Opposition Brief — Wilson v. Armstrong

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No. 97-686 a

In the Supreme Court of the Gnited States ;

OCTOBER TERM, 1997

PETE WILSON, GOVERNOR OF CALIFORNIA, ET AL.,

PETITIONERS

JOHN ARMSTRONG, ET AL.

STATE OF CALIFORNIA, ET AL., PETITIONERS

Vv.

DERRICK CLARK, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether 42 U.S.C. 12202, which provides that a

State shall not be immune under the Eleventh Amend-

ment from suits for violations of the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.,

is a constitutional exercise of Congress’s authority

under Section 5 of the Fourteenth Amendment.

2. Whether 42 U.S.C. 2000d-7(a)(1), which provides

that a State shall not be immune under the Elev-

enth Amendment from suits for violations of Section

504 of the Rehabilitation Act of 1973, 29 U.S.C. 794,

is a constitutional exercise of Congress’s authority

under Section 5 of the Fourteenth Amendment or the

Spending Clause.

3. Whether state prisoners may state a claim

against a state prison official or agency for a violation

of Section 504 of the Rehabilitation Act or the ADA.

(1)

ES etn ATL Res ak 2 ENTIRE Oe, Nee west ote SN ae “ oN Lae Jehan AAI Fae 000

TABLE OF CONTENTS

Page

CINE NIUE oc .caseinnsccrssninivececncsacessensnennasancosennescengsensies 1

IIL scncincndstesnstvcestnnenahbahionvenscaukamlcinagvencesilinneaniien 2

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PINE: pasa cities tn nccsinnsy cpssattnntsnntisnninedintainenetondivennanss 8

III sti cicaacgck codicil seinsebiuesisanehondboueniiieintaascbiaaaiapeesvters 22

TABLE OF AUTHORITIES

Cases:

Alexander v. Choate, 469 U.S. 287 (1985) ..............+ 15

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

tional Servs., 126 F.3d 589 (4th Cir. 1997) ........... 20, 21

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

UIT cs iciieal dalled dian kc aniabeneaiadaaaiaeeatareesihedurene 5, 17, 18

Bell v. New Jersey, 461 U.S. 773 (1983) ...........ccceeee 18

Carson v. American Brands, Inc., 450 U.S. 79

I ais siete ceriad cin Da os laad udniierbicaaibenbobenbinanednesanctsien 21

City of Boerne v. Flores, 1178S. Ct. 2157 (1997) ....... 4, 9,

10, 11, 12, 16

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

BE is AE AID srkcocidih andi vbinininaniteaterecianenscoinnen 4, 10, 11

Contractors Ass’n of Eastern Pennsylvania, Inc.

v. City of Philadelphia, 6 F.3d 990 (3d Cir. 1993) .. 15

Counsel v. Dow, 849 F.2d 731 (2d Cir.), cert.

a GS UF GE CII) oi schcvvicsesnccenssiscccoserseseses 17

Crawford v. Indiana Dep’t of Corrections, 115 F.3d

Be EE scatihtassisagatioeasindierGcikenriniiiesactions 17, 20

EEOC v. Wyoming, 460 U.S. 226 (1983) .............++0+ 9

Employment Div. v. Smith, 494 U.S. 872 (1990)... 11, 12

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .............. 9

Gardner v. Westinghouse Broadcasting Co.,

re ee TI hetce cniiaetiniherccdiadenguietexevemenismentere 21

Hutto v. Finney, 437 U.S. 678 (1978) ..........ccseeeeeeeee 19

Katzenbach v. Morgan, 384 U.S. 641 (1966) .......... 4,16

(IIT)

Cases—Continued: Page

Lake v. Arnold, 112 F.3d 682 (8d Cir. 1997) ............ 15

Lane v. Pera, 116 S. Ct. 2092 (1996) .................... 17, 18

More v. Farrier, 984 F.2d 269 (8th Cir.), cert.

COGN, EG TLE. BER CED ovsiticsspcsnndednssinsesccivssenseoss 15

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 506 U.S. 189 (1998) ..............ccscccosseee 3

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

RROD sciskentateiiiviniisthceuibincacandbb tabdadlemmabooreiiaiebtiies 9

South Dakota v. Dole, 483 U.S. 203 (1987) .............. 18

Welch v. Texas Dep’t of Highways & Pub. Transp.,

Re Nt ds SU CEPNEL srienuitipindsadi wiaienniaceasenspissucuboeieets 17

White v. Colorado, 82 F.3d 364 (10th Cir. 1996) ...... 19

Williams v. Meese, 926 F.2d 994 (10th Cir. 1991) .... 20

Yeskey v. Pennsylvania Dep’t of Corrections, 118

F.3d 168 (3d Cir. 1997), petition for cert. pending,

DUR, TPE ca sesngachecdpvaiitanduciilaacubimatisinaaannelanties 19-20, 21

Young, Ex parte, 209 U.S. 123 (1908) .......... 5, 7, 8, 18, 19

Constitution, statutes and regulations:

U.S. Const.:

Art. I, § 8, Cl. 1 (Spending Clause) ....................... 8,17

Amend. I (Free Exercise Clause) .............cccceeeeeeeees 11

PIE WEEN: dasckincienesvcinaed acccidas ntbaateeundocssede 19

PUI, TAA cthictiitidcbcccessictiencpanbatinnsadebuadigd netted, passim

f UREA |, ¢ RGR RAD RIEL RIC eae RNED ReeSE OE ee OO CE Ne 3, 4, 8, 9, 17

§ 1:

Equal Protection Clause ...................++ 4,9, 12, 17

OW sctdacniniceiacanibcndubeibivimidadeleccioiianiis 3, 9, 12, 16, 17

Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et seq.:

TE Es MEINE cpsiiecetivisapeisinsinestanattomsemievedis 4,14

Se TAs BD wrtninsnccceniksiascsshucinieniucchidenien 14

a I Seis se eincabinicionnssiticesidcarerecian 10

Sy DE SID basic cinsscierstirwlidaecsasssasasabeisncho 9

re os ndettisttcsacenssmcieieicinaepins 15

EE SSF ee TED. asisivnndata rctiadasacivieprcsecsiianaiaia 15

MB SIAR: SI seni easedid bipissucissecebinipsteaniaieantiannsbes 3,9

Statutes and regulations—Continued: Page

Individuals with Disabilities Education Act, 20 U.S.C.

PI Ny aarcecdecs LiaabAceisctib sich pi teaalaccavsuadulonocadehndeasoatio 17

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.:

Die Fr te. FOP ecdnecivnasSusnenivediiirusassiniaaesaiors passim

A Be ade SND bstiavcinaciiestaninccnmnnss 5

Religious Freedom Restoration Act of 1993,

rs I OE OO. ances takicicnerradi es hestisattanttens 11

Oe AA OTE, dackcssahasiviacisimiacivaemincelaceamanavain 12

Ba Rees SNE ii daiissahs cassia biansiascbhdcbvedannansruciocsaeas 21

BP TA MEE ED sarsisnsinoneansaicbicedstincmmnnssnni 7, 8, 21

Mae SIGE ie. HENEENT Sisncdoieniakbdavessiachcxacnpacdcouneasadedeiinusnoens 3, 7

BE AP ds MED Sushisdcisnaxeiveierninbincccueianaiabmicdieeiall 3

Oe 5 Fa SEE dead cob ietiecedavsbciansioanietaiaianaphabsnentucins 15

Ue SPI MIPIM © wicceigbecsinsnscinecksenataseniadacmeacecoomsodeuass 17, 18

Oe AAR AE TOAD ieccicctomittaiaicrscasunacees 3, 5, 17

28 C.F.R.:

ROU BUI ENON) gaz ccncocicc aiceunanchusuisanisdcaxeusaces 15, 16

SNE: I, MOEN IRIND ads os icticdsenesricotnnnctupntieish cbbbualonins 16

TRIN SI II diaaisnskesstanneieibuneceionicadinkaaaiiooumewea is 16

Miscellaneous:

Timothy M. Cook, The Americans with Disabilities

Act: The Move to Integration, 64 Temp. L. Rev.

FE LATED sakvcnkisebisvtinsvantabicsdaieneielaoapiibebinlieesucméubisiless 13

H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990):

i WP Aivucinsabbohitasitencinssaisi daashokcnaialonhdieisabbiinincs 13, 15

Ie Ai ips satea eb shinesbliatcnnaicsladabadaesbicdadaulieta lab Uaboaeniplsdnarebancendadecs 13

Fa tas ais esac cileabicaphadedndalbaa cisigennha does gine sbenadaientionddes 13

National Council on the Handicapped:

On the Threshold of Independence (1988) ...........00+- 13

Toward Independence (1986) .............ssccsescseeeeecseenees 13

S. Rep. No. 116, 101st Cong., Ist Sess. (1989) .......... 13, 15

U.S. Commission on Civil Rights, Accommodating

the Spectrum of Individual Abilities (1983) ............. 13

Jn the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-686

PETE WILSON, GOVERNOR OF CALIFORNIA, ET AL.,

PETITIONERS

Vv.

JOHN ARMSTRONG, ET AL.

STATE OF CALIFORNIA, ET AL., PETITIONERS

Vv.

DERRICK CLARK, ETAL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals in Armstrong v.

Wilson (Pet. App. la-19a) is reported at 124 F.3d 1019.

The opinion of the district court (Pet. App. 20a-45a) is

reported at 942 F. Supp. 1252.

The opinion of the court of appeals in Clark v.

California (Pet. App. 46a-55a) is reported at 123 F.3d

1267. The opinion of the district court (Pet. App. 56a-

83a) is not reported.

(1)

JURISDICTION

The judgments of the court of appeals were entered

on August 27, 1997. The petition for a writ of certio-

rari was filed on October 20, 1997. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

l. a. Clark v. California. Respondents Derrick

Clark and Ambrose Woods are inmates with develop-

mental disabilities incarcerated in correctional facili-

ties operated by California. Pet. App. 57a-58a. On

behalf of themselves and a class, they filed suit in

federal district court against petitioners California,

the California Department of Corrections, and vari-

ous state officials. Jbid. Respondents alleged that

petitioners were violating the Americans with Dis-

abilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.,

and Section 504 of the Rehabilitation Act of 1978

(Section 504), 29 U.S.C. 794, in various respects, and

sought declaratory and injunctive relief, but not

money damages. Pet. App. 56a-57a; C.A. E.R. 2, 20-22.

Petitioners California and the Department of Cor-

rections were named as defendants only in the count

alleging violations of Section 504, and not the count

alleging violations of the ADA, which named only

state officials acting in their official capacities as

defendants. See id. at 16, 17.

Petitioners moved to dismiss the suit, arguing that

it was barred by the Eleventh Amendment, and that

the ADA and Section 504 were beyond Congress’s

power insofar as they abrogate the State’s Eleventh

Amendment immunity from suit for violations of

those provisions.’ Petitioners also argued that the

statutes do not extend to claims by prisoners against

state-operated prisons. Pet. App. 60a, 64a. The dis-

trict court denied the motion to dismiss, concluding

that both statutes contain valid abrogations of Elev-

enth Amendment immunity, id. at 64a-68a, and that

both statutes apply to state-operated prisons, id. at

60a-63a.

b. The district court certified the statutory ques-

tion of coverage under the ADA and Section 504 for

interlocutory appeal pursuant to 28 U.S.C. 1292(b),

see C.A. Supp. E.R. 40-41, but the court of appeals

denied petitioners’ application for leave to appeal on

that basis, id. at 46. Petitioners also took an inter-

locutory appeal of right of the denial of Eleventh

Amendment immunity (see Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139

(1993)), and the United States intervened, pursuant

to 28 U.S.C. 2403(a), to defend the constitutionality

of the abrogation of Eleventh Amendment immunity

in both statutes. The court of appeals affirmed the

denial of immunity. Pet. App. 50a-55a.

The court rejected petitioners’ contention that

Congress’s authority under Section 5 of the Four-

teenth Amendment is limited to remedying or pro-

hibiting classifications that are subject to heightened

judicial scrutiny, and that Congress therefore ex-

' 42 U.S.C. 2000d-7(a)(1) provides that a State shall not be

immune under the Eleventh Amendment from suits in federal

court for violations of Section 504 (as well as several other laws

prohibiting discrimination by recipients of federal financial

assistance). 42 U.S.C. 12202 provides that a State shall not be

immune under the Eleventh Amendment from suits in fed-

eral court for violations of nondiscrimination provisions of the

ADA.

ceeded its constitutional authority when it abrogated

the States’ immunity in Section 504 and the ADA.

Pet. App. 58a-54a. The court followed this Court’s

recent decision in City of Boerne v. Flores, 1178. Ct.

2157 (1997), as well as Katzenbach v. Morgan, 384

U.S. 641 (1966), to explain that “Congress’s powers

under the Fourteenth Amendment are not unlimited,”

and that “enforcement legislation must evidence a

congruence and proportionality between the injury to

be prevented or remedied and the means adopted to

that end.” Pet. App. 52a-53a. “Congress acts within

its authority under the Fourteenth Amendment if the

court can perceive a basis upon which Congress

might predicate a judgment that the state action

constituted an invidious discrimination in violation of

the Equal Protection Clause.” Jd. at 58a (internal

quotation marks omitted).

Applying that standard, the court concluded that

both the ADA and Section 504 were validly enacted

under the Fourteenth Amendment. Pet. App. 53a.

The court noted that this Court, in City of Cleburne

v. Cleburne Living Center, Inc., 473 U.S. 432 (1985),

held that arbitrary discrimination against persons

with disabilities is prohibited by the Equal Protection

Clause. Pet. App. 58a. It also credited Congress’s

explicit findings that “persons with disabilities have

suffered discrimination.” Jbid. (citing 42 U.S.C.

12101(a) and 29 U.S.C. 701(a)(5)). The court then held

that “neither act provides remedies so sweeping that

they exceed the harms that they are designed to

redress.” Ibid.

The court articulated an additional constitutional

basis why the Eleventh Amendment is no bar to suits

alleging violations of Section 504: Section 504 applies

only to those state-operated programs or activities

that voluntarily accept federal financial assistance.

Pet. App. 55a; see 29 U.S.C. 794(b). The court noted

that “[o]ne way for a state to waive its immunity is

to accept federal funds where the funding statute

‘manifest[s] a clear intent to condition participation

in the programs funded under the Act on a State’s

consent to waive its constitutional immunity.’” Pet.

App. 55a (quoting Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 247 (1985)). Section 2000d-7(a)(1) of Title

42, United States Code, which permits suits against

States for violations of Section 504, makes clear that

States are not entitled to Eleventh Amendment im-

munity for such suits; therefore, “[bJecause Califor-

nia accepts federal funds under the Rehabilitation

Act, California has waived any immunity under the

Eleventh Amendment.” Jbid.

Finally, the court held that, because respondents

seek only prospective relief, the Eleventh Amendment

is no bar to the suit against those petitioners who are

state officials sued in their official capacities. Pet.

App. 55a (citing Ex parte Young, 209 U.S. 123 (1908)).?

2.a. Armstrong v. Wilson. Respondents John Arm-

strong and others are a certified class consisting of

all present and future inmates with mobility, sight,

hearing, learning, or kidney disabilities incarcerated

in correctional facilities operated by California. Pet.

App. 2la. They filed suit in federal district court

2 In our brief in the court of appeals, we erroneously stated

that California and the California Department of Corrections

were named in both counts of the complaint. See Gov’t C.A.

Br. 2-3, 23, in Clark v. California, No. 96-16952. In fact, Cali-

fornia and its agency were named as defendants only in the

count alleging violations of Section 504, not the count alleging

violations of the ADA, which named only officials acting in

their official capacities. See p. 2, supra.

against various California officials, but not the State

itself or a state agency, alleging that petitioners were

violating the ADA and Section 504, and seeking

declaratory and injunctive relief (but not money

damages). Ibid. The parties entered into a stipula-

tion for procedures to determine liability and remedy.

Id. at 85a. Under that stipulation, petitioners would

file a motion for summary judgment arguing that

they are immune from suit under the Eleventh

Amendment and that the ADA and Section 504 do not

apply to state prisons; if the court denied that motion,

petitioners agreed that a finding of liability and a

stipulated remedial order would be entered against

them. Id. at 85a-86a. The stipulated remedial order

would require petitioners to submit their proposals

for future compliance with the ADA and Section 504;

respondents, in turn, would submit their objections to

petitioners’ proposals. If respondents did not object to

the proposals, then the parties would be bound to file a

stipulation and proposed order; but if respondents did

object, then they would be entitled to request an evi-

dentiary hearing. Jd. at 86a-87a.

The district court denied petitioners’ motion for

summary judgment, ruling that both Section 504

and the ADA contain valid abrogations of Eleventh

Amendment immunity, Pet. App. 34a-42a, and that

both statutes apply to state-operated prisons, id. at

24a-34a. The district court then entered the remedial

order agreed to by the parties, requiring the sub-

mission of proposed remedial and compliance plans by

petitioners. Jd. at 77a-83a.°

3 Subsequently, there were further proceedings in the dis-

trict court over petitioners’ proposed remedial plans. The

court held an evidentiary hearing, and, on October 8, 1997,

b. Petitioners took an interlocutory appeal of right

on the Eleventh Amendment issue, and the United

States intervened to defend the abrogation of Elev-

enth Amendment immunity. The court of appeals

affirmed the denial of immunity. Pet. App. 6a-19a.

The court noted that its decision in Clark had up-

held the constitutionality of the Eleventh Amendment

abrogations contained in the ADA and Section 504 (id.

at 17a n.2), but it elected not to rest its decision on

that basis. Rather, because the suit names as defen-

dants only state officials in their official capacities

and sought only prospective relief, the court relied

on Ex parte Young, supra, to conclude that the

district court had jurisdiction over petitioners. _ . at

17a-18a.

The court also ruled that the ADA and Section 504

extend to claims by prisoners against state-operated

prisons. Pet. App. lla-1l6a. Although the court had

previously denied petitioners leave to appeal the

district court’s interlocutory statutory ruling under

28 U.S.C. 1292(b), it concluded that it had appellate

jurisdiction over petitioners’ appeal on the statutory

question under 28 U.S.C. 1292(a)(1). See Pet. App.

7a-lla.* In particular, it concluded that the district

court’s order directing petitioners to submit a pro-

posed remedial plan is an appealable order granting an

entered an order that sustained certain of respondents’ objec-

tions to the plans, directed petitioners to modify those plans in

some respects, and requested further briefing on various issues

arising out of the proposed plans. See Pet. App. 112a-113a.

4 The United States participated as amicus curiae on the

question of statutory coverage, and argued that state prisoners

are covered by both the ADA and Section 504. The United

States did not brief the question of appellate jurisdiction under

Section 1292(a)(1).

injunction within the scope of Section 1292(a)(1). The

court acknowledged that several other circuits had

held that “an order requiring submission of a reme-

dial plan is generally not an injunction that is re-

viewable interlocutorily under § 1292(a)(1),” id. at 8a,

but it noted that some circuits have recognized ex-

ceptions to that rule where “the order sufficiently

specifies the content of the plan to be submitted,” and

where “delaying the appeal would not clarify the

questions on appeal and where the exact specifica-

tions of the plan would not alter in a material man-

ner the issues that would be presented to the court

of appeals,” id. at 9a-10a (internal quotation marks

omitted). The court found that petitioners’ appeal

satisfied both exceptions. Jd. at 10a. On the merits of

the question of statutory coverage, the court found

that the plain language of both Section 504 and the

ADA and the Department of Justice’s implementing

regulations and interpretive guidance compel the con-

clusion that both statutes reach the functions of state

prisons. /d. at 1la-l6a.

ARGUMENT

1. The court of appeals correctly held that the

abrogations of Eleventh Amendment immunity con-

tained in the ADA and Section 504 are valid exercises

of Congress’s power under the Fourteenth Amend-

ment and the Spending Clause. It also was correct

in holding that respondents could proceed against

state officials in both cases under Ex parte Young,

209 U.S. 123 (1908). Those rulings do not conflict

with any decision of this Court or any other court

of appeals. Further review of the Eleventh Amend-

ment issues raised by petitioners is therefore not

warranted.

SS A

a. Petitioners argue (Pet. 8-12) that the Eleventh

Amendment bars federal courts from adjudicating

claims against state agencies under the ADA. The

ADA provides that a “State shall not be immune un-

der the eleventh amendment to the Constitution of

the United States from an action in [a] Federal or

State court of competent jurisdiction for a violation

of” the ADA. 42 U.S.C. 12202. Petitioners concede

(Pet. 9) that the ADA contains an unequivocal ex-

pression of Congress’s intent to abrogate Eleventh

Amendment immunity. They contend, however, that

that abrogation is invalid. That contention is without

merit.

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

1114 (1996), this Court reaffirmed that Congress

may remove States’ Eleventh Amendment immunity

pursuant to its authority under Section 5 of the

Fourteenth Amendment. /d. at 1125, 1128, 1131 n.15;

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). And

although Congress need not announce that it is

legislating pursuant to its Section 5 authority for

legislation to be upheld on that basis, see EEOC v.

Wyoming, 460 U.S. 226, 243-244 n.18 (1983), it did

make clear in the ADA that its intent was “to invoke

the sweep of congressional authority, including the

power to enforce the fourteenth amendment * * *,

in order to address the major areas of discrimi-

nation faced day-to-day by people with disabilities,”

42 U.S.C. 12101(b)(4).

Petitioners argue (Pet. 9-12) that the abrogation

contained in the ADA is not a valid exercise of Con-

gress’s Section 5 authority. Section 5 of the Four-

teenth Amendment empowers Congress to enact

“appropriate legislation” to “enforce” the Equal Pro-

tection Clause. In City of Boerne v. Flores, 117 S. Ct.

2157 (1997), this Court explained that the authority to

enforce the Fourteenth Amendment is a broad power

to remedy past and present discrimination and to

prevent future discrimination. Jd. at 2163, 2172. It

reaffirmed that Congress may prohibit activities that

are not themselves necessarily unconstitutional, in

furtherance of a remedial scheme. /d. at 2163, 2167,

2169. The Court stressed, however, that Congress’s

power must be linked to constitutional injuries, and

that there must be a “congruence and proportional-

ity” between the identified harms and the statutory

remedy. Jd. at 2164. “The appropriateness of reme-

dial measures must be considered in light of the evil

presented.” Jd. at 2169.

In determining that the treatment of persons with

disabilities in this country required “a clear and

comprehensive national mandate for the elimination

of discrimination against individuals with disabili-

ties,” 42 U.S.C. 12101(b)(1), Congress was acting on

facts similar to those emphasized by this Court in

City of Cleburne v. Cleburne Living Center, Inc., 473

U.S. 432, 450 (1985). In Cleburne, this Court unani-

mously declared unconstitutional as invidious dis-

crimination a decision by a city to deny a special use

permit for the operation of a group home for people

with mental retardation. A majority of the Court

recognized that “through ignorance and prejudice

[persons with disabilities] ‘have been subjected to a

history of unfair and often grotesque mistreatment.’”

Id. at 454 (Stevens, J., concurring); see id. at 461

(Marshall, J., concurring in the judgment in part).

The Court acknowledged that “irrational prejudice,”

id. at 450, “irrational fears,” id. at 455 (Stevens, J.),

and “impermissible assumptions or outmoded and

perhaps invidious stereotypes,” id. at 465 (Marshall,

sek bene B

J.), existed against people with disabilities in society

at large and sometimes inappropriately infected gov-

ernment decision-making.

A majority of the Court in Cleburne declined to

deem classifications based on disability as suspect or

“quasi-suspect,” in part because such heightened

scrutiny would unduly limit legislative solutions to

problems faced by the disabled. This Court reasoned

that “[hlow this large and diversified group is to be

treated under the law is a difficult and often a techni-

cal matter, very much a task for legislators guided

by qualified professionals.” 473 U.S. at 442-443. It

pointed to legislation such as Section 504, intended to

protect persons with disabilities, and expressed con-

cern that requiring governmental entities to justify

their efforts under heightened scrutiny might “lead

[governmental entities] to refrain from acting at all.”

Id. at 444. Nevertheless, the Court left no doubt that

“there have been and there will continue to be

instances of discrimination against the retarded that

are in fact invidious, and that are properly subject

to judicial correction under constitutional norms,” id.

at 446, and indeed it held the actions at issue in

Cleburne to have been unconstitutional.

The extensive factual basis for congressional find-

ings about the extent of discrimination against

persons with disabilities distinguishes this case from

City of Boerne. The Religious Freedom Restoration

Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. (the

statute at issue in City of Boerne), was enacted by

Congress in response to this Court’s decision in

Employment Division v. Smith, 494 U.S. 872 (1990).

Smith held that the Free Exercise Clause does not

require States to provide exceptions to neutral and

generally applicable laws for religiously motivated

behavior, even when those laws significantly burden

religious practices. See id. at 887. In RFRA, Con-

gress attempted to overcome the effect of Smith by

imposing through legislation a requirement that laws

substantially burdening'a person’s exercise of relig-

ion be justified as in furtherance of a compelling state

interest and as the least restrictive means of further-

ing that interest. See 42 U.S.C. 2000bb-1.

This Court held that application to the States of

RFRA was “out of proportion” to the problems

identified, so that it could not be viewed as preventive

or remedial. 1178S. Ct. at 2170. First, the Court found

that there was no “pattern or practice of unconsti-

tutional conduct under the Free Exercise Clause as

interpreted in Smith.” Id. at 2171; see also id. at 2169

(surveying legislative record). The Court also noted

that RFRA’s requirements of a compelling state

interest and narrow tailoring imposed “the most

demanding test known to constitutional law” and thus

possessed a high “likelihood of invalidat{ing]” many

state laws. Jd. at 2171. While stressing that Con-

gress was entitled to “wide latitude” in determining

the need for and scope of laws to enforce Fourteenth

Amendment rights, id. at 2164, the Court concluded

that Congress had simply gone too far in attempting

to regulate local behavior because, in light of the lack

of evidence of a risk of unconstitutional conduct,

application of RFRA to the States could not properly

be viewed as remedial or preventive. Jd. at 2169-2170.

Hence, that application was not a constitutional exer-

cise of Congress’s Section 5 authority.

By contrast, based on extensive fact-finding under-

taken by Congress and the Executive Branch® (and

long experience with the analogous nondiscrimina-

tion requirement contained in Section 504), Congress

made express findings in the ADA as follows:

(2) historically, society has tended to isolate

and segregate individuals with disabilities, and, de-

spite some improvements, such forms of discrimi-

nation against individuals with disabilities con-

tinue to be a serious and pervasive social problem;

(3) discrimination against individuals with

disabilities persists in such critical areas as

employment, housing, public accommodations, edu-

cation, transportation, communication, recreation,

institutionalization, health services, voting, and

access to public services;

* * * * *

® That fact-finding included 14 hearings at the Capitol

and 63 field hearings held in the three years prior to the en-

actment of the ADA. See S. Rep. No. 116, 101st Cong., 1st

Sess. 4-5, 8 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt.

2, at 24-28, 31 (1990); H.R. Rep. No. 485, supra, Pt. 3, at 24;

H.R. Rep. No. 485, supra, Pt. 4, at 28-29; see also Timothy

M. Cook, The Americans with Disabilities Act: The Move to

Integration, 64 Temp. L. Rev. 393, 393 nn.1-3 (1991) (listing

all the hearings). It also drew on reports submitted to Congress

by the Executive Branch. See S. Rep. No. 116, supra, at 6

(citing U.S. Commission on Civil Rights, Accommodating the

Spectrum of Individual Abilities (1983); National Council on

the Handicapped, Toward Independence (1986); and National

Council on the Handicapped, On the Threshold of independence

(1988)); H.R. Rep. No. 485, supra, Pt. 2, at 28 (same).

(5) individuals with disabilities continually

encounter various forms of discrimination, includ-

ing outright intentional exclusion, the discrimina-

tory effects of architectural, transportation, and

communicetion barriers, overprotective rules and

policies, failure to make modifications to existing

facilities and practices, exclusionary qualification

standards and criteria, segregation, and relegation

to lesser services, programs, activities, benefits,

jobs, or other opportunities;

(6) census data, national polls, and other stud-

ies have documented that people with disabilities,

as a group, oceupy an inferior status in our soci-

ety, and are severely disadvantaged socially, voca-

tionally, economically, and educationally;

(7) individuals with disabilities are a discrete

and insular minority who have been faced with

restrictions and limitations, subjected to a history

of purposeful unequal treatment, and relegated to

a position of political powerlessness in our society,

based on characteristics that are beyond the con-

trol of such individuals and resulting from stereo-

typic assumptions not truly indicative of the

individual ability of such individuals to participate

in, and contribute to, society[.]

a ie ee a

42 U.S.C. 12101(a).°

6 Although some of the language used by Congress in Section

12101(a)(7) is drawn from decisions of this Court discussing the

qualities of a constitutionally suspect class for purposes of the

Equal Protection Clause, we do not suggest that Congress has

declared persons with disabilities to be a suspect classification

Congress thus found that the exclusion of per-

sons with disabilities from government facilities,

programs, and benefits was in part a result of past and

ongoing “outright intentional exclusion” and “pur-

poseful unequal treatment.” In the ADA, Congress

sought to remedy the effects of past discrimination

and prevent like discrimination in the future by

mandating that “qualified handicapped individual{s]

must be provided with meaningful access to the bene-

fit that the [entity] offers.” Alexander v. Choate, 469

U.S. 287, 301 (1985) (emphasis added).’? Hence, the

ADA requires that programs not unnecessarily ex-

clude persons with disabilities, either intentionally or

unintentionally, and that government entities make

“reasonable modifications to rules, policies, or prac-

tices” for a “qualified individual with a disability,”

42 U.S.C. 12131(2), when the modifications are “neces-

sary to avoid discrimination on the basis of disability,”

28 C.F.R. 35.130(b)(7).

While the ADA’s nondiscrimination provision and

reasonable-accommodation requirement do impose

some burdens on the States, the statutory scheme

for constitutional equal-protection purposes. See Contractors

Ass’n of Eastern Pennsylvania, Inc. v. City of Philadelphia,

6 F.3d 990, 1001 (3d Cir. 1993); More v. Farrier, 984 F.2d 269,

271 n.4 (8th Cir.), cert. denied, 510 U.S. 819 (1993); but ef. Lake

v. Arnold, 112 F.3d 682, 688 n.10 (8d Cir. 1997) (relying

on findings in determining that mentally retarded persons may

state claim under civil rights conspiracy statute, 42 U.S.C.

1985(3)). Instead, we rely on these findings as a factual basis

for the remedial scheme that Congress enacted.

’ Alexander involved Section 504, but Congress intended

that the ADA be read as imposing substantive requirements

similar to those in Section 504. See S. Rep. No. 116, supra, at

44; H.R. Rep. No. 485, supra, Pt. 2, at 84; see also 42 U.S.C.

12201 (a).

created by Congress acknowledges the importance of

countervailing interests as well. The ADA does not

require governmental entities to articulate a “com-

pelling interest,” but only requires “reasonable

modifications” that do not entail a “fundamental|[]

alter[ation in] the nature of the service, program, or

activity.” 28 C.F.R. 35.130(b)(7). In general, under

the Department of Justice’s implementing regula-

tions, governmental entities need not provide ac-

commodations if they can show “undue financial

and administrative burdens.” 28 C.F.R. 35.150(a)(3),

35.164. Thus, the court of appeals correctly held in

Clark that “neither act provides remedies so sweep-

ing that they exceed the harms that they are designed

to redress.” Pet. App. 58a.°

This Court reaffirmed in City of Boerne that “i]t

is for Congress in the first instance to ‘determin(e]

whether and what legislation is needed to secure the

guarantees of the Fourteenth Amendment,’ and its

conclusions are entitled to much deference.” 117 8S.

Ct. at 2172 (quoting Katzenbach v. Morgan, 384 U.S.

641, 651 (1966)). Following that deferential approach,

the only other court of appeals that has addressed

the Eleventh Amendment issue has also upheld the

8 Petitioners contend (Pet. 11-12) that the court of appeals

in Clark did not expressly analyze whether there was a con-

gruence between the ADA’s ends and means, such that the

ADA could be upheld as an exercise of Congress’s Section

5 power under Katzenbach v. Morgan, 384 U.S. 641, 651 (1966),

and City of Boerne. Petitioners, however, failed to raise that

issue in their appellate brief in Clark, and relied solely on the

argument that Congress could not exercise its Section 5 author-

ity with respect to non-suspect classifications. Compare Pet.

C.A. Br. 10-15, in Ciark v. California, No. 96-16952, with Pet.

C.A. Br. 30-34, in Armstrong v. Wilson, No. 96-16870.

ADA as valid Section 5 legislation. See Crawford v.

Indiana Dep’t of Corrections, 115 F.3d 481, 487 (7th

Cir. 1997); ef. Counsel v. Dow, 849 F.2d 731, 737 (2d

Cir.) (collecting cases upholding the Individuals with

Disabilities Education Act, 20 U.S.C. 1400 et seq., as a

valid exercise of Section 5 power), cert. denied, 488

U.S. 955 (1988). Accordingly, in the absence of any

conflict in the circuits on the issue, this Court should

deny review of petitioners’ challenge to the abroga-

tion of Eleventh Amendment immunity from ADA

suits.

b. Petitioners also challenge (Pet. 8-12) the con-

stitutionality of Congress’s abrogation of Eleventh

Amendment immunity from suits arising under Sec-

tion 504. As with the ADA, there is no doubt that

Congress intended to remove States’ Eleventh

Amendment immunity from suit under Section 504.

See 42 U.S.C. 2000d-7(a)(1); Lane v. Pevia, 116 S. Ct.

2092, 2099-2100 (1996). For the reasons discussed

above, Section 2000d-7 may be sustained as a valid

exercise of Congress’s power under Section 5 of the

Fourteenth Amendment to enforce the guarantees of

the Equal Protection Clause. See Welch v. Texas

Dep't of Highways & Pub. Transp., 483 U.S. 468, 472

n.2 (1987) (opinion of Powell, J.) (stating in dictum

that “[t]he Rehabilitation Act was passed pursuant to

§ 5 of the Fourteenth Amendment”).

In addition, the removal of Eleventh Amendment

immunity for Section 504 claims may be upheld as a

valid exercise of Congress’s power under the Spend-

ing Clause of the Constitution, Art. I, § 8, Cl. 1,

to prescribe conditions for States that voluntarily

accept federal financial assistance. In Atascadero

State Hospital v. Scanlon, 473 U.S. 234 (1985), this

Court held that Congress had not provided suffi-

ciently clear statutory language to abrogate States’

Eleventh Amendment immunity for Section 504

claims, but it stated that, if a statute “manifest/ed]

a clear intent to condition participation in the pro-

grams funded under the Act on a State’s consent to

waive its constitutional immunity,” the federal courts

would have jurisdiction over States that accepted

federal funds, id. at 247; cf. South Dakota v. Dole, 483

U.S. 203, 210 (1987) (upholding Congress’s spending

power to impose conditions for receipt of federal fi-

nancial assistance by States).

Section 2000d-7 was a direct response to this

Court’s decision in Atascadero, and made unambigu-

ously clear that Congress intended the States to be

amenable to suit in federal court under Section 504 if

they accepted federal funds. See Lane, 116 S. Ct. at

2100. Thus, as the court of appeais found, Section

2000d-7 “manifests a clear intent to condition a state’s

participation on its consent to waive its Eleventh

Amendment immunity.” Pet. App. 55a. Because peti-

tioners have accepted federal funds since the enact-

ment of Section 2000d-7, they have consented to be

sued in federal court for alleged violations of Section

504. Requiring States to “honor the obligations

voluntarily assumed as a condition of federal funding

* * * simply does not intrudé on their sovereignty.”

Bell v. New Jersey, 461 U.S. 773, 790 (1983).

ce. Finally, the court of appeals correctly ruled

(Pet. App. 17a-18a, 55a) that both cases may proceed

against the individually named petitioners under the

doctrine of Ex parte Young, 209 U.S. 123 (1908),

notwithstanding any claim to Eleventh Amendment

immunity. The Armstrong complaint names only

individual officers as defendants, and does not name

the State itself as a defendant. Therefore, no Elev-

a ee dan ts

enth Amendment immunity issue is presented at all

in Armstrong. Similarly, in Clark, respondents

named only individual officers as defendants to the

ADA count. Respondents in Clark named the State

as a defendant to the Section 504 count, but the

presence of the State may not be essential to that

cause of action, which can proceed against the named

state officers. And although petitioner contends (Pet.

13) that a State’s management of its convicted felons

is an essential attribute of state sovereignty that

should not be amenable to a federal-court suit under

Ex parte Young, this Court has made clear that a

federal court’s exercise of prospective powers against

state officials charged with prison management in an

Ex parte Young suit brought to challenge prison

conditions does not implicate the Eleventh Amend-

ment. See Hutto v. Finney, 437 U.S. 678, 690 (1978)

(Eighth Amendment challenge to prison conditions).

2. Petitioners also ask (Pet. 5) the Court to decide

whether the ADA and Section 504 apply to “the

State’s management of their convicted felons.” As

petitioners point out, there is a conflict among the

circuits as to whether a state prisoner may raise a

claim against a state corrections agency or official

under the ADA and Section 504. The Third and

Seventh Circuits agree with the Ninth Circuit and

have held (correctly, in our view) that the ADA and

Section 504 do apply to state prisons, but the Fourth

Circuit has held to the contrary.’ Compare Yeskey v.

* Petitioners also contend that the Tenth Circuit has held

that the ADA and Section 504 are inapplicable to inmates in

state prisons. See Pet. 5 (citing White v. Colorado, 82 F.3d 364

(1996)). White, however, held only that those statutes are not

applicable to employment opportunities for prisoners. That

ruling was based on the Tenth Circuit’s earlier decision that

Pennsylvania Dep't of Corrections, 118 F.3d 168 (8d

Cir. 1997), petition for cert. pending, No. 97-634 (filed

Oct. 8, 1997) and Crawford v. Indiana Dep’t of Cor-

rections, 115 F.3d 481 (7th Cir. 1997) with Amos v.

Maryland Dep’t of Public Safety & Correctional

Servs., 126 F.3d 589 (4th Cir. 1997). In Yeskey, the

Court has requested a response to the petition, which

is due on January 5, 1998; we are informed that a

certiorari petition in Amos may be filed within a few

days.

Although the question of the coverage of the ADA

and Section 504 is important, this case may not be a

suitable vehicle for resolution of that issue. As we

have noted (p. 3, supra), the question of statutory

coverage was not before the court of appeals at all in

Clark, because the court of appeals declined to accept

petitioners’ interlocutory appeal on that issue. And

although the court of appeals addressed the question

of coverage in Armstrong (see pp. 7-8, supra), it is

doubtful whether the court of appeals properly

exercised appellate jurisdiction in that case over the

issue of coverage.” By contrast, in both Yeskey and

prisoners are not to be considered “employees” within the

meaning of Section 504. Williams v. Meese, 926 F.2d 994, 997

(1991). We do not read White to hold that Section 504 and the

ADA are completely inapplicable to state prisoners.

1 Armstrong was in the court of appeals on petitioners’

appeal from the entry of an order requiring them to submit a

remedial plan to the district court. The prevailing rule in the

courts of appeals is that an order directing the submission of a

remedial plan is not appealable as an order granting an injunc-

tion. See Pet. App. 8a-9a (collecting cases). The court of ap-

peals held in Armstrong that the order was appealable because

it directed that Department of Corrections officials “cluster

class members with certain disabilities at designated institutions

and parole facilities,” id. at 10a, and therefore “specifie[d] the

Amos, the courts of appeals reached the issue of

coverage on appeal under 28 U.S.C. 1291 from a final

judgment terminating the litigation in favor of the

defendants. See Amos, 126 F.3d at 591 (affirming

grant of summary judgment); Yeskey, 118 F.3d at 169-

170 (reversing dismissal for failure to state a claim).”

Accordingly, should the Court conclude that the issue

of statutory coverage may warrant review at this

content of the plan to be submitted,” id. at 9a. In fact,

however, the appealed remedial order does not appear to have

resolved any specific substantive issues concerning require-

ments of the ADA or Section 504 as applied to California’s

prisons. Many of those issues were contested in subsequent

litigation and were resolved in another remedial order entered

by the district court on October 8, 1997. See id. at 84a-113a.

The court also exercised appellate jurisdiction under the

theory that delaying the appeal would not clarify the questions

on appeal. See id. at 9a-10a. Although postponement of the

question might not have clarified the legal question of the

applicability of the ADA and Section 504, subsequent proceed-

ings would also have done much to clarify the exact content

of any remedial order to be entered against petitioners, and

the policy against piecemeal appeals suggests that both issues

could and should be appealed at the same time. See Gardner

v. Westinghouse Broadcasting Co., 437 U.S. 478, 482 (1978)

(Section 1292(a)(1) does not authorize appeals of “orders that

have no direct or irreparable impact on the merits of the

controversy” but “only relate[{] to pretrial procedures”); cf.

Carson v. American Brands, Inc., 450 U.S. 79, 87-88 (1981)

(district court order refusing to enter consent decree was im-

mediately appealable under Section 1292(a)(1) as order denying

injunction because it had “serious, perhaps irreparable, conse-

quence[s]}” that could not be reversed after appeal from final

judgment).

"The court of appeals in Yeskey noted that the plaintiff in

that case brought suit only under the ADA, and not also

Section 504, but it treated the coverage issues under the two

statutes as the same. See 118 F.3d at 169-170.

time, it may wish to hold the petition in this case for

consideration with the petition in Yeskey and any

petition that might be filed in Amos, and dispose of

this case in light of the disposition of those petitions.

CONCLUSION

As to the Eleventh Amendment questions pre-

sented, the petition for a writ of certiorari should be

denied. As to the question presented of the coverage

of the Americans with Disabilities Act of 1990 and

Section 504 of the Rehabilitation Act of 19738, the

petition should be held pending the Court’s disposi-

tion of the petition in Commonwealth of Pennsylva-

nia Department of Corrections v. Yeskey, No. 97-634,

and any petition to be filed in Amos v. Maryland

Department of Public Safety & Correctional Ser-

vices, and then disposed of in accordance with the

disposition of those cases.

Respectfully submitted.