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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 356

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0922%3A12. Public record. Not legal advice.