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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0922%3A23

## Record

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

## Text

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.

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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.

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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):

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“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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0922%3A23. Public record. Not legal advice.