1999)....ccsceacssescosessasencccessccesscssscsssscsesocessossnessnosonscoooses 21

California Dep't of Health Serv. v. United States Dep't

of Health & Human Servs., 853 F.2d 634 (9th Cir.

SI vest necnisssssntanitvcticsceccesinesiatcnnntianinincminiimeeiuanmcinanaeiien 23

City of Boerne v. Flores, 521 U.S. 507 (1997) .....-s-ssesesees0 passim

City of Cleburne v. Cleburne Living Ctr., Inc., 473

U.S. 432 (19ES)....cncorccescevressscsrsenstesreenssneconsssueersvonnstsccsoonns passim

City of Rome v. United States, 446 U.S. 156 (1980).........20ess000+ 16

1V

TABLE OF AUTHORITIES—Continued

Page

Cleveland v. Policy Management Sys. Corp., 526 U.S.

FE FO iicnisisnsabviiciiaa caicmapicidictabialekeiabticentimbiapietagnbheapateadaacciad 21

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999) ........ccccccceeeseeees 2,6,7,8

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

tition for cert. pending (NO. 99-1417)........::.:cssceeseeseeseeseeeees 1,26

Duprey v. Connecticut Dep't of Motor Vehicles, 28 F.

UR Oe Pe Gee, IR, PR a aicsenis eo ctsvderacesecoeriimes 26

Erickson v. Board of Governors, 207 F.3d 945 (7th

IAs IE cihcnsscecsbsescstieigsaicechseibloaseuicaataiosolahes seine sdasmutaledaieiteates 15

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 527 U.S. 627 (1999) .......:ccccescessesseeeeeees 2,7,8

puma S. Lavtadintaame, 198 TG. 1 I a wiceinsiseticscessdenscsnaccasniteresmies 6

Feller v. Doe, 509 U.S. 312 (1993) ........svsssssseresseeessseeesseees 4,13,20

Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) ...... passim

Ree V. Plea, SEG ID. 1ST CEG vavsissicsntcnsciesintoiavaninvssnenciernens 5,17

McGarry v. Director, Dep't of Revenue, 7 F. Supp. 2d

Se a SIN, SION icitaks cocsuisishtstariiocslatiastiieed adeeb ooeebontieicnieiun 26

Vv

TABLE OF AUTHORITIES—Continued

Page

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999)........c cesses 26,27

Personnel Admin. v. Feeney, 442 U.S. 256 (1979) .........cccccceeeees 15

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).............. 5,6

Sterling v. Chandler, No. 98-00258 SOM (D. Haw.

Os I eID sicisiacinhdasedacacaciiedaianeasteiartaleinhcbaibeninaliaicimiiveapaiaavbaaes 23

Thorpe v. Ohio, 19 F. Supp. 2d 816 (S.D. Ohio 1998)............... 25

United States v. Morrison, 120 S. Ct. 1740 (2000)..................0. l

Washington v. Davis, 426 U.S. 229 (1976)........ccccsccceseeeeeereeeeees 15

CONSTITUTION:

iis GE IE: Fi lesieechisinsncsenschnccereiittvnninsaintingnntanappete passim

US. Const. REN eC EN passim

STATUTES:

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

is OE NE, Scie rinistacinesteaceivaiseitpnilbiechistsiesl iagh sakaaebendeemocniclipnibasiabsicenapis 3

Americans with Disabilities Act, 42 U.S.C. §§ 12101

OB TDG... cciniinsavensnassiiininnidiensataiitiiannvisietncieaaioicenaiaiecapateticdinheraliiin passim

GE lia © AEF ccccichiincinickaonananicuitoidaemna 8

vi

TABLE OF AUTHORITIES—Continued

Page i

Pee Coe Ee ee 6 :

PLE CaM EEL.) eae 4,17

USC 6 UNAS eee 13 |

MD LINN os 13 |

42 U.S.C. § 12112(8) cescsscneee Vee eae oo 13,15 7

42 U.S.C. § 12112(6)(3)(A)soccsccsccsccesssnessnessnnesseeneestnsssesen 13 |

42 U.S.C. § 12112(0)(S)(A) coccsceeesceesscesccescceeesseeneessnessssnnee 3 |

MUSE tH .. 13 |

MN RI a ee 13 |

a CU 14 |

Met Wa a a 4,9,14,17

ie A ee a 14

SRR ON oe ee eae 14

RS 5 ic ed 9

O04 Oe 6,10

Civil Rights Act of 1966 $86, V1 uu....cscccecsscsroocsnsscessecsosssessevcssonnes 14

Vii

TABLE OF AUTHORITIES—Continued

Page

Rehabilitation Act, 29 U.S.C. § 701 ef SEQ. ......:scceeerepreeseees 4,9,10

29 UBC. § TOG vecccosicersensesssscrscacessctoesscessusenseessnccssbornasnesseteonse 14

Religious Freedom Restoration ACt ........:sssessseserseeseeseseenesnennens +

Social Security Act , 42 U.S.C. § 423(d)(1)...---ceeseesereeseeeeeeesees 21

42 U.S.C. § 1981a(b)(3)(D) .............ccscecccrseersecsrsecsscssersesesseeseses 26

REGULATIONS:

28 C.F.R. § 35.101 68 $00. ..cccrccocescescssccescersscovseccesesesescessssssessosopes 14

28 CF.R. § 35. 130(OMS8)...0...ecccccoseccscscoscrsccsccccssescosssesssssosscsnseoes 15

ZO CPB. FSAI eiceiviccssccvsnsssnccnseceevssisnvercsnincestasasonnininatanie 25

LEGISLATIVE MATERIALS:

House Comm. on Ed. and Labor, 101st Cong. 2nd

Sess., Legislative History of Public Law 101-336,

The Americans with Disabilities Act (Comm. Print

Viil

TABLE OF AUTHORITIES—Continued

Page

To Establish a Clear and Comprehensive Prohibition

of Discrimination on the Basis of Disability: Hear-

ings on S. 933 before the Subcomm. on the Handi-

capped of the Senate Comm. on Labor and Human

Resources, LOtet Cong,, let Sess, ..cccccsscsisececsesecassssesvevecosesessee 1]

OTHER:

Philip G. Peters, Jr., Health Care Rationing and Dis-

ability Rights, 70 Ind. L.J. 491 (1995) .o.c.ccccccccsecescsscssscesecececes 20

|

INTEREST OF THE AMICI CURIAE

Through the Americans with Disabilities Act, 42 U.S.C.

§§ 12101 et seq. (hereinafter ADA or the Act), Congress has

“obliterat[ed] the Framers' carefully crafted balance of power

between the States and the National Government." United

States v. Morrison, 120 S. Ct. 1740, 1755 (2000) (citation

omitted). It is for this reason that the States of Hawaii,

Arkansas, Idaho, Nebraska, Nevada, Ohio, and Tennessee

urge the Court to reverse the judgment below. In so doing,

they join the State of Alabama in this case and at least two

other States that have independently requested that the Court

protect the immunity of the States from suit under the ADA.

See Brown v. North Carolina Div. of Motor Vehicles, 166

F.3d 698 (4th Cir. 1999), petition for cert. pending (No. 99-

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

petition for cert. pending (No. 99-1417).

The issue presented is whether Congress has the power

under Section Five of the Fourteenth Amendment to abrogate

the States’ Eleventh Amendment immunity to impose

liability under the ADA against States for suits brought by

private citizens in federal courts. The constitutional rights of

the States are being violated by the ADA. The ADA has in

effect relegated States to the status of governmental prov-

inces in our federal system of government on matters per-

taining to discrimination against the disabled, and it has done

so without any justification in the form of prior misconduct

by the States, and without any tailoring of the federal remedy

to the scope of supposed State misconduct. The broad sweep

of the ADA reaches into all State programs and services,

including those most sensitive to the States, affecting prisons

and hospitals, delivery of medical insurance to the poor under

Medicaid laws, and quarantine systems designed to protect a

State from the importation of rabies. Under the limited

defenses provided by the ADA, neither a rational basis nor

even a compelling state interest generally suffices to protect a

State from liability. Nor is a State's good faith, nor even its

motivation to protect the disabled, a defense to monetary

2

damage claims under the ADA. By its terms, and as inter-

preted by the federal courts, none of these "defenses" is

available to the States.

Amici share with all States an interest in protecting their

sovereignty from such unwarranted intrusion by Congress.

The States “are not relegated to the role of mere provinces or

political corporations but retain the dignity . . . of sover-

eignty.” Alden v. Maine, 527 U.S. 706, 715 (1999). This

sovereignty requires that States may not, without their

consent, be subject to private suit in federal court except

where Congress acts pursuant to a grant of valid authority

under the Constitution. Kimel v. Florida Bd. of Regents, 120

S. Ct. 631 (2000).

In the last several Terms, this Court has four times consid-

ered whether a statute was enacted by Congress pursuant to a

grant of power under the Fourteenth Amendment sufficient to

abrogate the States' Eleventh Amendment immunity. In each

of those cases, this Court concluded that Congress had

inappropriately sought to redefine the substance of the

constitutional right at issue, rather than validly seeking to

enforce or prevent violations of the Fourteenth Amendment.

See Kimel, 120 S. Ct. 631; College Sav. Bank v. Florida

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666

(1999); Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 527 U.S. 627 (1999); City of Boerne v.

Flores, 521 U.S. 507 (1997). In addition to providing

powerful precedent for why applying the ADA to the States

in federal court exceeds Congress’ authority, this recent

history also exhibits that the States must remain ever vigilant

to guard against encroachment by the Federal Government of

their sovereign power.

In filing this brief, Amici do not seek to limit the ability of

the disabled to protect their nghts. To the contrary, the States

have long been at the forefront of efforts to prohibit discrimi-

nation against the disabled and to eliminate barriers to their

full participation in society. Any State may consent to be

sued in federal court for enforcement of the ADA. But our

as

3

federalist design requires that the States, and not the Federal

Government, be the arbiters of when that consent will be

given.

- SUMMARY OF ARGUMENT

Last Term, in Kimel v. Florida Board of Regents, 120 S.

Ct. 631 (2000), this Court held that Congress lacked the

power under Section Five of the Fourteenth Amendment to

impose liability against unconsenting States in federal court

for violations of the Age Discrimination in Employment Act,

29 U.S.C. § 621 et seq. (“ADEA”). In Kimel, this Court held

that the ADEA "prohibits very little conduct likely to be held

unconstitutional," and was based on a legislative record in

which "Congress never identified any pattern of age dis-

crimination by the States, much less any discrimination

whatsoever that rose to the level of constitutional violation."

120 S. Ct. at 648, 649. The parallels between the ADA, at

issue here, and the ADEA are striking, and lead to the

conclusion that in enacting the ADA, Congress similarly

lacked the power under the Fourteenth Amendment to

abrogate the Eleventh Amendment immunity of the States.

When it considered the ADA, Congress did not have before

it evidence of a pervasive pattern of violations by the States

of the constitutional rights of the disabled. While Congress

identified a record of wide-spread discrimination against the

disabled in society generally, it failed to find a pattern of

conduct by the States in violation of the rights of their

disabled residents, no less find any such violations that would

amount to a constitutional violation. To the contrary, States

have historically protected the interests of the disabled

through the provisions of state law, and Congress looked to

what had been done by the States as examples of steps that

could be taken to better integrate the disabled into society. In

addition, the provisions of the ADA cannot be understood as

designed to remedy or prevent violations of the constitutional

rights of the disabled because the provisions of the ADA are

well out of proportion to the rights of the disabled as pro-

tected by the Fourteenth Amendment. In City of Cleburne v.

4

Cleburne Living Center, Inc., 473 U.S. 432 (1985), this Court

held that distinctions drawn by the States on the basis of

disability are afforded only rational basis review under the

Fourteenth Amendment, a holding that was affirmed by the

Court in Heller v. Doe, 509 U.S. 312 (1993). In contrast to

review under the rational basis test, which presumes govern-

mental classifications to be lawful and accepts a rational

explanation by the State for classifications on the basis of

disability, the ADA prohibits a much broader swath of

conduct by the States. The legislative history confirms that

Congress, through the ADA, was attempting precisely to

increase the level of scrutiny given to classifications con-

cerning the disabled as compared to that applied under the

Equal Protection Clause. In sum, the ADA, like the ADEA

and the Religious Freedom Restoration Act previously

considered by this Court, "is 'so out of proportion to a

supposed remedial or preventive object that it cannot be

understood as responsive to, or designed to prevent, uncon-

stitutional behavior." Kimel, 120 S. Ct. at 647 (quoting City

of Boerne, 521 U.S. at 532).

Amici have far more than an academic interest in these

matters. Litigation brought under the ADA against the States

provides concrete evidence of the lack of congruence and

proportionality between the requirements of the ADA and the

strictures of the Equal Protection Clause. These cases exhibit

how the ADA requires States to defend themselves in federal

court, and sometimes to pay damages awards, where laws or

practices of general applicability have an incidental effect on

the disabled. Under the ADA, States have been held liable

for their very attempts to comply with the Act. States would

not be held liable — or likely even face litigation — for such

conduct under the Equal Protection Clause. The United

States does not face the threat of compensatory damages for

its discrimination against the disabled because the ADA does

not apply to the federal government, see 42 U.S.C.

§ 12111(5)(B), 42 U.S.C. § 12131, and the Rehabilitation

Act, which prohibits discrimination against the disabled by

the federal government, does not authorize awards of com-

5

pensatory damages in actions against the United States. Lane

v. Pena, 518 U.S. 187 (1996).

The interest of Amici in protecting their sovereignty, how-

ever, should not be mistaken for an interest in limiting the

rights of their disabled residents. To the contrary, Amici

intend to continue their efforts to ensure that the disabled are

not discriminated against and are able to participate fully in

society. Through state law protections, and through the ADA

where States consent to private suit in federal court, the

interests of the disabled will continue to be protected from

unwarranted discrimination by the States even were this

Court to conclude — as it should — that in enacting the ADA,

Congress lacked the power under the Fourteenth Amendment

to abrogate the States' Eleventh Amendment immunity.

ARGUMENT

I. THE ELEVENTH AMENDMENT BARS SUITS

UNDER THE ADA BY PRIVATE CITIZENS IN

FEDERAL COURT AGAINST NON-

CONSENTING STATES

Although the Constitution provides the Federal Govern-

ment with broad powers over areas within its competence, it

also specifically “recognizes the States as sovereign entities.”

Alden v. Maine, 527 U.S. at 517 (quoting Seminole Ti ribe of

Fla. v. Florida, 517 U.S. 44, 71 n.15 (1996)). The immunity

of non-consenting States from suit by private citizens in

federal court — reflected in the Eleventh Amendment to the

Constitution — is central to the sovereignty retained by the

States.'! “[Flor over a century now, we have made clear that

the Constitution does not provide for federal jurisdiction over

1 The Eleventh Amendment to the Constitution states:

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity

commenced or prosecuted against one of the

United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

6

Suits against nonconsenting States.” Kimel, 120 S. Ct. at 640

(citing College Sav. Bank, 527 U.S. at 713; Seminole Tribe,

517 U.S. at 54; Hans v. Louisiana, 134 U.S. 1, 15 (1890)).

For Congress to abrogate the States’ Eleventh Amendment

immunity it must make its intent to abrogate unambiguous in

the text of the statute itself,? and must act pursuant to a valid

grant of constitutional authority. Kimel, 120 S. Ct. at 640.

In enacting the ADA, Congress expressly relied on its

power under the Fourteenth Amendment. See 42 U.S.C.

§ 12101(b)(4).2 While the affirmative grant of power to

Congress contained in the Fourteenth Amendment provides

Congress with the power to abrogate the Eleventh Amend-

ment immunity of the States, that power is not unlimited.

Kimel, 120 S. Ct. at 644. Congress retains the power to

enforce the provisions of the Fourteenth Amendment, but

lacks the power to decree the substance of those provisions.

Id. (citing City of Boerne, 521 U.S. at 519). Legislation that

properly enforces the Fourteenth Amendment rather than

redefining its substance exhibits "'a congruence and propor-

tionality between the injury to be prevented or remedied and

2 The ADA contains an unambiguous expression by Congress of

an intent to abrogate the States’ immunity. See 42 U.S.C. § 12202.

3 The Fourteenth Amendment to the Constitution provides in

relevant part:

Section 1. . . . No State shall make or enforce any

law which shall abridge the privileges or immuni-

ties of citizens of the United States; nor shall any

State deprive any person of life, liberty or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection

of the laws.

Section 5. The Congress shall have power to en-

force, by appropriate legislation, the provisions of

this article.

7

the means adopted to that end."" Jd. (quoting City of Boerne,

521 U.S. at 520).

In applying the congruence and proportionality test, two

areas of inquiry have emerged. The first is whether the

record developed by Congress contains evidence of uncon-

stitutional conduct purportedly targeted by the legislation.

Where there is no more than "anecdotal evidence" that does

not reveal a "widespread pattern" of constitutional violetions

across the country, the legislative record does not support a

conclusion that Congress was acting prophylactically to

remedy or avoid constitutional violations. City of Boerne,

521 U.S. at 531. In order to support abrogation of the States’

Eleventh Amendment immunity, moreover, the legislative

record must manifest more than just a general problem in

society at large, it must contain evidence of constitutional

violations of the right at issue by the States. Florida Prepaid,

527 US. at 640.

The second inquiry is whether the legislation at issue is

proportional to a supposed remedial or preventive purpose.

Relevant to this inquiry is the likelihood that the conduct by

the States prohibited by the legislation in question would be

found to violate the applicable constitutional standard. Thus

in City of Boerne, this Court held that the Religious Freedom

Restoration Act (“RFRA”) was not proportional remedial

legislation because the compelling state interest test RFRA

imposed was likely to displace many state laws that would

survive the governing standard developed by this Court. City

of Boerne, 521 U.S. at 532-34. In Kimel, this Court held that

the ADEA was not a proportional response to any conceiv-

able constitutional problem because it "prohibits substantially

more state employment decisions and practices than would

likely be held unconstitutional under the applicable equal

protection, rational basis standard." Kimel, 120 S. Ct. at 647;

see Florida Prepaid 527 U.S. at 646-47; College Sav. Bank,

527 US. at 672-74.

Applying the congruence and proportionality test to the

ADA leads to the same conclusion reached by this Court in

8

City of Boerne, Kimel, Florida Prepaid, and College Savings

Bank. The ADA is not congruent or proportional to any

purported constitutional violations by the States of the rights

of the disabled. Congress enacted the ADA without evidence

of any unconstitutional discrimination by the States against

the disabled, no less a widespread pattern of such violations.

The ADA is also disproportionate because it prohibits

substantially more State conduct concerning the disabled than

would likely be held unconstitutional under the applicable

equal protection, rational basis standard. In fact, the legisla-

tive history of the ADA shows that Congress expressly

intended to heighten the level of scrutiny provided to deci-

sions conceming the disabled above that required by the

Constitution.

A. The Legislative History of the ADA Provides

No Evidence of a Pattern of Misconduct by the

States In Violation of the Constitutional

Rights of the Disabled

The ADA resulted from extensive factual findings by Con-

gress. The text of the ADA itself begins with "Congressional

Findings and Purposes," in which Congress makes nine

different findings concerning the discrimination, isolation,

and segregation faced by the disabled. 42 U.S.C. § 12101.

Not one of these findings, however, so much as mentions any

misconduct by the States concerning their disabled residents,

nor identifies any conduct that rises to the level of violating

the constitutional rights of the disabled.

The impressive legislative record gathered by Congress in

enacting the ADA also fails to identify the States’ treatment

of the disabled as an area of concern. In the many committee

hearings, reports, and debates concerning the ADA, Congress

did not focus on the conduct of States, but instead found that

the disabled faced discrimination, prejudicial treatment, and

barriers to full participation in society generally.* Congress

4 See generally House Comm. on Ed. and Labor, 101st Cong.

2nd Sess., Legislative History of Public Law No. 101-336, The

9

did not, however, “identif[y] any pattern of [disability]

discrimination by the States, much less any discrimination

whatsoever that rose to the level of constitutional violation."

Kimel, 120 S. Ct. at 649.

Even with regard to the sections of the ADA most closely

related to conduct by the States, the legislative record fails to

reflect evidence of discriminatory — no less unconstitutional —

conduct by the States concerning the disabled. Congress

explained that Title II.A of the ADA, 42 U.S.C. §§ 12131-

34 — which prohibits discrimination in the delivery of public

services by State and local governments — was an extension

of the non-discrimination provisions of the Rehabilitation

Act, 29 U.S.C. § 701 et seq., which prohibits discrimination

against the disabled by entities receiving federal funds.

Congress noted that Title Il.A was necessary because "[t]he

resulting inconsistent treatment of people with disabilities by

different State or local governmental agencies is both ineq-

uitable and illogical." But in making this observation,

Americans With Disabilities Act (Comm. Print 1990) (hereinafter

"Comm. Print"). This Committee Print is a compilation of

documents pertaining to the legislative history of the ADA.

In considering the ADA, Congress was presented evidence of

general differential treatment of the disabled in areas in which

States do not have a primary, or leading, role such as: transporta-

tion, see, e.g., Comm. Print at 144-55, 170-74 (S. Rep. No. 101-

116) (Comm. on Labor and Human Resources), 234-52 (H. Rep.

No. 101-485, Part 1) (Comm. on Pub. Works and Transportation);

public accommodations and services offered by private entities,

see, e.g., id. at 156-70 (S. Rep. No. 101-116), 307-10 (H. Rep. No.

101-485, Part 2) (Comm. on Ed. and Labor); telecommunications,

see, e.g., id. at 175-81 (S. Rep. No. 101-1 16), 561-64, 599-603 (H.

Rep. No. 101-485, Part 4) (Comm. on Energy and Commerce); and

employment, see, e.g., id. at 122-42 (S. Rep. No. 101-116), 327-56

(H. Rep. No. 101-485, Part 2) (Comm. on Ed. and Labor), 471-89

(H. Rep. No. 101-485, Part 3) (Comm. on Judiciary).

5 Comm. Print at 310 (H. Rep. No. 101-485, Part 1) (Comm. on

Ed. and Labor); see id. at 110 (S. Rep. No. 101-116) (noting that

10

Congress did not identify any such inconsistent treatment by

different governmental entities, nor did it identify any pattern

of State conduct in violation of the protections contained in

the Rehabilitation Act. Indeed, the Rehabilitation Act was

repeatedly cited by supporters of the ADA as a model for the

ADA itself.®

The legislative history concerning the enactment of the

portion of the ADA that purports to abrogate the States’

Eleventh Amendment immunity, 42 U.S.C. § 12202, is

similarly silent concerning any pattern of illegal or unconsti-

tutional conduct by the States. The legislative record con-

cerning this provision simply recites that it was "included in

order to comply with the standards for covering states set

forth in Atascadero State Hospital v. Scanlon [473 U.S. 234

(1985)]."7 Congress identified no evidence of State conduct

making such abrogation necessary.

To the extent that States are mentioned at all in the legisla-

tive record, they are generally held up as positive examples

for actions they had already taken to protect the rights of the

disabled. Witnesses testified before Congress that virtually

every State had enacted some form of legislation protecting

the disabled from discrimination,’ and provided details

"{w]itnesses testified about the inequity of limiting protection |

based on the receipt of Federal funding.").

6 See, e.g., Comm. Print at 490-91 (H. Rep. No. 101-485, Part 3)

(Comm. on Judiciary); 625 (May 17, 1990 floor remarks of Rep.

Weiss).

7 Comm. Print at 184 (S. Rep. No. 101-116); 411 (H. Rep. No.

101-485, Part 2) (Comm. on Ed. and Labor).

8 See Comm. Print at 190 (S. Rep. No. 101-116) ("All states

currently mandate accessibility in newly constructed state-owned

public buildings . . . "); id. at 194 (S. Rep. No. 101-116, views of

Sen. Hatch) (referring to the "growing array of programs and

antidiscrimination provisions at the local [and] state . . . levels");

id. at 2179 (testimony of Robert L. Burgdorf, Jr.) ("A number of

states have passed legislation mandating accessibility in their park

Sedan Bil) ialinlas hi

11

concerning the efforts of individual States on behalf of their

disabled residents.°

The legislative history further lacks any substantial discus-

sion of the constitutional rights of the disabled and whether

the States were violating those rights. There is virtually

nothing in the legislative history concerning the requirements

of the Constitution. The issue was not addressed even by

those witnesses who would presumably be most knowledge-

able about it.!° It appears that only one witness even men-

tioned the governing law from this Court concerning the

constitutional rights of the disabled. That law was men-

tioned, however, not as evidence that the States had fre-

quently violated the relevant constitutional standard, but

rather to argue that the Equal Protection Clause failed, in the

witness' view, to adequately protect the rights of the disabled.

As this witness noted, the Court has:

and recreation facilities."); see also Appendix A hereto (listing

current state laws).

9 See, e.g., Comm. Print at 623 (remarks of Rep. Unsoeld con-

cerning Washington); id. at 1046-61 (testimony of Massachusetts

officials); id. at 1552 (testimony of EEOC Commissioner Kemp

concerning North Carolina and Oregon); id. at 2845 (testimony of

James Gashel concerning California); To Establish a Clear and

Comprehensive Prohibition of Discrimination on the Basis of

Disability: Hearings on S. 933 before the Subcomm. on the

Handicapped of the Senate Comm. on Labor and Human Re-

sources, 101st Cong., Ist Sess. 75-85 (hereinafter "Hearings on S.

933") (statement of Illinois Attorney General Neil Hartigan).

10 See, e.g., Hearings on S. 933 at 38-40, 299-337, 427-39 (tes-

timony and statement of Arlene Mayerson, Directing Attorney,

Disability Rights Education and Defense Fund); id. at 75-85, 487-

93 (testimony and statement of N. Hartigan); id. at 169-71, 753-73

(testimony and statement of Tim Cook, Executive Dir. of the

National Disability Action Center); id. at 195-214, 808-20, 829-46

(testimony and statements of Attorney General Thornburgh); id. at

590-611 (statement of American Civil Liberties Union).

_—— 12

consigned cases involving disability discrimina-

tion to the jevel or ‘tier’ of judicial scrutiny least

favorable to the individual who suffers the dis-

crimination — the so-called 'rational basis’ test.

City of Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985). What this means in practical

terms is that any halfway plausible rationalization

for governmental discrimination against people

with mental or physical disabilities will be enough

to satisfy the Federal courts.!!

Far from providing evidence of a pattern of violations of the

constitutional rights of the disabled, this statement merely

reinforces that through the ADA Congress sought to redefine

the level of protection provided to the disabled pursuant to

the Equal Protection Clause.

A review of the ADA's legislative record thus reveals that

Congress "had virtually no reason to believe that State...

governments were unconstitutionally discriminating" against

their citizens on the basis of disability, Kime/, 120 S. Ct. at

650, and fails to support any notion that in enacting the ADA,

Congress was addressing a nationwide problem of discrimi-

nation by the States against the disabled.

B. Because the ADA Imposes a Significantly

Higher Burden on the States than Does

Rational Basis Scrutiny, the Provisions of the

ADA Cannot Be Understood as a Response to,

or as a Means to Prevent, Unconstitutional

Discrimination Against the Disabled

In addition to being based on a legislative record that lacks

evidence of discriminatory conduct by the States, the ADA

also forbids significantly more state conduct concerning the

disabled than is prohibited by the Fourteenth Amendment.

Distinctions drawn by States on the basis of disability are

11 Comm. Print at 2246 (statement of James W. Ellis, President,

American Association on Mental Retardation).

13

judged for purposes of equal protection analysis by the

rational basis test. Heller v. Doe, 509 U.S. at 319-21; City of

Cleburne, 473 U.S. at 439-42. The requirements of the

ADA, however, effectively raise the level of scrutiny applied

to State actions with regard to the disabled to a level well

above that required by rational basis review. This is no

surprise, because the legislative record makes clear that in

enacting the ADA, Congress expressly intended to redefine

the substantive Fourteenth Amendment protections provided

to the disabled.

Title I of the ADA prohibits employers (including, by its

terns, State employers) from discriminating on the basis of

disability in hiring, compensation, advancement, training and

other "terms, conditions, and privileges of employment." 42

U.S.C. § 12112(a). "Discrimination" as defined by Title I of

the ADA includes not only purposeful discrimination, but

also the use of "standards, criteria, or methods of administra-

tion . . . that have the effect of discrimination." 42 U.S.C.

§ 12112(b)(3)(A)(emphasis added). Title I requires an

employer to make a "reasonable accommodation"!? to the

known physical or mental limitations of an applicant or

employee unless the employer demonstrates that the accom-

modation would impose an "undue hardship." 42 U.S.C.

§ 12112(b)(5)(A); see 42 U.S.C. §12111(10) (defining

"undue hardship").'3 Remedies available for violations of

12 The ADA defines reasonable accommodations to include,

among other things, making alterations to existing physical

facilities, offering part-time or modified work schedules, and

providing qualified readers or interpreters. 42 U.S.C.

§ 12111(9)(A),(B).

13 Title I also limits the extent to which applicants and employ-

ees may be subjected to medical examinations, and the uses that

may be made of such information. 42 U.S.C. § 12112(d). Title I

further prohibits employers from using standards, tests, or other

selection criteria "that screen out or tend to screen out an individ-

ual with a disability" unless that standard, test, or criteria is shown

by the employer "to be job-related for the position in question and

is consistent with business necessity." 42 U.S.C. § 12112(b)(6).

14

Title I of the ADA are the same as those available for viola-

tions of Title VII of the Civil Rights Act of 1964. See 42

U.S.C. § 12117(a).

Title II of the ADA protects the disabled from being dis-

criminated against, or excluded from participation in, serv-

ices, programs or activities of a public entity. 42 U.S.C.

§ 12132. A "[q]ualified individual with a disability" under

Title Il is someone who meets the "essential eligibility

requirements" for participation in the public service, pro-

gram, or activity with or without "reasonable modifications,"

"the removal of architectural, communication, or transporta-

tion barriers," or the "provision of auxiliary aids and serv-

ices." 42 U.S.C. § 12131. The remedies available for

violations of Title II are those provided by Title VI of the

Civil Rights Act of 1964.4

As even this brief synopsis!5 shows, the ADA prohibits a

far broader range of conduct than that prohibited under the

rational basis test of the Equal Protection Clause. In City of

Cleburne, this Court expressly rejected the notion that the

disabled constitute a suspect or quasi-suspect class. 473 U.S.

at 442-47. Because States "may legitimately take into

account [characteristics of the disabled] in a wide range of

decisions," the rational basis standard is appropriate to

provide States with "the latitude necessary both to pursue

policies designed to assist the [disabled] in realizing their full

potential, and to freely and efficiently engage in activities

that burden the [disabled] in what is essentially an incidental

manner." Jd. at 446. Under the Equal Protection Clause, a

14 The ADA itself provides that remedies for violations of Title

II are those provided in section 505 of the Reliabilitation Act, 29

U.S.C. § 794a. See 42 U.S.C. § 12133. Section 505 of the Reha-

bilitation Act in turn refers to the remedies provided by Title V1 of

the Civil Rights Act. 29 U.S.C. § 794a.

'5 Additional explanation of the discrimination prohibited by the

ADA is contained in regulations promulgated by the Department

of Justice. See 28 C.F.R. § 35.101 et seg.

15

classification made by the States on the basis of disability is

"presumed to be valid" and will be sustained if it is "ration-

ally related to a legitimate state interest." /d. at 440. To

show a violation of the Equal Protection Clause, it is insuffi-

cient to show that a neutral classification has a disparate

impact, instead it is necessary to show intentional discrimi-

nation. See, e.g., Washington v. Davis, 426 U.S. 229 (1976);

Personnel Admin. v. Feeney, 442 U.S. 256 (1979).

In contrast, in an employment context the ADA makes

unlawful all "discriminat[ion] against a qualified individual

with a disability because of the disability" of that individual,

regardless of whether the employer had a rational basis for its

actions. 42 U.S.C. § 12112(a); see Kimel, 120 S. Ct. at 647

(describing virtually identical provision of ADEA). More-

over, the ADA requires employers to make reasonable

accommodations for disabled employees unless the employer

can show that such an accommodation would pose an undue

hardship. Similarly, under Title II of the ADA, a State may

not impose a criteria that "tend[s] to screen out" a qualified

disabled individual from a State program, regardless of the

rationality of that criteria, unless the State can show that the

criteria is necessary for the provision of the program. 28

C.F.R. § 35.130(b)(8). These requirements are backwards of

the rational basis scrutiny under the Equal Protection Clause,

which presumes State classifications to be proper, and where

the burden always remains on the plaintiff to show inten-

tional discrimination. See Erickson v. Board of Governors,

207 F. 3d 945, 951 (7th Cir. 2000) ("no one believes that the

Equal Protection Clause establishes the disparate-impact and

mandatory-accommodation rules found in the ADA") (em-

phasis in original). In sum, the ADA "through its broad

restriction on the use of [disability] as a discriminating factor,

prohibits substantially more State . . . decisions and practices

than would likely be held unconstitutional under the applica-

ble equal protection, rational basis standard." Kimel, 120 S.

Ct. at 647.

16

Of course, Congress may, in order to deter constitutional

violations, prohibit conduct that reaches more broadly than

that which actually violates the Constitution. "Preventive

measures prohibiting certain types of laws may be appropri-

ate when there is reason to believe that many of the laws

affected by the congressional enactment have a significant

likelihood of being unconstitutional." City of Boerne, 521

U.S. at 532 (citing City of Rome v. United States, 446 U.S.

156, 177 (1980)). But in enacting the ADA, Congress was

not faced with conduct by the States evidencing a pattern of

violations of the constitutional rights of the disabled. There-

fore, the "[s]weeping coverage [of the ADA which] ensures

its intrusion at every level of government, displacing laws

and prohibiting official actions of almost every description

and regardless of subject matter" is a means plainly dispro-

portionate to any proper constitutional end. City of Boerne,

521 U.S. at 532.

C. By Patterning the ADA on Civil Rights

Legislation Concerning Discrimination on the

Basis of Race and Gender, Congress Expressly

Intended to Heighten the Level of Scrutiny

Provided to Classifications on the Basis of

Disability

The legislative history of the ADA itself shows that rather

than attempting to deter constitutional violations, Congress’

goal was to heighten the level of scrutiny applied to decisions

affecting the disabled above that provided by the rational

basis test. Congress consciously modeled the ADA on earlier

civil rights laws dealing with race and gender discrimination,

and explicitly provided that discrimination against the

disabled under the ADA would be subjected to the same

heightened scrutiny.'© The purpose of the ADA, explained

16 See, e.g., Comm. Print at 71, 85 (H. Conf. Rep. No. 101-596);

id. at 100, 123, 142 (S. Rep. No. 101-116); see also id. at 2015

("The Americans with Disabilities Act wisely parallels in the

disability area title VII of the Civil Rights Act of 1964, the

landmark statute that prohibits discrimination in employment on

WIEN TI NTE PTH eS

17

the House Judiciary Committee, in rejecting one proposed

amendment “antithetical” to that purpose, was "to provide

civil rights protections for persons with disabilities that are

parallel to those available to minorities and women." '7 While

purporting to impose this far-reaching liability on the States

for discrimination against the disabled, Congress exempted

the federal government from the requirements of the ADA.

See 42 U.S.C. §12111(5)(B) (United States specifically

excluded from definition of an employer); 42 U.S.C. § 12131

(United States not included in definition of "public entity").!8

There is accordingly no mystery concerning Congress'

intent in enacting the ADA. Rather than attempting to

remedy or prevent constitutional violations of the rights of

the disabled, Congress explicitly sought to enhance the

protections provided the disabled by changing the level of

scrutiny this Court had held was applicable to such decisions

made by the States. This Congress may not do. City of

Boerne, 521 U.S. at 535-36; Kimel, 120 S. Ct. at 644 ("The

ultimate interpretation and determination of the Fourteenth

Amendment’s substantive meaning remains the province of

the Judicial Branch.").

the basis of race, color, national origin, sex, or religion.") (state-

ment of Attorney General Thornburgh).

17 Comm: Print at 488-89 (H. Rep. No. 101-485, Part 3) (Comm.

on Judiciary); see id. (adopting another amendment "because it

reaffirms the intent of parity between people with disabilities and

minorities and women"). According to the House Judiciary

Committee, the ADA "completes the circle . . . with respect to

persons with disabilities by extending to them the same civil rights

protections provided to women and minorities beginning in 1964."

Id. at 466.

18 Moreover, the Rehabilitation Act, which prohibits discrimina-

tion against the disabled by the federal government, does not

authorize awards of compensatory damages in actions against the

United States. Lane v. Pena, 518 U.S. 187 (1996).

18

Il. LITIGATION AGAINST THE STATES

ILLUSTRATES THE ADA'S LACK OF

CONGRUENCE AND PROPORTIONALITY TO

CONSTITUTIONAL STANDARDS

Amici's concern with the reach of the ADA is far from

academic. Across the country, States face litigation in

federal court in which they must defend, under the ADA,

actions with regard to the disabled which are perfectly lawful

under the Equal Protection Clause. The cases below show, in

concrete terms, the lack of congruence and proportionality

between the requirements of the ADA on the one hand, and

the requirements of the Constitution on the other. By dis-

cussing only several of these cases, it should not be inferred

that they are the only ones that offend the sovereign interests

of the States. Every suit by a private citizen in federal court

against an unconsenting State under the ADA does harm to

State sovereignty by forcing the State to spend time and

resources to justify actions that should be presumed legal

pursuant to applicable constitutional standards and evaluated

only under the rational basis test. Every suit brought under

the ADA diverts State resources into litigation costs — and

damages awards where such damages are awarded — that

could instead be used to provide services to the disabled and

to other citizens of the State. In addition, litigation under the

ADA discourages the States from pursuing initiatives to

provide and expand core services to their vulnerable popula-

tions, and rewards such efforts with private lawsuits costing

millions of dollars.

Amici's interest in defending the structural protections

contained in the Constitution must not be confused with a

disregard for the rights of the disabled. Activities by the

States to protect the rights of their disabled residents were

lauded by Congress as examples of what could be done more

broadly through the ADA. Today, discrimination against the

disabled is prohibited by means of state law which, in every

State, protects the disabled from discrimination.'9 In addi-

19 See Appendix A attached listing State laws that protect the

rights of the disabled.

19

tion, any State may, if it chooses, waive its immunity and

consent to suit in federal court on claims brought under the

ADA. But our constitutional design requires that those

decisions be made by the States themselves. And the Con-

stitution further provides that this Court is to be the final

arbiter of the substance of the rights protected by the Consti-

tution. Where Congress oversteps those constitutional

boundaries, as it has in purporting to hold States liable under

the ADA, the States must act to restore the proper Constitu-

tional balance.

A. Hawaii's Good Faith Attempt to Expand

Medicaid Coverage to its Needy Uninsured

Population Has Resulted in Two Class Action

Lawsuits Under the ADA Imposing Liability

for Potentially Millions of Dollars, and the

Loss of Medical Coverage to Over 30,000

Needy Residents

Hawaii's experience with the ADA illustrates the axiom

that "no good deed goes unpunished,” while clearly demon-

strating the burdens the ADA imposes, and its intrusiveness

into areas traditionally reserved to the States. Perhaps

nothing is more important to the States than protecting the

health and welfare of their residents. In 1993, Hawaii was a

pioneer in efforts to determine whether States could provide

Medicaid coverage to a broader class of needy citizens while

using the same amount of funds. Hawaii sought to provide

universal health insurance for its residents by loosening the

financial eligibility criteria traditionally applied under

Medicaid to serve group of people who could not acquire

health insurance on their own, but who had too much income

or too many assets to qualify for the traditional Medicaid

program. To maintain budget neutrality while covering this

larger group of residents, the State of Hawaii decided to

provide Medicaid services to some residents through a

privatized managed-care model.

The State decided to implement its program, known as

QUEST, in two phases. In the initial phase (QUEST Phase

I), those of its citizens who were aged, blind, and certified

20

disabled for purposes of the Social Security Act, would not

be moved into managed care through QUEST, but would

continue to receive services through the traditional Medicaid

fee-for-service program. The State of Hawaii made this

decision based on concerns that private insurers would not

participate in QUEST if the aged, blind and certified disabled

were included, and concerns that some of its disabled resi-

dents objected to receiving medical services through man-

aged care. Once the QUEST program was successfully

established in its initial phase, the State intended to expand it

to cover the aged, blind and certified disabled as well.

The decision by the State of Hawaii to exclude the certified

disabled from QUEST Phase I plainly has a rational basis and

would be upheld under the standard established by this Court

in Heller v. Doe, supra, and City of Cleburne, supra. Prior to

implementing QUEST Phase I, Hawaii received no com-

plaints concerning any perceived problem with the exclusion

of the certified disabled, despite the State's publicization of

the program. When the Secretary of the United States

Department of Health and Human Services, Donna Shalala,

approved QUEST Phase I, the exclusion of the aged, blind

and certified disabled from the program was clearly ex-

plained.?°

After QUEST Phase I went into effect, however, a com-

plaint was filed against the State of Hawaii, through its

Director of Health and Human Services, alleging that the

State's rational decision to exclude the certified disabled from

QUEST Phase I violated the ADA, the Rehabilitation Act,

20 Hawaii received approval for its QUEST Phase I program

from the United States Health Care Financing Administration

("HCFA") and from the United States Department of Health and

Human Services. Burns-Vidlak v. Chandler, 939 F. Supp. 765,

767 (D. Haw. 1996). The approval by DHHS of QUEST Phase I

was far from a rubber stamp process. DHHS had twice rejected

Oregon's proposed experimental Medicaid project because of

perceived ADA violations. See Philip G. Peters, Jr., Health Care

Rationing and Disability Rights, 70 Ind. L.J. 491, 502-05 (1995).

21

and the Equal Protection Clause. Burns- Vidlak v. Chandler,

939 F. Supp. at 766. The plaintiffs in Burns-Vidlak were

ineligible to participate in QUEST Phase I because they were

certified disabled, and they failed to qualify for traditional

Medicaid fee-for-service coverage because they had assets or

income in excess of the Medicaid requirements.?' The

district court granted summary judgment for the plaintiffs,

finding that but for their certified disability, they could have

received medical assistance through QUEST Phase I. /d. at

771.22 The court held that although the State made a "good

faith effort to implement improved and more cost effective

health care services through QUEST," the plaintiffs were

entitled to recover damages as a result of the "discrimina-

tion." Id. at 773. The court subsequently determined that the

full panoply of remedies was available to plaintiffs, including

the potential for punitive damages, see Burns-Vidlak v.

Chandler, 980 F. Supp. 1144, 1152 (D. Haw. 1997), appeal

dismissed, 165 F.3d 1257 (9th Cir. 1999), certified a class,

and found the State liable to the class for damages. At the

21 To qualify for traditional Medicaid, individuals had to earn

less than 100% of the poverty level and have fewer than $2000

worth of assets. The pilot program, QUEST Phase I, on the other

hand, had no asset test, and required that individuals have income

less than 300% of the poverty level. Burns-Vidlak, 939 F. Supp. at

768.

22 This is not to say that no disabled individuals, as defined by

the ADA, participate in QUEST Phase I, which excluded only the

certified disabled pursuant to the Social Security Act. See 42

U.S.C. § 423(d)(1) (definition of disabled pursuant to the Social

Security Act). Because of differences between the definition of

disabled in the Social Security Act and that in the ADA, there are

likely individuals who are disabled for the purposes of the ADA

who participate in QUEST Phase I because they have not been

certified disabled by the Social Security Administration or the

State of Hawaii. See generally Cleveland v. Policy Management

Sys., Corp., 526 U.S. 795, 801 (1999) (discussing differences in

the definition of disabled between the Social Security Act and the

ADA).

22

district court's instruction, approximately 350 individual

plaintiffs filed separate lawsuits to establish class member-

ship and damages. As a result, the State of Hawaii must now

defend itself from these numerous claims involving millions

of dollars of compensatory claims, millions of dollars in

attorney fee requests, and, adding insult to injury, a pending

punitive damages claim.”

As great as that monetary burden may be, more important

to the State of Hawaii is the liability it now faces for its

attempt to cure the discrimination found in Burns-Vidlak.

When faced with the Burns-Vidlak complaint, the State of

Hawaii correctly anticipated the federal district court's

declaration of a violation of the ADA, and moved swiftly to

remedy the "violation." By April 1996, the State of Hawaii

had amended QUEST Phase I to require all participants to

meet the same asset test contained in the traditional fee-for-

service Medicaid program. These amendments did not

provide the members of the Burns-Vidlak class — who were

certified disabled residents with assets in excess of that

required to obtain traditional Mcdicaid services — with

medical assistance, but instead eliminated coverage for

approximately 30,000 Hawaii residents who were not certi-

fied disabled who had previously participated in QUEST

Phase I, but had too many assets to qualify for traditional

Medicaid.

By the time the district court granted summary judgment in

Burns-Vidlak, the State had already amended the QUEST

Phase I regulations. The district court, after hearing from the

23 As of June 1, 2000, the State of Hawaii has committed to

paying $1,165,958 on these claims, with the claims of several

hundred class members yet to be disposed of. The total figure

includes $357,612 for compensatory damage claims that have been

settled, $305,824 for compensatory damages claims that have been

tried and gone to judgment, and $502,522 in costs and fees for the

cases that have gone to trial. Appeals of the liability determinations

for a number of these individual cases are currently pending before

the Court of Appeals for the Ninth Circuit.

23

plaintiffs on the issue, concluded that QUEST Phase I, as

modified, did not deny “coverage for blind or disabled

individuals solely on the basis of their disability." 939 F.

Supp. at 767. On December 27, 1997, the regulations for

QUEST Phase I were again amended, this time to conform

the payments required of QUEST Phase I participants with

the spend-down requirements contained in the traditional

Medicaid fee-for-service program. *4

Two years after the district court in Burns-Vidlak had found

the plaintiffs’ claims for injunctive relief moot, William

Sterling, a member of the Burns-Vidlak class, brought a

second class action suit. In the Sterling case, the district

court found the State of Hawaii liable for discrimination

because under the April 1996 amended regulations, the

certified disabled, who are ineligible for QUEST Phase I,

were required through the Medicaid spend-down procedures

to pay more for medical assistance than were non-disabled

individuals of similar means who participated in QUEST

Phase I. Sterling v. Chandler, No. 98-00258 SOM (D. Haw.

Oct. 9, 1998).5

The attempt by Hawaii to provide medical assistance to a

broader group of residents while using the same amount of

Medicaid funds has been essentially defeated by these suits.

The group of needy residents to whom Hawaii sought to

24 Between April 1996 and December 27, 1997, State regula-

tions required QUEST Phase I participants to pay a fixed monthly

premium for services as long as their monthly income was between

100% and 300% of the federal poverty level. The certified

disabled, however, were subject to traditional Medicaid ruies that

required them to "spend down" their income each month to a

specified level before receiving coverage. For an explanation of

the spend-down provisions of the Medicaid program, see Califor-

nia Dep't of Health Serv. v. United States Dep't of Health &

Human Servs., 853 F.2d 634, 635-36 (9th Cir. 1988).

25 An appeal of the Sterling decision is currently pending in the

Court of Appeals for the Ninth Circuit, with oral argument sched-

uled for August, 2000.

24

provide medical assistance lost coverage due to the changes

implemented in response to the Burns-Vidlak suit. The State

of Hawaii has been found liable for money damages for not

providing the certified disabled with coverage under QUEST

Phase I, even though elimination of the allegedly discrimi-

natory distinctions did not provide the certified disabled with

coverage under the program. And in the Sterling case, the

State faces damages awards for the changes it made to

QUEST Phase I in an attempt to comply with the ADA, and

which were shared by the State with both the federal district

court and with counsel for the disabled.

B. The State of Hawaii Was Found Liable for

Violating the ADA Through Its Facially

Neutral Century Old Animal Quarantine

Program

Hawaii is one of the few places in the world which is com-

pletely free from rabies. To protect the State from the

importation of rabies, the Hawaii Department of Agriculture,

pursuant to a law enacted by the State legislature, required a

120-day quarantine on carnivorous animals entering the

State. Visually impaired persons who use guide dogs sued

the State of Hawaii, through its officials, alleging that

Hawaii's quarantine violates the ADA. The Ninth Circuit

Court of Appeals agreed and held that the quarantine re- -

quirement discriminated against visually-impaired individu-

als in Violation of the ADA. Crowder v. Kitagawa, 81 F.3d

1480, 1485 (9th Cir. 1996). Rather than invalidating the

quarantine requirement, however, the Court of Appeals

remanded for a determination of whether plaintiffs’ proposed

modifications to Hawaii's quarantine were "reasonable

modifications" which should be implemented, or "funda-

mental alterations" which could be rejected by the State. Jd.

at 1485-86. Rather than face the intrusive review required on

remand, the State of Hawaii settled the litigation.

There can be no dispute that the State of Hawaii had a

rational basis for its quarantine requirement, which applied in

a facially neutral manner and was not intended to discrimi-

25

nate against, or otherwise burden, the disabled. Nevertheless,

the State was held liable for violating the ADA for this

program and was subject to review by a federal district court

that would dictate the details of a quarantine program that

was central to the State's ability to protect the health of its

residents.

C. The State of Ohio Has Been Burdened With

Repayment of $2.5 Million in Nominal Fees

Charged to Obtain Handicapped Parking

Placards

As part of its federally-mandated program to provide

handicapped parking spaces, the State of Ohio permits its

disabled residents to obtain handicapped windshield placards

to be placed in a car. In order to cover the costs of the

placard program, the State of Ohio charged a nominal fee of

$5.00 to those disabled residents who wished to purchase a

permanent placard. Over a period of about six years, the

State collected approximately $2.5 million in fees through

this provision. Thorpe v. Ohio, 19 F. Supp. 2d 816, 818-19

(S.D. Ohio 1998).

A class of Ohio residents and organizations that had paid

the fee sued State officials alleging that the fee violated a

regulation promulgated under the ADA that prohibits a

"surcharge" necessary to "cover the costs of measures... .

that are required to provide [the disabled] with the nondis-

criminatory treatment required by the Act." 28 C.F.R.

§ 35.130(f). The district court, rejecting the State's claim of

Eleventh Amendment immunity, held that the surcharge

violated the ADA. In addition to an injunction invalidating

the fee, the court ordered the State to return to the plaintiff

class the $2.5 million it had coilected in fees. 19 F. Supp. 2d

at 826.

This nominal charge by the State of Ohio would most

certainly pass muster under rational basis scrutiny if chal-

lenged under the Equal Protection Clause. Yet, Ohio and

other states across the country face liability under the ADA

26

for imposing such nominal charges on the disabled to recover

the costs of providing placards.*6

D. The State of New York Was Held Liable for

$300,000 in Damages for “"Retaliating"

Against a State Employee Who Was Not Even

Adjudged Disabled

The State of New York has been found liable for the

maximum amount of damages available under Title I of the

ADA for actions taken with regard to an employee of the

state prison system who was not even disabled pursuant to

the definition of the ADA. In Muller v. Costello, 187 F.3d

298 (2d Cir. 1999), a correctional officer, who developed

respiratory difficulties after being hired by the State, alleged

that he was discriminated against on the basis of a disability

when the State was unable to promise him a smoke-free work

environment. The plaintiff repeatedly chose to schedule

himself for shifts which required him to work in parts of the

prison where smoking was allowed. The jury awarded the

plaintiff a total of $420,300 in damages, which included

$285,000 for pain, suffering and mental anguish. Jd. at 306.

The award was capped by the district court at $300,000

pursuant to 42 U.S.C. § 1981a(b)(3)(D). Jd. at 307.

26 Other States have similarly faced litigation under the ADA

invalidating nominal fees paid for handicapped parking placards.

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

petition for cert. pending (No. 99-1417) ($6 biennial fee);

McGarry v. Director, Dep't of Revenue, 7 F. Supp. 2d 1022 (W.D.

Mo. 1998) ($2 fee); Duprey v. Connecticut, 28 F. Supp. 2d 702 (D.

Conn. 1998) ($5 fee). On the other hand, in Brown v. North

Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir. 1999),

petition for cert. pending (No. 99-424), the Court of the Appeals

for the Fourth Circuit held that Congress had failed to properly

abrogate the Eleventh Amendment immunity of the State with

regard to this regulation because the regulation was substantive

rather than remedial and therefore beyond Congress' power under

Section 5 of the Fourteenth Amendment. Jd. at 707.

27

On appeal, the Court of Appeals held that there was insuf-

ficient evidence from which the jury could conclude that the

plaintiff was disabled under the ADA. 187 F.3d at 313, 314.

The Court of Appeals nonetheless affirmed the jury award on

the basis that it could be justified by the jury's separate

finding that the defendants had retaliated against the plaintiff

for invoking his rights under the ADA.

Thus, the State was found liable for $300,000 in damages

for actions taken with regard to an individual who wasn't

disabled at all. In addition, pursuant to this Court's decision

in Cleburne, the State undoubtedly would be allowed to

make rules of general applicability that had an incidental

effect on disabled State employees — here a rule that prison

employees must be available to patrol all areas of the facility

~ without being held liable under the Equal Protection clause.

x * *

While the Amici States maintain that the ADA does not

properly abrogate their immunity from suit for money

damages in federal court, they do not wish through this brief

to signal that they have lessened their commitment to pro-

tecting their disabled residents from discrimination. To the

contrary, Amici States intend to continue their commitment to

protecting the rights of the disabled through the provisions of

State law. In addition, any State that wishes to make the

protections of the ADA available to its residents through the

availability of money damages actions in federal court may

waive its immunity from such suits. But under this Court's

decisions, Congress simply lacks the authority to abrogate the

States’ immunity under the ADA.

28

CONCLUSION

For the foregoing reasons, the judgment of the Court below

should be reversed.

Respectfully submitted,

EARL I. ANZAI AUDREY J. ANDERSON*

Attorney General of Hawaii HOGAN & HARTSON L.L.P

CHARLES F. FELL 555 Thirteenth Street, N.W.

Senior Deputy Attorney Washington, D.C. 20005-1109

General (202) 637-5689

NANCY ALBANO

Deputy Attorney General * Counsel of Record

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1300

Counsel for Amici Curiae

A-1

APPENDIX A

STATE LAWS PROTECTING THE DISABLED

Alabama

Alaska

Arizona

Arkansas |

California

Colorado

Connecticut

Delaware

Florida

FROM DISCRIMINATION

Ala. Code §§ 21-4-1 et seg., 21-7-1 et seq.,

24-8-1 et seq.

Alaska Stat. §§ 18.80.200 et seq.,

39.25.160, 47.80.010 et seq.

Ariz. Rev. Stat. §§ 41-1461 et seq., 41-

1491 et seq., 41-1492 et seq.

Ark. Code Ann. §§ 16-123-101 et seq., 16-

123-201 et seg., 20-76-202

Cal. Civ. Code §§ 51, 51.5, 52, 54 et seq.;

Cal. Gov’t Code §§ 11135 et seq., 12920

et seq., 12940, 12955 et seq.

Colo. Rev. Stat. §§ 24-34-401 et seq., 24-

34-501 et seg., 24-304-601 et seq., 27-

10.5-101 et seq.

Conn. Gen. Stat. § 46a-60, 46a-64, 46a-

64c, 46a-70, 46a-71

Del. Code Ann. tit. 6, §§ 4500 et seq.,

4600 et seg.; Del. Code Ann. tit. 19, § 720

et seq.; Del. Code Ann. tit. 25, § 5116

Fla. Stat. Ann. §§ 110.233, 112.042,

413.08, 760.01 et seg., 760.20 et seq.

iii

Georgia

Hawali

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

A-2

Ga. Code Ann. §§ 8-3-200 et seq., 30-1-1

et seq., 30-3-1 et seg., 34-6A-1 et seq., 43-

40-25, 45-19-20 et seq.

Haw. Rev. Stat. §§ 76-1, 78-2, 347-1 et

seq., 368-1 et seq., 378-1 et seq., 489-1 et

seq., 515-1 et seq.

Idaho Code §§ 56-701 et seg., 67-5901 et

seq.

775 Ill. Comp. Stat. § 5/1-101 et seq.

Ind. Code §§ 22-9-1-1 et seqg., 22-9-5-1 et

seq., 22-9.5-1-1 et seq., 22-9-6-1 et seq.

Iowa Code §§ 216.1 et seg., 216C.1 et seq.

Kan. Stat. Ann. §§ 44-1001 et seq., 44-

1015 et seq., 58-1301 et seq.

Ky. Rev. Stat. Ann. § 344.010 et seq.

La. Rev. Stat. Ann. §§ 23:322 et seq.,

46:2251 et seqg., 49:145 et seqg., 51:2231 et

seq.

Me. Rev. Stat. Ann. tit. 5, §§ 781 et seq.,

4551 et seq., 7051 et seq.

Md. Ann. Code art. 49B, § 1 et seq.;

Md. Code Ann., State Pers. & Pens. § 2-

302

Mass. Gen. Laws ch. 151B, § 1 et seq.;

Mass. Gen. Laws ch. 272, §§ 92A, 98

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

A-3

Mich. Comp. Laws § 37.1101 et seg.

Minn. Stat. § 363.01 et seq.

Miss. Code Ann. §§ 25-9-149, 43-6-1 et

seq., 43-6-101 et seg., 43-33-723

Mo. Rev. Stat. § 213.010 et seq.

Mont. Code Ann. §§ 49-1-102, 49-2-301

et seq., 49-3-201 et seq., 49-4-101 et seq.

Neb. Rev. Stat. §§ 20-126 et seq., 20-301

et seq., 48-1101 et seq.

Nev. Rev. Stat. §§ 118.010 et seq.,

281.270, 613.310 et seg., 651.050 et seq.

N.H. Rev. Stat. Ann. § 354-A:1 et seq.

N.J. Stat. Ann. § 10:5-1 et seq.

N.M. Stat. Ann. §§ 28-1-1 ef seq., 28-7-1

et seq.

N.Y. Exec. Law § 290 et seq.

N.C. Gen. Stat. §§ 41A-1 et seg., 126-16

et seq., 168-1 et seg., 168A-1 et seq.

N.D. Cent. Code §§ 14-02.4-01 et seq., 14-

02.5-01 et seq.

Ohio Rev. Code Ann. § 4112.01 et seq.

Okla. Stat. tit. 25, § 1101 et seq.

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Washington

A-4

Or. Rev. Stat. §§ 659.400 et seq., 659.436

et seq.

Pa. Stat. Ann. tit. 43, § 951 et seq.

R.L. Gen. Laws §§ 28-5-1 et seq., 34-37-1

et seq., 42-87-1 et seq., 42-112-1 et seq.

S.C. Code Ann. §§ 1-13-10 et seg., 31-21-

10 et seg., 43-33-10 et seg., 43-33-510 et

seq.

S.D. Codified Laws § 20-13-1 et seq.

Tenn. Code Ann. §§ 4-21-601 et seq., 5-

23-104, 8-50-103, 68-14-601 et seq.,

68-120-201 et seq.

Tex. Hum. Res. Code Ann. § 121.001 et

seq.; Tex. Lab. Code Ann. § 21.001 et

seq.; Tex. Prop. Code Ann. § 301.001 et

seq.

Utah Code Ann. §§ 26-30-1 et seqg., 34A-

5-101 et seqg., 57-21-1 et seq.

Vt. Stat. Ann. tit. 3, §§ 961 et seq., 1026 et

seq.; Vt. Stat. Ann. tit. 9, §§ 4500 et seq.;

Vt. Stat. Ann. tit. 21, §§ 495 et seg., 1621

. et seqg., 1721 et seq.

Va. Code Ann. §§ 2.1-714 et seq., 36-96.1

et seq., 51.5-1 et seq.

Wash. Rev. Code § 49.60.010 et seq.

A-5

West Virginia W. Va. Code §§ 5-11-1 et seq., 5-11A-1 et

seq.

Wisconsin Wis. Stat. §§ 106.50, 106.52, 111.31 et

seq., 230.18

Wyoming Wyo. Stat. Ann. §§ 27-9-101 et seq., 35-

13-201 et seq.