# 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.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0922%3A13. Public record. Not legal advice.