# Opposition Brief — DeBose v. Nebraska

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1190

## Text

{ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0497%3A2. Public record. Not legal advice.