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

Supreme Court, U.S.

5) FILED

(¥

No. 99-1240 JUN 2 2 2000

Sc Ff

In The CLERK

Supreme Court of the United States

4

vy

UNIVERSITY OF ALABAMA AT BIRMINGHAM

BOARD OF TRUSTEES, et al.,

Petitioners,

Vv.

PATRICIA GARRETT, et al.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

,

v

BRIEF OF AMICUS CURIAE, THE ASSOCIATION

OF STATE CORRECTIONAL ADMINISTRATORS,

IN SUPPORT OF PETITIONERS

¢

Marci A. HAMILTON

THomMaAS H. Lee Cuarr IN Pusiic Law

BENJAMIN N. Carpdozo SCHOOL oF LAw

55 Fifth Avenue

New York, NY 10003

(212) 790-0215

(212) 790-0205 (fax)

hamilton02@aol.com

Counsel of Record for Amicus Curiae

The Association of State

Correctional Administrators

2198 |

QUESTION PRESENTED

Whether the Eleventh Amendment to the United

States Constitution bars suits by private citizens in fed-

eral court under the Americans with Disabilities Act

against non-consenting states.

il

TABLE OF CONTENTS

Page

Coelho. Peel sos on vexkiiauake eee i

BORD GE PEIN 5.6.5 Soci pecker eae eee iii

Interest of Amicus Curiae ........ sare evereenness ses 1

Statement of Facts Relating to State Prison Systems... 3

summaaty Of ANGE oii csi eck deoesnoneetsdens 20

REQ «.o.00:00cncsetietaneip tedas tenes 21

I. THE ADA IS NOT A VALID EXERCISE OF CON-

GRESS’S POWER UNDER SECTION 5 OF THE

FOURTEENTH AMENDMENT AND THERE-

FORE THE ELEVENTH AMENDMENT PRO-

HIBITS SUITS BY PRIVATE PARTIES AGAINST

NON-CONSENTING STATES................... 21

A. THE ADA IS NOT BASED ON A HISTORY

OF WIDESPREAD AND PERSISTING

DEPRIVATIONS OF CONSTITUTIONAL

RIGHTS OF THE DISABLED IN STATE

gt PTT se er ik eae ema 23

B. THE ADA IS NOT PROPORTIONAL OR

CONGRUENT TO ANY CONCEIVABLE

CONSTITUTIONAL VIOLATIONS BY THE

SEALE PRE a 0cknnesedcaaeeeesaeaceas 27

COMING 5 is Sk ca veenee eee eee 29

ili

TABLE OF AUTHORITIES

Page

CASES:

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

Ee SA ee aa bintkd cud bd CUS a AS eee Oe RRA A ee 25

Amer. Trucking Ass’ns v. Browner, __ S. Ct. __,

2000 U.S. Lexis 3629 (No. 99-1426)................ 28

American Trucking Ass'n v. EPA, 175 F.3d 1027

aay Nae dk oh kd 4 ase lee ade kao RRO & 4 28

Amos v. Maryland Dep’t of Public Safety & Correc-

tional Services, 126 F.3d 589 (1997) ................ 16

Armstrong v. Wilson, 942 F. Supp. 1252 (N.D. Cal.

eee CCR DL Ces ec Gee oie hho ak bb babe wees oK< 11

Boerne v. Flores, 521 U.S. 507 (1997) ............. passim

Browner v. Amer. Trucking Ass’ns, 120 S. Ct. 2003

a eee tua Siniy bad sous Eke ab pa cbaee coe 28

Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997)....... 18

Carty v. Farrelly, 957 F.Supp. 727 (D.V.I. 1997) ....11, 12

Cassidy v. Indiana Dept. of Corrections, 199 F.3d 374

i ee ere er tre eee eee 27

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432

ERED et re er ee eee rete Peer 25

City of Richmond v. J.A. Croson Co., 488 U.S. 469

0, BEE ES ey Pee ee ee ee eee 25

Clark v. California, 1996 U.S. Dist. LEXIS 21630

i Ce NE Be OOD es cde nse nesanvedesecses a ae

Florida Prepaid Post-Secondary Education Expense Board

v. College Savings Bank, 527 U.S. 627 (1999)....... passim

Hudson v. McMillian, 503 U.S. 1 (1992) ............... 6

iv

TABLE OF AUTHORITIES - Continued

Page

Kimel v. Florida Board of Regents, 120 S. Ct. 631

i Serer rr rere eer tee 20, 21, 23, 24, ZB, 27

Lewis v. Casey, $18 US. 343 (1996) ......20esccccvees 18

Love v. Westville Correctional Center, 103 F.3d 558

[Pa Go NES oSueck esis sera ecse cee ee eek paws ee 12

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) .... 10

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1989) ...... 25

Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999) ....11

Procunier v. Martinez, 416 U.S. 396 (1974).......... 6, 18

Purcell v. Pennsylvania Dep't of Corrections, 1998

U.S. Dist. LEXIS 105 (E.D. Pa. Dec. 29, 1998)...15, 16

Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114

Lo | err rer err errs reer errr ys rere retry 20, 23

Sutton v. United Air Lines, 527 U.S. 471 (1999)....27, 28

Taylor v. Freeman, 34 F.3d 266 (4th Cir. 1994) ........ 19

Torcasio v. Murray, 862 F.Supp. 1482 (E.D. Va.

| TEC OTE eT re Per er Ter eT ree TT er 16, 18

Turner 0. Saftey, GE WS. 7B CGR?) ovo cc ccsavenss 6.

U.S. v. Carolene Products, 304 U.S. 144 (1938) ........ 26

Washington v. Davis, 426 U.S. 229 (1976)............. 26

Whitley v. Albers, 475 US. 312 (1966).......2.ccceees 6

Wilson v. Vaughn, 1996 U.S. Dist. LEXIS 22420

CSD. Pe. Aa. TD, TO ns occ c cas ccecsiwnescaces 5, 13

wont

Vv

TABLE OF AUTHORITIES - Continued

Page

RULES AND REGULATIONS:

y Eat i Ee SR errr er ee: ere 4,14

2B CER. SS.1GMT A, GH) CAF) a ovcwccscvnccvese 14

y Bee i eS gt Mere re re 8, 9, 15

y Bok RR Fs. Pe ee Terr ere 10, 18

y Bes ee 8 re reer eer err 9, 16

y feet ae Ee error rer ye ee Ty 10

BG CAE, © ROPES Sic conv ekslievans cawedccoaebanse 28

G2 UB. BFR Cee bn bo ks kobe wevneeawiieveeeesys 19

42 U.S.C. §§ 12101-12213 (1999).......... 16, 20, 23, 24

42 USA. & S2RRNR) CII oink swine cdess cexsctonws y

H.R. Rep. No. 101-485(III) (1990), reprinted in 1990

U.S.C.A.A.N. 449 Sup. Ct. BR. 37.21... ..:0cesere. 24, 25

Books, JOURNALS, PERIODICALS AND OTHER SOURCES:

ASCA Resolution, Americans with Disabilities Act

ah. TS, TePed os ss covarssisnnssecnvasavevessenons ens 2

Bruce Porter, Terror on an Eight Hour Shift, N.Y.

Tams Macaspas, Nov. 26, T99S soccccccccveccecess 45

CAMILLE GRAHAM Camp & GegorGE M. Camp, THE

CorRECTIONS YEARBOOK 1998 (Criminal Justice

DD SNe oon ck Ske ccensdeenseniawetenune ches 3, 10

Elaine Gardner, Legal Commentary; The Legal Rights

of Inmate with Physical Disabilities, 14 St. Louis

CEP BF Ce cb ncn ve cncbacnsvabestnnas 14

vi

TABLE OF AUTHORITIES - Continued

John Hart Ely, The Supreme Court, 1977 Term -

Foreword: On Discovering Fundamental Values, 92

Pam. L. Rev. 5, BO, WG-RS CHG ee onde cccececens

Letter from George Camp, Executive Director, The

Association of State Correctional Administrators 1

(ee. MPPPererTreTrer reer err re rrr y

Louis & Carol Veneziano, Disabled Inmates, in

ENCYCLOPEDIA OF AMERICAN Prisons (Marilyn D.

McShane & Frank P. Williams, III eds., 1996). .

Malcolm L. Lachance-McCullough & James M.

Tesoriero, AIDS, in ENCYCLOPEDIA OF AMERICAN

Prisons 14 (Marilyn D. McShane & Frank P.

eo a. ere re

Marci A. Hamilton and David Schoenbrod, The

Reaffirmation of Proportionality Analysis Under

Section 5 of the Fourteenth Amendment, 21 Car-

Page

Gono LL. Kev. S69 CIO e aos exc cicsnesecnewes a) Bh, OF

NATIONAL CENTER ON ADDICTION AND SUBSTANCE

AsusE, BEHIND Bars: SUBSTANCE ABUSE AND AMER-

IcA’s PRISON POPULATION (1998).............-...

Prison Care — Our Penitentiaries are Turning into

Nursing Homes. Can we afford it?, MoDERN Matu-

riTy, Mar.-Apr., 1997...... Srererrr rere ee

Sandra J. Carnahan, The Americans With Disabilities

Act in State Correctional Institutions, 27 Cap. U.L.

a Bt | Perna rey errr rrr yy re pe

STANDARDS FOR ADULT CORRECTIONAL INSTITUTIONS

(American Correctional Assoc., 1990)..........

Vii

TABLE OF AUTHORITIES - Continued

Page

SUPPLEMENTAL STANDARDS FOR ADULT CORRECTIONAL

InsTiTuTIONS (American Correctional Assoc.,

PS EAE PL RE Re 11

Telephone Interview with Steve Miller, Pa. Dept.

of Corrections Employee ADA Coordinator

CES DE, BE ob kb ten nck tabs bvinncbnrvenreeereens 15

U.S. DeparRTMENT OF Justice, THE AMERICAN WITH

Disasitities Act: Tite I] TECHNICAL ASSISTANCE

DEARGIAE, CH ov 05 0 beh eee a ewete nc os es teauesaws 7,%

INTEREST OF AMICUS CURIAE}

The Association of State Correctional Administrators

(“ASCA”) is a professional association whose member-

ship includes the Directors of the fifty state Departments

of Corrections, Puerto Rico, the United States Virgin

Islands, and four large urban correctional systems (Cook

County, Illinois; New York City, New York; Philadelphia,

Pennsylvania; and Washington, D.C.). Through these top

correctional administrators, ASCA seeks the improve-

ment of correctional services and practices.

1 The Association of State Correctional Administrators files

this brief as amicus curiae in support of Petitioner, pursuant to

Sup. Ct. R. 37.2. A letter of the Petitioner, dated June 7, 2000, a

letter of the Respondent, dated June 7, 2000, and a letter of

Intervenor United States, dated June 13, 2000, by which counsel

for the parties evidenced their consent to the filing of this brief,

have been filed with this Court.

Counsel for a party did not author this brief in whole or in

part. No person or entity, other than the amicus curiae, its

members, or its counsel, made a monetary contribution to the

preparation and submission of this brief.

2 ASCA’s mission is to improve correctional services and

practices by promoting and facilitating:

(1) the exchange of ideas and philosophies at the top

administrative level of correctional planning and

policy-making;

(2) the advancement of correctional techniques,

particularly in the areas of program development,

design of physical facilities, staff training, and

correctional management facilities;

(3) public support for and understanding of the

criminal justice system;

As the top managers of state correctional facilities,

ASCA’s members bear the daily responsibility of main-

taining the majority of the nation’s prisoners in a safe,

orderly, and secure environment. The Americans with

Disabilities Act (“ADA” or “Act”), as applied to correc-

tions employees and inmates, has been a matter of deep

concern for state prison administrators, which led ASCA

to adopt a resolution urging that the ADA not be applied

to state and local prisons. See ASCA Resolution, Americans

with Disabilities Act (Jan. 15, 1995).

ASCA submits this brief for the purpose of informing

the Court of the ways in which the Americans with

Disabilities Act seriously has burdened the efficient and

proper administration of state prisons and to argue that

the Act is not a valid exercise of Congress’s power under

Section 5 of the Fourteenth Amendment. Therefore, pur-

suant to the Eleventh Amendment, the federal courts lack

(4) research in correctional practice, anti-social

behavior, causes of crime and delinquency, and

cooperation in research;

(5) the development and application of correctional

standards and accreditation;

(6) the fostering of legislative and other measures

designed to accomplish th[ese] objective[s];

(7) the exchange of information with international

agencies and organizations interested in correctional

programs; and

(8) the undertaking of such work and projects of an

allied character as may be authorized by the

membership.

Letter from George Camp, Executive Director, The Association of

State Correctional Administrators 1 (Feb. 6, 1998).

jurisdiction over such claims in the absence of consent by

the state. The members of ASCA firmly believe that the

ADA severely undermines their public duties as state

officials.

¢

STATEMENT OF FACTS RELATING TO

STATE PRISON SYSTEMS

In the United States, there are currently over

1,000,000 inmates confined in state prisons, which

employ 383,028 staff members (330,862 institutional staff,

23,884 central/regional office staff, and 28,282 other

staff). See CAMILLE GRAHAM Camp & GEorcE M. Camp, THE

CorRECTIONS YEARBOOK 1998, 1-9, 138 (Criminal Justice

Institute 1998) (hereinafter CorRECTIONS YEARBOOK) (As of

January 1, 1998, there were 1,038,158 inmates confined in

prisons administered by the states and Washington, D.C.

There were 101,441 inmates confined in the Federal

Prisons. In addition, 29,203 inmates under state correc-

tional control were confined in other facilities, such as

hospitals or community-based programs; 39,988 state

prisoners were housed in local jails, often due to crowd-

ing; and 40,805 inmates were held in contracted facilities.

These statistics do not include those inmates otherwise

required to be incarcerated in local jails, such as pretrial

detainees and inmates serving short sentences). Requir-

ing the state prison administrators to comply with the

regulatory scheme of the ADA unduly interferes with ~

sound prison management, precludes administrators

from setting fiscal and operational priorities in the

public’s interest, and impermissibly infringes upon the

sovereignty of the states. This is true whether the ADA is

applied to prison employees or inmates.

Applying the ADA to employees and inmates in state

and local prison systems has profound implications. The

ADA has very broad eligibility criteria. The term “disabil-

ity” with respect to an individual includes any “physical

or mental impairment that substantially limits one or

more major life activities.” 28 C.E.R. § 35.104 (1999). The

phrase “physical or mental impairment” embraces a myr-

iad of mild to more serious conditions and includes per-

manent and temporary ailments. See id. Such conditions

encompass mental or psychological disorders (including

mental retardation), emotional or mental illness, ortho-

pedic conditions, specific learning disabilities, visual

impairments, hearing impairments, heart disease, dia-

betes, HIV disease (whether symptomatic or asymptoma-

tic), tuberculosis, drug addiction, and alcoholism. See id.

Prison Employees. When this broad-ranging statute is

applied to prison employees, the safety of all is at stake.

Corrections officers have been described accurately as

having “{t]he most dangerous job in America.” See Bruce

Porter, Terror on an Eight Hour Shift, N.Y. Times Magazine,

Nov. 26, 1995, at 44 (describing experience of correctional

officer held hostage during 11-day prison riot).

Corrections officers who manage prison cellblocks

are unarmed and greatly outnumbered by persons so

dangerous that our society will not allow them to walk

the street. The tedium of a cellblock routine has the

potential to explode, no matter how assiduous correc-

tional officials are. Prisoner assaults on corrections offi-

cers are an inevitable part of prison life. In 1997, for

example there were 13,375 assaults committed by inmates

against corrections staff. See id. at 40. Corrections officers

are expected to maintain peace, prevent escapes, and

protect inmates and staff from assaults. At the same time,

they are expected to ensure the delivery of wide-ranging

services, such as food, medical care, education, and treat-

ment programs.

The presence of a disabled corrections officer, whom .

the inmates perceive as physically, mentally, or emo-

tionally weak, can trigger serious problems in the prison

setting. Prisoners hardly can be expected to conform their

opinions, conduct, and criminal plans to society’s

accepted views concerning the disabled. It is a fact that

predatory prisoners prey on disabled prisoners. See, e.g.,

Clark v. California, 1996 U.S. Dist. LEXIS 21630 (N.D. Cal.,

Oct. 1, 1996) (citing instances of inmates being physically

and mentally abused by the general prison population

because of their disabilities); Wilson v. Vaughn, 1996 U.S.

Dist. LEXIS 22420 (E.D. Pa. Aug. 13, 1996) (describing

Department of Corrections policy designed to protect

disabled inmates from dangers of general population);

Sandra J. Carnahan, The Americans With Disabilities Act in

State Correctional Institutions, 27 Cap. U.L. Rev. 291 (1996)

(describing regulations designed to protect disabled

inmates, who are often preyed upon by other violent and

manipulative inmates). It is unreasonable to presume that

these same predatory prisoners would not also prey on

disabled corrections employees or attempt to exploit their

physical, emotional, or mental limitations.

For these reasons, there are often difficult judgments

to be made in balancing the rights of the disabled,

whether employee or inmate, with the critical need for

prison security. Corrections administrators need flex-

ibility to make these difficult judgments. While their dis-

cretion is certainly constrained by many other laws,

including the federal and state constitutions, civil service

laws, and state civil rights laws, the ADA and its regula-

tions are an extreme and unjustified intrusion that com-

mandeers the operation of state and local prisons. The

ADA’s highly detailed remedial scheme (designed for

general employment situations) does not appropriately

consider or value the inherent difficulties of the prison

environment. This Court has acknowledged the difficult

job facing corrections administrators and officers and

deferred accordingly. See, e.g., Hudson v. McMillian, 503

U.S. 1, 6 (1992); Turner v. Safley, 482 U.S. 78, 84-85 (1987);

Whitley v. Albers, 475 U.S. 312, 321-22 (1986); Procunier v.

Martinez, 416 U.S. 396, 404-05 (1974).

The ADA’s one-size-fits-all scheme irrationally forces

corrections administrators either to compromise their

security responsibilities or to risk costly and intrusive

ADA litigation by the disappointed employee. Either

option is a dead-weight loss on state prison systems and

an unwarranted interference with these state officials’

important public duties.

Prison Inmates. The Act’s broad definition of disabil-

ity places extreme burdens on prison systems. State cor-

rectional facilities house large number of prisoners who

fall within these definitions. Indeed, inmates with past

drug and alcohol dependencies are estimated to comprise

80% of prisoners. See THE NATIONAL CENTER ON ADDICTION

AND SUBSTANCE ABUSE, BEHIND Bars: SUBSTANCE ABUSE AND

America’s PRisON PopuLaTION (1998). Prison populations

are also likely to have disabilities in proportions larger

than the general public. See, e.g., Malcolm L. Lachance-

McCullough & James M. Tesoriero, AIDS, in ENCYCLOPEDIA

OF AMERICAN Prisons (Marilyn D. McShane & Frank P.

Williams III eds., 1996) (“HIV infection rates in prison

exceed the general population by as much as five or six to

one.” A National Institute of Justice/Center for Disease

Control survey “reflected an AIDS incidence rate in

prison that was twenty times higher than that of the 1992

U.S. general population”); Louis and Carol Veneziano,

Disabled Inmates, in ENCYCLOPEDIA OF AMERICAN PRISONS,

supra, at 159 (A survey of all state and federal prison

systems found that 10.7 percent of inmates have a learn-

ing disability, 4.2 percent suffer from mental retardation,

7.2 percent have psychotic disorders, and 12.0 percent

have psychological disorders).

These medical issues will be exacerbated as the

prison population ages. As of January 1, 1998, state cor-

rectional facilities housed 69,994 inmates age 50 years or

older. See ENCYCLOPEDIA OF AMERICAN PRIsons, supra, at 24.

As the median age of prisoners rises, the costs of medical

care become astronomical. See generally Prison Care —- Our

Penitentiaries are Turning into Nursing Homes. Can we afford

it?, MODERN Maturity, Mar.-Apr., 1997 (citing study that a

state inmate over the age of 55 costs $69,000 a year,

compared to $22,000 per year for the typical adult

inmate).

The heedless sweep of the ADA, as applied to prison

contexts, defies common sense and the Constitiution. Not

only does the Act cover a wide range of conditions, it also

covers those individuals who are related to the prisoner,

including a “visitor, spectator, family member, or associ-

ate of a ‘prisoner’ with a disability.” U.S. DEPARTMENT OF

Justice, THE AMERICANS wITH Disasiuities Act: Tite II TEcu-

NICAL ASSISTANCE MANUAL (1992) II-2.8000. The Act, at least

as interpreted by the Department of Justice, operates at

an astonishing level of specificity, dictating specific stan-

dards for valet parking, carpet depth, flash rates of visual

alarms, bathrooms, numbers of water fountains, seating

areas, areas of refuge, and specifications for curb ramps,

among others. See id. at II-6.3200.

The ADA requires the following benefits for pris-

oners, among others:

The regulatory scheme of the ADA creates

an affirmative obligation on state correctional

departments to provide, at state taxpayer expense,

“modifications to rules, policies, or practices,

the removal of architectural barriers, or the pro-

vision of auxiliary aids and services.” 42 U.S.C.

§ 12131(2) (1999).

State correctional departments are required,

with limited exceptions, to ensure that disabled

prisoners participate in and receive the “benefits

of services, programs, or activities.” 42 U.S.C.

§ 12132 (1999).

Title II requires that state correctional offi-

cials appoint and pay for an ADA coordinator to

coordinate ADA efforts for the corrections

department and investigate ADA complaints.

See 28 C.F.R. § 35.107 (1999).3

3 Section 35.107 states:

A public entity that employs 50 or more persons shall

designate at least one employee to coordinate its

efforts to comply with and carry out its

responsibilities under this part, including any

If a state corrections department substan-

tially renovates an old facility, the department

must make substantial architectural changes to the

facility. See 42 U.S.C. § 12183(a)(2) (1999).

The regulation establishes strict standards

for new construction or alternatives — speci-

fically, all facilities altered by a state corrections

department must be “readily accessible and usable by

individual with disabilities.” 28 C.F.R. § 35.151

(1999).

A state corrections department must choose from two

design standards:

a. the Uniform Federal Accessibility Standards

(“UFAS”), which requires, for example, that

five percent of all residential units in correc-

tional facilities be accessible regardless of

whether the state corrections department needs

that number of accessible cells in each state

prison. See UFAS, Section 4.1.4 (9)(c) (1999);

or

b. the American with Disabilities Act Acces-

sibility Guidelines for Buildings or Facilities

(“ADAAG”), which requires, for example,

that state correctional facilities spend up to

investigation of any complaint communicated to it

alleging noncompliance with this part or alleging any

actions that would be prohibited by this part. The

public entity shall make available to all interested

individuals the name, office address, and telephone

number of the employee or employees designated

pursuant to this paragraph. 28 C.F.R. § 35.107(a)

(1999).

10

twenty percent of their overall alteration expen-

ditures to establish a “path of travel” in spec-

ified areas. See ADAAG, 4.1.6(2); 28 C.F.R.

§ 36.403(f) (1999).

Prison budgets consume huge portions of state bud-

gets. For the fiscal year of 1998, state correctional agency

budgets exceeded $27 billion. See Corrections YEARBOOK,

supra at 86-87 (stating that state correctional budgets for

the fiscal year of 1998 were $27,834,553,716, including

both operating and capital expenses).

Because prisoners compose the segment of our soci-

ety that is guaranteed adequate medical care, state correc-

tional departments spend over $2 billion annually for

medical operating expenses. See id. at 86-87 (stating that

state correction operating budgets for medical services in

the fiscal year of 1998 were $2,620,753,034). Given these

huge costs, corrections departments bear the heavy duty

to spend state taxpayer dollars in the most cost effective

way, a state sovereign function undermined by the ADA.

The ADA regulatory scheme severely interferes with

a state’s ability to set its own operational and fiscal

priorities in managing disabled prisoners. For example,

28 C.F.R. § 35.130, prohibits prison officials from denying

a disabled prisoner “the opportunity to participate in

services, programs, or activities that are not separate and

different, despite the existence of permissibly separate or

different programs or activities.” 28 C.F.R. § 35.130(b)(2)

(1999). In other words, disabled prisoners are expected to

be mainstreamed into the general prison population. See

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) (hold-

ing that public service portions of the ADA require states

to provide community-based treatment for persons with

11

mental disabilities); Armstrong v. Wilson, 942 F. Supp. 1252

(N.D. Cal. 1996), aff'd, 124 F.3d 1019 (9th Cir. 1997) (recog-

nizing that the ADA requires public entities to provide

services in the most integrated setting appropriate, even

though plaintiffs did not object to the concentration of

inmates and resources at particular institutions, provided

that this was done “in a manner consistent with the

ADA”). Under this provision, advocates of the disabled

have argued that state officials cannot cluster specialized

services for disabled prisoners in certain prison facilities.

Rather, they are required to make such services available

for each and every state prisoner. This federal directive

prohibits the state from conserving state tax dollars by

clustering mental health treatment facilities, services for

hearing impaired inmates, drug and alcohol programs, or

dialysis treatment.

Lower courts have held that the ADA precludes the

clustering of similarly afflicted disabled prisoners for

treatment or services. See, e.g., Onishea v. Hopper, 171 F. 3d

1289, 1298 (11th Cir. 1999); Carty v. Farrelly, 957 F.Supp.

727 (D.V.I. 1997); Armstrong v. Wilson, 942 F. Supp. 1252

(N.D. Cal. 1996). Yet, sound correctional practice suggests

that some disabled prisoners should be segregated from

other prisoners to prevent victimization. See, e.g., STAN-

DARDS FOR ADULT CorRRECTIONAL INstITUTIONS 3-4145 (Ameri-

can Correctional Assoc., 1990) (requiring that

handicapped inmates must be “housed in a manner that

provides for their safety and security”); SUPPLEMENTAL

_ STANDARDS FOR ADULT CorRECTIONAL INsTITUTIONS 3-4128-2

(American Correctional Assoc., 1998) (recommending that

all adult correctional facilities establish written policies

12

practices and procedures to provide that single occu-

pancy cells are available for inmates with severe medical

disabilities, inmates “suffering from serious mental ill-

ness,” inmates who are likely to be “exploited or vic-

timized by other[s]” and inmates who have “other special

needs for single housing”).

Indeed, prison officials are caught in a catch-22: the

ADA subjects them to liability for separating disabled

prisoners while the Constitution subjects them to liability

for failing to segregate and protect disabled inmates from

other prisoners who could harm them. See Carty v. Far-

relly, 957 F. Supp. 727, 741 (D.V.I. 1997) (holding that

placing an inmate who used a cane in a housing cluster

designed for mentally ill prisoners violated the ADA);

Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir.

1996) (upholding damages and attorneys fees under the

ADA where correction center housed wheelchair bound

inmate in an infirmary).

Because the Act attempts to treat differently situated

prisoners in a similar fashion, it causes absurd results. As

a result of the ADA’s breadth, it covers the prison sys-

tems’ oversight of both housing and medical treatment.

The ADA, literally applied, would preclude removing a

prisoner from one housing location based upon a disabil-

ity, such as renal disease, even though it is more cost

effective to treat all renal disease in one location. The

ADA would require the prison to modify its existing

Practices at the current housing location unless it could

establish that the modification (providing dialysis treat-

ment at the current institution) would fundamentally

alter the nature of the existing program. The rigidity of

the ADA, especially as interpreted by the Department of

13

Justice, does not accommodate the necessary consider-

ations in a prison context. It is blind to the fact that the

clustering of prisoners with similar medical needs will

provide greater overall benefits to the prisoner, the prison

system, and the taxpayer.

The ADA’s inflexible regulatory scheme ignores the

well-established and reasonable prison classification pro-

grams that routinely examine factors such as mental

health, mental retardation, and prior drug, and alcohol

abuse to determine prisoner classifications and place-

ments. See, e.g., STANDARDS FOR ADULT CORRECTIONAL INsTI-

TUTIONS 3-4292 (American Correctional Assoc., 1990)

(recommending the use of a classification system that

considers drug and alcohol addiction, metal retardation,

whether the inmate is emotionally disturbed or suspected

of being mentally ill, or other needs for protective cus-

tody); id. at 3-4128-1 (classification system must evaluate

mental and emotional stability and medical status).

Through such classification procedures, prisons match

prisoner security requirements and programmatic needs

with an appropriate facility or program placement. Adult

correctional facilities often cluster inmates with chronic

mental health problems or mental retardation in spe-

cialized housing units that permit these prisoners to

enjoy maximum freedom and receive enhanced counsel-

ing services away from a general prison population envi-

ronment where they would be easy targets for assaults,

abuse, manipulation, and coercion by predatory pris-

oners. See, e.g., Clark v. California, 1996 U.S. Dist. LEXIS

21630 (N.D. Cal. Oct. 1, 1996) (citing instances of inmates

being physically and mentally abused by the general

prison population because of their disabilities); Wilson v.

14

Vaughn, 1996 U.S. Dist. LEXIS 22420 (E.D. Pa. Aug. 13,

1996) (describing Department of Corrections policy

designed to protect disabled inmates from dangers of

general population); Sandra J. Carnahan, The Americans

With Disabilities Act in State Correctional Institutions, 27

Cap. U.L. Rev. 291 (1996) (describing regulations

designed to protect disabled inmates, who are often pre-

yed upon by other violent and manipulative inmates);

Elaine Gardner, Legal Commentary: The Legal Rights of

Inmates with Physical Disabilities, 14 St. Louis U. Pub. L.

Rev. 175, 211 (1994). These same practices are brought

into question under the ADA’s broad-based attack on

state sovereignty.

Applied in the prison context, the ADA regulatory

scheme would even appear to preclude prison adminis-

trators from considering the inmate’s history of substance

abuse and substance abuse treatment in determining

whether to allow the inmate to participate in particular

programs: 28 C.F.R. 35.104(1)(ii), (5)(iii) (1999). This is an

example of federal imposition of an unwise and dan-

gerous criminal justice policy on the states.

The ADA, thus, requires state prison officials to

expend limited state funds in accordance with a high-

handed federal regulatory scheme, rather than in accor-

dance with the state’s budget priorities and constitutional

requirements. The ADA also commandeers local officials

to carry out the federal government’s agenda by requir-

ing state correctional officials to appoint an ADA coor-

dinator to coordinate the ADA efforts for the corrections

15

department and to investigate ADA complaints.‘ Yet, the

federal government bears none of the cost of such a man-

date. The state corrections departments must use their

own staff resources, funded by state tax dollars, to fill this

mandatory position, which can cost a state $100,000 to

$150,000 plus benefits. At least one state, Pennsylvania,

employs two ADA coordinators, one to oversee employee

claims and one to oversee inmate claims. Telephone Inter-

view with Steve Miller, Pa. Dept. of Corrections Employee

ADA Coordinator (June 14, 2000). A state corrections

department does not even retain the right to use its exis-

ting inmate grievance procedures to handle complaints by

disabled inmates. See Purcell v. Pennsylvania Dep't of Correc-

tions, 1998 U.S. Dist. LEXIS 105 (E.D. Pa. Dec. 29, 1998)

(authorizing punitive damage claim for the failure of a

state department of corrections to appoint an ADA coor-

dinator even though prison had other officials to resolve

inmate disability complaints).

If a state corrections department believes that sub-

stantial renovation of an old facility is necessary to

4 Section 35.107 states:

A public entity that employs 50 or more persons shall

designate at least one employee to coordinate its

efforts to comply with and carry out its

responsibilities under this part, including any

investigation of any complaint communicated to it

alleging noncompliance with this part or alleging any

actions that would be prohibited by this part. The

public entity shall make available to all interested

individuals the name, office address, and telephone

number of the employee or employees designated

pursuant to this paragraph. 28 C.F.R. § 35.107(a)

(1999).

16

ensure future compliance with constitutional conditions

of confinement, any renovations trigger a state obligation

to make substantial architectural changes that go well

beyond constitutional requirements. In addition to the

program accessibility requirements of the Act itself, 42

U.S.C. §§ 12101-12213 (1999), the regulatory scheme

establishes strict standards for new construction or alter-

ations. Specifically, all facilities altered by a state correc-

tions department must be “readily accessible and usable

by individuals with disabilities.” 28 C.F.R. § 35.151(a)

(1999).

A requirement that state prison officials grant pris-

oners special accommodations in order to avoid ADA

litigation or to comply with the ADA also has other

adverse effects on prison management. Sound prison

management usually requires an orderly prison routine

where all prisoners are treated equally. The Act, however,

does not simply preclude invidious “discrimination”

against disabled prisoners. Rather, the Act is often used

to require prison officials to grant special privileges to

certain prisoners, or to excuse individual prisoners from

' complying with generally applicable prison rules. See

Purcell, 1998 U.S. Dist. LEXIS 105 (authorizing punitive

damage claim under the ADA because prison officials did

not permit the disabled prisoner to disobey a direct order

to report for a medical examination); Amos v. Maryland

Dep't of Public Safety & Correctional Services, 126 F.3d 589

(1997) (inmates attempt to use ADA to seek transfer to

prisons in closer proximity to family residences); Torcasio

v. Murray, 862 F. Supp. 1482 (E.D. Va.1994), aff’d, 7 F.3d

1340 (4th Cir. 1995) (morbidly obese prisoner sought to be

17

excused from requirement that he stand in line for meals

and commissary items).

In prisons, granting special privileges or exempting

prisoners from generally applicable requirements is

fraught with problems: it can appear that prison officials

are engaging in favoritism by granting unwarranted spe-

cial privileges; it causes resentment among the prison

population, which leads to inmate unrest; and it impedes

general prison operations when staff must interrupt the

normal prison routine. These are decisions left to state

officials by the Constitution’s inherent federalism princi-

ples, and, in the experience of the members of ASCA,

rightly so.

The ADA’s litigation costs alone place a heavy bur-

den on state prisons. When a prison administrator is

confronted with a request to modify a prison practice or

procedure for a particular inmate claiming a disability

under the ADA, that official is required to weigh whether

denying the modification is worth the price of intrusive

ADA litigation. The prison official no longer can make

decisions based solely upon the people’s interests, state

law, budget limitations, operational concerns, or the Con-

stitution. Instead, the prison official must also consider

the potential administrative burdens of ADA litigation

and the potential financial burden of damages and attor-

neys fees.

The Act’s regulatory scheme has armed prison

inmates with a litigation weapon that converts a previ-

ously frivolous lawsuit into one that can survive pretrial

motions and proceed to trial. ADA litigation is extremely

fact-intensive, embroiling the federal courts in some of

18

the most routine prison management decisions. See, e.g.,

Torcasio v. Murray, 862 F.Supp. 1482 (E.D. Va. 1994) (dis-

cussing in minute detail a wide range of ADA claims).

Given the current provisions of the ADA and regulations,

prison administrators can avoid making a modification

sought by a prisoner only if the administrator defeats the

prisoner’s claim of eligibility or meets a high burden of

establishing that the proposed modification would funda-

mentally alter the prison program or service. See 28 C.F.R.

§ 35.130(b)(7). This affirmative defense structure of ADA

litigation makes intrusive federal court inquiries neces-

sary to resolve an inmate’s claim.

Granting prisoners in state institutions this sort of

litigation weapon is a mistake and certainly not manda-

ted by or permissible under the Constitution. Prisoners

have demonstrated a historical pattern of clogging the

federal court dockets with meritless litigation. See Carson

v. Johnson, 112 F.3d 818, 822 (5th Cir. 1997) (noting that

deterring frivolous and malicious lawsuits by prisoners is

a legitimate state interest and the pro se civil rights

litigation has become a “recreational activity” for many

prisoners); Procunier v. Martinez, 416 U.S. 396, 405 n.9

(1974) (noting that the “capacity of our criminal justice

system to deal fairly and fully with legitimate claims will

be impaired by a burgeoning increase in frivolous pris-

oner complaints”); Lewis v. Casey, 518 U.S. 343, 355 (1996)

(noting problems with allowing prisoners to “transform

themselves into litigating engines capable of filing every-

thing from stockholder derivative actions to slip-and-fall

claims”). Given the number of prisoners who can legit-

imately claim a disability (even if it is only based upon a

prior drug addiction), applying the ADA to state prisons

19

needlessly grants prisoners another weapon for their friv-

olous litigation arsenal.

Determining that the ADA cannot constitutionally

apply to state prisons would not harm any legitimate

rights of disabled prisoners. Under the Civil Rights Act,

prisoners retain the right to seek injunctive relief and

damages for state and federal equal protection violations,

cruel and unusual prison conditions, and the denial of

adequate medical care. See 42 U.S.C. § 1983. Federal

courts would still retain the ability to provide prompt

and complete relief for actual violations of the constitu-

tional rights of disabled prisoners. Federal courts, how-

ever, would be relieved of the obligation to conduct

intrusive inquiries into the day-to-day management of

the prisons simply to address matters that do not arise to

the level of a constitutional violation. Finally the states

have the power, if they choose, to protect disabled pris-

oners more rigorously than the Constitution.

The ADA, as interpreted by the Department of Jus-

tice, forces courts to micromanage state and local prisons

and intrudes on the state’s sovereign and traditional

power to govern state prisons in the best interest of their

respective citizens. “[A]bsent the most extraordinary cir-

cumstances, federal courts are not to immerse themselves

in the management of state prisons or substitute their

judgment for that of the trained penological authorities

charged with the administration of such facilities.” Taylor

v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) (citations

omitted).

20

SUMMARY OF ARGUMENT

In the state prison context, the ADA is an invalid

exercise of Congress’s power under Section 5 of the Four-

teenth Amendment and therefore violates the Eleventh

Amendment, which bars suits by private citizens in fed-

eral courts against non-consenting states. See generally

Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000);

Florida Prepaid, 527 U.S. 627 (1999); Seminole Tribe of Flor-

ida v. Florida, 116 S. Ct. 1114 (1996).

This Court has held that a law passed pursuant to

Congress’s power under Section 5 of the Fourteenth

Amendment must pass a two-step inquiry. See Kimel v.

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

Prepaid Post-Secondary Education Expense Board v. College

Savings Bank, 527 U.S. 627 (1999); Boerne v. Flores, 521 U.S.

507 (1997). First, there must be evidence of “widespread

and persistent” constitutional violations by the states.”

Florida Prepaid, 527 U.S. at 645 (quoting Boerne, 521 US. at

526); see also Kimel, 120 S. Ct. 631. Second, the remedy

chosen by Congress must be proportional and congruent

to the constitutional wrongs. See Kimel, 120 S. Ct. at 635;

Florida Prepaid, 527 U.S. at 666; Boerne, 521 U.S. at 519-520;

see also Marci A. Hamilton and David Schoenbrod, The

Reaffirmation of Proportionality Analysis Under Section 5 of

the Fourteenth Amendment, 21 Carpozo L. Rev. 469 (1999).

The ADA satisfies neither step.

Congress intended to eradicate all discrimination

against the disabled with the ADA, including a great deal

of discrimination that is not unconstitutional. See 42

U.S.C. § 12101 (a)(3), (4), (5) (West 1995 & Supp. 1999). As

a result, the sweep of the ADA extends well beyond the

21

boundaries permissible under Section 5 of the Fourteenth

Amendment. Nor is the ADA proportional or congruent

to any conceivable state constitutional wrongdoing. Its

huge coverage and oppressive regime, as applied to state

prisons, violates the inherent principles of federalism that

limit Congress’s exercise of its power under Section 5.

Because the ADA is not a valid exercise of power under

Section 5, the Eleventh Amendment prohibits private par-

ties from bringing suit in federal court against non-con-

senting states.

¢

ARGUMENT

I. THE ADA IS NOT A VALID EXERCISE OF CON-

GRESS’S POWER UNDER SECTION 5 OF THE

FOURTEENTH AMENDMENT AND THEREFORE

THE ELEVENTH AMENDMENT PROHIBITS

SUITS BY PRIVATE PARTIES AGAINST NON-

CONSENTING STATES

This Court has held that a law passed pursuant to

Congress’s power under Section 5 of the Fourteenth

Amendment must satisfy a two-part test. See Kimel v.

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

Prepaid Post-Secondary Education Expense Board v. College

Savings Bank, 527 U.S. 627 (1999); Boerne v. Flores, 521 U.S.

507 (1997). First, there must be evidence of “widespread

and persisting” constitutional violations by the states.

Florida Prepaid, 527 U.S. at 645 (quoting Boerne, 521 U.S. at

526); see also Kimel, 120 S. Ct. 631. Second, the remedy

chosen by Congress must be proportional and congruent

to the constitutional wrongs. See Kimel, 120 S. Ct. at 635;

Florida Prepaid, 527 U.S. at 666; Boerne, 521 U.S. at 519-520;

22

see also Marci A. Hamilton and David Schoenbrod, The

Reaffirmation of Proportionality Analysis Under Section 5 of

the Fourteenth Amendment, 21 Carpozo L. Rev. 469 (1999).

The ADA fails both requirements.

The ADA was intended to expand the rights of the

disabled beyond the Constitution’s boundaries. Congress,

however, lacks the power to create out of whole cloth

new constitutional rights. That power is left to Congress

and the states under Article V. See Boerne v. Flores, 521

U.S. 507, 529 (1997). “Congress does not enforce a consti-

tutional right by changing what the right is. It has been

given the power ‘to enforce,’ not the power to determine

what constitutes a constitutional violation.” Florida Pre-

paid Post-Secondary Education Expense Board v. College Sav-

ings Bank, 527 U.S. 627, 638 (1999) (quoting Boerne, 521

U.S. at 519). For Congress to exercise its Section 5 power

appropriately, there must be proof of a “pattern of consti-

tutional violations,” a set of state constitutional violations

that rise to a “problem of national import.” Id. at 627.

In the face of recalcitrant refusal by the states to obey

the Constitution’s mandates, however, Congress may

enact laws forcing the states to obey. On this score, Sec-

tion 5 of the Fourteenth Amendment states that “[t]he

Congress shall have power to enforce [the Fourteenth

Amendment] by appropriate legislation.” Section 5 cor-

rals Congress into enacting only legislation that is “care-

fully delimited remediation or prevention of

constitutional violations.” Florida Prepaid, 527 U.S. at 627;

see also Marci A. Hamilton and David Schoenbrod, The

Reaffirmation of Proportionality Analysis Under Section 5 of

the Fourteenth Amendment, 21 Carpozo L. Rev. 469 (1999).

23

Under the Eleventh Amendment, Congress may only

authorize private suits against the states pursuant to its

power under Section 5, and not the enumerated powers.

See generally Kimel v. Florida Board of Regents, 120 S. Ct. 631

(2000); Florida Prepaid, 527 U.S. 627 (1999); Seminole Tribe

of Florida v. Florida, 517 U.S. 44 (1996). As a result, if a law

is not a valid enactment under Section 5, non-consenting

states may not be sued by private parties under that law.

The ADA is not a valid exercise of Section 5 power.

A. THE ADA IS NOT BASED ON A HISTORY OF

WIDESPREAD AND PERSISTING DEPRIVA-

TIONS OF CONSTITUTIONAL RIGHTS OF

THE DISABLED IN STATE PRISONS

This Court has made quite clear that Congress’ may

only employ its enforcement powers under Section 5 of

the Fourteenth Amendment when the states have com-

mitted “widespread and persistent deprivation of consti-

tutional rights.” Florida Prepaid, 527 U.S. at 645 (quoting

Boerne, 521 U.S. at 526); see also Kimel, 120 5. (hy Gai.

“(Flor Congress to invoke [Section] 5, it must identify

conduct transgressing the Fourteenth Amendment’s sub-

stantive provisions, and must tailor its legislative scheme

to remedying or preventing such conduct.” Id. at 639.

The ADA was enacted not to enforce constitutional

guarantees but rather to supplement constitutional rights.

42 U.S.C. § 12101(a)(4) (West 1995 & Supp. 1999). While

the term “discrimination” runs through the legislative

histories of the ADA and the Rehabilitation Act, it is not

shorthand for “unconstitutional discrimination.” In fact,

24

the plain language of the ADA lists many types of dis-

crimination, including discriminatory effects. See, e.g., 42

U.S.C. §§ 12101(a)(3), (5) (1999). The ADA does not sup-

plement available constitutional remedies for the purpose

of eradicating unconstitutional state conduct but rather

does what Congress may not: “enforce a Constitutional

right by changing what the right is.” Boerne, 521 U.S. at

519. See also Kimel, 120 S. Ct. at 644 (“[Congress] has been

given the power ‘to enforce,’ not the power to determine

what constitutes a constitutional violation” (quoting

Boerne, 521 U.S. at 519)); Florida Prepaid, 527 U.S. 638.

The ADA was intended to rid the United States of all

discrimination against the disabled, whether that dis-

crimination was constitutionally permissible or not. Con-

gress found that “individuals with disabilities continually

encounter various forms of discrimination, including out-

right intentional exclusion, the discriminatory effects of

architectural, transportation, and communication bar-

riers, overprotective rules and policies, failure to make

modifications to existing facilities and practices, exclu-

sionary qualification standards and criteria, segregation,

and relegation to lesser services, programs, activities,

benefits, jobs or other opportunities.” 42 U.S.C. § 12101

(a)(5); H.R. Rep. 101-485(III) (1990) reprinted in 1990

U.S.C.A.A.N. 449 (stating the purpose of ADA “is to

provide a clear and comprehensive national mandate to

end discrimination against individuals with disabilities”).

Congress’s blunderbuss approach violates the Constitu-

tion’s inherent principles of federalism.

The ADA was passed as though discrimination on

the basis of disability is on the same constitutional plane

as discrimination on the basis of race. “The Americans

25

with Disabilities Act completes the circle begun in 1973

with respect to persons with disabilities by extending to

them the same civil rights protections provided to women

and minorities beginning in 1964.” H.R. Rep. No.

101-485(III), at 26 (1990), reprinted in 1990 U.S.C.A.A.N.

449.

This Court has made abundantly clear that the two

forms of discrimination do not receive the same constitu-

tional treatment under the Equal Protection Clause. Com-

pare City of Richmond v. J.A. Croson Co., 488 U.S. 469,

505-06 (1989), with City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 442-43 (1985). Therefore, disabilities legisla-

tion passed pursuant to Section 5 that uses the tools

intended to remedy racial discrimination is constitu-

tionally suspect. See Kimel, 120 S. Ct. at 646; Florida Pre-

paid, 527 U.S. at 639; Boerne, 521 U.S. at 519-20.

Intentional racial discrimination is subjected to the

most searching judicial scrutiny, whether the legisation is

intended to harm or to benefit the races being targeted.

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995);

City of Richmond v. J.A. Croson, 488 U.S. 469, 493 (1989). By

comparison, intentional discrimination on the basis of

disability has been subjected to a considerably lower

level of scrutiny, the rational basis test. Cleburne, 473 U.S.

at 449. Regulations affecting prisons also have been sub-

jected to low level scrutiny. Turner v. Safley, 482 U.S. 78

(1987); see also O’Lone v. Estate of Shabazz, 482 U.S. 342

(1989).

The constitutionality of discriminatory effects has

been treated by this Court as a separate category from

26

intentional discrimination. Even in the racial discrimina-

tion context, discriminatory effects have not triggered

strict scrutiny. Washington v. Davis, 426 U.S. 229, 242-244

(1976) (“Disproportionate impact is not irrelevant, but, it

is not the sole touchstone of an invidious racial discrimi-

nation forbidden by the Constitution. Standing alone, it

does not trigger the rule, that racial classifications are to

be subjected to the strictest scrutiny”). Laws that do not

intentionally discriminate against the disabled — but

rather only incidentally affect the disabled — have not

been the subject of a Supreme Court case. It is a certainty,

however, that the Constitution would not require a higher

level of scrutiny for discriminatory effects than it does for

intentional discrimination. In the disability context, this

means that any law that incidentally affects the disabled

will be scrutinized under the Constitution for a rational

basis at most. The mandatory accommodation regime of

the ADA wades far beyond such a standard. 3

Some have attempted to bootstrap disabilities into

the same position under the Equal Protection Clause as

race by labeling those with disabilities as a “discrete and

insular minority.” There are two fundamental problems

with this approach. First, this argument assumes that

footnote four of U.S. v. Carolene Products, 304 U.S. 144, 153

(1938), is the decisive interpretive tool of the Equal Pro-

tection Clause. Such a claim, however, is a reach, to say

the least. Cf. John Hart Ely, The Supreme Court, 1977 Term -

Foreword: On Discovering Fundamental Values, 92 Harv. L.

Rev. 5, 10, 14-15 (1978) (stating that this Court has not

followed the Carolene Products footnote four approach.)

Second, the range of disabilities potentially covered

by the ADA - which is made so stark in the prison

27

context — is so huge that those covered by the Act are not

an identifiable, discrete, or insular collective. Indeed, the

potential sweep of the ADA is so broad that one of the

most litigated issues under the ADA is whether the par-

ticular problem claimed by the person is a disability for

purposes of the ADA. See, e.g., Sutton v. United Air Lines,

527 U.S. 471 (1999) (holding that nearsightedness is not a

disability); see also Cassidy v. Indiana Dep’t of Corrections,

199 F.3d 374 (7th Cir. 2000) (inmates’ claim of emotional

distress insufficient to sustain claim under ADA).

B. THE ADA IS NOT PROPORTIONAL OR CON-

GRUENT TO ANY CONCEIVABLE CONSTI-

TUTIONAL VIOLATIONS BY THE STATE

PRISONS

Under Section 5 of the Fourteenth Amendment, Con-

gress must make its legislation redressing state constitu-

tional wrongdoing proportional and congruent to the

type and degree of wrongdoing. See Kimel, 120 S. Ct. at

635; Florida Prepaid, 527 U.S. at 666; Boerne, 521 U.S. at

519-520; see also Marci A. Hamilton and David Schoe-

nbrod, The Reaffirmation of Proportionality Analysis Under

Section 5 of the Fourteenth Amendment, 21 Carpozo L. Rev.

469 (1999). Like the Religious Freedom Restoration Act

invalidated in Boerne, the ADA’s sweep is so far beyond

the constitutional requirements that it cannot be a valid

exercise of Congress’s power under Section 5 to remedy

constitutional violations. See Boerne, 521 U.S. at 532.

With the ADA, Congress did not attempt to fit a

remedy to perceived constitutional wrongs, but rather

sought to expand the rights of the disabled well beyond

28

constitutional guarantees. The ADA, as handled by the

Department of Justice, requires state prison systems to

conform to precise standards derived by the DOJ that far

exceed the requirements of the Equal Protection Clause.®

See, e.g., 36 C.F.R. § 1191.1, at App. A (1999) (providing,

inter alia, that carpet must have a maximum thickness of

no more than 1/2 inch, and that the spout of a drinking

fountain must provide a flow of water at least 4 inches

high).

The experience of the state prisons that have labored

under the ADA proves that there is nothing congruent or

proportional about the ADA’s mandatory accommodation

requirement, which reaches well beyond correcting or

preventing unconstitutional discrimination on the basis

5 Were this Court to uphold the ADA as a valid exercise of

Congress’s power under Section 5 of the Fourteenth

Amendment, many of the regulations implementing the ADA

do not deserve deference and would be vulnerable to attack as

unconstitutional delegations of legislative power. While the

plain language of the Act requires “reasonable

accommodation,” the Department of Justice has transformed

that language into mandatory, unreasonable accommodation,

effecting an unconstitutional delegation of power and an

interpretation that does not deserve deference. See Sutton, 527

U.S. at 482 (“impermissible interpretation” of plain language of

ADA precludes deference to agency’s interpretation of ADA);

American Trucking Ass'n v. EPA, 175 F.3d 1027, 1033 (D.C. Cir.

1999) (finding EPA’s construction of Clean Air Act an

“unconstitutional delegation of legislative power”), cert.

granted, Browner v. Amer. Trucking Ass’ns, 120 S. Ct. 2003 (2000);

Amer. Trucking Ass’ns v. Browner, ___ S. Ct. ___, 2000 U.S. Lexis

3629 (No. 99-1426). The DOJ’s “formulation of its policy

judgment leaves it free to pick any” accommodation pleasing to

itself without meaningful consideration of what is reasonable in

the prison context. See American Trucking, 175 F.3d at 1037.

29

of disability. In the state prison context, the ADA is an

immodest, incongruent, and disproportional attack on

state sovereignty.

CONCLUSION

The ADA is an affront to the states’ sovereign author-

ity to operate state prisons and to regulate those

imprisoned for violating state laws. In the state prison

context, the ADA is an invalid exercise of Congress’s

power under Section 5 of the Fourteenth Amendment and

therefore violates the Eleventh Amendment, which bars

suits by private citizens in federal courts against non-

consenting states.

Respectfully submitted,

Marci A. HAMILTON

THomas H. Lee CuHarr IN Pusiic Law

BENJAMIN N. Carpozo SCHOOL OF Law

55 Fifth Avenue

New York, NY 10003

(212) 790-0215

(212) 790-0205

hamilton02@aol.com

June 22, 2000