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

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99-1240

In The. BO

Supreme Court of the United States

THE UNIVERSITY OF ALABAMA AT BIRMINGHAM,

BOARD OF TRUSTEES, ETAL.

Petitioners,

,

PATRICIA GARRETT, ET AL.,

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR AMICI CURIAE

LAW PROFESSORS

IN SUPPORT OF RESPONDENTS

PROFESSOR SUSAN STEFAN

University of Miami School of Law

PROFESSOR ROBERT HAYMAN

Widener University Law School

LEO G. RYDZEWSKI

Counsel of Record

Holland & Knight LLP

2100 Pennsylvania Avenue, N.W.

Suite 400

Washington, D.C. 20037

BEST AVAILABLE COPY

I.

II.

III.

TABLE OF CONTENTS

The Americans with Disabilities Act

is Consistent with the Original and

Historical Understanding of the

Scope of Congressional Power under

Section Five of the Fourteenth

| MEER Pee Ue AC te Cee

A. The Framers of the Fourteenth

Amendment Intended to Vest

Congress with Plenary Powers

to Remedy State

SOLEIL AITO

1. The History of Section Five............

2. Section Five was Intended to

Permit Congress to Act Where

States Failed to Protect the

PEATE GE CHRAIIINE wa. vescniicicicccccsinsvoene

Congress’ Power Under Section 5 to

Enforce the Fourteenth Amendment

is not Limited to Protection of

Suspect or Quasi-Suspect Classes ...............

The Americans with Disabilities Act

is Appropriate Legislation to Enforce

Section 1 of the Fourteenth

SR RE De Py Cree! RL RN

A. Congress Passed the ADA

After Twenty Years of

Targeted, Discrete Legislation

Failed to End State

Discrimination Against People

UTED MIND ovcccvencccsiscedvencenccscuscecesae

(i)

SHR HEHEHE HOHE HEE EEE EEE EE EES

each 3

mune 3

B. Rational Basis Review is Not a

Reflection of the Severity or

Pervasiveness of

Constitutional Injuries, but

Rather of the Appropriate

Branch of Government to

Redress Such Injuries ..................0++++++

IV. Lower Courts are _ Increasingly

Confused and in Conflict as to the

Scope of Congressional Power to

Protect the Civil Rights of

Individuals Against Violations by

i I .. sstiscvnrenandinn sate enamcidotnenich oa asteaaatantn

V. Comte. . .. cui vislccnsantemamseeuenmecenoks

TABLE OF AUTHORITIES

CASES

Adarand v. Pena, 515 U.S. 200 (1995) .................

Albertson's v. Kirkingburg, 527 U.S. 555

CRD xs ccusessicancsorssniacnnsieacamigieateiiades

Alden v. Maine, 527 U.S. 706 (1999) .............ceeeeee

Atascadero State Hospital v. Scanlon, 473

UD, B76 CGB) ov cccrssishinncsinintpsaveoninnsnvevnnorivnnn

Bell South Telcoms v. MCIMetro Access

Transmission Services, 97 F.Supp.2d

1363 (N.D. Ga. 2000) |.........cccccssssesesssrroreee

Brown v. North Carolina Div. of Motor

Vehicles, 166 F.3d 698 (4th Cir.

1999), pet. for cert. filed, 68 U.S.L.W.

3164 (U.S. Sept. 8, 1999) (No. 99-

Burnette v. Carothers, 192 F.3d 52 (2d Cir.

eae iat i celta na aa ha sa nckda Covibleconcekaats 29

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

City of Cleburne v. Cleburne Living Center,

PE MEE GRIND: sxssaverssecssiasavessnevssovsanect passim

City of Maumelle v. Alsbrook, 184 F.3d 999

REECE Geom raceme 13

City of Richmond v. J.A. Croson Co., 488

SRL Ne Sn aE 8

EEOC v. Wyoming, 460 U.S. 226 (1983) .............c. 12

In re Employment Discrimination

Litigation, 198 F.3d 1305 (11th Cir.

ace Liesl nt ah cea ak aacknebkagicsikenhadaeasancanes 28

Fitzwater v. First Judicial District of

Pennsylvania, No. Civ.A. 99-3274,

2000 U.S. Dist. LEXIS 4931 (E.D.

I iiss sh cakanshacneesindintsnctasnnsavecatae 29

Gorman v. Bartch, 152 F.3d 907 (8th Cir.

rr edbavucsiad See eay eee 26

Beer O, MAR, OO UF. BO CUGBS) ona. cccsnccsvccsecsccccceccosee 12

Holman v. Indiana, 211 F.3d 399 (7th Cir.

a uh wha duanund wend 29

Katzenbach v. Morgan, 348 U.S. 641 (1966) ...........00... 13

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

el ils csaes scmdgbvdasdeaskaenie tassitunsen passim

Lesage v. Texas, 158 F.3d 213 (5th Cir.

ea sou senawheveneeninbine 29

Litman v. George Mason University,-186

F.3d 544 (4th Cir. 1999), cert.

menied, 120 B.Ct. £220 (2000) .........ccc.c0s0000.000e00 29

Mixon v. Ohio and Michael White, 193 F.3d

I, onan cn cuncuvcnguanhaabandosws 29

Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1 (1981) .:........................ 17

Planned Parenthood v. Casey, 505 U.S. 833

a sara ai ian shag benk coabunbisids Nakaiandsccentiioennas 28

(iii)

Sandoval v. Hogan, 197 F.3d 484 (11th Cir.

REIS: ;..<csicoveacscescdpnansanntevapvsanempinenreceaccenttierssbirs 29

Smith v. Robinson, 468 U.S. 992 (1984) ........:eeceeeeees 16

South Carolina v. Katzenbach, 383 U.S. 301

CHOI oioicinesaketsssnvvacinchivsucssessncersonerssnminivannesententee 20

United States v. Morrison, 120 S. Ct. 1740

CI ois iccackcentionstceeesedinsensboabanptedeutcntens 7, 14, 20

Union Pacific v. State of Utah, 198 F.3d

BOE CRI occsicvenceniosscenianxsetnsnnncboopssasscenesetvesnstn’s 29

Vill. of Willowbrook v. Olech, 120S.Ct. 1073 ~

CI ccvnpnesiesvipssuosbadinciaenteniesinintononnnedatanacnestanttion 12

Youngberg v. Romeo, 457 U.S. 307 (1982) ......--.--e00+ 18

STATUTES

Americans With Disabilities Act, 42 U.S.C.

§ 12D1OU( ANS) ........eccccccrrrccccsncesssecsssvorereesscessooeses 20

Architectural Barriers Act of 1968, 42

TB, B GAGE oicvisssisnensesenesvetarseasissntesnetavnensoonnetenss 15

Civil Rights of Institutionalized Persons

Act, 42 U.S.C. § 1997 .......... A edie aan mame Nesnis 17

Developmental Disabilities Assistance and

Bill of Rights Act, 42 U.S.C. § 6000 ...............+.. 15

Education for Handicapped Children Act,

20 U.S.C. § 1401 (current version

titled the Individuals with

Disabilities in Education Act) .............:.:::::seee0+ 15

Fair Housing Amendments Act, 42 U.S.C. §

BGOD, Cf SEQ. ........sereereeccsececceccenrrrsrcceserccrcsscssseees 15

Protection and Advocacy for Mentally Ill

Individuals Act of 1986, 42 U.S.C. §§

10801, 10805(a)(1)(B) & (C) ......cceeeeeeeeeeseereeeeeeees 18

Voting Accessibility for the Elderly and

Handicapped Act of 1984, 42

U.S.C.A. § 1973ee-1 (West 1994) ...............-- ee 15

Urban Mass Transportation Act of 1970, 49

« RE BE. © ED nsvncecsestsatscvnsenntnderccscnsavensncecieconvsants 15

(iv)

LEGISLATIVE MATERIALS

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

Re a UE i csecelbnntniatatinvidenvintens 19, 24

H.R. Conf. Rep. No. 96-897 (1980), reprinted

te Te he aes CE hesiesiptencdscctesaremncioiecss 17

H.R. Rep. No. 94-58 (1975), reprinted in

Be AR, OOP erestedsiscsinsewvincccctessuvvninin 16

Ses SD TE, De CI ericeocniecisievapscctnncrensennieniontan 9

EAB BES: EGR, FOG, Tee CI csesesivcsevivinersnssidisennseianeie 9

Bs EN. TG, ED ctickeeses thshctatervecintenponnpmeonneeen 19

S. Rep. No. 99-50, pt. 2, App. (1985) .................sssssessenee 18

S. Rep. No. 93-1297 (1974), reprinted in

SFE Ci ee Ee Hitidhittemntccrmmnink 16

. TAOS. EAOE. FOO. Be CEG) tacsnevcvscivtisverecestissebssveviectnens 8

Cong. Globe, 39th Cong., 1st Sess. (1866):

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BOE GnoviniiRicinceionitsipesameancenmddaa aaa 5

DIE eriitcisscsincet cic eig ae aeaeiiee 5

BUI sknciessisinncsasciotensdeapabadbcnainenchaaeaaaamae 5, 6

IEE inessterctenstinrtunieadhecmmmacapaaaabaaneas 4,5,6

IUIED sckiicicsasiisnnisntisacedanbenstdosabdsmebsn tama 5

PE cicastenssnceincrictecserscabuasadabeaasiaiesaueuinad 5, 6

PE isis atisasisinlocencuevalnintsntetietuiaaeamaandea ee 6

SUMED siceriscwiidvadpisuveeceaner tekadmmbalcuies teicielicade iia aaaanaa 6

TNE sauissavissusstnueoemsilaccsaankaeeke antiga 6

UIE scxsintasiapicsnnenscandenqoiaanscceesielesecsusheeaaaein aman 6

SEIT savdavinatncs kassinicsalantopuien keane 6

PO, DD iiiiisssedititnnnatedainentixtantaan 5, 6

App. 240......... dev sbuinead eens baba meanheala olan 6

Cong. Globe, 42d Cong., 1st Sess. (1871):

WE ictcnctsavsocidinsndatiaconspimmige lla manana 11

TUITE. sccusenaindscensintasnbonsdishandseoadeadalaeeaaaanacaaae 7

SITE: viitsndcaccon(oinciiandinlateametecacbsciamesma ema 10

SIE esc nsdetecsiniecesassiviesipanssdcosdvandicctanrun alcaasianaaaaaaae 9

BUTE icc anreciisiorsopuineleaeiieactcotiotalaniahen spices tea den naeeinentaeial ae 11

Bo oncrisnictsnsennntncsunnnnteevensevnsinetneciiakaashy ucmiteeniins 11

BD os cscnsvasaxsgavsenanesbasskecnsnsestensmpaheenthmioeannarcietoneninn 9

BE ca sossusnasisandiiesisnoxsuscavennssnsaeeninaneinbenencseeinaehrnin 11

BD ons scsincesnniscarehoanessuanvnnestncakinnisiapnasaiteanenpeekshreei en 9

TE... sseniensosesecstssnansteessdvecensunansabuappecsenenunerenalanvel 9

BIE a ssicssascoscnsedseposneguensssgtiavabsasanmesssthdanamniierkes 7,8

App. 88 .......c.ccessesscsseeesssseererscescnscsssersesneeeessonsco res 7

ADD. 84 .......-ccsscceesseeereeesecensseeesssensnseseensraeneeesnses 7

App. 182 ..........:ccesccesscesrsceeceseeseeesseesssenneceneesneoenes 9

App. 251..........csccsssessesseereeeeesensecsessnessseneensersnesees 10

App. 314.........sccccesseesessesceeeceseeeesneessessseneesnssseseeens 9

Cong. Globe, 43d Cong., 1S Sess. 412 (1871)

ssid a fon lade decbusedcalgkenboisaneraioussnaue ride tell eaporh tiers 10

OTHER SOURCES

ERIC FONER, RECONSTRUCTION: AMERICA’S

UNFINISHED REVOLUTION (1988) ........-.:::20::+0+++ 5

BENJAMIN KENDRICK, THE JOURNAL OF THE

JOINT COMMITTEE OF FIFTEEN ON

RECONSTRUCTION (1914) .........::ccceeeeeeeeeeeeeeeees 4,7

(vi)

1

INTEREST OF AMICI

Amici are law professors with extensive

experience in the study of constitutional law, the

history of the Fourteenth Amendment and the

jurisdiction of the federal courts." Amici have no

personal interest in the outcome of this litigation, but

are deeply concerned with the development of

jurisprudence regarding the respective roles played by

the coordinate branches of federal government in

protecting the civil rights of the people of the United

States. Amici are also concerned as scholars and

citizens with the role of the federal government in the

correction of State discrimination against certain

classes of people. A list of amici is attached to this

brief as Appendix I.

SUMMARY OF ARGUMENT

The text and history of the Fourteenth

Amendment make clear that its framers intended to

vest in Congress the plenary power to remedy all

forms of unconstitutional discrimination. The framers

designed this authority fully cognizant that it would

often be exercised at the expense of “state’s rights” or

“state sovereignty.” History indicates as well that the

“equal protection of the laws” manifested both a

promise and a command: as a promise, it was to

extend to all classes of persons, not merely those that

would today be considered “suspect” or “quasi-suspect”

classes; as a command, it forbade denials of equal

protection, imposing an obligation on the states to

' All parties consent to the filing of this brief. Counsel for neither

party authored the brief in whole or in part. No person or entity

made a monetary contribution to the briefs preparation or

submission.

2

refrain from invidious discrimination and to ensure

that state laws were administered with actual

equality, rather than the sham represented by statutes

ignored in practice. Finally, history indicates that to

secure this promise and to enforce this command,

Congress was necessarily vested with the affirmative

power to enact comprehensive legislation preventing or

remedying state denials of equal protection, including

both state discrimination and state failures to protect

against discrimination.

The Americans with Disabilities Act represents

the culmination of more than twenty years of

Congressional efforts to end State discrimination

against people with disabilities through a variety of

subsidies, restrictions and mandates in discrete areas

such as education, transportation, voting, housing and

institutional care. In enacting the ADA, Congress was

explicit in its findings that these statutes had failed,

and that discrimination (including discrimination by

the States) was pervasive and nation-wide. Even so,

the ADA itself was a product of several years of

negotiation and compromise, the very kind of

consultation and fact-gathering suggested by this

Court in City of Cleburne v. Cleburne Living Center,

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

As the Court recognized in City of Cleburne,

and other cases, discrimination based on disability,

although potentially as arbitrary and irrational as

other forms of discrimination, requires a different legal

approach than other forms of discrimination.

Developing the structure for remediation of disability-

based discrimination is a particularly inappropriate

task for courts (a conclusion reflected in the Court’s

choice of rational basis level of scrutiny) and

3

particularly suited to legislative bodies (making

’ deference to Congress in the development of the ADA

particularly appropriate). In fact, discrimination

against people with disabilities, both pervasive and

complex, is a classic example of the sort of “difficult

and intractable problem” identified by this Court in

Kimel v. Board of Regents, 120 S.Ct. 631, 648 (2000) as

justifying prophylactic measures aimed at preventing

unconstitutional behavior.

Despite this Court’s recent references to the

deference due to Congress about the need for remedial

legislation to protect the rights of citizens under the

Fourteenth Amendment, State litigants have

interpreted Kimel and City of Boerne v. Flores, 521

U.S. 507 (1997) as an invitation to dismantle almost

fifty years of federal civil rights legislation. States are

now questioning their obligation to follow virtually

every civil rights enactment that Congress has ever

passed, from Title VII to the Voting Rights Act. The

Court has now firmly established that Congress may

neither reverse Supreme Court interpretations of

constitutional rights nor act to abrogate State

immunity without a _ sufficient record of

unconstitutional discrimination. In the case of the

Americans with Disabilities Act, both requisites have

been satisfied, and the Court should uphold Congress’

exercise of its Section 5 powers.

I. The Americans with Disabilities Act is

Consistent with the Original and Historical

Understanding of the Scope of Congressional

Power under Section Five of the Fourteenth

Amendment.

A. The Framers of the Fourteenth

Amendment Intended to Vest Congress

4

with Plenary-Powers to Remedy State

Discrimination.

: The History of Section Five.

On February 26, 1866, Republican

Congressman John Bingham of Ohio reported to the

House of Representatives a proposed Amendment to

the Constitution, drafted by the Joint Committee on

Reconstruction, the “Committee of Fifteen.” This

initial iteration of what would eventually be the

Fourteenth Amendment to the Constitution provided

as follows:

The Congress shall have power to make

all laws which shall be necessary and

proper to secure to the citizens of each

State all privileges and immunities of

citizens in the several States, and to all

persons in the several States equal

protection in the rights of life, liberty,

and property.

Cong. Globe, ggth Cong., 1St Sess. 1034 (1866). After

three days of debate, the proposal was tabled until

April, Bingham voting with the rest of the Republican

majority in favor of the postponement. 7d. at 1095. It

is generally agreed that the decision to table by

Bingham and his Republican allies represented

something of a strategic retreat; in its initial form, the

proposed Amendment had little chance of commanding

the necessary two-thirds majority. See, e.g., BENJAMIN

KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF

FIFTEEN ON RECONSTRUCTION 215 (1914). It is also

generally understood that the nominal reason for at

least some of the opposition to the proposal was the

5

fear that it would unduly centralize power. See, e.g.,

City of Boerne, 521 U.S. at 521-25.

The defeat of the original Bingham proposal,

however, is not fairly reduced to a simple matter of

state versus federal power. Some of the Republicans

who voted to table the proposal were, like Bingham,

supporters of the measure.” Some Republicans who

opposed the measure thought that it did not go far

enough, see Cong. Globe, ggth Cong., 1St Sess. 1095

(1866) (statement of Rep. Hotchkiss). Finally, some

Republicans were simply of the view that the

Amendment was unnecessary; they were convinced

that the Constitution already authorized congressional

acts designed to secure equality under law, see ERIC

FONER, RECONSTRUCTION: AMERICA’S UNFINISHED

REVOLUTION 253 (1988), a proposition that Bingham--

in a distinct minority among Republicans--would not

embrace. See, e.g., Cong. Globe, 39th Cong., 1S* Sess.

1291 (1866). Democratic opposition to the measure,

meanwhile, also transcended the simple opposition of

state and federal power’, and was in any event the

identical argument that would be made in opposition

> See, e.g., Cong. Globe, 39th Cong., 1S¢ Sess. 1054 (1866)

(statement of Rep. Higby); id. at 1057 (statement of Rep. Kelley);

td. at 1088 (statement of Rep. Woodbridge); id. at 1095 (statement

of Rep. Bingham).

> The one Democrat to be heard at length on the bill was

Congressman Andrew Rogers of New Jersey, a member of the

Committee of Fifteen. Rogers did indeed object to the proposal on

the grounds that it centralized power. See Cong. Globe, 39th

Cong., 1" Sess. App. 134 (1866). However, the heart of the matter

might have been the litany of social horrors Rogers perceived in

the Bingham proposal: “under this amendment a negro might be

allowed to marry a white woman... Under this amendment,

Congress would have power to compel the State to provide for

white children and black children to attend the same school.. .”

Id. See also id. at 2080-81 (statement of Rep. Nicholson).

6

to the final iteration of the Fourteenth Amendment.

See Cong. Globe, 39th Cong., 1St Sess. 2538 (1866); id.

at App. 134. See also id. at 2080-81.

Interestingly, the opponents and defenders of

the initial Bingham proposal found some common

ground on this score: it was no valid objection to the

amendment to interpose a claim of “state sovereignty.”

Congressman Woodbridge defended the amendment

against the charge that it abridged this elusive “state

sovereignty”: “It does not destroy the sovereignty of a

State, if such a thing exists. It does not even affect its

sovereign rights, but merely keeps whatever

sovereignty it may have in harmony with a republican

form of government and the Constitution of the

country.” Id. at 1088. See also id. (statement of Cong.

Hale).

The modified proposal that emerged from the

Joint Committee in April--the material terms of which

were also largely the work of Congressman Bingham--

looked very much like the more “radical” proposal

suggested by Congressman Hotchkiss, see id. at 1095:

it secured the substantive rights by constitutional

provision and gave to Congress the power to enforce

those rights. Id. at 2286.

Democratic opposition to the modified

amendment remained uniform--no Democrat in either

body voted for the measure--and, typically, much of it

was expressed in the rhetoric of “state’s rights.” See,

e.g., id. at 2530 (statement of Rep. Randall); id. at

3147 (statement of Rep. Harding); id. at 2940

(statement of Sen. Hendricks); id. at App. 240. The

opposition to Section Five was hardly surprising. As

Bingham would later explain, the grant of power to

Pte hr aed erent en A + age a=

sa!

7

Congress envisioned by Section Five matched and

exceeded the grant envisioned in his original proposal:

[Section Five’s] grant of power .. . is full

and complete. The gentleman [Rep.

Farnsworth] says that amendment

differs from the amendment reported by

me in February; differs from the

provision introduced by me, now in the

fourteenth article of amendments. It

differs in this: that it is, as it now stands

in the Constitution, more comprehensive

than as it was first proposed and

reported in February, 1866. It embraces

all and more than did the February

proposition...

Cong. Globe, 42d Cong., 1St Sess. App. 83 (1871). See

also id. at 84. Cf. KENDRICK, JOURNAL OF THE JOINT

COMMITTEE at 311 n. 2.

Supporters of the Amendment, meanwhile,

were also well aware that the revised Amendment

would significantly alter the existing balance of state

and federal power, substantially increasing the latter,

at times at the expense of the former. Section Five

was a vital part of the project, see, e.g., Cong. Globe,

42d Cong., 18t Sess. 257 (1871) (statement of Rep.

Baker) (“This section was of course necessary in order

to carry the proposed article into practical effect.”). As

Senator Howard explained to the Senate in his

introduction of the measure, Section Five gives

Congress “authority to pass laws which are

appropriate to the attainment of the great object of the

amendment.” Jd. at 2766. Section Five, Howard

noted, provided “a direct affirmative delegation of

power to Congress to carry out all the principles of all

8

these guarantees.” Id. at 2766. See also United States

v. Morrison, 120 S.Ct. 1740, 1755 (2000)(“Section 5 is a

‘positive grant of legislative power’ that includes

authority to ‘prohibit conduct which is not itself

unconstitutional and [to] intrud[e] into “legislative

spheres of autonomy previously reserved to the

states.””)(citations omitted); City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 490 (1989)(plurality opinion

of O'Connor, J.)(“Congress, unlike any State or

political subdivision, has a specific constitutional

mandate to enforce the dictates of the Fourteenth

Amendment. The power to ‘enforce’ may at times also

include the power to define situations which Congress

determines threatens principles of equality and to

adopt prophylactic rules to deal with these

situations.”).

4

2. Section Five was Intended to

Permit Congress to Act Where

States Failed to Protect the Rights

of Citizens

The record before the Thirty-Ninth Congress

was replete with instances not merely of official acts of

discrimination against the freedmen, but of official

failures to prevent or remedy “private” acts of

oppression, perpetrated under the watch of indifferent

state officials, or with their acquiescence or active

support. See, e.g., S. Exec. Doc. No. 39-2 (1866)

(Message of the President of the United States

Communicating, in Compliance with a Resolution of

the Senate of the 12th Instant, Information in Relation

to the States of the Union Lately in Rebellion,

Accompanied by a Report of Carl Schurz on the States

of South Carolina, Georgia, Alabama, Mississippi, and

Louisiana; also a Report of Lieutenant General Grant,

9

on the Same Subject (Report on the Condition of the

South)); H.R. Rep. No. 39-30 (1866) (Report of the

Joint Committee on Reconstruction) (testimony on

oppression and official failures to respond); H.R. Exec.

Doc. No. 39-70 (1866).

Section One thus commands that no state shall

“deny the equal protection of the law,” and “when the

equal protection is withheld, when it is not afforded, it

is denied.” Cong. Globe, 42d Cong., 18t Sess. 505

(1871) (statement of Sen. Pratt). As a necessary

consequence, the clause gave rise to an affirmative

duty on the part of the states: they are obliged not

merely to refrain from unequal treatment, but they are

obliged to provide “equal protection.” “A state denies

equal protection where it fails to give it. Denying

includes inaction as well as action. A State denies

protection as effectively by not executing as by not

making laws.” -Id. at 501 (statement of Sen.

Frelinghuysen). Accord id. at App. 182 (statement of

Rep. Mercur) (deny means “to refuse, or to persistently

neglect or omit to give” equal protection). To deny

equal protection meant both the failure to enforce the

laws and the failure to ensure that the benefits

provided by law were provided equally; id. at App. 314

(statement of Rep. Burchard) (“the protection must be

extended equally to all citizens. This duty must be

performed through the legislative, executive, and

judicial departments of its government. If the law-

making power neglects to provide the necessary

statute, or the judicial authorities wrongfully enforce

the law so as to neutralize its beneficial provisions, or

the executive allows it to be defied and disregarded,

has not the State denied the enjoyment of that right?”);

id. at 368 (statement of Rep. Sheldon) (clause

embraces cases where state “refuses or neglects to

10

discharge” its duty); id. at 459 (statement of Rep.

Coburn) (“Affirmative action or legislation is not the

only method of a denial of protection by the State”).

Thus, when the states regularly fail to protect

discrete classes of citizens from acts of oppression or

discrimination, they fail to provide the “equal

protection of the laws.” “If a State fails to secure to a

certain class of people the equal protection of the laws,

it is exactly equivalent to denying such protection.

Whether that failure is willful or the result of inability

can make no difference, and is a question into which it

is not important that Congress should enter.” Id. at

App. 251 (statement of Sen. Morton); accord id. at 321

(statement of Rep. Stoughton); id at 375 (statement of

Rep. Lowe) (“It is said that the States are not doing the

objectionable acts. This argument is more specious

than real. Constitutions and laws are made for

practical operation and effect . . . What practical

security would this provision give if it could do no more

than to abrogate and nullify the overt acts and

legislations of a State?”); Cong. Globe, 43d Cong., 15t

Sess. 412 (1871) (statement of Rep. Lawrence) (“If a

State permits inequality in rights to be createc or

meted out by citizens or corporations enjoying its

protection it denies the equal protection of the lews.

What the State permits by its sanction, having the

power to prohibit, it does in effect itself’).

Congress, as a corollary, was empowered to

provide the protection that the states fail to afford.

“The State, from lack of power or inclination,

practically denied the equal protection of the law. .

And if [Congress] finds that a citizen’s constituticnal

rights are in jeopardy from any cause, that they have

been ruthlessly stricken down or wrongfully dened,

11

and existing laws are inadequate for his relief, it is

bound to make such appropriate legislation as shall be

sufficient for his protection and redress.” Cong. Globe,

42d Cong., 1St Sess. 428 (1871) (statement of Rep.

Beatty); id. at 71 (statement of Rep. Shellabarger)

(“Two things are provided--equal laws and protection

for all; and whenever a State denies that protection

Congress may by law enforce protection”); id. at 370

(statement of Rep. Monroe) (“we shall have no

difficulty in finding sufficient grants of power in the

Constitution to enable us to protect the lives and

property of our fellow citizens when the State

governments fail to protect them. We should go to the

Constitution expecting to find weapons to defend the

weak and the poor, not weapons to strike them down”).

And at times, the only sufficient protection--the only

“appropriate _legislation”--would be in part

prophylactic: legislation designed to prevent the

abuses permitted or perpetuated by the states. “The

true construction of the [equal protection] provision is:

“No State shall fail or refuse to provide for the equal

protection of the laws.’ . . .Is it meant that Congress

may enforce a denial? No; it means that Congress may

prevent a denial.” Jd. at 482 (statement of Rep.

Shellabarger). Only thus could Congress realize the

promise of equality envisioned when the Amendment

was adopted.

II. Congress’ Power Under Section 5 to Enforce the

Fourteenth Amendment is not Limited to

Protection of Suspect or Quasi-Suspect Classes

It is clear from the historical record that

Congress intended the guarantees of the Fourteenth

Amendment to secure equal rights to all citizens.

Although the Court extends particular solicitude to

12

certain groups of persons by examining legislative

classifications relating to them with heightened

scrutiny, variations in the level of review are not

equivalent to variations in the right at issue. The level

of scrutiny afforded by a court neither defines the

substance of the right under the Fourteenth

Amendment nor diminishes it; “no one has or would

argue that the value of liberty varies somehow

depending on whether one is alleged to be ill or

retarded,” Heller v. Doe, 509 U.S. 312, 341

(1993)(Souter, J. dissenting).

As recent decisions of the Court reflect, the fact

that a legislative classification is subject to rational

basis review does not mean that the citizens so

classified lose equal protection rights under the

Fourteenth Amendment. City of Cleburne, 473 U.S. at

432; Vill. of Willowbrook v. Olech, 120 S.Ct. 1073,

1074-75 (2000). By its very text, the equal protection

clause belongs to all persons.

Rather, if Congress acts to prohibit recognized

constitutional violations by the States, or if it acts to

prevent those violations through prophylactic

legislation and assembles a record of a pattern of

violation of constitutional rights to justify such

prophylactic action, both historical understanding and

the Court’s current framework permit Congress to

enforce the guarantees of the Fourteenth Amendment,

so long as the legislation is congruent and proportional

to the identified injuries. Although it has occasionally

been suggested that Section 5 power is limited to

protected classes, EEOC v. Wyoming, 460 U.S. 226,

262 (1983)(Burger, C.J.), the idea that Congress can

only legislate under Section 5 to protect certain classes

of citizens has never commanded a majority of this

13

Court or of any Court of Appeals, even those which

have held the ADA invalid. See, e.g., City of Maumelle

v. Alsbrook, 184 F.3d 999, 1008 (8th Cir. 1999)(en

banc)(“We agree that Congressional enforcement of

equal protection rights under Section 5 is not limited

to suspect classifications”); Brown v. North Carolina

Div. of Motor Vehicles, 166 F.3d 698, 706 (4” Cir.

1999), pet. for cert. filed, 68 U.S.L.W. 3164 (U.S. Sept.

8, 1999) (No. 99-424) (“It is true, of course, that even

rational basis review places limits on the States that

Congress may seek to enforce”).

Ill. The Americans with Disabilities Act is

Appropriate Legislation to Enforce Section 1 of

the Fourteenth Amendment

Although Congress’ power to legislate under

Section 5 is not limited to any particular class or

category of persons, it is limited to remedying and

preventing violations of the Fourteenth Amendment

rather than substantive redesign of its meaning. City

of Boerne, 521 U.S. at 519. The Court’s recent

decisions in the Eleventh Amendment area, however,

have not purported to limit Congress’s role in

gathering facts and reaching conclusions as _ to

violations of those rights. Moreover, the Court has

also reaffirmed its deference to Congressional

conclusions that legislation is necessary to remedy or

prevent those violations. This Court has in fact gone

out of its way to repeatedly underscore that “[i]t is for

Congress in the first instance to determine ‘whether

and what legislation is needed to secure the

guarantees of the Fourteenth Amendment,” Kimel,

120 S.Ct. at 644 (quoting City of Boerne, 521 U.S. at

536 (quoting Katzenbach v. Morgan, 348 U.S. 641, 651

(1966))).

14

To be sure, the Court has also insisted that

Congress respect the principles of federalism in this

process. Thus, even when acting pursuant to Section

Five, Congress must clearly state its intent to override

the Eleventh Amendment immunity of the states,

Atascadero State Hospital v. Scanlon, 473 U.S. 274

(1985), and must target State action, United States v.

Morrison, 120 S.Ct. 1740, 1758 (2000). When Congress

enacts legislation to enforce the Fourteenth

Amendment, it must be congruent and proportional to

the underlying constitutional problem. At the very

least, this Court’s own cases hold that this burden can

be met in two ways, both of which apply in the case of

the Americans with Disabilities Act. First, ostensibly

neutral rules sometimes disguise discrimination, and

Congressional action against those rules may be

justified by a showing that the constitutional violation

is likely to go undetected without a prophylactic rule,

as in the Voting Rights Act. Second, Congress may

have “identified . . . [a] pattern of constitutional

violations,” Kimel, 120/S.Ct. at 645, that more targeted

legislation has been unable to remedy. Although

Congress responded to both of these problems in

enacting the ADA, this brief-will focus on the second,

demonstrating that Congress passed the ADA after

decades of more targeted federal legislation failed to

remedy State violations of the constitutional rights of

people with disabilities.

A. Congress Passed the ADA After Twenty

Years of Targeted, Discrete Legislation

Failed to End State Discrimination

Against People with Disabilities

Congress passed more than twenty years of

legislation against disability discrimination in a

mumber of discrete areas, including architectural

15

barriers to government buildings and courthouses,

education, transportation, voting, and _ housing.

Beginning in 1968, with the Architectural Barriers Act

of 1968, 42 U.S.C. § 4151; the Urban Mass

Transportation Act of 1970, 49 U.S.C. § 1612; the

Education for Handicapped Children Act, 20 U.S.C. §

1401 (current version titled the Individuals with

Disabilities in Education Act); and continuing through

statutes such as the Developmental Disabilities

Assistance and Bill of Rights Act, 42 U.S.C. § 6000, the

Voting Accessibility for the Elderly and Handicapped

Act of 1984, 42 U.S.C.A. § 1973ee-1, and the Fair

Housing Amendments Act, 42 U.S.C. § 3602 et seq,

Congress combined carrots and sticks in a variety of

ingenious ways to try to end State discrimination

against disabled citizens in specific areas of the law. It

offered States federal funds to cease discrimination in

education, gave the Department of Justice standing to

sue States to prevent discrimination in institutions,

mandated that state buildings and transportation

systems which received federal funds must be

accessible to people with disabilities, and insisted that

polling places in federal elections be accessible (thus

effectively requiring polling places to be accessible for

all elections).

One year after passing Section 504 of the

Rehabilitation Act, the first major federal prohibition

of discrimination against people with disabilities,

Congress amended the act to make the prohibitions

stronger, motivated in part by findings of widespread

discrimination by the States:

[iJndividuals with handicaps are all too

often excluded from schools and

educational programs, barred from

16

employment or are underemployed

because of archaic attitudes and laws,

denied access to _ transportation,

buildings and housing because of

architectural barriers and lack of

planning, and are discriminated against

by public laws which frequently exclude

citizens with handicaps or fail to

establish appropriate enforcement

mechanisms.

S. Rep. No. 93-1297 (1974), at 28, reprinted in 1974

U.S.C.C.A.N. 6373, 6400.

The Education for All Handicapped Children

Act was passed as a result of the unconstitutional

exclusion by States of eight million children from

school. Smith v. Robinson, 468 U.S. 992, 1009 (1984).

The Developmental Disabilities Assistance and Bill of

Rights Act contained a bill of rights section for

developmentally disabled citizens aimed at the States

because “[t]he Committee is well aware that our

disabled and handicapped citizens are often

unreasonably and unnecessarily deprived of their

rights and relegated to second class status.” H.R. Rep.

No. 94-58, at 13 (1975), reprinted in 1975 U.S.C.C.A.N.

919, 925.*

In the years prior to the ADA hearings,

Congress heard voluminous reports of State violations

* Although this Court held that the Bill of Rights was

unenforceable in Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 19 (1981), what matters here is that

Congress found out that States unreasonably deprived disabled

citizens of their rights and relegated them to second-class status, a

factual finding that Congress attempted to remediate through the

provisions of the statute, including the Bill of Rights.

17

of the constitutional rights of their institutionalized

citizens. For example, the House Conference Report

on the Civil Rights of Institutionalized Persons Act

noted:

Since 1971, the Attorney General has

participated in a series of civil actions

seeking to redress widespread

violations of constitutional and federal

statutory rights of persons residing in

state institutions. [Because two federal

courts had held that the Attorney

General did not have standing to

participate in such litigation, Congress

enacted this legislation to explicitly

confer such standing]... HR. 10

ensures that institutionalized people

will be afforded the full measure of

protections guaranteed to them by the

Constitution of the United States.

H.R. Conf. Rep. No. 96-897 (1980), reprinted in 1980

U.S.C.C.A.N. 832. Congress passed the Civil Rights of

Institutionalized Persons Act, 42 U.S.C. 1997,

specifically to permit the Attorney General to sue

States for violating the constitutional and federal

rights of persons in institutions, many of whom were

severely disabled.

Despite the hopes expressed in the House

Report, violations of the constitutional rights of

institutionalized citizens continued unabated on a

national scale. In April 1985, Senate staff presented a

report to the Senate Committee on Labor and Human

Resources summarizing the results of their visits to

thirty-one state institutions in twelve states. After

18

conducting approximately 600 interviews, the Report

documented deaths and beatings, sometimes of

patients in seclusion or restraints, across the nation

from South Carolina to California. The Report

summarized that "residents are vulnerable to abuse

and serious physical injury...sexual advances and

rape," and concluded that neither the States nor the

Federal government were successful in controlling

these conditions. S. Rep. No. 99-50, pt. 2, App. at 2,

20-25, 76-82 (1985) (Staff Report on the

Institutionalized Mentally Disabled). Many of the

conditions reported to Congress clearly implicated the

constitutional right to safety and freedom from harm

in institutional settings. Youngberg v. Romeo, 457

U.S. 307 (1982). After extensive hearings and

receiving this report, Congress passed the Protection

and Advocacy for Mentally Ill Individuals Act of 1986,

42 U.S.C. 10801, yet another Congressional response

to State violations of the constitutional rights of

persons with disabilities. While the Civil Rights of

Institutionalized Persons Act gave the Justice

Department standing to sue to protect

institutionalized persons’ rights, the Protection and

Advocacy for Mentally Ill Individuals Act gave the

States money to create programs to prevent and

remedy the violations of institutionalized disabled

persons’ rights—but only while they were in the

institutions and for ninety days following discharge, 42

U.S.C. §§ 10805(a)(1)(B) & (C).

Despite the passage of these more narrow

statutes, testimony before Congress in support of the

ADA revealed that little had changed. The prior laws

had not resolved the unconstitutional injuries. This

truth was reflected in the national reports before

Congress and in the testimony of both disabled

19

witnesses and federal and state officials. Then-

Attorney General Thornburgh noted that:

[o]ver the last twenty years, civil rights

laws protecting disabled persons have

been enacted in a piecemeal fashion.

Thus, existing Federal laws are like a

patchwork quilt in need of repair. There

are holes in the fabric, serious gaps in

coverage that leave persons with

disabilities without adequate civil rights

protections.

H.R. Rep. No. 101-485, pt. II, at 48 (1990), reprinted in

1990 U.S.C.C.A.N. 330.

The Attorney General of Illinois, Neil Hartigan,

Dr. Mary Lynn Fletcher, and numerous other

witnesses confirmed that neither federal legislation

nor state legislation aimed at protecting people with

disabilities was accomplishing that goal. Mr. Hartigan

testified that imposing a non-discrimination mandate

only upon recipients of federal funds under the

Rehabilitation Act resulted in “total confusion” and

“inability to expect consistent treatment.” See S. Rep.

No. 101-116, at 12 (1989). Fletcher testified that

because Federal assistance often didn’t reach rural

areas, there was no protection from discrimination for

people with disabilities who lived there. Id. at 12-13.

Harold Russell, Chairman of the President’s

Committee on Employment of People with Disabilities,

reported that “the fifty State Governors’ Committees,

with whom the President’s Committee works, report

that existing State laws do not adequately counter

such acts of discrimination.” Jd. at 18.

20

After hearing this testimony, Congress

explicitly concluded in the language of the ADA itself:

“current federal and state laws are inadequate to

address the discrimination faced by people with

disabilities .. . ” 42 U.S.C. § 12101(a)(3). When

“previous legislation has proved ineffective,” broader

prophylactic legislation is justified, South Carolina v.

Katzenbach, 383 U.S. 301, 314 (1966). In assessing the

congruence and proportionality of the ADA, it is

appropriate for this Court to consider the years of

evidence of State discrimination before Congress as it

enacted discrete statute after discrete statute, which

federal, state and individual witnesses testified had

failed to end discrimination against people with

disabilities. In this context, “[w]hen Congress enacts

appropriate legislation to enforce [the Fourteenth

Amendment], federal interests are paramount, and

Congress may assert an authority over the States

which would be otherwise unauthorized by the

Constitution.” Alden v. Maine, 527 U.S. 706, 756

(1999)(citations omitted).

In passing the Americans with Disabilities Act,

Congress was not acting on a blank legislative slate,

nor did it seek to overturn existing Equal Protection

jurisprudence, as in City of Boerne, it met its

responsibility to present a fully developed evidentiary

record of discrimination, unlike Kimel, and clearly

targeted State actors, unlike Morrison.

It would not, of course, be constitutionally

sufficient had Congress acted to protect people with

disabilities from adverse State action that was

rationally related to legitimate state objectives. State

deprivations of the rights of disabled people must rise

to the level of constitutional violations to support

a ae Ce

21

corrective action such as Title II of the ADA. Amici

contend that even under rational basis review, the

earlier statutes and then the ADA targeted widespread

State violations of fundamental rights such as the

right to vote and the right to safety in institutional

settings, as well as arbitrary and irrational exclusion

from school, employment and transportation. These

continuing actions and policies by the States

constituted violations of disabled people’s right to

equal protection of the laws. The result in City of

Cleburne itself demonstrates that government entities

do violate the constitutional rights of disabled

individuals under the rational basis standard.

B. Rational Basis Review is Not a

Reflection of the Severity or

Pervasiveness of Constitutional Injuries,

but Rather of the Appropriate Branch of

Government to Redress Such Injuries

The Court’s holding in City of Cleburne

establishes rational basis review as the standard for

determining whether States have violated the

constitutional rights of their disabled citizens,

although the Court also explicitly stated that it was

making the rational basis finding “absent controlling

Congressional direction.” 473 U.S. at 440. The

reasons cited by the Court for selecting rational basis

review in City of Cleburne argue strongly for upholding

Congressional action in passing the ADA, a law which

concededly prohibits some behavior that the

Constitution alone would not condemn. The Court

cited two reasons for choosing rational basis review.

First, because disability is not simply a matter of

physical or mental impairment but of the degree to

which that impairment interferes with, or is regarded

as interfering with, one’s functional abilities, it raises

22

complex questions of definition. See, e.g. Albertson’s v.

Kirkingburg, 527 U.S. 555, n. 12 (1999)(some people

with monocular vision are disabled and others are

not). The Court’s observation in City of Cleburne with

regard to mentally retarded people is even more true

of people with disabilities in general: they are “a large

and diversified group” more difficult to define than

categories such as alienage and illegitimacy. 473 U:S.

at 442. Second, unlike race or gender, which were

recognized as rarely presenting relevant

considerations in any principled decision making,

disability is sometimes relevant to decisionmaking.

Disability has significant consequences in the world

that a rational legislature can take into account.

Notably, disability has been the basis on which

legislatures have passed beneficial legislation. The

rational basis standard of review gives both States and

the federal government the flexibility to take the ©

complex nature of disabilities into account where they

are relevant, and to act to benefit groups of people

with disabilities. If this Court had chosen a higher

level of scrutiny against which to evaluate differential

treatment of people with disabilities, programs such as

disability benefits for severely disabled people might

have fallen under challenge by non-disabled people.

See Adarand v. Pena, 515 U.S. 200 (1995)(subjecting

affirmative action programs to strict scrutiny review).

However, as the Court’s decision in City of

Cleburne shows, the rational basis standard of review

does not give States a free pass to engage in

widespread invidious and arbitrary discrimination.

The fact that some classifications based on disability

are rational does not mean that people with

disabilities are not also subject to irrational,

widespread and persistent discrimination in violation

23

of the Fourteenth Amendment. The Court’s selection

of rational basis review in City of Cleburne could not

be (and did not purport to be) a factual finding about

the pervasiveness and persistence of unconstitutional

discrimination by the States in general against people

with mental retardation, much less people with

disabilities. After hearing written and oral testimony

from hundreds of witnesses, and studying hundreds of

pages of research and reports submitted to it, Congress

did make such findings. It found that much state

legislation, policy and practices toward people with

disabilities was neither remedial nor even rational, but

exclusionary, arbitrary, segregationist, irrational,

based on myths and stereotypes, and springing from

ignorance and even hostility. Unlike the record before

Congress in Kimel, the massive record compiled by

Congress in passing the ADA implicated a broad range

of State statutes, policies, and customs that violated

even the rational basis standard of review.

When Congress passed the ADA, it was aware

that State statutes providing protection to people with

disabilities existed on paper but were not meaningfully

enforced. Even in City of Cleburne, the Court’s

reference to a Texas statute giving Texas citizens the

right to live in group homes as protective was

undermined by the recognition that plaintiffs in City of

Cleburne dropped their claim under that statute--

which had been in force for almost ten years at the

time of the litigation--because “[t]he Act had never

been construed by the Texas courts,” City of Cleburne

at 444 n.11.

In fact, what Congress learned in the ADA

hearings was that the very presence of these well-

24

intentioned but unenforced statutes served to shield

the State’s more invidious actions:

The discriminatory nature of policies

and practices that exclude and segregate

disabled people has been obscured by the

unchallenged equation of disability with

incapacity and by the gloss of ‘good

intentions.’ ...The social consequences

that have attached to being disabled

often bear no relationship to the physical

or mental limitations imposed by the

disability. For example, being paralyzed

has meant far more than being unable to

walk-it has meant being excluded from

public schools, being denied employment

opportunities, and being deemed an

‘unfit parent.’ These injustices coexist

with an atmosphere of charity and

concern for disabled people.

H.R. Rep. 101-485, pt. II, at 41 (1990) (testimony of

Arlene Mayerson).

At the time Congress was considering the ADA,

the record of states towards people with disabilities

bristled with contradictions - pity and antipathy,

overprotection and outright brutality - resulting in a

complicated mixture of legislation, policy and practice

that occasionally protected the disabled, sometimes

used protection as an excuse for invidious

discrimination (as in City of Cleburne), and sometimes

simply discriminated in a harsh and unambiguous

manner. What Ms. Mayerson’s testimony underscores-

-and what supports both rational basis review by the

courts and deference to congressional judgment in

crafting the Americans with Disabilities Act--is that

25

while there is a record of a core of hostility,

irrationality, and failure to protect people with

disabilities by the States, much of the discrimination is

more subtle but just as damaging, and intentional

discrimination is more difficult to see in the individual

case than in the composite portrait presented by the

voluminous testimony heard by Congress when it

considered the ADA.

The meaning of discrimination itself as a legal

concept is more difficult in the case of people with

disabilities. Although Congress recognized that

certain patterns of discrimination against people with

disabilities strongly resembled patterns of

discrimination on the basis of race, including the

emphasis on state-imposed segregation, widespread

exclusion from the public school system and from

voting, it was equally clear that traditional concepts of

discrimination developed in the context of race

discrimination were not completely suited as a mode of

analysis for people with disabilities.

For example, it is crucial to understand that

applying traditional concepts of equal protection to

people with disabilities would simply maintain a

discriminatory status quo. Society can rationally

aspire to be “color-blind” in a way that it cannot and

should not wish to be “disability-blind.” Giving a

person who is mobility-impaired an equal right to vote

or be a juror, without concomitant changes in polling

places or courtrooms, may accomplish nothing

practical, and the framers of the Fourteenth

Amendment wanted nothing if not to make equal

protection real. They were not content with the

equality on paper that existed in some states, when

contrasted with the actual conditions reported by

26

General Schurz and the Committee of Fifteen. Neither

equality nor intentional discrimination mean the same

thing in the context of disability discrimination. If

police put a paraplegic arrestee in a paddy wagon in

exactly the same way as they would put an able-bodied

arrestee into the wagon, they are not providing equal

protection, see Gorman v. Bartch, 152 F.3d 907 (8th

Cir. 1998). If a ramp into a courthouse or an

interpreter at a town meeting is considered “something

extra,” beyond the bounds of equal protection, then

equal protection will be meaningless for people who

cannot climb the steps or hear the _ speakers.

“Reasonable accommodation” that requires a ramp to

the polling booth or an elevator to the courtroom is not

something “extra”--it is the only way to ensure equal

protection of the laws for people with mobility

impairments. If state-operated transportation systems

are not equipped with lifts, they are more segregated

on the basis of disability than the buses of

Montgomery were on the basis of race.

Thus, both the nature of disability and the

nature of discrimination based on disability is

complex, and it is in these circumstances that the

legislative process is particularly well suited to

remediation. The Court’s rationale for its decision in

City of Cleburne applies equally well to upholding the

Americans with Disabilities Act:

{hlow this large and diversified group is

to be treated under the law is a difficult

and often a technical matter, very much

a task for legislators guided by qualified

professionals and not by the perhaps ill-

informed opinions of the judiciary.

Heightened scrutiny inevitably involves

substantive judgments about legislative

27

decisions, and we doubt that the

predicate for such judicial oversight is

present where the classification deals

with mental retardation.

473 US. at 442-43.

Just as the complexity of disability and of the

ways that discrimination on the basis of disability

manifests itself were reasons for the Court not to step

out in front of the legislative process in City of

Cleburne, they are reasons for the Court not to

overturn the laborious fact-gathering, negotiations and

compromises Congress went through in passing the

ADA. They also serve as reasons for this Court to defer

to Congress’s conclusion that prohibition of a

concededly broader swath of constitutional behavior

was required to guarantee equal protection of the laws

for persons with disabilities. In the case of people with

disabilities, if legislation “merely parrots the precise

wording of the Fourteenth Amendment,” Kimel, 120

S.Ct. at 644, it would be virtually useless to enforce

equal protection. The ADA itself concededly prohibits

States from engaging in constitutional behavior as a

means of deterring unconstitutional behavior.

However, as the Court recently reaffirmed in Kimel ‘

“that [a statute] prohibits very little conduct likely to

be held unconstitutional, while significant, does not

alone provide the answer to our § 5 inquiry. Difficult

and intractable problems often require powerful

remedies, and we have never held that § 5 precludes

Congress from enacting reasonably prophylactic

legislation.” Id. at 648.

Disability discrimination is the classic example

of an extremely difficult and intractable problem. The

ADA represents an example of what Congress is best

28

suited to do in dealing with such problems, and is the

product of negotiations, amendments, line-drawing,

and compromise before passage by Congress. Its

numerous provisions, including safe harbor exclusions

for insurance companies, elimination of damage

- actions under Title III, and a number of qualifications

and defenses, reflect a struggle by hundreds of

legislators to reconcile the twin realities of

discrimination and difference. That struggle, which

took several years and was the culmination of twenty

years of more limited federal efforts to entice, exhort

and coerce the States to cease discriminating against

their disabled citizens, is entitled to respect by this

Court.

IV. Lower Courts are Increasingly Confused and in

Conflict as to the Scope of Congressional Power

to Protect the Civil Rights of Individuals

Against Violations by the States

“Liberty finds no refuge in a jurisprudence of

doubt.” Planned Parenthood v. Casey, 505 U.S. 833,

843 (1992). The federal statutory framework

protecting the civil rights of people in this country

against violations by the States is undermined by

doubt and uncertainty. Despite this Court’s repeated

recognition of Congress’ power to enforce Section 5 of

the Fourteenth Amendment, its recent cases have

created substantial uncertainty in the lower courts

and among litigants as to the scope of Congressional

power to protect the civil rights of citizens against

encroachments by the States. The decision in City of

Boerne has led States to challenge their obligations

under virtually the entire structure of federal civil

rights protection. In re Employment Discrimination

Litigation, 198 F.3d 1305 (11th Cir. 1999)(challenging

—_

29

Title VII); Holman v. Indiana, 211 F.3d 399 (7th Cir.

1999)(challenging Title VII); Fitzwater v. First

Judicial District of Pennsylvania, No. Civ.A. 99-3274,

2000 U.S. Dist.LEXIS 4931 (E.D. Pa. April 11,

2000)(challenging Title VII); Sandoval v. Hogan, 197

F.3d 484 (11th Cir. 1999)(challenging Title VI); Lesage

v. Texas, 158 F.3d 213 (5th Cir. 1998)(challenging Title

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

(4th Cir. 1999)(challenging Title IX), cert. denied 120

S.Ct. 1220 (2000). One court even reassessed whether

the Voting Rights Act was a constitutional abrogation,

Mixon v. Ohio and Michael White, 193 F.3d 389, 398-

99 (6th Cir. 1999). A significant array of other federal

statutes have also been challenged as violative of

States’ Eleventh Amendment rights. Union Pacific v.

State of Utah, 198 F.3d 1201 (1999)(challenging

Railroad Revitalization and Regulatory Reform Act);

Burnette v. Carothers, 192 F.3d 52 (2d Cir.

1999)(challenging CERCLA); Bell South Telcoms uv.

MCIMetro Access ‘Transmission Services, 97 F.Supp.2d

1363 (N.D. Ga. 2000)(challenging Telecommunications

Act of 1996). The circuit courts are in disarray and

conflict about the constitutionality of most federal

antidiscrimination statutes.

This case, markedly different from the cases in

which the Court has invalidated Congressional

legislation to date, is an opportunity to reaffirm that

this Court is not intent on radically rearranging the

separation of powers or undermining the federal

government’s power to protect against State violations

of civil rights. Unlike City of Boerne and Kimel,

Congress assembled a voluminous record of hundreds

of individual testimonies, as well as reports and

statistics based on national studies. It acted after two

decades of more narrowly tailored legislation failed to

30

end discrimination against people with disabilities.

Congress took its role seriously in enacting the ADA.

The Court can use this opportunity to reaffirm its own

expressed commitment that when Congress

responsibly carries out the mandate of Section 5 to

correct identified State violations of constitutional

rights, the Court will give Congress “wide latitude in

determining where [the line between appropriate

remedial legislation and redefinition of constitutional

rights] lies.” City of Boerne, 521 U.S. at 520. In the

process, the Court can give direction and clarity to

lower courts and litigants.

V. Conclusion

Where Congress carefully assembles a record

replete with factual support for its conclusion that

people with disabilities are being subjected to

unconstitutional discrimination by the States, and

engages in over two years of negotiations,

amendments, and redrafting to accommodate the

parties' differing interests, it has acted precisely as a

legislature in a democratic nation should act in

addressing a difficult and complex social problem.

“Our national experience teaches us_ that the

Constitution is preserved best when each part of the

government respects both the Constitution and the

proper actions and determinations of the other

branches.” City of Boerne, 521 U.S. at 535-36. In this

case Congress has acted within its proper role in

abrogating the States' Eleventh Amendment rights.

This Court should defer to its well-documented

findings as to the extent and urgency of discrimination

against people with disabilities, and the need for

sweeping remedial legislation to correct it. Amici urge

the Court to affirm the Court of Appeals’ decision.

PROFESSOR SUSAN

STEFAN

University of Miami

School of Law

PROFESSOR ROBERT

HAYMAN

Widener University Law

School

August 9, 2000

Respectfully Submitted,

LEO G. RYDZEWSKI

Counsel of Record

Holland & Knight LLP

2100 Pennsylvania

Avenue, N.W.

Suite 400

Washington, D.C. 20037

APPENDIX I

LAW PROFESSORS JOINING AS AMICI IN SUPPORT OF

RESPONDENTS:

WILLIAM C. BANKS, Laura J. and L. Douglas Meredith

Professor, Syracuse University College of Law, Professor of Public

Administration, Maxwell School of Citizenship and Public Affairs.

DAAN BRAVEMAN, Dean, Syracuse University Law School;

Author, Protecting Constitutional Freedoms: A Role for Federal

Courts, (1989); Co-Author, Power, Privilege and Law: A Civil

Rights Reader (1994), Constitutional Law: Structure and Rights in

Our Federal System (3d Ed. 1996); Member, American Law

Institute, Reporter, Civil Justice Reform Act Advisory Committee

(N.D.N.Y.).

ROBERT BURT, Alexander M. Bickel Prof. of Public Law,

Yale University Law School; Author, The Constitution in Conflict

(1992).

ERWIN CHEMERINSKY, Sydney M. Irmas Prof. of Public

Interest Law, Legal Ethics and Political Science, University of

Southern California Law School; Author, Interpreting the

Constitution (1987), Federal Jurisdiction, (2d Ed. 1994),

Constitutional Law: Principles and Policies (1997).

JOHN HART ELY, Richard A. Hausler Prof. of Law,

University of Miami School of Law; Formerly Tyler Prof. of Law,

Harvard Law School, Dean of Stanford Law School; Author,

Democracy and Distrust (1980), On Constitutional Ground (1996).

(i)

MARTHA A. FIELD, Langdell Professor, Harvard Law

School; Author, “The Seminole Case, Federalism and the Indian

Commerce Clause,” 29 Arizona State Law Journal 3 (1997),

“Congressional Imposition of Suit Upon the States,” 126 U.Pa.

Law Rev. 1203 (1978), “The Eleventh Amendment and Other

Sovereign Immunity Doctrines,” 126 U. Pa. Law Rev. 515 (1977),

Equal Treatment for Persons with Mental Retardation (1999).

SYLVIA ANN LAW, Elizabeth K. Dollard Prof. of Law,

Medicine and Psychology, New York University Law School; Co-

Author, Political and Civil Rights (Vol. 2 1978), American Health

Law (1990).

MARTHA MINOW, Harvard Law School; Author, Making All

the Difference: Inclusion, Exclusion and American Law (1990).

MARTHA I. MORGAN, Robert S. Vance Prof. of Law,

University of Alabama; Author, “Fundamental State Rights: A

New Basis for Strict Scrutiny in Federal Equal Protection

Review,” 17 Georgia L. Rev. 77 (1982).

LEONARD STRICKMAN, Dean, University of Arkansas-

School of Law, Fayetteville; Member, American Law Institute.

(ii)