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

No. zy

IN THE BS CLERK

Supreme Court of the United States——

THE BOARD OF TRUSTEES OF THE UNIVERSITY

OF ALABAMA AND THE ALABAMA

DEPARTMENT OF YOUTH SERVICES,

Petitioners,

Vv.

PATRICIA GARRETT AND MILTON ASH,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR THE AMERICAN ASSOCIATION

OF PEOPLE WITH DISABILITIES ET AL.

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

(Additional Amici Listed on Inside Cover)

JOHN TOWNSEND RICH

Counsel of Record

JAMES CHAD OPPENHEIMER

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

August 11, 2000 Counsel for Amici Curiae

LL Ne aS

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

Amici Curiae Joining This Brief

The American Association of People with Disabilities

AARP

ADAPT

The American Council of the Blind

The American Foundation for the Blind

The American Network of Community Options and

Resources

The Arthritis Foundation

Easter Seals, Inc.

The Epilepsy Foundation

The Learning Disabilities Association of America

The National Association of the Deaf

The National Association of People with AIDS

The National Association for Rights Protection and

Advocacy

The National Council on Independent Living

The National Mental Health Consumers’ Self-Help

Clearinghouse

The National Multiple Sclerosis Society

The National Organization on Disability

The National Parent Network on Disabilities

The National Senior Citizens Law Center

The Polio Society

Volunteers of America, Inc.

ee

wile

4,

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................cccsccsssseesseesseerees iil

INTEREST OF THE AMICI CURITAE.........scessceeeeeeeees l

INTRODUCTION AND SUMMARY OF ARGU-

ARGUMENT ......0sescssccssscocsccocccccesccscescscescscsenscosessveeneoes 5

I]. The Equal Protection Clause Proscribes Not

Just Governmental Actions Intended To

Disadvantage the Disabled Invidiously,

But Also Governmental Actions Which

Disadvantage the Disabled in Ways

Not Rationally Related to a _ Legitimate

Governmental Purpose or Which Reflect

Deliberate or Selective Indifference to

Discrimination Against Persons with

IIIS ainiscnciscctavsstssavssicncnacinsncnssosnveccnssoconsess 5

II. The Prohibitions of the ADA, Insofar As They

Apply to the States, Are Closely Connected to

the Prohibitions of the Equal Protection Clause 15

A. The ADA Expressly Prohibits Intentional

or Invidious Discrimination that Would

Violate the Equal Protection Clause ............ 16

B. The ADA Requirement of Reasonable

Accommodation Is Closely Connected to

the Requirements of the Equal Protection

CII incnceveresscnvescersccconesvesenssensenessesnensonavecese 19

C. The “Disparate Impact” Provisions of the

ADA Are Closely Connected to the

Requirements of the Equal Protection

Clause

TABLE OF CONTENTS—Continued

Page

Ill. The Amici States Supporting Petitioners

Advance a Policy Argument that Does Not Do

Justice to the Equal Protection Clause .............. 28

COCR IIIS, saincsseristsatneiesnsiensnveininimanasominnncinies 30

APPENDIX: The Amici Organizations

CASES:

TABLE OF AUTHORITIES

Page

Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162

(UODD? scccicvisniiiaitinteviinhitinimissvindiidamvnininiauestnn 19

Bledsoe v. Palm Beach County Soil & Water

Conservation Dist., 133 F.3d 816 (11th Cir.),

cert. denied, 525 U.S. 826 (1998)......ccsseeeeseees 15

City of Boerne v. Flores, 521 U.S. 507 (1997)...... 2

City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432 (19B5)..ccrrccoccccccccsesccese 3, 4, 10-11, 14, 22

Davis v. Monroe County Board of Education;

$26 U.S. 629 (1999) ..cccccoccccccccsaccceesesovseessocessoeces 4,14

EEOC v. Amego, 110 F.3d 135 (1st Cir. 1997)...... 27

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

(7th Cir. 2000), petition for cert. filed sub nom.

United States v. Board of Governors, 69

U.S.L.W. 3003 (U.S. June 26, 2000) (No. 99-

TAT T ) nisssisiiiiniccnininitiianaiviasniniintnaamibedinptatas 3, 4, 15, 20, 24

FCC v. Beach Communications, Inc., 508 U.S.

DOT (IGG cs cxcscesinstmnnvnnictndionntinnteniaaatiadatn 12

Gebser vy. Lago Vista Independent School

District, 524 U.S. 274 (1998).........ccccccscocescsoees 4, 13, 14

Griggs v. Duke Power Co., 401 U.S. 424

(9G 1) svcorscsnsnsesesnichsinciaviianssteemiemaesaciamennaanan 5, 6, 25, 26

Guardians Ass'n v. Civil Serv. Comm’ n, 463 U.S.

FEZ (19B3) nccnscecccscsccervacessscsnessoscesesessrsneveccsossoconse 13

Heller v. Doe, 509 U.S. 312 (1993) ...scccscesreereeerees 11,12

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

G31 (DODD) vesiscnseccsatecscesscccnssscsseinesonsinarsatonsanaonens y

Lassiter v. Department of Social Services, 452

UDS., 18 CIDR YD) ececsrecssensoresnesesvocaccvvcscnenasounncnsecnves 10

Matthews v. Commonwealth Edison Co., 128

F.3d 1194 (7th Cir. 1997) .......c.cccccccccreccssrerssees 24, 28

M.L.B. v. S.L.J., 519 U.S. 102 (1996)......9-10, 12, 18, 20

iV

TABLE OF AUTHORITIES—Continued

Page

Murphy v. United Parcel Service, Inc., 119 S. Ct.

BASS CES) wiinesrciscinisiniiainisiiabeatoniiaaiiaianbiniaaiai 19

New York City Transit Authority v. Beazer, 440

SJ abs UE CEST ED viiinvinnnsteetsindinaniainaanoaens 8, 26

Olmsted v. L.C., 119 S. Ct. 2176 (1999)............... 17

Personnel Administrator v. Feeney, 442 U.S. 256

CTF PD scvssensnsascouianiaiienkiadibionceubiendusetaanianetenich 3-8, 10, 14

Plyler v. Doe, 457 U.S. 202 (1982)..........csssrrerees 18

Powers v. MJB Acquisition Corp., 184 F.3d 1147

CT ar. FP ici nsecssssennnsstdnsessenionpeiennieniiatians 17

Romer v. Evans, 517 U.S. 620 (1996)..........ceeeeeee 7

Sutton v. United Air Lines, Inc., 119 S. Ct. 2139

( LDP D inxescevissnsoinisa custinbinipsctiolaaadigianiuliakesibiamaiaieian 19

Turner v. Safley, 482 U.S. 78 (1987) ..........cccceeee 18, 22

Village of Willowbrook v. Olech, 120 S. Ct. 1073

CHD T ssnnstnsicshsinnicantiiiinnanbigbaimmaianiiadeaaanaiaa 18

Wards Cove Packing Co. v. Atonio, 490 U.S. 642

( BTID ..xsssnscananiaiiceniiquntescninsentieiaeammniiiieuaidinaainalens | 26

Washington v. Davis, 426 U.S. 229 (1976).......... 3-10, 14

Watson v. Fort Worth Bank & Trust, 487 U.S.

FTF (UGE) sxticcixsvinssieiecosinsioacbaabaansiiaduniaail -, 14, 27

Williams v. Illinois, 399 U.S. 235 (1970) ............. 10

Zimmerman v. Oregon Dep't of Justice, 170 F.3d

1169 (9th Cir. 1999), petition for cert. filed, 68

U.S.L.W. 3129 (U.S. Aug. 10, 1999) (No.

PDE IF) seveesesnusssnionessniaiinuieisdnibeaiinatagbaltdalasuiuaaiie 15

STATUTES:

American with Disabilities Act:

SEU BAL. § TZU DD sscitnsccersesserninaciiitichainn 17

42 U BAL, & UZ TRIED scceinciesnabscnsvnscansiinpieesisbtains 19

Vv

TABLE OF AUTHORITIES—Continued

Page

Title I:

SF UBS Foe CD titereerimnne 25

rt © ate Bie. | k |. . SORE Meeueee me 19

Pe glk To By sk), Semen 24

Pv git tame Sih sf) ene 21

ry Gil Fede Beit |.) eee 21

Tete oe Bl gy | rr 16-18, 21, 25, 28

Ene oa Rs. y | ene nai 16

42 U.S.C. § 12112(b)(3)(A)......... 15, 25, 27, 28

42 U.S.C. § 12112(b)(S) ............. oscsesepnee 15, 22

epi h Fee Bib y kD | ee 19

Vet Fae Beale) |) 15, 25, 27, 28

Re f Re Gy. fa | ER eeeeeer 25,26

Title Il:

BER Td Fb.) See nou ENCE 17

ge Sa Esk | ema 16

Title IV:

A eek Be RP iitcnicahchncdiigniceniicitinwtnnen 16

Civil Rights Act of 1964:

Title VI, 42 U.S.C. § 2000d ef seq............000 13

Title VII, 42 U.S.C. § 2000e et seq.......... 6, 9, 26, 27

42 U.S.C. § 2000e-2(k)(1)(A)(1)............ 26

Civil Rights Act of 1991, Pub. L. No. 102-166,

Beeb a, | eee 26

Education Amendments of 1972, Title IX, 20

TA 6 UGE OE Bb accciecvrsevsisntiniaintniincaaniinninnesn 13

Rehabilitation Act of 1973, § 504..............sssceeseeees 26

REGULATIONS:

2B CP RR. BON FD wrceccssnssvvseccccceserecoscusvcssasenesencoonones 16

py Dae 2 RE fy eee ene eee 16

29 C.F.R. § 1630 App., Guidance on § 1630.2(n). 20

29 C.F.R. § 1630 App., Guidance on § 1630.10... 26

IN THE

Supreme Court of the United States

No. 99-1240

THE BOARD OF TRUSTEES OF THE UNIVERSITY

OF ALABAMA AND THE ALABAMA

DEPARTMENT OF YOUTH SERVICES,

Petitioners,

wy

PATRICIA GARRETT AND MILTON ASH,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR THE AMERICAN ASSOCIATION

OF PEOPLE WITH DISABILITIES ET AL.

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE '

This brief is filed on behalf of the American Association

of People with Disabilities, AARP, ADAPT, the American

Council of the Blind, the American Foundation for the Blind,

the American Network of Community Options and

Resources, the Arthritis Foundation, Easter Seals, Inc., the

Epilepsy Foundation, the Learning Disabilities Association of

America, the National Association of the Deaf, the National

Association of People with AIDS, the National Association

' No counsel for any party had any role in authoring this brief, and no

persons other than the amici curiae and their counsel made any monetary

contribution to its preparation or submission. Written consents from the

parties to the filing of this brief are on file with the Clerk of the Court.

2

for Rights Protection and Advocacy, the National Council on

Independent Living, the National Mental Health Consumers’

Self-Help Clearinghouse, the National Multiple Sclerosis

Society, the National Organization on Disability, the National

Parent Network on Disabilities, the National Senior Citizens

Law Center, the Polio Society, and Volunteers of America,

Inc. These organizations, the interests of which are described

in more detail in the Appendix to this brief, have worked for

years on behalf of persons with disabilities and have brought,

supported, or participated in numerous lawsuits on behalf of

such persons. They all have a strong institutional interest in

the constitutionality of the Americans with Disabilities Act as

applied to the States and in vindicating the principles of

equality embodied in that Act.

INTRODUCTION AND SUMMARY OF ARGUMENT

This brief focuses on one significant aspect of Petitioners’

claim that the Americans with Disabilities Act (““ADA” or

“the Act”) cannot be sustained under Section 5 of the

Fourteenth Amendment—the claim that the central provisions

of the ADA go far beyond prohibiting conduct that, when

engaged in by a State actor, violates the Equal Protection

Clause of the Fourteenth Amendment. We understand that

the Brief for Respondents and several of the amicus briefs

supporting Respondents will argue that, to the extent that the

ADA goes beyond the prohibitions of the Fourteenth

Amendment, it does so in a manner that satisfies the

“congruence and proportionality” test of City of Boerne v.

Flores, 521 U.S. 507, 520 (1997), and Kimel v. Florida Board

of Regents, 120 S. Ct. 631, 644-45 (2000). While the amicus

organizations signing this brief strongly support those

arguments, this brief takes issue with the widespread

assertion that the prohibitions of the ADA greatly exceed the

prohibitions of the Equal Protection Clause.

The circuit court decisions that have struck down the ADA

as applied to the States have in large part relied upon the

proposition that the prohibitions of the ADA go far beyond

3

the prohibitions of the Equal Protection Clause. Taking into

account this Court’s prior holding that persons with

disabilities do not form a “suspect class,” City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 439-42 (1985),

one of the notable decisions below states flatly that “the ADA

‘prohibits very little conduct likely to be _ held

unconstitutional,” and “no one believes that the Equal

Protection Clause establishes the disparate-impact and

mandatory-accommodation rules found in the ADA.”

Erickson v. Board of Governors, 207 F.3d 945, 949 & 951)

(7th Cir. 2000), petition for cert. filed sub nom. United States

v. Board of Governors, 69 U.S.L.W. 3003 (U.S. June 26,

2000). This view is echoed in the Brief for Petitioners: “[I]t is

the rare classification based on disability that would -rise to

the level of a constitutional violation” (Pet. Br. at 28), and

“the two mandates are worlds apart in their substantive rules”

(id. at 30). It is also echoed in the Brief of Amici Curiae

States in Support of Petitioners: “[T]he ADA ‘* * * prohibits

substantially more State . . . decisions and practices than

would likely be held unconstitutional under the applicable

equal protection, rational basis standard.” /d. at 15 (quoting

Kimel, 120 S. Ct. at 647).

The premises behind these propositions are two-fold: first,

an unduly narrow position on the meaning of the Equal

Protection Clause as applied to “non-suspect” classifications

and, second, a position on the meaning or application of the

prohibitions of the ADA that ignores some important

limitations in that Act.

The notion that the prohibitions of the ADA go far beyond

the prohibitions of the Equal Protection Clause appears to be

rooted in Washington v. Davis, 426 U.S. 229 (1976), and

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

Both are conventionally cited for the proposition that, to show

a violation of the Equal Protection Clause, “it is insufficient to

show that a neutral classification has a disparate impact,

instead it is necessary to show intentional discrimination.”

iam

4

Brief of the Amici Curiae States in Support of Petitioners at

15. See also Erickson, 207 F.3d at 950: “When a state law or

practice does not expressly concern a particular characteristic

(such as race, sex, age, or disability), but has a disparate

impact on persons with that characteristic, the plaintiff in

constitutional litigation must establish that the state intends to

discriminate on the basis of that characteristic,” citing Feeney

and Washington v. Davis.

In fact, as we show in Part I, neither Washington v. Davis

nor Feeney is particularly instructive in assessing the

comparative scopes of the ADA and the Equal Protection

Clause. In relying on these cases to assert that a plaintiff in

an Equal Protection Clause case must show “intentional

discrimination,” Petitioners and their amici ignore the more

fundamental requirement that the state action in question be

rationally related to a legitimate state purpose. This point

was made unmistakably clear in City of Cleburne v. Cleburne

Living Center, Inc., 473 U.S. 432 (1985), in a case involving

the discriminatory denial of a zoning permit for a home for

persons with mental disabilities. Neither Washington v.

Davis nor Feeney are inconsistent with the proposition that

statutes with a substantially disproportionate adverse impact

on persons such as those with disabilities must be rationally

related to a legitimate state purpose, because in each case the

Court found that state action in question amply related to a

“legitimate” or even “worthy” purpose. Other cases, such as

Gebser v. Lago Vista Independent School District, 524 U.S.

274 (1998), and Davis v. Monroe County Board of Education,

526 U.S. 629 (1999), demonstrate that “deliberate

indifference,” as well as intentional discrimination, may

violate the Equal Protection Clause.

We then show in Part [i that the prohibitions of the ADA,

including those often labeled “disparate impact provisions,”

are closely related to the prohibitions of the Equal Protection

Clause. The relationship is so close that cases under the ADA

will typically have been provable under the Equal Protection

a |

5

Clause as well. In short, the extent to which the prohibitions

of the ADA go beyond the prohibitions of the Equal

Protection clause has been greatly overstated by the

Petitioners, their amici, and the decisions that have held the

ADA unconstitutional as applied to the States.

ARGUMENT

I. The Equal Protection Clause Proscribes Not Just

Governmental Actions Intended To Disadvantage

the Disabled Invidiously, But Also Governmental

Actions Which Disadvantage the Disabled in Ways

Not Rationally Related to a _ Legitimate

Governmental Purpose or Which Reflect Deliberate

or Selective Indifference to Discrimination Against

Persons with Disabilities.

As we have explained, Petitioners’ argument and the

circuit court decisions holding the ADA unconstitutional as

applied to the States rest largely on the proposition that, under

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

Administrator v. Feeney, 442 U.S. 256 (1979), only

“intentional” or “purposeful” discrimination—and not “dis-

parate impact” or denial of “reasonable accommodation”’—

violate the Equal Protection Clause. These cases, however,

have a more limited significance and are consistent with the

rule that governmental actions with a substantially adverse

impact upon the disabled violate the Equal Protection Clause

where they are not rationally related to a legitimate

governmental purpose.

Washington v. Davis concerned a test for police recruits,

designed to test “verbal ability, vocabulary, reading and

comprehension,” that plaintiffs, relying on Griggs v. Duke

Power Co., 401 U.S. 424 (1971), had attacked solely on the

ground that the test predominantly failed black recruits and

“bore no relationship to job performance.” 426 U.S. at 235.

This Court ruled that such proof did not make out an Equal

Protection Clause violation, rejecting as unworkable “[a] rule

ii i

6

that a statute designed to serve neutral ends is nevertheless

invalid, absent compelling justification, if in practice it

benefits or burdens one race more than another.” /d. at 248.

The test in Washington v. Davis, however, served not merely

“neutral ends” but clearly “legitimate” ends, as the- Court's

opinion shows. Indeed, affirming the district court’s finding

that the test was “reasonably and directly related to the

requirements of the police recruit training program,” id. at

235, the Court ruled in Part III of its opinion that the test met

the job-relatedness and business necessity requirement of

Griggs. Id. at 248-52. The Court found it manifestly

reasonable for a government to seek “modestly to upgrade the

communicative abilities of its employees rather than to be

satisfied with some lower level of competence, particularly

where the job requires special ability to communicate orally

and in writing.” /d. at 246. It is not surprising that a

performance test that met the statutory requirement of Title

VII under Griggs also met the constitutional standard.

Accordingly, while Washington v. Davis stands for the

proposition that a “disproportionate impact” (racial or other-

wise) is not sufficient to make out a constitutional violation,

and that “the invidious quality of a law claimed to be * * *

discriminatory must ultimately be traced to a * * *

discriminatory purpose,” 426 U.S. at 240, it does not rule out

different ways of establishing the Equal Protection violation.

It specifically acknowledges that the necessary “invidious

discriminatory purpose” may often be “inferred from the

totality of the relevant facts, including the fact * * * that the

law bears more heavily on one race than another.” Jd. at 242.

Washington v. Davis is thus consistent with finding even a

neutral law or other governmental action invalid because the

circumstances—including the absence of an adequate,

legitimate purpose—point to the necessary “discriminatory

purpose” or its functional equivalent.

Personnel Administrator v. Feeney is similarly limited

because of the presence there of a legitimate governmental

7

purpose. Feeney reiterated the basic holding of Washington

v. Davis, in the context of a facially neutral state law with a

disproportionate impact on women (a law giving veterans

preference in state employment), but added several

clarifications. The Court noted that even a facially neutral

statute may be “gender-based” and thus presumptively

unconstitutional. 442 U.S. at 274. But even if the statute is

not gender-based, it may “reflect[] invidious gender-based

discrimination.” /d. In finding the Massachusetts law not

“gender-based,” the Court relied heavily on the fact that the

law excluded a significant number of men as well as women.

Id. at 275. This implies that the degree of “fit” between

classification and objective is significant in evaluating even

_ an ostensibly neutral law.?_ And in finding that the neutral

Massachusetts law had not been shaped by a “discriminatory

purpose,” the Court relied on the district court’s conclusion—

not disputed on appeal—that the “legislative choice” of

favoring veterans in employment was “legitimate.” /d. at 277.

Indeed, the Court referred to that choice as “worthy.” /d. at

278.

It was in this context that the Court in Feeney stated that

“discriminatory purpose,” for Equal Protection Clause

purposes, “implies that the decisionmaker * * * selected or

reaffirmed a particular course of action at least in part

‘because of,’ not merely ‘in spite of,’ its adverse effects upon .

an identifiable group.” Jd. at 279. Whatever explanatory

power the words “because of” may have had in Feeney and

may have in certain cases, they are not exhaustive as a

? See also Romer v. Evans, 517 U.S. 620, 632 (1996) (“[E]ven in the

ordinary equal protection case calling for the most deferential of

standards, we insist on knowing the relation between the classification

adopted and the object to be attained. The search for the link between

classification and objective gives substance to the Equal Protection

Clause; it provides guidance and discipline for the legislature, which is

entitled to know what sorts of laws it can pass; and it marks the limits of

our own authority.”).

eee

8

general articulation of the Equal Protection standard, because

in Feeney, just as in Washington v. Davis, the Court did not

face governmental action not rationally related to a legitimate

governmental purpose.

New York City Transit Authority v. Beazer, 440 U.S. 568

(1979), is another case that demonstrates the significance of

finding a legitimate governmental purpose. There, the Court

began its inquiry with distinguishing between “[g]eneral rules

that apply evenhandedly”—which are valid under the Equal

Protection Clause—and rules that have “a special impact on

less than all the persons subject to its jurisdiction’—in which

case “the question whether [the equal protection] principle is

violated arise[s].” Jd. at 587-88. This language strongly

suggests that, when the law does not apply “evenhandedly,”

either because it discriminates on its face or because of its

different impact on different groups, then the Equal

Protection Clause requires a justification, and, at the very

least, that justification must have a rational relationship to a

legitimate state purpose. While the city’s denial of

employment to methadone users in Beazer could have been

deemed “because-of” discrimination, the Court found that the

law did not “create or reflect any special likelihood of bias on

the part of the ruling majority” and was not “drawn ‘with an

evil eye and an unequal hand’ or “motivated by ‘a feeling of

antipathy against a specific group of residents.” Id. at 593 &

n.40 (citations omitted). Instead, the law was motivated by

an interest in operating “a safe and efficient transportation

system,” id. at 593 n.40, obviously a legitimate and neutral

public purpose of substantial weight, and the means chosen

were rationally related to achieving this goal.

There is other evidence of this Court’s realization that

Washington v. Davis, in spite of its language, cannot be read

as standing for the proposition that a law or governmental

action with a disproportionately adverse impact upon some

group will fail the test of the Equal Protection Clause only

9

upon proof that of some specific intent to injure the

disadvantaged group. While Watson v. Fort Worth Bank &

Trust, 487 U.S. 977 (1988), is a case under Title VII of the

Civil Rights Act of 1964 and not under the Equal Protection

Clause, it is striking that the opinion for the Court states:

“The distinguishing features of the factual issues that

typically dominate in disparate impact cases do not imply that

the ultimate legal issue is different than in cases where

disparate treatment analysis is used.” 487 U.S. at 987 (citing

Justice Stevens’s concurrence in Washington v. Davis). As

the opinion explains, “some employment practices, adopted

without a deliberately discriminatory motive, may in

operation be functionally equivalent to __ intentional

discrimination.” Jd. And as the opinion later explains further,

one advantage of disparate impact analysis is that it gets at

“the problem of subconscious stereotypes and prejudices,”

which may not be “adequately policed” by disparate treatment

analysis and a requirement of providing “discriminatory

intent.” Jd. at 990.° Because the proof of disparate treatment

in a Title VII case is essentially the proof needed to prove an

Equal Protection Clause violation, this language is instructive

for the relevance of disparate impact analysis to Equal

Protection Clause violations.

M.L.B. v. S.L.J., 519 U.S. 102 (1996), also indicates the

Court’s appreciation of the limitations of conventional resorts

to Washington v. Davis. In striking down a state statute that

required that a parent seeking to appeal the termination of her

parental rights pay a court fee, the Court rejected the State’s

reliance upon Washington v. Davis for the proposition that a

neutral law serving ends within the power of government may

not be struck down under the Equal Protection Clause simply

because of its disparate impact upon a suspect or, as here, a

> The quoted passages are from Parts II-A and II-B of the opinion

written by Justice O’Connor. While that opinion is in part a plurality

opinion, Parts I, II-A, II-B, and III constituted the opinion of the Court.

10

non-suspect class. The Court replied: “Washington v. Davis

* * * does not have the sweeping effect respondents attribute

to it.” /d. at 126. The statute at issue was not merely “dispro-

portionate” in effect, but “wholly contingent on one’s ability

to pay.” /d. Statutes of this kind “‘visi[t] different

consequences on two categories of persons,’ [quoting

Williams v. Illinois, 399 U.S. 235, 242 (1970)]; they apply to

all [members of the specified class] and do not reach anyone

outside that class.” 519 U.S. at 127. While one can read

M.L.B. as limited by its context to governmental actions that

“‘wor[k] a unique kind of deprivation,” id., quoting Lassiter

v. Department of Social Services of Durham County, 452 U.S.

18, 27 (1981), the discussion of Washington was not so

limited and suggests strongly that the nature of the statute or

governmental action at issue—including the “fit” between the

disadvantaged class and a class of persons historically

disadvantaged in society—is relevant to determining whether

or not proof of “invidious discriminatory purpose” as that

term is conventionally understood will be required. In

addition, the Court found that the added expense to the State

would not be an “undue burden,” 519 U.S. at 122, showing

that added expense alone may be an insufficient justification

for a law with unequal effect.

Against this background, the Court’s decision in City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432

(1985), takes on additional clarity. That case may be

regarded as one of disparate treatment, because the zoning

ordinance required a special use permit for homes for the

mentally retarded (as well as several other groups), and

* The dissenters in M.L.B. v. S.L.J., relying on Washington v. Davis and

Feeney, took pains to point out that “[a] disparate impact, even upon

members of a racial minority, the classification of which we have been

most suspect, does not violate equal protettion.”. 519 U.S. at 135.

Nothing in this brief takes issue with that point. We do not contend that a

disproportionate impact alone suffices for an Equal Protection Clause

violation.

1]

because the focus of the Court’s attention was on the specific

city council action of denying one particular proposed home

the necessary permit. Nevertheless, the city council put forth

several entirely neutral reasons for denying the permit—such

as the home’s location on a five-hundred year flood plain,

concerns about the size of the home and number of

occupants, and concerns about congestion—and several

reasons that, however questionable in relying on community

attitudes about the mentally retarded, were not, so far as the

Court’s opinion shows, motivated by invidious feelings or

antipathy towards the mentally retarded. Applying the

standard that the governmental action must be “rationally

related to a legitimate governmental purpose,” the Court

found some _ proffered reasons _ illegitimate—such as

the alleged concern about negative attitudes of nearby

property owners—because “mere negative attitudes, or fear,

unsubstantiated by factors which are properly cognizable in a

zoning proceeding, are not permissible bases” for denying a

permit that other types of housing do not require, id. at 448,

and others irrational—such as the alleged concern about the

flood plain, size of home, number of occupants, and

congestion, id. at 449-50. And the Court did not conclude

that the case had to be remanded for findings of fact on

whether the council had been motivated by animus, invidious

intent, or ill will. Instead, the Court adjudged that the council

action “appears to us to rest on an irrational prejudice against

the mentally retarded.” Jd. at 450. Such action cannot be

“rationally related to a legitimate state interest.”

By contrast, this Court in Heller v. Doe, 509 U.S. 312

(1993), found several legitimate rationales for the state law

that imposed a higher burden of proof for the commitment of

the mentally ill than it did for the commitment of the mentally

retarded, in particular, “differences in the ease of diagnosis

and the accuracy of the prediction of ‘future dangerousness

and *** the nature of the treatment received after

commitment.” /d. at 328. Thus, the Court found that the state

12

law did not create a classification with no rational connection

to a legitimate state interest. Moreover, the justifications

given in Heller for upholding a legislative classification “‘if

there is any reasonably conceivable state of facts that could

provide a rational basis for the classification,” id. at 320,

quoting FCC v. Beach Communications, Inc., 508 U.S. 307,

313 (1993), do not apply to governmental action at the level

at which most employment decisions are made. The Court

said: “‘[A] legislative choice ts not subject to courtroom

factfinding and may be based on rational speculation

unsupported by evidence or empirical data.’” 509 U.S. at 320,

again quoting FCC v. Beach Communications, Inc., 508 U.S.

at 315. The employment decisions made by State agencies,

however, are typically not “legislative choices” but decisions

by supervisors or others with delegated powers, as in the two

cases now before the Court. Such decisions are fully “subject

to courtroom factfinding.” While there may be circumstances

in which those decisions are based on “rational speculation,”

more typically they are based on an assessment of the facts

available to them or, in an unfortunate number of cases, on

irrational beliefs and fears about the disabled, simple

hostility, or utter disregard for the possibility that the disabled

person can do the job—all of which may be determined

through regular discovery.

We have already shown that this Court has acknowledged

that a law with disproportionate impact upon certain classes

of persons may be “functionally equivalent” to a law that

expressly classifies on the basis of membership in the class,

using the words of Watson v. Fort Worth Bank & Trust,

supra, 487 U.S. at 987. This insight is particularly applicable

to laws that disproportionately impact persons with

disabilities, because those laws or regulations are often

drafted in terms of the particular physical ability at issue

(such as eyesight requirements, lifting requirements, agility

requirements, and so forth), and because other facially

“neutral” practices, such as constructing a building or space

13

within a building in such a way that persons in wheelchairs

cannot have access, will exclude one class of persons with

disability (those who must use wheelchairs) and virtually no

others. See M.L.B. v. S.L.J., supra.”

Moreover, a law or governmental action may “rest on an

irrational prejudice” when the government’s failure to modify

facially neutral requirements to take account of qualified

persons with a disability rests on deliberate or selective

indifference to the interests and capabilities of such persons.

In Gebser v. Lago Vista Independent School District, 524

U.S. 274, 290 (1998), this Court held that “deliberate

indifference to discrimination” can constitute the kind of

“intentional discrimination” that is necessary for imposing

monetary liability under Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681 et seq. Title IX, like

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et

seq., upon which Title IX was modeled, provides remedies

for discrimination on the basis of the specified characteristic

(sex for Title IX, race for Title VI) that violates the Equal

Protection Clause. See Guardians Assn v. Civil Serv.

Comm hn, 463 U.S. 582, 589-90 (1983). Thus a school board

could be liable for a teacher’s unlawful sexual harassment of a

pupil, even when the school board intended no such violation,

* Our conclusion here is consistent with the Court's discussion of the

Equal Protection Clause in Kimel v. Florida Board of Regents, 120 S. Ct.

630, 646 (2000). While the Court stated that “a State may rely on age as a

proxy for other qualities, abilities, or characteristics that are relevant to the

State’s legitimate interests,” referring to such a classification as

“presumptively rational,” it also reiterated that “States may discriminate on

the basis of age without offending the Fourteenth Amendment if the age

classification in question is rationally related to a legitimate state interest.”

Id. (emphasis added). Moreover, disabilities, which come in an almost

infinite number of varieties and degrees, often affect only one capacity,

and thus are significantly less likely to serve as a rational proxy for a

collection of “qualities, abilities, or characteristics” relevant to a State’s

legitimate interests, even if a particular disability appropriately

disqualifies an individual from a particular job.

14

if the school board had the requisite notice or knowledge and

did little or nothing in response. The Gebser holding was

reiterated and explained in Davis v. Monroe County Board of

Education, 526 U.S. 629, 641-43 (1999), in the context of

school board liability for pupil-on-pupil sexual harassment:

“Gebser thus established that a recipient intentionally violates

Title IX, * * * where the recipient is deliberately indifferent

to known acts of teacher-student discrimination.” (The Court

did not find it necessary to discuss Washington v. Davis or

Feeney in either Gebser or Davis.) ;

Discrimination against persons with disabilities has

historically been based on prejudice, irrational fear, and

simple distaste, as well as ignorance and disregard, as the

other amicus briefs in this proceeding amply demonstrate.

Any of these factors may lead a decisionmaker to

discriminate against persons with disabilities in making

employment decisions when there is no rational reason

whatsoever to do so, either expressly or by deliberate or

unconscious indifference to the possibility that the individual

may be as well or better qualified than another person to

perform what the employer determines to be the fundamental

aspects of the job. Such discrimination severely handicaps

qualified disabled individuals in pursuing the employment

Opportunities open to other citizens, and thus severely limits

their ability to narticipate fully in the country's economy. In

short, this discrimination restricts those with disabilities in

their ability to participate fully in the nation’s social and

political life.

The equal opportunity to. become a_ self-supporting

member of society is a fundamental right of citizenship under

the Equal Protection Clause. That Clause speaks directly to

that concern in demanding that a State, when acting as an

employer, be evenhanded in its treatment of all of its citizens.

And as the Cleburne case demonstrates, the protection that

the Equal Protection Clause extends to persons with

disabilities is substantial.

15

We now turn to the specific provisions of the ADA to

show their close connection to the prohibitions of the Equal

Protection Clause.

Il. The Prohibitions of the ADA, Insofar As They

Apply to the States, Are Closely Connected to the

Prohibitions of the Equal Protection Clause.

In discussing the specific provisions of the ADA, we

concentrate on the provisions of Title I, the employment title.

We do so for several reasons. The complaints of Ms. Garrett

and Mr. Ash both set forth claims of discrimination in

employment, and the prohibitions of the Act as applied to

employment are specifically set forth in Title 1, not Title II.

Moreover, Petitioners and the circuit courts that have ruled

against the constitutionality of the ADA as applied to the

States have concentrated their fire on the ADA’s requirement

of reasonable accommodation, which is specifically set forth

in Title I in 42 U.S.C. § 12112(b)(5), and on what they term

the ADA’s prohibition of “disparate impact,” with explicit or

implicit references to two other provisions of Title I,

§ 12112(b)(3)(A) and to § 12112(b)(6). E.g., Pet. Br. at 19, °

29, 42-43; Erickson, 207 F.3d at 951. In addition, the circuit

courts are divided on whether any employment action may be

brought under Title II of the ADA, and the Court has not

granted certiorari on that issue.° Finally, the Department of

Justice regulations on Title Il make the requirements of Title I

applicable to actions for discrimination in employment based

° Compare Zimmerman v. Oregon Dep t of Justice, 170 F.3d 1169 (9th

Cir. 1999) (holding that Congress unambiguously established Title I as the

only title of the ADA relating to employment discrimination), petition for

cert. filed, 68 U.S.L.W. 3129 (U.S. Aug. 10, 1999) (No. 99-243), with

Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d

816, 822 (11th Cir. 1998) (“the language of Title II's antidiscrimination

provision * * * is a catch-all phrase that prohibits all discrimination by a

public entity, regardless of the context, ...’ Accordingly, employment

coverage is clear from the language and structure of Title II.” (citation

omitted)).

16

on Title Il, if the public entity “is also subject to the

jurisdiction of title I,” as is the case here. 28 C.F.R.

§ 35.140(b)(1).. Thus, the only question clearly presented at

this time is whether Congress exceeded its powers under the

Fourteenth Amendment in passing Title I of the ADA.’

A. The ADA Expressly Prohibits Intentional or

Invidious Discrimination That Would Violate

the Equal Protection Clause.

The heart of Title I is the general rule that no covered

entity shall “discriminate against a qualified individual with a

disability because of the disability of such individual” in

regard to employment. 42 U.S.C. § 12112(a). The meaning

of the term “discriminate” is then further specified in the

seven paragraphs of § 12112(b).

The general rule, by itself, manifestly prohibits the kind of

discrimination that would be prohibited by the Equal

Protection Clause. It encompasses “intentional discrimina-

tion,” “purposeful discrimination,” “invidious discrimination”

and all of the other locutions that the Court has used in its

attempts to capture the essence of an Equal Protection Clause

violation. Concern about such discrimination, whether by

State entities or by private entities, was one of the major

themes that led to the ADA. Congress found that individuals

with disabilities “continually encounter *** outright

” Much of what is said in this brief would be applicable to defending

the constitutionality of Title II of the ADA as applied to the States in non-

employment contexts. We consider it highly unlikely, however, that this

Court will directly address the constitutionality of Title II in this case.

The meaning of the general rule against discrimination by public entities

in Title II is elaborated not in specific statutory provisions, as in Title I,

but in regulations of the Department of Justice issued under Congressional

direction pursuant to 42 U.S.C. § 12134. See 28 C.F.R. part 35. That

difference, coupled with the many different contexts in which Title II may

be applicable and Congress’s enactment of a severability provision, 42

U.S.C. § 12213, counsels against reaching out to decide questions not

presented by this case.

17

intentional exclusion, *** exclusionary qualification

standards and criteria, segregation, and relegation to lesser

services, programs, activities, benefits, jobs, or other

opportunities.” § 12101(a)(5). Accordingly, § 12112(a)

clearly was intended to prohibit and, by its very terms, does

prohibit deliberate, purposeful exclusion based on irrational

fear or prejudice.

That general rule of § 12112(a) is also broad enough to

cover discrimination based on the kind of deliberate

indifference to the needs of qualified persons with disabilities

that would constitute a violation of the Equal Protection

Clause. See, e.g., Powers v. MJB Acquisition Corp., 184 F.3d

1147, 1153 (10th Cir. 1999) (“intentional discrimination can

be inferred from a defendant’s deliberate indifference to the

strong likelihood that pursuit of its questioned policies will

likely result in a violation of federally protected rights” hy

In this connection, we note that Ms. Garrett’s complaint

specifically alleges that the University of Alabama

“intentionally, maliciously and with reckless indifference

discriminated against [her] because of her disability * * *.”

Garrett Amended Complaint | 18, J.A. 40-41. Depending on

the evidence at trial, her case could well demonstrate the kind

of invidious discrimination against a disabled person,

regardless of job performance, that could be pursued under

the Equal Protection Clause. While Mr. Ash’s complaint is

not as explicit in alleging invidious discrimination, his

complaint alleges, in part, failure by the Alabama Department

of Youth Services to enforce its own no-smoking policy,

despite being aware of the severe impact on Mr. Ash because

of his respiratory disability. Ash Complaint 9] 8, J.A. 8. Mr.

* With respect to the parallel provision in Title II of the ADA, § 12132,

Justice Kennedy, concurring in the judgment in Olmsted v. L.C., 119 S.

Ct. 2176, 2192 (1999), remarked: “Underlying much discrimination law

is the notion that animus can lead to false and unjustified stereotypes, and

vice versa.”

18

Ash’s allegation is broad enough to encompass proof that the

Department (or the responsible supervisor) was deliberately

indifferent to his plight or even hostile to people in his

predicament. While Petitioners assert (at 29) that “a motion

to dismiss an equal protection claim [in Garrett and Ash]

would be compelled,” they do so by ignoring the allegations

of the complaints mentioned above.

Finally, the general rule of § 12112(a) is broad enough to

cover exclusions of persons with disabilities or classifications

with an adverse impact on such persons when those

exclusions or classifications simply have no_ rational

relationship to a legitimate state purpose, taking into account

the impact of the exclusion or classification—actions that,

when taken by the State, would violate the Equal Protection

Clause, as shown by Cleburne, and M.L.B. v. S.L.J., discussed

above, and other rational basis cases. See, e.g., Plyler v. Doe,

457 U.S. 202, 224 (1982) (denial of public education to

undocumented alien children violated the Equal Protection

Clause: such a denial “can hardly be considered rational

unless it furthers some substantial goal of the State”). See

also Turner v. Safley, 482 U.S. 78, 89-90, 98-99 (1987)

(prison regulation prohibiting most inmate marriages failed to

satisfy the test of a “valid, rational connection” to a

“legitimate and neutral” governmental objective). ”

* See Village of Willowbrook v. Olech, 120 S. Ct. 1073, 1074 (2000)

(affirming the reversal of an order dismissing a complaint under the Equal

Protection Clause and stating, “Our cases have recognized successful

equal protection claims brought by a ‘class of one,’ where the plaintiff

alleges that she has been intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in

treatment.”).

!© These cases are more analogous to the types of cases that would be

brought under Title II of the ADA, rather than Title I, but the underlying

principle is the same.

—————EeeEeEeEeEeEeEeEeEeEEeEeEeEeertd

19

B. The ADA Requirement of Reasonable Accom-

modation Is Closely Connected to the Require-

ments of the Equal Protection Clause.

Petitioners appear to consider it obvious that the ADA

goes far beyond the requirements of the Equal Protection

Clause in requiring a covered entity to make a “reasonable

accommodation” unless the accommodation would impose an

“undue hardship on the operation of the business” of the

covered entity. § 12112(b)(5)(A). Pet. Br. at 42-43. In fact,

the “reasonable accommodation” is reasonably well-tailored

to the requirements of the Equal Protection Clause with

respect to persons with disability.

As an initial matter, the requirement of “reasonable

accommodation” comes into play only if the plaintiff meets

the threshold requirements of being a “qualified individual”

with “a disability.” Establishing that one is an individual with

a “disability’—a term defined in § 12102(2)—is a significant

hurdle for an ADA plaintiff, as the Court’s recent decisions

show. Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133

(1999); Sutton v. United Air Lines, Inc., 119 S. Ct. 2139

(1999); Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162

(1999).,"! A plaintiff must then establish that he or she is a

“qualified” individual with a disability within the meaning of

§ 12111(8), meaning “an individual with a disability who,

with or without reasonable accommodation, can perform the

essential functions of the employment position that such

individual holds or desires.” This requirement is also a highly

significant limitation on the employer's obligation under the

ADA, as shown by the Interpretative Guidance on Title I,

'! Section 12102(2) defines “disability” to mean:

“(A) a physical or mental impairment that substantially limits one

or more of the major life activities of such individual;

“(B) a record of such an impairment; or

“(C) being regarded as having such an impairment.”

20

issued by the Equal Employment Opportunity Commission

(“EEOC”), which, among other things, states that “the inquiry

into essential functions is not intended to second guess an

employer's business judgment with regard to production

standards, whether qualitative or quantitative, nor to require

employers to lower such standards.” 29 C.F.R. § 1630 App.

Guidance on § 1630.2(n), last 7. If the individual cannot

perform an essential function of the job under the statutory

standard, even with a reasonable accommodation, then the

employer is, under the ADA, free to decline to hire the

individual on that ground, free to fire the employee who

becomes thus disabled, and free to decline to transfer or

decline to promote the employee who is or becomes thus

disabled with respect to the desired position.

Finally, while Petitioners seem to suggest that employers

will rarely be able to establish that a requested

accommodation is “unreasonable” or that even an otherwise

reasonable accommodation would impose on “undue

hardship,” the statutory language does not compel such a

result. The term “undue hardship” is defined as an “action

requiring significant difficulty or expense, when considered

in light of” factors that include:

“(i) the nature and cost of the accommodation * * *;

“(ii) the overall financial resources of the facility * * *;

the number of persons employed at such facility; the

effect on expenses and resources, or the impact

otherwise of such accommodation upon the operation of

the facility; ;

“(iii) the overall financial resources of the covered

entity; the overall size the business of a covered entity

with respect to the number of its employees; the number,

type, and location of its facilities; and

“(iv) the type of operation or operations of the covered

entity, including the composition, structure, and

21

functions of the workforce of such entity; the geographic

separateness, administrative, or fiscal relationship of the

facility or facilities in question to the covered entity.”

§ 12111(10)(A) and (B).

Petitioners do not argue that some important factor has been

left out of this list of factors, and it would be difficult to argue

that the list does not give employers wide room to argue that

a particular accommodation imposes an undue hardship."

In any event, in many cases an employer’s refusal to make

an accommodation will be based on the kind of ignorance,

hostility, prejudice that would be actionable in any event

under the general rule of § 12112(a) and the Equal Protection

Clause. As noted above, that may be the case for Ms. Garrett

and Mr. Ash. In other cases, the employer may be refusing to

make an accommodation for a qualified individual with a

disability when it has, on many occasions, made

accommodations of equivalent nature or cost for individuals

without disabilities—conduct that may, on appropriate proof,

be actionable under the Equal Protection Clause. In still other

cases, the employer may have facially neutral reasons for

denying an accommodation, but those reasons may have been

adopted with a unlawfully discriminatory purpose, may not

be applied even-handedly, and may not be rationally related

to the legitimate conduct of its business or activities. See,

e.g., M.L.B. v. S.LJ., supra, where the Court, in finding a

violation of the Equal Protection Clause in a court fee, found

that the added expense to the State would not be an “undue

burden,” 519 U.S. at 122, showing that added expense alone

'2 We do not discuss whether, to the extent that it has done so,

Congress may constitutionally shift the burden of persuasion on some of

these issues from plaintiff to defendant, because such a rule of trial

procedure. seems well within the limits imposed by the congruence and

proportionality test addressed in other briefs.

22

may be an insufficient justification under the Equal Protection

Clause for a law with unequal effect.'”

Thus, the argument of Petitioners and the courts that have

ruled against the constitutionality of the ADA rests on

supposed cases where the denial of a request for a reasonable

accommodation by a qualified individual cannot be based on

“undue hardship” but would nevertheless be rationally related

to the legitimate conduct of the employer’s business and not

the product of indifference, negative stereotypes, fear, and

other grounds that would fail the test of Cleburne and other

cases. We do not deny that such cases may come up, but

there is little reason on this record for concluding that those

cases will dominate litigation or compliance under

§ 12112(b)(5), and there would be no justification for holding

Title I of the ADA invalid as applied to actions against the

States when such a case is not before the Court. Indeed, none

of the specific examples of alleged ADA excesses in the Brief

of the Amici Curiae States in Support of Petitioners (at 18-27)

involves § 12112(b)(5).

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

2000) (Easterbrook, J.), the court attempted to recite a clear

example of ADA excess, stating:

“(I]t is rational for a university to favor someone with

good vision over someone who requires the assistance of

'3 See also Turner v. Safley, 482 U.S. 78, 90-91 (1987), where, in

applying a rational basis test essentially equivalent to the test of the Equal

Protection Clause, the Court remarked: “By the same token, the existence

of obvious, easy alternatives may be evidence that the regulation is not

reasonable, but is an ‘exaggerated response’ to prison concerns. * * * [I]f

an inmate claimant can point to an alternative that fully accommodates the

prisoner’s rights at de minimis cost to valid penological interests, a court

may consider that as evidence that the regulation does not satisfy the

reasonable relationship standard.” While made in a different context,

these words have obvious relevance to accommodations sought in the

employment context, as well as to accommodations sought in institutional

and other contexts covered by Title II of the ADA.

23

a reader. The sighted person can master more of the

academic literature (reading is much faster than

listening), improving his chance to be a productive

scholar, and also is less expensive (because the

university need not pay for the reader). An academic

institution that prefers to use a given budget to hire a

sighted scholar plus a graduate teaching assistant, rather

than a blind scholar plus a reader, has complied with its

constitutional obligation to avoid irrational action. But it

has not complied with the ADA, which requires

accommodation at any cost less than ‘undue hardship’.”

207 F.3d at 949.

As an initial matter, this example appears to take it as a

given that faster reading produces better scholars, a matter

that is least debatable because blind scholars, even if slower,

may master the available material better, write more and

wiser articles, be better lecturers, and so forth. Indeed, it may

be irrational or simply discriminatory not to hire a blind

scholar and the required reader, if the scholar is at the top of

his or her field and the cost of the reader is similar to the costs

of other accommodations of “special arrangements” provided

to other scholars. Accepting, however, what appears to be

one assumption of the hypothetical—that the sighted scholar

turns out to be better qualified than the blind scholar, even if

the University were to provide the blind scholar with a

reader—the same circuit has indicated, in a slightly different

context, that the University in the example could in fact

“favor” the sighted scholar without violating the ADA:

“Suppose that two workers are vying for a promotion to

a job that requires a lot of reading. One of the workers is

dyslexic, and as a result reads very slowly. He can do

the job for which he is applying—and let us assume that

his employer would give him the job if there were no

other applicant for it—but he can’t do it as well as the

other applicant, who does not have a disability. It is not

the dyslexic worker’s ‘fault’ that he can’t read as well as

24

his competitor; it is due entirely to his disability. The

employer could not refuse to consider him for the

promotion because of his dyslexia, but it is not disability

discrimination for the employer to give the promotion to

the other worker, the one who can do the job better.”

Matthews v. Commonwealth Edison Co., 128 F.3d 1194,

1196 (7th Cir. 1997) (Posner, J., with Easterbrook and

Wood, JJ., concurring).

If this is correct—and we do not contend that such issues

have been thoroughly sorted out yet in the courts of appeals,

much less in this Court—then the University in the Erickson

example may hire or promote the sighted scholar over the

blind scholar on the ground that he or she is more qualified

than the blind scholar, even if the blind scholar were to be

given a reader. That decision would be different from

refusing to consider the blind scholar because he would need

a reader that the University does not want to provide.

In any event, it is by no means clear that most uni-

versities—whose departments may operate on limited budgets

and need a certain number of graduate assistants to help with

teaching loads—would not satisfy the “undue hardship” test in

the kind of case Erickson presents. Contrary to the

implication of this example and the suggestion in the Brief of

Amici Curiae States in Support of Petitioners (at 13 n.12), the

ADA does not define “reasonable accommodation” to

“include * ** readers or interpreters.” Section 12111(9)

provides that the term “may” include readers or interpreters.

It is thus open to a university to argue that the ADA does not

require them to hire a blind scholar who needs a reader to do

the job.

In short, the animal that Erickson attempted to cage—the

clear violation of the ADA that is not remotely a violation of

the Equal Protection Clause—is more elusive than that

decision and Petitioner’s Brief indicate. The “reasonable

accommodation” requirement of the ADA is not as far

25

removed from the concerns of the Equal Protection Clause as

critics of the ADA have contended. It is in fact closely linked

to those concerns, even if it may go beyond the requirements

of Equal Protection in some cases.

C. The “Disparate Impact” Provisions of the ADA

Are Closely Connected to the Requirements of

the Equal Protection Clause.

Petitioners (at 29 and 42-43) characterize two provisions

of Title I as “disparate impact” or “disparate-effect”

provisions. The first states that the term “discriminate” as

used in § 12112(a) includes “utilizing standards; criteria, or

methods of administration * * * that have the effect of

discrimination on the basis of disability.” § 12112(b)(3)(A).

The second states that the term “discriminate” also includes

“using qualification standards, employment tests or other

selection criteria that screen out or tend to screen out an

individual with a disability or a class of individuals with

disabilities unless the standard, test or other selection criteria

* * * is shown to be job-related for the position in question

and is consistent with business necessity.” § 12112(b)(6).

While the first provision, § 12112(b)(3)(A), does not by its

own terms refer to job-relatedness and business necessity,

§ 12113(a) makes job-relatedness and business necessity a

defense to a charge of discrimination under this provision (as

well as the other provisions of Title I). The test of job-

relatedness and business necessity was obviously drawn from

the test for “disparate impact” discrimination established in

Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Petitioners have not demonstrated that the public

employer’s burden of proving that a neutral standard that has

a disproportionate impact upon the disabled is “job-related for

the position in question and is consistent with business

necessity,” § 12111(b)(6), is far removed from the burden of

defending against an Equal Protection Clause challenge. Two

26

years before passage of the ADA, this Court described the

ultimate issue in a Griggs case as follows:

“Though we have phrased the query differently in

different cases, it is generally well established that at the

justification stage of such a disparate-impact case, the

dispositive issue is whether a challenged practice serves,

in a significant way, the legitimate employment goals of

the employer.” Wards Cove Packing Co. v. Atonio, 490

U.S. 642, 659 (1989), citing Watson, New York City

Transit Auth. v. Beazer, and Griggs.

For public employers, this test is remarkably close to the

Equal Protection Clause standard, “rationally related to a

legitimate state interest.”

It is true that Congress in the ADA, as in the Civil Rights

Act of 1991, rejected the Wards Cove holding that the burden

of persuasion in such cases always stayed with the plaintiff,

shifting it instead to the employer. See 42 U.S.C. § 12113(a)

(the ADA provision) and 42 U.S.C. § 2000e-2(k)( 1 )(A)(i)

(the Title VII provision as amended by the 1991 Civil Rights

Act). Congress indicated in passing the 1991 Act that it was

codifying the pre-Wards-Cove case-law on job-relatedness

and business necessity, Pub. L. 102-166, § 3(2), 105 Stat.

1071 (1991), 42 U.S.C. § 1981 note,'* and the EEOC has

indicated that Congress had the equivalent intention in

passing the ADA: “The concept of ‘business necessity’ has

the same meaning as the concept of ‘business necessity’ under

section 504 of the Rehabilitation Act of 1973.” 29 C.F.R.

§ 1630 App., Guidance on § 1630.10, first J. But the above

quotation from Wards Cove shows that the terms “job-related”

and “consistent with business necessity” were largely

synonymous even under pre-Wards-Cove case law.

'4 «The purposes of this Act are— * * * (2) to codify the concepts of

‘business necessity’ and ‘job related’ enunciated by the Supreme Court in

[Griggs], and in the other Supreme Court decisions prior to [Wards

Cove).”

27

Moreover, the EEOC’s Interpretative Guidelines state that the

purpose of the provision is “to ensure that there is a fit

between the job criteria and an applicant’s (or employee’s)

actual ability to do the job.” Jd. See also EEOC v. Amego,

110 F.3d 135, 144-45 (1st Cir. 1997) (“[W]here, as here, no

evidence of animus is present, courts may give reasonable

deference to the employer’s assessment of what the position

demands. * * * [W]e think there should be special sensitivity

to the danger of the court becoming a super-employment

committee.”). Thus, the ADA test of “job-related and

consistent with business necessity” appears to be essentially

the same as bearing “a manifest relationship to the.

employment in question.” Griggs, 401 U.S. at 432. It will be

a rare case in which a public employer cannot satisfy that test

yet would clearly win an Equal Protection Clause challenge.

As this Court stated in Watson v. Fort Worth Bank &

Trust, 487 U.S. 977, 987 (1988), and as we discussed in Part I

of this brief, “[t}he distinguishing features of the factual

issues that typically dominate in disparate impact cases do not

imply that the ultimate legal issue is different than in cases

where disparate treatment analysis is used.”'> As the Court in

Watson further stated, one advantage of disparate impact

analysis is that it gets at “the problem of subconscious

stereotypes and prejudices,” id. at 990, which may not be

“adequately policed” by disparate treatment analysis and a

requirement of providing “discriminatory intent.” /d. These

are additional reasons why it is likely to be a rare case in

which an.employer cannot establish a defense to an ADA

action under §§ 12112(b)(3)(A) or (b)(6) but would clearly

succeed in defending an Equal Protection Clause case.

'S Shifting the burden of persuasion from plaintiff to employer, as the

ADA appears to have done and as the 1991 Civil Rights Act did for Title

VII, may be a significant change, but it is procedural, not substantive, and

thus does not affect the argument in this brief.

28

We do not deny that there will be some cases in which a

plaintiff succeeds in an ADA disparate impact case that

would not succeed as an Equal Protection Clause case. But

that fact alone—which may well result from the shifted

burden of persuasion—does not establish that the substantive

prohibitions of the ADA go far beyond the prohibitions of the

Equal Protection Clause.

Finally, while the disparate impact provisions of the ADA

are drawn from the test for “disparate impact” discrimination

established in Griggs, their scope may be considerably more

limited. Section 12112(a), the general. discrimination rule,

prohibits discrimination only against a “qualified individual

with a disability,” as we have explained, and, because

§§ 12112(b)(3)(A) and (b)(6) appear to elaborate on the

meaning of “discriminate” in that section, proving that one is

a “qualified individual with a disability” may ultimately be

found to be a requirement of suits under §§ 12112(b)(3)(A)

and (b)(6). Dicta in some circuit court cases suggest the

contrary, see, e.g., Matthews v. Commonwealth Edison Co.,

128 F.3d 1194, 1196 (7th Cir. 1997) (Posner, J.), but the

matter is not yet settled. However this matter is ultimately

resolved, a plaintiff who does not expect to establish that he

or she is a “qualified individual with a disability” may have

little incentive to mount a disparate impact attack on an

employer’s test or standard, because, as explained above,

nothing in the ADA would prevent the employer from

refusing to hire, promote, or retain such an individual either

because of the disability or because of the other qualifications

he or she cannot meet.

Ill. The Amici States Supporting Petitioners Advance a

Policy Argument that Does Not Do Justice to the

Equal Protection Clause.

According to the Brief of the Amici Curiae States in

Support of Petitioners (at 18):

29

“Every suit brought under the ADA diverts State

resources into litigation costs—and damages awards

where such damages are awarded—that could instead be

used to provide services to the disabled and to other

citizens of the State. In addition, litigation under the

ADA discourages the States from pursuing initiatives to

provide and expand core services to their vulnerable

populations, and rewards such efforts with private

lawsuits costing millions of dollars.”

The amici organizations signing this brief have no interest in

reducing the amount of aid that States provide to some of

their most vulnerable and deserving citizens—particularly

persons with disabilities so severe that they are unable to

enter the employment market. But eliminating employment

discrimination against those individuals who can work

effectively reduces the need for direct State aid to a

substantial number of disabled individuals. More

importantly, the cost of supporting disabled persons who

cannot work cannot, consistently with the Equal Protection

Clause, be imposed on the community of those disabled

persons who can work. It should instead be shared by all

citizens through taxation. The costs of remedying

employment discrimination may indeed be substantial if State

agencies do not take seriously their legal obligations to

persons with disabilities under the Equal Protection Clause

and the ADA, but Congress, through the express provisions in

the ADA, and federal agencies, through the applicable

regulations and interpretative guidance, have made

substantial efforts to specify and clarify obligations that, as

we have shown in the brief, are rooted in and closely

connected to the prohibitions of the Equal Protection Clause.

The States may at times lose lawsuits they should have won,

because litigation is not perfect, but individuals with

disabilities face the same difficulty, with fewer resources to

fall back on. One may quarrel as a policy matter with

Congress’s decision to remedy employment discrimination

30

against the disabled by providing monetary relief against the

unsuccessful employer-defendant when that defendant is a

State agency, but the availability of such relief alone is no

argument against Congress’s power under Section 5 of the

Fourteenth Amendment.

CONCLUSION

For the reasons set forth in Respondents’ Brief and above,

this Court should hold that Congress did not exceed its

powers under Section 5 of the Fourteenth Amendment in

making the ADA _ prohibitions against employment

discrimination (the only provisions potentially applicable in

these cases) applicable to the States and should accordingly

affirm the judgment of the court of appeals in these cases.

Respectfully submitted,

JOHN TOWNSEND RICH

Counsel of Record

JAMES CHAD OPPENHEIMER

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

August 11, 2000

la

APPENDIX

The Amici Organizations

The American Association of People with Disabilities

(‘AAPD”) is a non-profit membership organization of

children and adults with disabilities, their family members,

and their supporters. AAPD’s mission is to promote political

and economic empowerment for the more than 56 million

Americans with disabilities. AAPD was founded on the fifth

anniversary of the signing of the Americans with Disabilities

Act (ADA). AAPD works to ensure effective enforcement

and implementation of the ADA and other civil rights laws.

AARP is a nonprofit membership organization serving

more than thirty-four million persons age 50 and older that is

dedicated to addressing the needs and interests of older

Americans. One of AARP’s primary objectives is to strive to

achieve dignity and equality in the workplace through

positive attitudes, practices, and policies towards work and

retirement. In pursuit of this objective, AARP has since 1985

filed more than 200 amicus briefs before this Court and the

federal appellate and district courts. More than one-third of

AARP’s members are employed, and many of those with

disabilities rely on the ADA to create a work place free from

discrimination. The ADA’s protections are especially

important to AARP members because older persons have a

higher incidence of disabilities than other populations.

ADAPT is a national organization, most of whose

members have severe disabilities and have been

institutionalized in nursing facilities and other public

institutions solely because they have disabilities. ADAPT has

a long history and record of enforcing the civil rights of

people with disabilities and was one of the key organizations

that participated in the political and legislative process that

resulted in the passage in 1990 of the ADA.

2a

The American Council of the Blind (“ACB”) is a leading

national consumer organization of the blind, which strives to

improve the quality of life, equality of opportunity, and

independence of all persons who are blind. To that end, ACB

seeks to educate policymakers about the needs and

capabilities of people who are blind, to assist individuals and

organizations wishing to advocate for the needs of people

who are blind, and to disseminate information to both the

blind and sighted public. ACB was at the forefront of activity

which led to the enactment of the ADA. Efforts to preserve

the rights gained through that statute, and to strengthen its

protections for blind people, continue through our legislative

and advocacy activities aimed at increasing the accessibility

of employment, information, public transportation, and

programs and services of state and local governments. As a

result, ACB is deeply concerned that these rights may be in

jeopardy. Further, we are concerned that, if the ADA is

weakened, there will be a return to previous patterns of

consistent and pervasive discrimination against persons with

disabilities, and particularly persons who are blind, by state

and local government entities. Therefore, we believe that

efforts to preserve and vigorously enforce the ADA are of

paramount importance.

The American Foundation for the Blind (“AFB”), a non-

profit organization founded in 1921 and recognized as Helen

Keller’s cause in the United States, is a leading national and

international resource for blind individuals and_ the

professionals who serve them. Its mission is to ensure people

who are blind or visually impaired to achieve equality of

access and opportunity that will ensure. freedom on choice in

their lives. It fulfills this mission primarily by preparing and

disseminating information resources for the public, educating

policymakers about the needs and capabilities of people who

are blind or visually impaired, and advocating the

development and implementation of blindness-related public

policy. AFB led the field of blindness in advocating the

3a

enactment of the ADA. Today, AFB continues its work to

protect the rights of blind and visually impaired people to

equal access to employment, information, and the programs

and services of state and local governments. Accordingly, the

AFB is profoundly concerned that these rights, which are

critical to the independence, equality, and competitive

productivity of people who are blind, may be in jeopardy.

AFB believes that the long history of consistent and pervasive

discrimination by state and local government entities warrants

the preservation and vigorous enforcement of the ADA.

The American Network of Community Options and

Resources (“ANCOR”) is a nationwide association of 700

private, non-profit, for-profit and family care agencies that

together provide support and services to more than 150,000

people wiih disabilities. ANCOR has thirty years of proven

leadership representing private providers at the federal level.

The membership services persons of all ages, income levels,

sexes, and races in urban, rural, and suburban areas—

supporting people wherever they live and work. Most

member agencies support group homes, apartments, and other

Supported living arrangements in typical, stable family

neighborhoods in order to best meet the needs of the people

they support. Some members provide vocational and

employment . services through supported employment,

community rehabilitation programs, and extended

employment arrangements. Consequently, the case before the

Court will have substantial impact on ANCOR’s members.

The Arthritis Foundation is the only national, voluntary

health agency seeking to prevent, control, and cure the more

than 100 forms of arthritis. The organization serves over 43

million Americans with arthritis and related conditions

through research, advocacy, and services. With the number

of people living with these diseases predicted to rise to 60

million by 2020, the Arthritis Foundation is leading efforts to

battle the nation’s leading cause of disability.

4a

Easter Seals, Inc., has been providing services that help

children and adults with disabilities gain greater

independence for more than 80 years. Its primary services,

medical rehabilitation, job training and employment,

inclusive child care, adult day services, and camping and

recreation benefit more than one million individuals and their

families each year at one of 400 centers nationwide. Easter

Seals has also been a leading proponent of public policies that

promote equality, dignity, and independence for people with

disabilities. The organization championed the enactment and

implementation of the ADA to prohibit discrimination against

persons with disabilities in employment, transportation,

telecommunications, public accommodations, and public

services.

The Epilepsy Foundation® is the sole national, charitable

voluntary health organization dedicated to advancing the

interests of the more than two million people with epilepsy

and seizure disorders. The term “epilepsy” evokes stereotyped

images and fears in others that affect people with this medical

condition in all aspects of life, especially employment. Since

its inception, the Foundation has worked to dispel the stigma

associated with seizures and has supported the development

of laws that protect individuals from discrimination based on

these stereotypes and fears.

The Learning Disabilities Association of America (“LDA”)

is a national, non-profit, volunteer organization including

individuals with learning disabilities, their families, and

professionals. LDA is dedicated to enhancing the quality of

life for all individuals with learning disabilities and their

families, to alleviating the restricting effects of learning

disabilities, and to supporting endeavors to determine the

causes of learning disabilities. LDA seeks to accomplish this

through advocacy, education, research, and service, and

through collaborative efforts. Individuals with learning

disabilities are capable of joining the workforce right out of

high school or going on to college, but because of their

Sa

disabilities, many were not able to do so before passage of the

ADA. It was not until passage of that Act that individual

with learning disabilities were assured of appropriate

accommodations by private entities, licensing boards, and

employers that include state and local governments.

The National Mental Health Consumers’ Self-Help

Clearinghouse is a national technical assistance center

established in 1986. It is run by and for people who are

consumers of mental health services and survivors of

psychiatric illness (known as consumers/survivors). Its

mission is to promote consumer/survivor participation in

planning, providing and evaluating mental health and

community support services, to provide technical assistance

and information to consumers/survivors interested in

developing self-help services, and advocating to make

traditional services more consumer/survivor-oriented. As

will all of the other amici, the Clearinghouse has an interest in

helping people with mental illness live to their full potential

as active members of the community.

The National Association of the Deaf, whose members are

deaf and hard-of-hearing adults, parents of deaf and hard-of-

hearing children, and professionals, works to safeguard the .

civil rights of deaf and hard-of-hearing Americans.

The National Association of People with AIDS

(“NAPWA”), founded in 1983, serves as a national voice and

information and advocacy resource for the nearly one million

people believed to be living with HIV/AIDS in the United

States. NAPWA’s mission is to advocate on behalf of all

people living with HIV in order to end the pandemic and the

human suffering caused by HIV/AIDS. The ADA has

prevented untold cases of HIV-related discrimination.

NAPWA’s interest in this case is to ensure that this landmark

civil rights law is not narrowed in scope or weakened in the

protections it affords people living with HIV/AIDS.

6a

The National Association for Rights Protection and

Advocacy (“NARPA”) includes recipients of mental health

and developmental disabilities services; lay, professional and

self-advocates; family members; service providers, disability

rights attorneys; and teachers at schools of law, social work,

and public policy. It is dedicated to promoting the preferred

options of people who have been labeled mentally disabled.

The National Council on Independent Living (“NCIL”) is a

membership organization that advances the independent

living philosophy and advocates for the human rights of, and

services for, people with disabilities to further their full

integration and participation in society. NCIL_ was

established in 1982 and is the leading national, cross-

disability, grassroots organization run by and for people with

disabilities. |

The National Multiple Sclerosis Society, with over

600,000 members and 83 chapters and divisions, is dedicated

to ending the devastating effects of multiple sclerosis. The

Society focuses on providing services, information, and

programs to people with MS and funding for MS biomedical

and health services research. The Society supports efforts to

increase accessibility and independence, as well as to prevent

discrimination.

The National Organization on Disability (“N.O.D.”)

promotes the full and equal participation of America’s 54

million men, women, and children with disabilities in all

aspects of life. N.O.D. was founded in 1982 at the conclusion

of the United Nations International Year of Disabled

Persons. Funded entirely by private-sector contributions,

N.O.D. is the only national disability network organization

concerned with all disabilities, all age groups, and all

disability issues.

The National Parent Network on Disabilities serves

children, youth and adults with disabilities and their families.

Ta

The organization’s goal is to help people with disabilities live

a full and integrated life.

The National Senior Citizens Law Center advocates for the

independence and well-being of low-income, elderly

individuals, as well as persons with disabilities. Due to the

high incidence of disability among the elderly population,

enforcement of the ADA is of particular concer to this

organization.

The Polio Society serves its nationwide membership with

information and referral services, training in self-advocacy to

enforce the civil rights of persons with disabilities, and

support for legislation of benefit to polio survivors and the

disability community at large. The members are persons with

disabilities as a result of polio and post-polio syndrome

(“P.P.S.”). The ADA is a key element of the Polio Society's

advocacy.

Volunteers of America, Inc,, is a national nonprofit,

spiritually-based organization providing local human service

programs and opportunities for individual and community

involvement. Volunteers of America is one of the nation’s

largest and most comprehensive charitable human services

organizations, providing services to the physically, mentally,

and developmentally disabled as well as to children and youth

at risk, the elderly, the homeless, and other people in need.

Volunteers of America helps over 1.5 million people each

year. It currently operates 43 programs specifically for the

developmentally disabled, providing intensive service to

nearly 2,500 youth, adults, and seniors in 10 stats. The

diverse programs offered include independent living training,

assessment, and job placement, case management, protective

services, supported and assisted living, as well as residential

care and a residential camping program that began in 1941. .

All of these programs receive some federal, state, or local

government funding.