Opposition Brief — DeBose v. Nebraska

{ Slipréme Court, U.S,

Ca tok Bb

(2) BED 28 1999

No. 99-940 | |

ee

In the Supreme Court of the Gnited States

DENISE DEBOSE AND JAMES MCCULLOUGH,

PETITIONERS

AND

UNITED STATES OF AMERICA

Vv.

STATE OF NEBRASKA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

——

QUESTION PRESENTED

Whether Title I of the Americans with Disabilities

Act of 1990, 42 U.S.C. 12111-12117, is a proper exercise

of Congress’s power under Section 5 of the Fourteenth

Amendment, thereby constituting a valid exercise of

congressional power to abrogate the States’ Eleventh

Amendment immunity from suit by individuals.

(I)

TABLE OF CONTENTS

Page

Opinion below 1

Jurisdiction 1

Statement ..... 2

Discussion 6

Conclusion 14

TABLE OF AUTHORITIES

* Cases:

Alexander v. Choate, 469 U.S. 287 (1985) 11

Alsbrook v. City of Maumelle, 184 F.3d 999 (8th

Cir. 1999), petition for cert. pending, No. 99-423.............. 5, 6,8

Amos v. Maryland Dep't of Pub. Safety &

Correctional Servs.,. 178 F.8d 212 (4th Cir. 1999) ........... 7,8

Bragdon v. Abbott, 524 U.S. 624 (1998) 11

Brown v. North Carolina Div. of Motor Vehicles,

166 F.8d 698 (4th Cir. 1999), petition for cert.

pending, No. 99-424 8

City of Boerne v. Flores, 521 U.S. 507 (1997) -...cccsssescossose 7

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

473 U.S. 482 (1985) - 910,12

Clark v. California, 123 F.3d 1267 (9th Cir. 1997),

cert. denied, 118 S. Ct. 2840 (1998) 7

Coolbaugh v. Louisiana, 186 F.8d 430 (5th Cir.),

cert. denied, 119 S. Ct. 58 (1998) 7

Crawford v. Indiana Dep't of Corrections, 115

F.3d 481 (7th Cir. 1997) 7

Dare v. California, 191 F.3d 1167 (9th Cir. 1999)............ 8

Erickson v. Board of Governors of State Colleges

& Univs., No. 95 C 2541, 1998 WL 748277

(N.D. Ill Sept. 30, 1998), appeal pending No. 98-3614

(7th Cir.) 7

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 4,5

(IIT)

Cases—Continued: Page

Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Sav. Bank, 119S. Ct. 2199

(1999) 8

Garrett v. University of Ala., 193 F.3d 1214

(11th Cir. 1999) 8

Kimel v. Florida Bd. of Regents:

119 S. Ct. 901 (1999) 12

139 F.3d 1426 (11th Cir. 1998), petition for cert.

pending sub nom. Florida Dep’t of Corrections v.

Dickson, No. 98-829 7

Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999) ........... s

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) ...........00+ 8

Nihiser v. Ohio EPA, 979 F. Supp. 1168 (S.D.

Ohio 1997), appeal pending, No. 97-3933 (6th Cir.) ......... 7

Olmstead v. L.C., 119 S. Ct. 2176 (1999) 9, 10

Pennsylvania Dep't of Corrections v. Yeskey,

524 U.S. 206 (1998) 9

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ..........s.s0 7

Torres v. Puerto Rico Tourism Co., 175 F.3d 1

(1st Cir. 1999) 7

United States v. Florida Bd. of Regents, cert. granted,

119 S. Ct. 902 (1999) . 11,12

Virginia, Ex parte, 100 U.S. 339 (1880) 4

Constitution and statutes:

U.S. Const.:

Amend. XI 5, 6, 7, 8, 9, 12

Amend. XIV, § 5 6,7

Equal Protection Clause 7

Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq. 12

Statutes—Continued: Page

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

12101 et seq.

42 US.C.

42 US.C.

42 US.C.

42 US.C.

42 US.C.

42 US.C

Tit. I, 42 U.S.C. 12111 et seg.

42 US.C.

42 US.C.

42 US.C.

42 US.C.

42 USC.

42 U.S.C.

42 U.S.C.

42 U.S.C.

Tit. II, 42 U.S.C. 12131 et seq. 5, 6,

42 US.C.

12101(a) 3

12101(aX5) 10-11

12101(aX7) 11

12101(b)(1) 2,9

12101(b\(2)

12101(b)(4)

12111-12117

12111(2)

12111(5)(A)

12111(7)

12111(10)

12112(a)

12112(b)(5)(A)

12117(a)

_

eR Ou” he hh hb Lh P ih D

_

12131-12165

Tit. III, 42 U.S.C. 12181 et seq.:

42 US.C.

42 US.C.

42 US.C.

12181-12189 (1994 & Supp. III 1997) ........ 4

12201(a) 1

12202 5

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq.

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

§ 501(b), 29 U.S.C. 7910) 4

§ 501(g), 29 U.S.C. 791(g) 4

§ 504, 29 U.S.C. 794 2, 10, 11

2 U.S.C. 1302(aX3) (Supp. IV 1998) 5

2 U.S.C. 1311(b)3) (Supp. IV 1998) 5

28 U.S.C. 2408(a) 5

Miscellaneous:

Timothy M. Cook, The Americans with Disabilities

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

398 (1991)

Miscellaneous—Continued: Page

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

Pt. 2 2,11

Pt. 3 2

Pt. 4 2

National Council on Disability:

On the Threshold of Independence (1988) 2

Toward Independence (1986) 2

S. Rep. No. 116, 101st Cong., Ist Sess. (1989) .........ccssss 2,11

United States Civil Rights Commission, Accommodat-

ing the Spectrum of Individual Abilities (19838) ............. 2

In the Supreme Court of the Gnited States

No. 99-940

DENISE DEBOSE AND JAMES MCCULLOUGH,

PETITIONERS

AND

UNITED STATES OF AMERICA

Vv.

STATE OF NEBRASKA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-4a)

is reported at 186 F.3d 1087.

JURISDICTION

The court of appeals entered its judgment on August

9, 1999, and amended its opinion on September 14, 1999.

A petition for rehearing was denied on September 14,

1999. Pet. App. 1b. The petition for a writ of certiorari

was filed on December 1, 1999. The jurisdiction of this

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

(1)

2

STATEMENT

1. The Americans with Disabilities Act of 1990 (Dis-

abilities Act), 42 U.S.C. 12101 et seq., is a “comprehen-

sive national mandate for the elimination of discrimina-

tion against individuals with disabilities.” 42 U.S.C.

12101(b)(1). Based on extensive study and fact-finding

by Congress,’ and Congress’s lengthy experience with

the analogous nondiscrimination requirement in Section

504 of the Rehabilitation Act of 1978, 29 U.S.C. 794,

Congress found in the Disabilities Act that:

(2) historically, society has tended to isolate and

segregate individuals with disabilities, and, despite

some improvements, such forms of discrimination

against individuals with disabilities continue to be a

serious and pervasive social problem;

(3) discrimination against individuals with disabili-

ties persists in such critical areas as employment,

housing, public accommodations, education, trans-

portation, communication, recreation, institution-

1 Fourteen congressional hearings and 68 field hearings by a

special congressional task force were held in the three years prior

to passage of the Disabilities Act. See S. Rep. No. 116, 101st

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

Sess. Pt. 2, at 24-28, 31 (1990); id. Pt. 3, at 24-25; id. 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 the individual hearings). Congress also drew upon reports

submitted to Congress by the Executive Branch. See S. Rep. No.

116, supra, at 6 (citing United States Civil Rights Commission, Ac-

commodating the Spectrum of Individual Abilities (1983); Na-

tional Council on Disability, Toward Independence (1986); and Na-

tional Council on Disability, On the Threshold of Independence

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

8

alization, health services, voting, and access to pub-

lic services;

*x* * * *k *

(5) individuals with disabilities continually en-

counter various forms of discrimination, including

outright intentional exclusion, the discriminatory ef-

fects of architectural, transportation, and communi-

cation 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 studies

have documented that people with disabilities, as a

group, occupy an inferior status in our society, and

are severely disadvantaged socially, vocationally,

economically, and educationally; [and]

(7) individuals with disabilities are a discrete and

insular minority who have been faced with restric-

tions and limitations, subjected to a history of pur-

poseful unequal treatment, and relegated to a posi-

tion of political powerlessness in our society, based

on characteristics that are beyond the control of

such individuals and resulting from stereotypic

assumptions not truly indicative of the individual

ability of such individuals to participate in, and

contribute to, society[.]

42 U.S.C. 12101(a). Based on those findings, Congress

“invoke[d] the sweep of congressional authority, in-

cluding the power to enforce the fourteenth amendment

4

and to regulate commerce, in order to address the ma-

jor areas of discrimination faced day-to-day by people

with disabilities.” 42 U.S.C. 12101(b)(4).

The Disabilities Act targets three particular areas of

discrimination against persons with disabilities. Title I,

42 U.S.C. 12111-12117, addresses discrimination by em-

ployers; Title II, 42 U.S.C. 12131-12165, addresses dis-

crimination by governmental entities; and Title III, 42

U.S.C. 12181-12189 (1994 & Supp. III 1997), addresses

discrimination in public accommodations operated by

private entities.

This case involves a suit under Title I of the Dis-

abilities Act, which provides that “[n]o covered entity

shall discriminate against a qualified individual with a

disability because of the disability of such individual in

regard to job application procedures, the hiring, ad-

vancement, or discharge of employees, employee com-

pensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. 12112(a). A

“covered entity” is defined to include any “person

engaged in an industry affecting commerce who has 15

or more employees,” 42 U.S.C. 12111(2) and (5)(A), and

the term “person” incorporates the definition from Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et

seq., which includes States. 42 U.S.C. 12111(7); cf.

Fitzpatrick v. Bitzer, 427 U.S. 445, 449 & n.2 (1976)?

2 While the Disabilities Act does not apply to the federal gov-

ernment, substantially similar protections are provided by Section

501(b) of the Rehabilitation Act of 1973, 29 U.S.C. 791(b), which

prohibits discrimination against persons with disabilities in

employment by ali executive branch agencies and requires them to

engage in “affirmative action” with regard to the “hiring,

placement, and advancement of individuals with disabilities.” See

also 29 U.S.C. 791(g) (“standards used to determine whether this

section has been violated in a complaint alleging nonaffirmative

5

The prohibition on discrimination may be enforced

through private suits against public entities. See 42

U.S.C. 12117(a) (incorporating the enforcement pro-

visions of Title VII); cf. Fitzpatrick, 427 U.S. at 452. In

the Disabilities Act, Congress expressly abrogated the

States’ Eleventh Amendment immunity from private

suits in federal court. 42 U.S.C. 12202 (a “State shall

not be immune under the eleventh amendment to the

Constitution of the United States from an action in

Federal or State court of competent jurisdiction for a

violation of this chapter”).

2. Petitioners were employed by respondent as

investigators for the Nebraska Equal Employment Op-

portunity Commission. Both petitioners were exper-

iencing clinical depression that limited their major life

activities. They both asked for accommodations, which

were refused, and they were fired. They filed suit

under Title I of the Disabilities Act. The jury entered

verdicts in favor of petitioners and awarded them both

back pay and compensatory damages, and awarded

front pay to petitioner McCullough. The court ordered

petitioner DeBose reinstated to her position. Pet. App.

8a; Pet. 15-16.

8. On appeal, respondent pressed for the first time

the argument that the Eleventh Amendment barred

these actions. The United States intervened, pursuant

to 28 U.S.C. 2408(a), to defend the constitutionality of

the abrogation. The court of appeals reversed. Pet.

App. la-4a. The court noted that, in Alsbrook v. City of

Maumelle, 184 F.3d 999 (1999) (en banc), petition for

action employment discrimination * * * shall be the standards

applied under title I of” the Disabilities Act). In addition,

Congress has extended the obligations of the Disabilities Act to

itself. See 2 U.S.C. 1802(a)(3), 1811(b)(3) (Supp. IV 1998).

cert. pending, No. 99-423, the Eighth Circuit held that

Congress had exceeded its power under Section 5 of the

Fourteenth Amendment in attempting to abrogate

Eleventh Amendment immunity for suits under Title II

of the Disabilities Act. Although Alsbrook had

expressly declined to address the validity of Title I, see

184 F.3d at 1006 n.11, the panel held that “the

established in that case apply with equal vigor to Title I

of that act.” Pet. App. 4a. It thus reversed the judg-

ment and remanded with instructions to enter judg-

ment for respondent.

DISCUSSION

The holding in this case, following and extending the

Eighth Circuit’s holding in Alsbroak v. City of

Maumelle, 184 F.3d 999 (1999) (en banc), petition for

cert. pending, No. 99-423, has significantly eroded the

operation of important civil rights legislation. Contrary

to this Court’s precedents, the decision places unwar-

ranted limits on Congress’s authority to provide

“strong, consistent, enforceable standards

discrimination against individuals with disabilities.” 42

U.S.C. 12101(b)(2). The decision, moreover, is in direct

conflict with the rulings of six other circuits, including

four decisions that were rendered subsequent to the

Eighth Circuit’s ruling in this case and that have

expressly rejected that court’s holding. Petitioner is

thus correct that this case ultimately may warrant an

exercise of this Court’s certiorari jurisdiction. In our

opinion, however, a grant of certiorari at this time

would be premature, in light of litigation presenting an

analogous question currently pending before the Court.

See United States v. Florida Bd. of Regents, No. 98-796;

Kimel v. Florida Bd. of Regents, No. 98-791 (oral

argument in both heard on October 13, 1999).

7

1. Following this Court’s decisions in Seminole Tribe

v. Florida, 517 U.S. 44 (1996), and City of Boerne v.

Flores, 521 U.S. 507 (1997), four courts of appeals held

that the abrogation of Eleventh Amendment immunity

contained in the Disabilities Act is a valid exercise of

Congress’s power under Section 5 of the Fourteenth

Amendment to “enforce” the Equal Protection Clause.

See Amos v. Maryland Dep’t of Pub. Safety & Correc-

tional Servs., 178 F.3d 212 (4th Cir. 1999) (Title II);

Kimel v. Florida Bd. of Regents, 189 F.3d 1426 (11th

Cir. 1998) (Title I, petition for cert. pending sub nom.

Florida Dep’t of Corrections v. Dickson, No. 98-829;

Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.) (Title

IT), cert. denied, 119 S. Ct. 58 (1998); Clark v.

California, 123 F.3d 1267 (9th Cir. 1997) (Title II), cert.

denied, 118 S. Ct. 2340 (1998); see also Torres v. Puerto

Rico Tourism Co., 175 F.3d 1, 6 n.7 (1st Cir. 1999) (in

Title I case, court states that “we have considered the

issue of Congress’s authority sufficiently to conclude

that, were we to confront the question head-on, we

almost certainly would join the majority of courts

upholding the provision”)? The Eighth Circuit’s

3 The Seventh Circuit upheld the Disabilities Act’s abrogation

prior to this Court’s decision in Flores, supra. See Crawford v.

Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir. 1997)

(Title II). The question of the continuing validity of Crawford is

currently pending in a case arising under Title I, Erickson v.

Board of Governors of State Colleges & Universities, No. 95 C

2541, 1998 WL 748277 (N.D. Ill. Sept. 30, 1998), appeal pending,

No. 98-3614 (7th Cir.) (oral argument heard Apr. 27, 1999). The

constitutionality of the Disabilities Act’s abrogation for both Titles

I and II is also pending in a number of cases before the Sixth Cir-

cuit, for which a consolidated oral argument was heard on October

26, 1999. See, e.g., Nihiser v. Ohio EPA, 979 F. Supp. 1168 (S.D.

Ohio 1997), appeal pending, No. 97-3933.

8

decision is in direct conflict with the rulings of those

courts.‘

Furthermore, the four courts of appeals that have

considered or reconsidered the validity of the Disabili-

ties Act’s abrogation after the Eighth Circuit’s decision

in this case and after this Court’s decision last Term in

Florida Prepaid Postsecondary Education Expense

Board v. College Savings Bank, 119 S. Ct. 2199 (1999),

have all rejected the Eighth Circuit’s holding and have

upheld the Disabilities Act’s abrogation as valid Section

5 legislation. See Garrett v. University of Ala., 193

F.3d 1214 (11th Cir. 1999) (Title I; Dare v. California,

191 F.3d 1167 (9th Cir. 1999) (Title II); Martin v.

Kansas, 190 F.3d 1120 (10th Cir. 1999) (Title ID; Muller

v. Costello, 187 F.3d 298 (2d Cir. 1999) (Title I).

The question of Congress’s authority to abrogate the

States’ Eleventh Amendment immunity in the Dis-

abilities Act has thus been extensively evaluated and

considered by the courts of appeals. The conflict is

firmly entrenched and incapable of resolution absent

intervening action by this Court.

2. The question presented is one of broad and endur-

ing importance. The Disabilities Act is vital civil rights

legislation needed to protect millions of Americans

4 The court in Alsbrook found support for its decision (184 F.3d

at 1007 n.13) in Brown v. North Carolina Division of Motor Vehi-

cles, 166 F.3d 698 (4th Cir. 1999), petition for cert. pending, No. 99-

424. In Brown, however, a divided panel held only that the abroga-

tion for suits under Title II of the Disabilities Act was unconstitu-

tional as applied to a specific Department of Justice regulation.

The court expressly disclaimed any intent to address Congress’s

power to enact other provisions of the Disabilities Act. Id. at 704-

705, 708 n.*. The Fourth Circuit subsequently upheld the

Disabilities Act’s abrogation of immunity in another Title II case

and limited Brown to its facts. See Amos, 178 F.3d at 221 n.8.

9

against invidious and irrational stereotypes and limita-

tions on their ability to function in society and to enjoy

“perfect equality of civil rights and the equal protection

of the laws against State denial or invasion.” Ex parte

Virginia, 100 U.S. 339, 346 (1880). As a consequence of

the Eighth Circuit’s decision here, the operation of this

important civil rights legislation has been significantly

impaired in seven States. Unlike litigants in the six

circuits where the Disabilities Act’s abrogation of

Eleventh Amendment immunity has been sustained,

persons with disabilities in the Eighth Circuit cannot

fully enforce their federal rights under the Disabilities

Act in federal court.

3. For the reasons stated in numerous filings we

have previously made with the Court,’ the court of

appeals’ determination that the Disabilities Act does

not fall within Congress’s broad power under Section 5

of the Fourteenth Amendment is erroneous. First, in

determining that the treatment of persons with disabili-

ties in this country requires “a clear and comprehensive

national mandate for the elimination of discrimina-

tion against individuals with disabilities,” 42 U.S.C.

12101(b)(1), Congress acted consistently with this

Court’s decision in City of Cleburne v. Cleburne Living

Center, 473 U.S. 482; 450 (1985). In Cleburne, this

Court unanimously declared unconstitutional as invidi-

ous discrimination the city’s denial of a special use

permit that would allow the operation of a group home

5 See, ¢.g., Brief for the United States in Opposition at 5-14,

Florida Dep't of Corrections v. Dickson, No. 98-829; Brief for the

United States as Amicus Curiae at 21-28, Pennsylvania Dep’t of

Corrections v. Yeskey, 524 U.S. 206 (1998) (No. 97-634); Brief for

the United States as Amicus Curiae at 29-30, Olmstead v. L.C., 119

S. Ct. 2176 (1999) (No. 98-536).

10

for people with mental retardation. A majority of the

Court recognized that, “through ignorance and preju»

dice [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 (Mar-

shall, J., concurring in the judgment in part). The Court

acknowledged that “irrational prejudice,” id. at 450,

“irrational fears,” id. at 455 (Stevens, J.), and “imper-

missible assumptions or outmoded and perhaps invidi-

ous stereotypes,” id. at 465 (Marshall, J.), existed

against people with disabilities in society at large and

sometimes inappropriately infected government deci-

sion- )

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 persons with disabilities. This Court reasoned

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

treated under the law is a difficult and often a technicai

matter, very much a task for legislators guided hy

qualified professionals.” See 473 U.S. at 442-443. In

that regard, the Court specifically discussed a number

of federal statutes and rules that protect individuals

with disabilities, including Section 504 of the Reha-

bilitation Act of 1978, 29 U.S.C. 794. 473 U.S. at 448;

see also Olmstead v. L.C., 119 S. Ct. 2176, 2181 n.1

(1999). :

Second, an extensive legislative record of studies and

findings provides a comprehensive factual predicate for

congressional action. In particular, Congress found

that the exclusion of persons with disabilities from

government facilities, programs, and benefits was in

part a result of past and ongoing “outright intentional

exclusion” and “purposeful unequal treatment.” 42

11

U.S.C. 12101(a)(5) and (7). In the Disabilities Act,

Congress sought to remedy the effects of such past

discrimination and prevent like discrimination in the

future by mandating that “qualified handicapped

individual[s] must be provided with meaningful access

to the benefit that the [entity] offers.” Alexander v.

Choate, 469 U.S. 287, 301 (1985) (emphasis added).®

Third, the Disabilities Act’s nondiscrimination pro-

vision and reasonable-accommodation requirements are

reasonably tailored to combating invidious discrimina-

tion against persons with disabilities. Title I of the

Disabilities Act does not require governmentai entities

to articulate a “compelling interest” or to advance

their interests by the least restrictive means. It only

requires “reasonable accommodations” that do not

impose an “undue hardship” on the State. 42 U.S.C.

12112(b)(5)(A); see also 42 U.S.C. 12111(10) (defining

“undue hardship” to mean “an action requiring signifi-

cant difficulty or expense” in light of “the overall

financial resources” and “type of operation” of the

covered entity).

4. The Eighth Circuit’s decision thus bears all the

hallmarks of a case meriting an exercise of this Court’s

certiorari jurisdiction, and granting this petition may

ultimately be appropriate. We do not, however, con-

sider a grant of the petition at the present time to be

warranted. That is because, on October 13, 1999, this

Court heard oral argument in United States v. Florida

6 Alexander involved Section 504 of the Rehabilitation Act, but

Congress intended that the Disabilities Act be read as imposing

substantive requirements at least as stringent as those in Section

504. See Bragdon v. Abbott, 524 U.S. 624, 631-632 (1998); 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).

12

Board of Regents, cert. granted, 119 S. Ct. 902 (1999)

(No. 98-796), and Kimel v. Florida Board of Regents,

cert. granted, 119 S. Ct. 901 (1999) (No. 98-791). Those

cases present the questions of whether the Age Dis-

crimination in Employment Act of 1967 (ADEA), 29

U.S.C. 621 et seqg., contains a clear expression of Con-

gress’s intent to abrogate Eleventh Amendment immu-

nity, and whether the ADEA reflects a proper exercise

of Congress’s power under Section 5 of the Fourteenth

Amendment. As we have noted in our petition for a

writ of certiorari in No. 98-796, while the provisions,

scope, and legislative record of the ADEA differ in

some respects from those of the Disabilities Act, the

resolution of the abrogation issue under the ADEA may

shed light on the resolution of the parallel issue under

the Disabilities Act. See Petition at 12-18, United

States v. Florida Bd. of Regents, supra (No. 98-796).

That is especially so because both statutes concern the

scope of Congress’s power to enforce the Equal

Protection Clause for classifications (age and disability)

that are not normally subject to heightened judicial

scrutiny. See Cleburne, supra.

On the other hand, because the ADEA and Disabili-

ties Act differ in some ways in terms of their structure

and legislative record, it may be that the Court’s

decision in the Florida Board of Regents cases will not

negate the need for plenary review of the validity of the

Disabilities Act’s abrogation. Furthermore, the

Florida Board of Regents cases present the separate

question—which is not at issue here—of whether Con-

gress clearly expressed its intent to abrogate the

States’ Eleventh Amendment immunity in the ADEA.

Were this Court’s resolution of the Florida Board of

Regents cases to turn upon that question, rather than

upon the scope of Congress’s power under Section 5, it

18

is quite unlikely that the disposition would offer rele-

vant guidance to the court of appeals in reviewing the

constitutionality of the Disabilities Act’s abrogation.

- In short, this Court’s decision this Term in the Flor-

ida Board of Regents cases may cast significant light on

the question presented by the petition. Not until a de-

cision issues in those cases will counsel and the Court

be able to undertake a fully informed and considered

analysis of whether granting this petition (or another

petition presenting the same issue) is appropriate, or

whether, instead, an order granting, vacating, and re-

manding to the court of appeals for reconsideration in

light of the decision in Nos. 98-796 and 98-791 is the

preferable course of action. We therefore suggest that

the petition be held pending this Court’s decision in

United States v. Florida Board of Regents, No. 98-796,

and Kimel v. Florida Board of Regents, No. 98-791.’

Within fourteen days of the decision in those cases, the

United States will submit a supplemental filing con-

taining its views, in light of that ruling, as to the appro-

priate disposition of this petition.

7 We have made the same suggestion in response to the peti-

tion in Alsbrook and in a supplemental brief in Dickson.

14

CONCLUSION

The petition for a writ of certiorari should be held

pending this Court’s decision in United States v.

Florida Board of Regents, No. 98-796, and Kimel v.

Florida Board of Regents, No. 98-791.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

DECEMBER 1999