Amicus Curiae Brief — University of Puerto Rico v. Toledo (No. 06-779)

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IN THE SUPREME COURT OF THE UNITED STATES

UNIVERSITY OF PUERTO RICO, Petitioner,

IVAN TOLEDO, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Ruben T. Nigaglioni Samuel R. Bagenstos

255 Recinto Sur Street Counsel of Record

San Juan, PR 00901 One Brookings Drive,

(787) 765-9966 Box 1120

St. Louis, MO 63108

(314) 935-9097

Counsel for Respondent Ivan Toledo

QUESTIONS PRESENTED

1. Whether a territory can assert sovereign immunity against a suit

brought to enforce an Act of Congress that abrogates sovereign immunity.

2. Whether Title [I of the Americans with Disabilities Act, 42 U.S.C. §

12131 et seq., validly abrogates state sovereign immunity as applied to the

class of cases involving public education.

TABLE OF CONTENTS

STATEMENT

REASONS FOR DENYING THE WRIT........

A. There is No Conflict in the Circuits.........0....... senmaisivesaidadddmenttiadiaaaian 6

B. Because Puerto Rico is Not a State, and Congress Has Plenary

Power to Abrogate its Sovereign Immunity, This Case Offers a

Poor Vehicle for Deciding the Question Presented

°. Because Respondent Toledo Also Brought a Claim Under the

Rehabilitation Act, the Question Presented Will Not Affect the

Outcome of This Case

QD. The First Circuit’s Section 5 Ruling Was Correct

RTEUETEEEEIIN ccccccsescrveeeeseessceses

TABLE OF AUTHORITIES

Cases

Alden v. Maine, 527 U.S. 706 (1999).

Anza v. Ideal Steel Supply Co., 126 S. Ct. 1991 (2006)

Association for Disabled Americans v. Florida Intl Univ., 405 F.3d 954

(11th Cir. 2005)......

Badillo Santiago v. Andréu Garcia, 167 F. Supp.2d 194 (D.P.R. 2001),

vacated, 378 F.3d | (1st Cir. 2004).

Barbour v. Washington Metro. Transit Auth., 374 F.3d 1161 (D.C. Cir.

4004), cert. denied, 544 U.S. 904 (2005)..

Barnes v. Gorman, 536 U.S. 181 (2002)

Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996)

Board of Educ. v. Rowley, 458 U.S. 176 (1982)

Board of Trustees v. Garrett, 531 U.S. 356 (2001) 21, 26, 30

Bowers v. National Collegiate Athletic Ass’n, No. 05-2262 (3d Cir., Feb.

Clark v. California, 123 F.3d 1267 (9th Cir. 1997), cert. denied, 524

U.S. 937 (1998)

Cochran v. Pinchak, 401 F.3d 184 (3d. Cir.), vacated, 412 F.3d 500 (3d

Cir. 2005)

College Savings Bank v. Florida Prepaid Postsecondary Educational

Expense Board, 527 U.S. 666 (1999)

Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d

re ae es Bir ncin vnccincrcsnansbendldadeecsbdousmdigpdinctinsisacapelackciadeun a ee

Cuyahoga County Ass'n for Retarded Children & Adults v. Essex, 411

F. Supp. 46 (N.D. Ohio 1976)

Federal Maritime Comm’n v. South Carolina Ports Auth., 535 U.S. 743

Fialkowski v. Shapp, 405 F. Supp. 946 (E.D. Pa. 1975)

First Nat'l Bank v. Yankton County, 101 U.S. 129 (1879)

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

Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings

Bank, 527 U.S. 627 (1999)............ dee sn kisi tease te chs

Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2d Cir. 2001)

Garrett v. University of Alabama at Birmingham Bd. of Trs., 344 F.3d

{288 (11th Cir. 2003) (per curiam)

Goss uv. Lopez, 419 U.S. 565 (1975)

Grafton v. United States, 206 U.S. 333 (1907)

Hairston v. Drosick, 423 F. Supp. 180 (S.D.W.Va. 1976)

Harris v. Rosario, 446 U.S. 651 (1980) (per curiam)

Harrison v. Michigan, 350 F. Supp. 946 (E.D. Mich. 1972)

Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) (en banc), cert.

demied, 533 U.S. 949 (2001)

Jusino Mercado v. Commonwealth of Puerto Rico, 214 F.3d 34 (ist Cir.

2000)

Kimel v. Board of Regents, 528 U.S. 62 (2000)

Klingler v. Director, Dep't of Revenue, 455 F.3d 888 (8th Cir. 2006). 8, 9,

Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002), cert. denied, 537

U.S. 1232 (2003)

Miller v. King, 348 F.3d 1248 (11th Cir. 2004), vacated, 449 F.3d 1149

(11th Cir. 2006)

Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972)..........00.000000.c.. 2:

The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180 (1959)

Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721 (2003)............. 24

New York State Ass'n for Retarded Children, Inc. v. Carey, 466 F.

Supp. 487 (E.D.N.Y. 1979)

Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003)

Nihiser v. Ohio E.P.A., 269 F.3d 626 (6th Cir. 2001), cert. denied, 536

U.S. 922 (2002)

Norita v. Commonwealth of the Northern Mariana Islands, 331 F.3d

690 (9th Cir. 2003)

Northern Ins. Co. v. Chatham County, 126 S. Ct. 1689 (2006)

CPE orci i. Dmmmaa are, AZ ET To. TS CT ios ccc sncticevsiasitscadecsecscendaceceucasee 9

Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.) (en banc), cert.

I, ee res ee EE i vinnisndiicenaadasedesevinerei vbsussertntdeucdooniackouecss 8, 19

Panitch v. Wisconsin, 444 F. Supp. 320 (E.D. Wis. 1977) ..........0. eee. 23

Pennsylvania Ass’n for Retarded Children v. Pennsylvania, 343 F.

are Se sO TUR si asadteratucticcotndsthaveniacecoerestabncresi¥ink ckyeuieneseeescnuess 23

People of Porto Rico v. Rosaly, 227 U.S. 270 (1913) «0.00.0... cece ees 14, 15

Plyler i SN ee SFI GRE GRIT ipsa i casipecomnsiiissinclgdacxtarncios ember tersetine 21

Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506

SFee UME UIIPIE eos A sev sauces uuaucvaascinisdaneidanses sieaubenscepuacdetansebeuaeebreiecnssecennec 15

Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694 (1st Cir. 1983) ...0.0000...... 11

Rotinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002), cert. denied, 539

E.R EGR paar ase An nt Appin caret ees OM Beis Hath tons NEMS Wp 19

Rodriguez v. Puerto Rico Federal Affairs Admin., 435 F.3d 378 (D.C.

Cir.), cert. denied, 127 S.Ct. 347 (2O06)......................ccccccccees. odor ean aan 16

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ..00....... 21

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)...........ccc cece ccc tee eee 14

Seminole Tribe v. Florida, 517 U.S. 44 (1996)..........0.00.000cce ee. 11, 12, 19, 28

South Carolina v. Katzenbach, 383 U.S. 301 (1966) «2.0.0.0... eee. 22

Stile Ehiates U. Eile, SBS U.S. BOS CET) 6 cosccvevscecavvesscosscescesccesscvesanesveases 19

Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000) ................cccccscssereeseee cores 19

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) 20.00.00... cce cece cece es 30

Terneanee UV. LARe, B41 UB. GOB BOO) ec csvccssccssssevevecerocvcssrsesvessseseeres passim

United States v. Georgia, 1268S. Ct. 877 (2006)....... | a Loe eA OR LEON passim

Constitutional, Statutory, and Treaty Provisions

BERS ee are ey eR COD NE TAR. CORON Ae ee ee eee 28

ESTERS Ree AN LENCE OORT ELE SPORTED 4, 11, 17, 28

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SE TN visits da vctcnnenndithnin denisntuncedciuediaabnineciantiateaiadunctetonditadccuisaaniooes passim

Territory Clause, U.S. Const., Art. IV, § 3, cl. 2.......0...0...c.. cece ee passim

es, i aed ca celecinselt anita each cattemmetislinecaanivedsscamedaacincsoaceaaenel 4

FADOTOCRS WEE TFIRMOTIIIG FAB ois cc cece cvccererevccecccsceeessvcpovecsessetoeseesevenss passim

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re oon a ee oe Tee ee lee 18

ee ee ee ae a ge ee ee 18

Education of All Handicapped Children Act 200.000.0000... ccccecccccccceecccceeeseeeee 22

Puerto Rican Federal Relations Act...............0......... epidedseapticmedeh da ane

Tae UNL IE SET cscs chcdaies scsensatedh nea Dalapaird Shiaiccerdadaasibtaslsbdeciiaaddsiotaladanbecdtindacneaseiaia 16

DOS 8 9 9 yy SOAP REE ASR ran eee eee eiama CREE Ren Leicstacesheenn decichdesnensbeencte 17

I las 3, 6, 18, 22

Section 504, 29 U.S.C. § 794............. ACSIA ee ee Loctédpnasenccssere a le ete ae

Commonwealth Covenant of the Northern Mariana Islands (CNMI), 48

Peas: Te EL SIU caviess sssiuchoduncecineristapbacasedesdanidiedeestintiaguics cauiaidutaiaiii 16

Treaty of Paris, Art. IX, 30 Stat. 1754 (Dec. 10, 1898) aensar ae

Miscellaneous

Lodging of the United States, Board of Trustees v. Garrett, No. 99-1240. 26

Staff of House Comm. on Educ. & Labor, Legislative History of Pub. L.

No. 101-336: The Americans with Disabilities Act (Comm. Print

1990) 23, 26

U.S. Comm'n on Civil Rights, Accommodating the Spectrum of

Individual Abilities (1983)

STATEMENT

This case presents the question whether the University of Puerto Rico,

an arm of the Commonwealth of Puerto Rico, has sovereign immunity against

Respondent Ivan Toledo’s claim that the University violated his rights under

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (Title

II). Toledo, who has schizoaffective disorder, Pet. App. 3, filed this case pro se

in the District Court for the District of Puerto Rico. Because the case comes

to this Court on a motion to dismiss, the Court must take as true the

allegations in the complaint. See, e.g., Anza v. Ideal Steel Supply Co., 126 S.

Ct. 1991, 1994 (2006).

1. In August of 1999, Toledo enrolled as a first-year student in the

School of Architecture at the University’s Rio Piedras campus. Pet. App. 3.

“{D}uring the first semester his mental condition deteriorated, causing him to

experience anxiety, panic, and depression.” /d. As a result, he “was unable

to attend classes regularly for part of the semester.” Jd. When Toledo

returned to his regular academic schedule in October of that year, he sought

an accommodation to enable him to complete an exercise that had been

assigned to the students in his Design Fundamentals I class while he was

absent. Third Amended Cplt. 4{| 6.6-6.7. But the professor “refus[ed] to

make any accommodation.” Pet. App. 3. Toledo was forced to turn in an

incomplete assignment, “which the professor ridiculed in front of the class.”

Id. at 3-4. Toledo continued to request accommodations in the Design

Fundamentals class, but both the professor and Toledo’s academic counselor

refused to consider those accommodations. Third Amended Cplt. 44 6.9-6.12.

Throughout the academic year, the Design Fundamentals professor

continued, “on account of Toledo’s mental disability,” to “criticize [Toledo’s]

work negatively in a manner different from” the way he treated the other

students. Jd. § 6.12. Toledo ultimately received a “D” in the course. Pet.

Apr. 4.

In August of 2000, as he was about to begin the second year of his

program, “Toledo suffered an emotional crisis, attempted suicide, and was

hospitalized for some time.” Jd.; Third Amended Cplt. 4{| 6.15-6.16. His

psychiatrist released Toledo to return to school on September 1 of that year,

Third Amended Cplt. 4! 6.17, but his medication had side effects that made

him often arrive late to his morning Architectural Design class, id. 4 6.19.

Toledo asked for an accommodation that would permit him to arrive up to

forty-five minutes late to class or that would make class participation less

relevant in his grade. Jd. But both the professor and the Dean of the School

of Architecture refused that request. Id. {4 6.19, 6.22.

To the contrary, Toledo’s Architectural Design professor responded by

“suggest(ing] that plaintiff abandon his prescription medication{s] because,

according to her, they were the principal obstacle to his timely arrival in the

classroom.” Id. {| 6.20. The professor “would refuse to acknowledge plaintiffs

presence in the classroom when he arrived late,” but she “would not do

anything when the other students, who did not suffer from a mental

disability, showed up late.” /d. 4 6.21. In late October, “[f]rustrated and

desperate because of his failure to obtain a reasonable accommodation and

the prejudices” he confronted, Toledo was hospitalized again with

“hallucinations, panic attacks, suicidal ideas, and depression.” Jd. 4§ 6.23-

6.24. He was released on October 27 and completed the term, but he received

a failing grade in Architectural Design. Id. 4/4 6.24, 6.34.

Toledo requested accommodations for his Architectural Design II

course in the spring semester, but the Dean rejected the request. /d. 44] 6.32-

6.35. He then requested that he be permitted to take courses at another

university to preserve his academic standing, but the University again

rejected the request. Jd. 4 6.35. As a result, “Toledo dropped out of school

entirely.” Pet. App. 4.

2. On July 20, 2001, Toledo filed his complaint in the district court. R.

1. Still acting pro se, he amended the complaint twice: on July 24 and August

His current claims appear in the Third Amended Complaint, filed

by counsel on February 14, 2005. R. 109.' That complaint asserts claims

under: Title Il; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794;

| Although the Third Amended Complaint was filed three days after

Petitioners filed their notice of interlocutory appeal, the Court of Appeals

focused its analysis on that complaint and declined the United States’

suggestion that it remand to permit the District Court to consider that

pleading in the first instance. Pet. App. 6-8 & nn.2-3.

42 U.S.C. § 1983; Puerto Rico’s Constitution; and the Commonwealth's

antidiscrimination statutes. Third Amended Cplt. 44.

Petitioner moved to dismiss the Title II claim on Eleventh Amendment

grounds. R. 20. On September 8, 2002, the District Court granted that

motion. R. 81. Following its earlier decision in Badillo Santiago v. Andréu

Garcia, 167 F. Supp.2d 194 (D.P.R. 2001), vacated, 378 F.3d 1 (1st Cir. 2004),

the court concluded that “Title II of the ADA did not validly abrogate the

States’ sovereign immunity.” R. 81 at 2. But after this Court held that Title

II did validly abrogate state sovereign immunity as applied to cases involving

access to the courts, Tennessee v. Lane, 541 U.S. 509 (2004), the District

Court granted Toledo's motion for reconsideration and denied Petitioner’s

motion to dismiss. Pet. App. 31-33.

Petitioner took an interlocutory appeal, and the First Circuit affirmed.

Pet. App. 1-25. Both Respondent Toledo and the United States (which

intervened to defend the constitutionality of Title I]) argued that, pursuant to

the Territory Clause, U.S. Const., Art. IV, § 3, cl. 2, the Commonwealth of

Puerto Rico was not entitled to sovereign immunity against a federal

statutory claim. But the Court of Appeals summarily rejected that argument.

Id. at 5 n.1 (“We have held on numerous occasions that Puerto Rico is a state

for Eleventh Amendment immunity purposes.”). Nonetheless, the court

concluded that “Title II, as it applies to the class of cases implicating the

right of access to public education, constitutes a valid exercise of Congress’ §

5 authority to enforce the guarantees of the Fourteenth Amendment.” 7d. at

24. Accordingly, it held that “state sovereign immunity is not a defense to

this action.” Id.

In reaching that conclusion, the Court of Appeals followed the analysis

dictated by Lane and United States v. Georgia, 126 S. Ct. 877 (2006). The

court determined that none of Toledo's Title [I claims “independently states a

violation of the Fourteenth Amendment.” Pet. App. 9-12. But it held that, in

the public education context, Title II and its abrogation of sovereign

immunity are nonetheless “valid as a prophylactic measure within Congress's

§ 5 power.” Jd. at 12. The court looked to the important constitutional rights

at stake in the public education context, see id. at 16-17, the extensive,

judicially documented record of States’ violation of those rights, see id. at 17-

21, and the limited nature of the remedy Title II creates, see id. at 21-23.

The Court of Appeals also noted that its ruling was in accord with the rulings

of the other two appellate courts to decide “whether Title I! validly abrogates

state sovereign immunity in the context of public education.” Jd. at 23 (citing

Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 490

(4th Cir. 2005); Association for Disabled Americans v. Florida Int'l Untv., 405

F.3¢ 954, 959 (11th Cir. 2005))

REASONS FOR DENYING THE WRIT

Petitioner, the University of Puerto Rico, asks this Court to decide

whether Title II of the Americans with Disabilities Act validly abrogates

state sovereign immunity “in the context of public higher education.” Pet. i.

But there is no conflict in the circuits on that question. To the contrary, the

First Circuit's correct decision here is entirely consistent with the decisions of

the Third, Fourth, and Eleventh Circuits—the only three other cercuits to

have considered the question since Tennessee v. Lane, 541 U.S. 509 (2004).

Nor would this case be an appropriate vehicle to decide the question in any

event. For one thing, Puerto Rico is a territory, not a State. Pursuant to the

Territory Clause, Congress has plenary authority to abrogate Puerto Rico’s

sovereign immunity; it need not satisfy the “congruence and proportionality”

stardard of City of Boerne v. Flores, 521 U.S. 507, 520 (1997), to do so. For

another, the Title Il abrogation issue will have no effect on the ultimate

outcome of this case; Respondent Toledo's Rehabilitation Act claim, which

unquestionably overcomes sovereign immunity, will give him all the relief he

could obtain under Title II in any event. This Court’s review should await

the emergence of an actual conflict in the circuits, as well as a case that

actually presents the question of state sovereign immunity under Title II.

A. There its No Conflict in the Circutts

Petitioner asserts (Pet. 15) that the First Circuit’s decision in this

case rmplicates “widespread conflict and confusion tn the lower courts.” That

is incorrect. Under the context-specific approach that this Court mandated in

Lane, 541 U.S. at 530-531, the relevant question is whether Title II validly

abrogates state suvereign immunity in the education context. The courts of

appeals to have decided that question have uniformly answered it in the

affirmative.

This Court addressed the validity of Title II's abrogation of state

sovereign immunity for the first time in Lane, 541 U.S. at 522. Refusing “to

consider Title II, with its wide variety of applications, as an undifferentiated

whole,” id. at 530, the Court held that the validity of the statute’s abrogation

must take account of the particular context in which the plaintiff seeks to

apply the ADA:

Whatever might be said about Title II's other applications, the

a pp

question presented in this case is not whether Congress can

validly subject the States to private suits for money damages for

failing to provide reasonable access to hockey rinks, or even

voting booths, but whether Congress had the power under § 5 [of

the Fourteenth Amendment] to enforce the constitutional right

of access to the courts. Because we find that Title II

unquestionably is valid § 5 legislation as it applies to the ciass of

cases implicating the accessibility of judicial services, we need

go no further.

Id. at 530-531. Last Term, in United States v. Georgia, 126 S. Ct. 877 (2006),

this Court reaffirmed Lane's requirement of a context-specific analysis. The

Court emphasized that the question whether Title II abrogates state

sovereign immunity should be determined “on a claim-by-claim basis.” Id. at

882

fecognizing that Lane and Georgia require a context-specific analysis,

Petitioner asks this Court to decide whether Title II's abrogation of sovereign

immunity 1s valid “in the context of public higher education.” Pet. i. But

there is no conflict in the circuits regarding that question. To the contrary,

every court of appeals to consider that question has ruled that Title II does

validly abrogate state sovereign immunity in the higher-education context.

See Pet. App. 12-23 (decision below); Bowers v. National Collegiate Athletic

Ass'n, No. 05-2262, slip op. 63-65 (3d Cir., Feb. 1, 2007) (holding, in a higher

education case, that Title II validly abrogated sovereign immunity in public

education); Constantine. 411 F.3d at 490 (Fourth Circuit decision holding

“that Title Il of the ADA is valid § 5 legislation, at least as it applies to public

higher education”); Association for Disabled Americans, Inc., 405 F.3d at 957-

959 (Eleventh Circuit decision holding that Title II is valid Section 5

legislation as applied to education in a case brought against a state

university).

Petitioner cannot point to a single appellate case that has reached a

different result in the education context. Instead, it can point only to the

following allegedly conflicting authority: (1) a Fifth Circuit education case

thai (in Petitioner's own words) “declined to rule on this question,” Pet. 14

(citing Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 287 (5th Cir.) (en banc),

cert. demied, 126 S.Ct. 416 (2005)); (2) an Eighth Circuit case that (again in

Petitioner's own words) “did not involve higher education,” id. at 11 (citing

Klingler v. Director, Dept of Revenue, 455 F.3d 888 (8th Cir. 2006)); (3) two

now-vacated circuit court opinions addressing Title II's application to prison

conditions, see id. at 13 (citing Cochran v. Pinchak, 401 F.3d 184 (3d. Ct1r.),

vacated, 412 F.3d 500 (3d Cir. 2005): and Miller v. King, 348 F.3d 1243 (11th

Cir. 2004), vacated, 449 F.3d 1149 (11th Cir. 2006)); and (4) decisions of

“[s]everal district courts,” not all of which even involve education, id. at 12-13

(citing cases).

None of these cases even remotely creates a circuit split. That the

Fifth Circuit has reserved the question-——and several district courts have

issued conflicting rulings—-merely provides the opportunity for further

percolation in the courts of appeals. Should a conflict in the circuits emerge,

there will be time enough then for this Court to address the validity of Title

Il’s abrogation of sovereign immunity in the education context. The vacated

decisions of the Third and Eleventh Circuits cannot create a conflict, see

O’Connor v. Donaldson, 422 U.S. 563, 578 n.2 (1975) (vacatur of judgment

deprives opinion of precedential effect), and those cases did not involve the

education context in any event. Indeed, both circuits have upheld Title II's

abrogation of sovereign immunity in the higher-education context.

The Eighth Circuit's decision in Klingler, supra, is the only post-Lane

circuit-court case still on the books that even partially invalidated Title II’s

abrogation of sovereign immunity. But that case involved a context quite far

removed from public education. There, plaintiffs with disabilities sued

Missouri to challenge the $2 annual fee the State charged for the use of a

removable handicapped parking placard. Alingler, 455 F.3d at 891. (The fee

applied only to removable parking placards; handicapped license plates,

which carried the same parking privileges as the placards, were available

without any surcharge. See id. at 894.) In determining that Missouri was

immune from the plaintiffs’ request for damages, the Eighth Circuit explicitly

stated that “Title II may validly abrogate the states’ sovereign immunity in

some cases”; it simply did “not believe that the present case is one of them.”

Id. at 892. The court concluded that neither a prophylactic nor a remedial

purpose could justify Congress in prohibiting Missouri “from imposing a

reasonable surcharge to cover the costs of its program benefiting the

disabled” in the parking context. Jd. at 896. Instead, the prohibition

effectively sought “to redefine the scope of protection offered by the

Constitution.” Jd. at 896-897.

By its terms and its rationale, the Eighth Circuit's decision in Klingler

says absolutely nothing about the public education context. As the First

Circuit’s opinion in this case makes clear, disability discrimination in public

education implicates far more robust constitutional mghts, and is part of a

much more widespread history and pattern of constitutional violations, than

is : State’s decision to charge $2 for a parking placard. See Pet. App. 16-21.

Petitioner is simply incorrect to assert that the circuits are divided over the

question presented in the petition for certiorari.

Petitioner also asserts (Pet. 16-19) that certiorari is warranted to

resolve “[w]lidespread [u]ncertainty” about a number of abstract questions

relating to this Court’s Section 5 and abrogation jurisprudence. Petitioner

does not point to any division in the circuits on these issues—much less any

division in the circuits since Lane and Georgia—so the uncertainty can

hardly be as widespread as Petitioner suggests. In any event, given the

absence of any concrete conflict as to the application of Lane and Georgia,

there is no basis for granting certiorari to resolve any alleged “uncertainty”

regarding the abstract questions Petitioner raises.

B. Because Puerto Rico is Not a State, and Congress Has Plenary Power to

Abrogate its Sovereign Immunity, This Case Offers a Poor Vehicle for

Deciding the Question Presented

1. For the reasons set forth in the previous section, the question

whether Title I] of the ADA validly abrogates state sovereign immunity in

the public higher education context is not one that warrants the exercise of

this Court’s certiorari jurisdiction. Even if it did, this case would not offer the

Court an occasion to decide the question. The Commonwealth of Puerto Rico

is « territory, not a State. See. e.g., Harris v. Rosario, 446 U.S. 651, 651

(1930) (per curiam). Although this Court’s cases such as Seminole Tribe uv.

Florida, 517 U.S. 44 (1996), restrict Congress's power to abrogate the

sovereign immunity of States, Congress retains plenary authority to abrogate

Puerto Rico’s sovereign immunity pursuant to the Territory Clause.

The court of appeals held, consistent with its longstanding precedent,

“that Puerto Rico is a state for Eleventh Amendment purposes,” and that

Congress's effort to abrogate Puerto Rico’s sovereign immunity must satisfy

the same standards as those that govern efforts to abrogate a State’s

sovereign immunity. Pet. App. 5 n.1. See, e.g., Ramirez v. Puerto Rico Fire

Serv., 715 F.2d 694, 697 (1st Cir. 1983) (“Puerto Rico, despite the lack of

formal statehood, enjoys the shelter of the Eleventh Amendment in all

respects.”). That holding fails to appreciate the fundamental constitutional

difference between territories and States.?

As this Court has repeatedly explained, sovereign immunity is an

aspect of the “residuary and inviolable sovereignty,” which “the States

enjoyed before the ratification of the Constitution, and which they retain

today .. . except as altered by the plan of the Convention or certain

constitutional Amendments.” Alden v. Maine, 527 U.S. 706, 713, 715 (1999)

(quoting The Federalist No. 39, at 245 (Clinton Rossiter, ed., 1961) (James

Madison)). See Northern Ins. Co. v. Chatham County, 126 S. Ct. 1689, 1693

(2006); Federal Maritime Comm’n v. South Carolina Ports Auth., 535 U.S.

742, 751-753 (2002); Seminole Tribe, 517 U.S. at 54. “The States have

consented ... to some suits pursuant to the plan of the Convention or to

subsequent constitutional Amendments’—notably suits by the Federal

Government or other States, and suits pursuant to valid Fourteenth

Amendment legislation. Alden, 527 U.S. at 755. But this Court has held that

they have not surrendered their immunity to suits by private parties

pursuant to ordinary Article I legislation. See id. at 754; Florida Prepaid

2 Both Respondent Toledo and the United States argued in the Court of

Appeals that the Section 5 analysis was unnecessary because Congress has

plenary authority under the Territory Clause to abrogate Puerto Rico’s

sovereign immunity. See Toledo C.A. Br. 14-15; U.S. C.A. Br. 7 n.3. The

Court of Appeals summarily rejected that argument as inconsistent with

circuit precedent. Pet. App. 5 n.1.

Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 636

(19%9); Seminole Tribe, 517 U.S. at 59-66.

“A consequence of this Court's recognition of preratification

sovereignty as the source of immunity from suit is that only States and arms

of the State possess immunity from suits authorized by federal law.”

Northern Ins. Co., 126 S. Ct. at 1693. Territories such as Puerto Rico, of

course, have retained no “preratification sovereignty.” This Court has long

emphasized that fundamental constitutional distinction between States and

territories: “The government of a state does not derive its powers from the

United States, while the government of [a territory] owes its existence wholly

to the United States ....” Grafton v. United States, 206 U.S. 333, 354 (1907).

Pursuant to the Territory Clause, Congress may “make all needful

Rules and Regulations respecting the Territory .. . belonging to the United

States.” U.S. Const., Art. IV, § 3, cl. 2. Although Congress may delegate

power to the territorial government, it retains the power “to revise, alter, and

revoke” that delegation at any time. Christianson v. King County, 239 U.S.

356, 365 (1915) (internal quotation marks omitted). See First Nat'l Bank v.

Yankton County, 101 U.S. 129, 133 (1879) (Congress need not specifically

reserve its power to amend acts of territorial legislature but may exercise

that power at any time as “an incident of sovereignty”). The hmuitations that

apply when Congress seeks to regulate the States therefore do not constrain

efforts to regulate a territory. Congress “has full and complete legislative

authority over the people of the Territories and all the departments of the

territorial governments.” First Nat Bank, 101 U.S. at 133.

Puerto Rico plainly has sovereign immunity against common-law

claims. But that is only because Congress has not abrogated that immunity.

See. People of Porto Rico v. Rosaly, 227 U.S. 270, 277 (1913) (holding that

Puerto Rico has common-law sovereign immunity, because Congress did not

abrogate it in the territory’s organic act). Cf. Santa Clara Pueblo v. Martinez,

436 U.S. 49, 58 (1978) (noting that “Indian tribes have long been recognized

as possessing the common-law immunity from suit traditionally enjoyed by

sovereign powers’ but that “[t]his aspect of tribal sovereignty, like all others,

is subject to the superior and plenary control of Congress”). When Congress

passes a statute subjecting Puerto Rico to private suits, the Territory Clause

gives it plenary authority to do so. Title II of the ADA is just such a statute.

Whether or not Congress had power under Section 5 of the Fourteenth

Amendment to subject a State to suit under that statute in the public

education context, it plainly had power under the Territory Clause to subject

the Commonwealth of Puerto Rico to suit.*

Because the validity of Congress’s abrogation of Puerto Rico's

sovereign immunity does not depend on the Fourteenth Amendment, this

iden ie Treaty of Paris, under which Spain ceded Puerto Rico to the

United States, specifically provided that “[t]he civil rights and political status

of the native inhabitants of the territories hereby ceded to the United States

shall be determined by the Congress.” Treaty of Paris, Art. IX, 30 Stat. 1754.

17/9 (Dec. 10, 1898).

Court would not be able to reach the question Petitioner presents if it granted

certiorari. Accordingly, this case is not an appropriate vehicle for deciding

that question. In that respect, this case is different from Puerto Rico

Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), in

which this Court granted Puerto Rico's petition for certiorari to decide

whether a claim of sovereign immunity can be asserted on an interlocutory

appeal. Puerto Rico Aqueduct required the Court to decide when Puerto Rico

could raise its claim of sovereign immunity. But in resolving the case, the

Court had no need to address whether the Commonwealth was entitled to

sovereign immunity; indeed, the Court specifically reserved that question.

See id. at 141 n.1. Moreover, Puerto Rico Aqueduct involved a diversity

action for breach of contract and damage to business reputation. See id. at

141. Accordingly, the case implicated only the common-law sovereign

imraunity this Court recognized in Rosaly, supra; it did not implicate

Congress's power under the Territory Clause to abrogate that immunity.

Here, unlike in Puerto Rico Aqueduct, this Court could not reach the

question Petitioner presents without first deciding that the Commonwealth of

Puerto Rico has the same sovereign immunity as do the States, and that the

power of Congress to abrogate the Commonwealth's sovereign immunity is

limited in just the same way as if it were dealing with the States. Because

such a decision would be inconsistent with the Territory Clause and this

Court's cases interpreting it, the Court likely would not be able to reach the

question presented at all.

2. Even if that hurdle could be overcome, before the Court could reach

the question presented it would likely have to resolve a difficult statutory

issue on which the circuits are in conflict—an issue the First Circuit did not

reach in this case. The D.C. Circuit has held that a provision of the Puerto

Rican Federal Relations Act effectively applies this Court’s state sovereign

immunity cases, mutatis mutandis, to Puerto Rico. See Rodriguez v. Puerto

Rico Federal Affairs Admin., 435 F.3d 378, 381 (D.C. Cir.), cert. denied, 127

S.Ct. 347 (2006). That provision, 48 U.S.C. § 734, states that “[t]he statutory

laws of the United States not locally inapplicable, except as hereinbefore or

hereinafter otherwise provided, shall have the same force and effect in Puerto

Rico as in the United States [with certain exceptions].”

But the Ninth Circuit has read similar language in the Commonwealth

Covenant of the Northern Mariana Islands (CNMI), 48 U.S.C. § 1801 note, §

502Z(a)(2), quite differently. According to the Ninth Circuit, the relevant

language merely provides that federal statutes apply in the Commonwealth:

it does not extend to the Commonwealths government any of the

constitwtional immunities that States have against federal regulation. See

Norita v. Commonwealth of the Northern Mariana Islands, 331 F.3d 690, 692-

697 (9th Cir. 2003). As the Ninth Circuit explained, the Covenant contains a

separate section that specifically applies to the CNMI government some

provisions of the Constitution that apply to States, but that section does not

reference the Eleventh Amendment. Sce id. at 693-694. The same is true of

the Puerto Rican Federal Relations Act. See 48 U.S.C. § 737.

The Court of Appeals did not address the impact of the Federal

Relations Act in this case. But in an earlier case that held, under “the

guidance provided by the Federal Relations Act,” that the Fair Labor

Standards Act did not abrogate Puerto Rico’s sovereign immunity, the First

Circuit ruled that the question whether a federal statute effects such an

abrogation turns on Congress's intent in passing that statute. Jusino

Mercado v. Commonwealth of Puerto Rico, 214 F.3d 34, 39-44 (1st Cir. 2000).

Although it read the Federal Relations Act as instructing courts to “refrain

from inferring that statutes which have limited effect upon the fifty states

silently apply with greater force to Puerto Rico,” the First Circuit ultimately

grounded its decision as well in “the language of the FLSA, [and] the context

in which Congress amended it to reach public agencies.” Jd. at 44. And the

court recognized that “it is frequently the case when examining the text of a

statute for its applicability to Puerto Rico that the language is not free of

ambiguity, the purposes appear to be diverse and sometimes contradictory,

and the circumstances are not fully spread upon the record for our

instruction.” Jd. at 40 (internal quotation marks omitted). That the Court

would be forced to confront the complex issue of how the Federal Relations

Act applies to the ADA—an issue on which the First Circuit expressed no

view—offers yet another compelling reason to deny certiorari.

In short, because it is the Commonwealth of Puerto Rico—and not a

State—that is the party asserting immunity, this case is a poor vehicle for

elaborating on the scope of Congress's power to abrogate state sovereign

immunity. ea

C. Because Respondent Toledo Also Brought a Claim Under the

Rehabilitation Act, the Question Presented Will Not Affect the

Outcome of This Case

Even if the Commonwealth of Puerto Rico had precisely the same

sovereign immunity as a State, this would still not be a proper case in which

to grant review. In addition to his ADA claim, Toledo also sought relief under

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

substantive requirements of Section 504 are virtually identical to those of

Title II of the ADA.4 And the remedies for violation of the two statutes are

completely identical. Congress specifically directed that the “remedies,

procedures, and rights” provided under Section 504 “shall be the remedies,

procedures and rights” provided under Title II. 42 U.S.C. § 12133; see Barnes

uv. Gorman, 536 U.S. 181, 184-185, 189 n.3 (2002). Accordingly, Section 504

1 Compare 29 U.S.C. § 794 (prohibiting disability-based discrimination in

programs or activities receiving federal financial assistance), with 42 U.S.C. §

12132 (prohibiting disability-based discrimination by any “public entity”); see

42 U.S.C. § 12134(b) (requiring Title II’s implementing regulations to “be

consistent with” Section 504’s earlier implementing regulations).

will provide Toledo with all of the relief to which he would be entitled under

Title IT.

Whatever questions exist regarding the validity of the abrogation of

sovereign immunity under Title II, there can be no doubt that Congress has

the power to authorize damages awards against the programs and activities

covered by Section 504. Every court of appeals to have addressed the issue

has held, under the principles articulated in cases such as South Dakota v.

Dole, 483 U.S. 203, 210-212 (1987), and College Savings Bank v. Florida

Prepaid Postsecondary Educational Expense Board, 527 U.S. 666, 686-687

(1999), that States that receive federal funds validly waive their sovereign

imraunity against suits challenging discrimination under Section 504.5

Because Petitioner receives federal funds, Third Amended Cplt. § 4.8, it

validly waived its sovereign immunity against Toledo's Section 504 claim.

5 See Pace, 403 F.3d at 280-287; Barbour v. Washington Metro. Transit Auth.,

374 F.3d 1161, 1164-1170 (D.C. Cir. 2004), cert. denied, 544 U.S. 904 (2005);

Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128-130 (1st Cir. 2003); Garrett

v. University of Alabama at Birmingham Bd. of Trs., 344 F.3d 1288, 1293

(11th Cir. 2003) (per curiam); Koslow v. Pennsylvania, 302 F.3d 161, 170-172

(3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003); Robinson v. Kansas, 295

F.3d 1183, 1189-1190 (10th Cir. 2002), cert. denied, 539 U.S. 926 (2003);

Nihiser v. Ohio E.P.A., 269 F.3d 626, 628 (6th Cir. 2001), cert. denied, 536

U.S. 922 (2002): Jim C. v. United States, 235 F.3d 1079, 1081-1082 (8th Cir.

2000) (en banc), cert. denied, 533 U.S. 949 (2001); Stanley v. Litscher, 213

F.3d 340, 344 (7th Cir. 2000); Clark v. California, 123 F.3d 1267, 1271 (9th

Cir. 1997), cert. denied, 524 U.S. 937 (1998). But cf. Garcia v. S.U.N_Y.

Health Sciences Center, 280 F.3d 98, 114 n.4 (2d Cir. 2001) (State did not

knowingly waive sovereign immunity against suit under Section 504 where

conduct took place between 1993 and 1995—before Seminole Tribe and City

of Boerne put States on notice that the ADA’s abrogation of sovereign

immunity might be questionable).

The Title II abrogation issue is thus irrelevant to Toledo's eventual

recovery,. Even if Title LU did not validly abrogate state sovereign. immunity

Section 504 would provide Toledo with exactly the same relief he would have

received under Title Il. Accordingly, this is not an appropriate case in which

to decide the Title If question. “While this Court decides questions of public

importance, it decides them in the context of meaningful litigation. Its

function in resolving conflicts among the Courts of Appeals is judicial, not

simply administrative or managerial.” The Monrosa v. Carbon Black Export,

Inc., 359 U.S. 180, 184 (1959) (dismissing writ of certiorari as improvidently

granted when the issue on which certiorari had been granted would have no

effect on the outcome of the underlying case). Review of the Section 5 basis

for Title II's abrogation “can await a day when the issue is posed less

abstractly.” Jd.

D. The First Circuit's Section 5 Ruling was Correct

In any event, there is no reason to disturb the First Circuit’s judgment

in this case. Even if Congress must satisfy the requirements of Section 5 of

the Fourteenth Amendment when it abrogates Puerto Rico's sovereign

immunity, the First Circuit was correct that those requirements were plainly

satisfied here

l. In concluding that “Title II, as it applies to the class of cases

implicating the right of access to public education, constitutes a valid exercise

of Congress’ § 5 authority,” Pet. App. 24, the First Circuit engaged in

precisely the inquiry this Court set forth in Boerne and Lane. First,

considering “the constitutional right or rights that Congress sought to enforce

when it enacted Title II,” Lane, 541 U.S. at 522, the court noted that more

was at stake in the education context than the Fourteenth Amendment's

baseline prohibition of irrational discrimination. See Pet. App. 16-17; Lane,

U.S. at 522. Instead, “{t}he Supreme Court's Equal Protection Clause

and Due Process Clause jurisprudence places a special emphasis on the

constitutional rights implicated by discrimination in public education.” Pet.

App. 16

For purposes of equal protection analysis, public education is “is not a

rigat’ granted to individuals by the Constitution,” but “neither is it merely

some governmental ‘benefit’ indistinguishable from other forms of social

welfare legislation.” Plyler v. Doe, 457 U.S. 202, 221 (1982) (quoting San

Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)). As the First

Circuit noted, Plyler forbids a State from “categorically deny[ing] disabled

students access to public education.” Pet. App. 16. See also Board of Educ. vu.

Rowley, 458 U.S. 176, 192-194, 199-200 (1982) (citing with approval lower

court cases that held that the Equal Protection Clause prohibits States from

excluding individuals with disabilities from public education). Moreover, “:

student’s legitimate entitlement to a public education [is] a property interest

which is protected by the Due Process Clause.” Goss v. Lopez, 419 U.S. 565,

574 (1975). In hght of these principles, prophylactic Section 5 legislation is

far more appropriate in the education context than it was in the employment

context of Board of Trustees v. Garrett, 531 U.S. 356 (2001); see Board of

County Comm'rs v. Umbehr, 518 U.S. 668, 676 (1996) (“[T]he government's

interest in achieving its goals as effectively and efficiently as possible is

elevated from a saith subordinate interest when it acts as sovereign to a

significant one when it acts as employer.”) (internal quotation marks

omitted)

Second, the Court of Appeals considered “whether there is a history of

a violation” of the constitutional rights of students with disabilities. Pet.

App. 17; see Lane, 541 U.S. at 523 (“Whether Title II validly enforces these

constitutional rights is a question that ‘must be judged with reference to the

historical experience which it reflects.”) (quoting South Carolina uv.

Katzenbach, 383 U.S. 301, 308 (1966)). As the court recognized, “the thirty

years preceding the enactment of the ADA evidence a widespread pattern of

states unconstitutionally excluding disabled children from public education

and irrationally discriminating against disabled students within schools.”

Pet. App. 21. The court based that conclusion in part on “[n]umerous lower

court decisions’—both before and after Congress enacted legislation such as

the Rehabilitation Act of 1973 and the Education of All Handicapped

Children Act—that “demonstrate[d] that the states were violating the Due

Process and Equal Protection rights of disabled children by completely

denying them educational opportunities” and otherwise unconstitutionally

discriminating against them. Pet. App. 18-21.6 As this Court noted in Lane,

54] U.S. at 525 & n.12, those and other judicial decisions “document a

patiern of unequal treatment in the administration of . . . public education.”

But the First Circuit did not rely exclusively on the decided cases. The

court also looked to a “report before Congress in 1983,” which “indicated that

tens of thousands of disabled children continued to be excluded from public

schools or placed in inappropriate programs.” Pet App. 21 (citing U.S

Comm'n on Civil Rights, Accommodating the Specirum of Individual Abilities

28-219 (1983)). And the court noted testimony presented to Congress in the

hearings that considered the proposed ADA, which “included statements by

numierous disabled individuals who had been excluded from participation or

faced prejudice at all levels of public education.” Jd. (emphasis added) (citing

Staff of House Comm. on Educ. & Labor, Legislative History of Pub. L. No.

101-336: The Americans with Disabilities Act (Comm. Print 1990)

(hereinafter “Leg. Hist.”)). Taken together, the First Circuit concluded, the

“record of persistent unconstitutional state action, coupled with the inability

of eurlier federal legislation to solve this ‘difficult and intractable problem,”

6 The First Circuit cited Pennsylvania Ass'n for Retarded Children v.

Pennsylvania, 343 F. Supp. 279, 293, 297 (E.D. Pa. 1972): Mills v. Board of

Educ., 348 F. Supp. 866, 876 (D.D.C. 1972); Harrison v. Michigan, 350 F

Supp. 946, 958 (E.D. Mich. 1972); Fialkowski v. Shapp, 405 F. Supp. 946, 958

(E.D. Pa. 1975); Hairston v. Drosick, 423 F. Supp. 180, 184 (S.D.W.Va. 1976);

Cuyahoga County Ass'n for Retarded Children & Adults v. Essex, 411 F.

Supp. 46, 58-59 (N.D. Ohio 1976); Panitch v. Wisconsin, 444 F. Supp. 320, 322

(E.D. Wis. 1977); New York State Ass'n for Retarded Children, Inc. v. Carey,

466 F. Supp. 487, 504 (E.D.N.Y. 1979).

justified the enactment of “prophylactic § 5 legislation.” Jd. at 21 (quoting

Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 735, 737 (2003)).

Finally, the Court of Appeals considered “whether the provisions of

Title Il, as apphed to public educational institutions, are a congruent and

proportional response to this history and pattern of unconstitutional

discrimination.” Pet. App. 21; see Lane, 541 U.S. at 530 (“The only question

that remains is whether Title II is an appropriate response to this history

and pattern of unequal ireatment.”). The court concluded that the

obligations imposed by the statute in the education context were “not

disproportionate to the need to protect against the outright exclusion and

irrational disability discrimination that such students experienced in the

recent past.” Pet. App. 24. Just as this Court did in Lane, 541 U.S. at 531-

532, the First Circuit emphasized that “the obligations imposed by Title II

are limited in several ways that minimized the compliance costs imposed on

states.” Pet. App. 23. And, crucially, “the ADA does not reeuire public

schools and universities to accommodate disabled students if the

accommodation would substantially alter their programs or lower academic

standards, and courts give dwe deference to the judgment of education

officials on these matters

The First Cirevst’s opinion reflects nothing more than a

straightforward application of this Court’s decisions in Boerne and Lane

Just as in the access-to-courts context addressed in Lane, in the education

context the ADA is “a reasonable prophylactic measure, reasonably targeted

to a legitimate end.” Lane, 541 U.S. at 533. There is no basis for this Court

to disturb the judgment below.

2. Petitioner raises three challenges to the First Circuit's decision.

None has merit.

a. First, Petitioner contends (Pet. 19-22) that the Court of Appeals

improperly focused on the context of public education generally, rather than

on the more specific context of public higher education. But in casting its

inquiry at that level of generality, the Court of Appeals simply followed this

Court’s decision in Lane. See Pet. App. 15. There, the Court addressed the

entire “class of cases implicating the accessibility of judicial services.” Lane,

541 U.S. at 531. That class of cases was not limited to claims involving the

denial of access to criminal defendants (like Lane, one of the two respondents

in that case) or to court reporters (like Jones, the other respondent). As the

First Circuit emphasized, it encompassed as well denials of access to “civil

litigants, jurors, public spectators, the press, and witnesses.” Pet. App. 15;

see Lane, 541 U.S. at 523, 525 n.14, 527 (relying on the constitutional rights

of that broad array of individuals who seek access to the courts). That

categorical approach was an essential part of Lane's focus on Title II's

prophylactic justification, under which Congress “may prohibit ‘a somewhat

broader swath of conduct, including that which is not itself forbidden by the

Amendment's text.” Lane, 541 U.S. at 533 n.2 (quoting Kimel v. Board of

Regents, 528 U.S. 62, 81 (2000)). The First Circuit’s use of a similar

categorical approach here can hardly warrant the exercise of this Court's

certiorari jurisdiction.

In any event, there is no reason to believe that the First Circuit's

decision would have been any different had it focused on the more narrow

category of public higher education. Indeed, the Fourth Circuit’s decision

upholding Title Ii’s abrogation of sovereign immunity in the education

context explicitly limited its analysis to “the context of public higher

education.” Constantine, 411 F.3d at 488 (emphasis added). And the ADA's

legislative history contains significant evidence of irrational disability-based

discrimination by public universities.’ Even if the Court of Appeals should

have (contrary to this Court’s approach in Lane) specifically limited its

analysis to the narrow context of public higher education, the failure to do so

does not warrant certiorari. See California v. Rooney, 483 U.S. 307, 311

(1987) (per curtam) (“This Court reviews judgments, not statements in

opimons.’) (internal quotation marks omitted).

b. Second, Petitioner contends (Pet. 23-24) that the First Circuit erred

by failing to engage in two separate Section 5 inquiries: a first to determine

whether Title II’s substance 1s congruent and proportional to actual or

threatened constitutional violations, and 2 second to determine whether a

7 See 2 Leg. Hist., supra, at 1162, 1224, 1225, 1617; Lodging of the United

States, Board of Trustees v. Garrett, No. 99-1240, at 1010 (Missouri), 1384

(Oreyon), 1476 (South Dakota), 1733 (Washington), 1757 (New Mexico)

darnages remedy against states is “appropriate[].” Pet. 24. According to

Petitioner, “even if this Court were to conclude that Congress does have the

authority under § 5 to require, with respect to a given class of conduct, States

to comply with Title II’s substantive provisions (which are enforceable

through private swits for injunctive relief against State officers), it would not

necessarily follow that Congress would also have the authority to abrogate

the States’ immunity.” Jd. at 23-24. Petitioner did not raise this argument in

its briefing below, and the Court of Appeals accordingly had no opportunity to

address it. In any event, that court committed no error

The “congruence and proportionality” test that this Court has apphed

in its sovereign Immunity cases is a means of determining whether Congress

has exceeded its remedial power by seeking to “decree the substance of the

Fourteenth Amendment's restrictions on the States.” Kimmel. 528 U.S. at 81

(quoting City of Boerne, 521 U.S. at 519). It does not limit Congress's

unquestioned power to determine the remedies for violation of an otherwise

constitutional statute. Where the substantive obligations that Congress has

imposed on the States satisfy the congruence and proportionality test

nothing in Section 5 demands an additional showing to justify a damages

remedy to enforce those obligations Nor does anything in sovereign

immunity doctrine demand such a showing This Court’s decision in

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), makes clear that

Congress has Section 5 power to impose a given substantive rule on the

States, sovereign immunity does not limit the power of Congress to impose

any remedy, damages or otherwise, for a violation of that rule. See id. at 456

(Eleventh Amendment no obstacle “[w]hen Congress acts pursuant to § 5”).

Indeed, none of this Court’s cases since Seminole Tribe and City of

Boerne has demanded a separate showing that a damages remedy is

congruent and proportional. In both Lane and Hibbs, this Court examined

the substantive requirements of the statutes at issue; upon finding that those

substantive requirements were valid prophylactic legislation, the Court

upheld Congress’s abrogation of sovereign immunity as a matter of course.

See Lane, 541 U.S. at 530-534; Hibbs, 538 U.S. at 435-438. Florida Prepaid,

on which Petitioner relies, is not to the contrary. There, the Court did not

hold that the Patent Remedy Act would have been valid Section 5 legislation

if it had provided for nothing more than injunctive relief (a point that would

have been moot anyway, as an injunctive remedy for patent infringement

could have been justified under Article [). Instead, it held that the States had

engaged in an insufficient pattern of constitutional violations to justify any

prophylactic Section 5 remedy in the patent infringement context. See

Florida Prepaid, 527 U.S. at 643-648. Just as this Court did in Lane, the

First Circuit properly focused its Section 5 inquiry on the substantive

obligations Title II imposes; the Court of Appeals properly declined to require

a separate showing that a damages remedy was necessary

c. Finally, Petitioner contends (Pet. 25-26) that a federal statute may

validly abrogate state sovereign immunity in only two circumstances: (1)

when violations of the statute “constitute independent violations of the

Fourteenth Amendment”; and (2) when violations of the statute “involve

infringements of interests subject to heightened scrutiny.” That argument

finds no support in this Court’s cases. Although it is clear that Congress does

have power to abrogate state sovereign immunity in the two circumstances

Petitioner discusses, see Georgia, 126 S. Ct. at 881-882 (independent

violation of the Fourteenth Amendment); Hibbs, 538 U.S. at 722 (heightened

scrutiny), this Court has never held that Congress’s Section 5 power is

limited to those two circumstances.* Instead, the Court has set forth a

unitary test for evaluating legislation that purports to enforce the Fourteenth

Amendment, whatever Fourteenth Amendment rights it purports to enforce:

“Section 5 legislation is valid if it exhibits ‘a congruence and proportionality

between the injury to be prevented or remedied and the means adapted to

that end.” Lane, 541 U.S. at 520 (quoting Boerne, 521 U.S. at 520). That test

perraits Congress to adopt “reasonable prophylactic measure[s],” which “may

prohibit ‘a somewhat broader swath of conduct, including that which is not

5 In Lane, 541 U.S. at 532 n.20, the Court specifically left open the question

‘whether Title II’s duty to accommodate exceeds what the Constitution

requires in the class of cases that implicate only Cleburne’s prohibition on

irrational discrimination.”

itself forbidden by the Amendment's text.” Jd. at 533 & n.24 (quoting Kimel,

528 U.S. at 81).9

Where, as here, Congress acts in response to a significant “history and

pattern” of constitutional violations, Garrett, 531 U.S. at 368, or its statute

applies to state conduct that has “a significant likelihood of being

unconstitutional,” Boerne, 532, prophylactic legislation is

appropriate. Petitioner asserts that this Court should create a hierarchy of

Fourteenth Amendment violations when assessing Congress’s enforcement of

that Amendment, but that makes no sense. A constitutional violation is a

constitutional violation, whether it involves conduct that fails heightened

scrutiny, conduct that fails the rational basis test, or conduct that

contravenes some other constitutional doctrine. The First Circuit properly

dechned to limit Congress's prophylactic power to statutes that implicate

conduct that triggers the judge-made doctrine of heightened scrutiny

9 In any event, Petitioner's premise is faulty. Respondent Toledo’s complaint

which must be taken as true at the pleading stage, did allege that Petitioner

irrationally discriminated against him on the basis of his disability. See pp

1-3, supra. As the Court of Appeals recognized, Toledo “claim[ed] that the

Dean and his professor gave him a failing grade in his design class because of

their ‘discriminatory animus’ and that his design professor treated him

differently from other students who arrived late to class.” Pet. App. 11. In

ruling to the contrary, the court simply observed that Toledo had not

specifically identified in his complaint any other students who had similar

records of tardiness and who received more favorable treatment. Z/d. at 12

That ruling was inconsistent with the liberal notice-pleading regime of the

Fecleral Rules of Civil Procedure. As this Court made clear in Swierkiewicz |

Sorema N.A., 534 U.S. 506, 512-513 (2002), the Federal Rules do not require

a plaintiff to plead with particularity the facts underlying a claim of

intentional discrimination

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

Ph 2