US Supreme Court Briefs

No. 99-1240



In the Supreme Court of the United States





THE BOARD OF TRUSTEES OF THE UNIVERSITY

OF ALABAMA, ET AL., PETITIONERS



v.



PATRICIA GARRETT, ET AL.





ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT





BRIEF FOR THE UNITED STATES





SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Assistant Attorney General

BARBARA D. UNDERWOOD

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

ELIZABETH SAVAGE

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530- 0001

(202) 514-2217





QUESTION PRESENTED



Whether Titles I and II of the Americans with Disabilities Act of 1990,42 U.S.C. 12111 to 12117, 12131 to 12165 (1994 & Supp. IV 1998), areproper exercises of Congress's power under Section 5 of the Fourteenth Amendment.





OPINIONS BELOW



The opinion of the court of appeals (Pet. App. 1a-48a) is reported at 193F.3d 1214. The opinion of the district court (Pet. App. 49a-55a) is reportedat 989 F. Supp. 1409.

JURISDICTION

The court of appeals entered its judgment on October 26, 1999. The petitionfor a writ of certiorari was filed on January 24, 2000, and was granted,limited to Question 1, on April 17, 2000. This Court has jurisdiction pursuantto 28 U.S.C. 1254(1).

STATEMENT

1. Statutory Framework: The Americans with Disabilities Act of 1990 (DisabilitiesAct), 42 U.S.C. 12101 et seq., established a "comprehensive nationalmandate for the elimination of discrimination against individuals with disabilities."42 U.S.C. 12101(b)(1). Congress found that "historically, society hastended to isolate and segregate individuals with disabilities," andthat "such forms of discrimination against individuals with disabilitiescontinue to be a serious and pervasive social problem." 42 U.S.C. 12101(a)(2).Discrimination against persons with disabilities "persists in suchcritical areas as employment, housing, public accommodations, education,transportation, communication, recreation, institutionalization, healthservices, voting, and access to public services." 42 U.S.C. 12101(a)(3).In addition, persons with disabilities

continually encounter various forms of discrimination, including outrightintentional exclusion, the discriminatory effects of architectural, transportation,and communication barriers, overprotective rules and policies, failure tomake modifications to existing facilities and practices, exclusionary qualificationstandards and criteria, segregation, and relegation to lesser services,programs, activities, benefits, jobs, or other opportunities.

42 U.S.C. 12101(a)(5).

Furthermore, "people with disabilities, as a group, occupy an inferiorstatus in our society, and are severely disadvantaged socially, vocationally,economically, and educationally." 42 U.S.C. 12101(a)(6). "[T]hecontinuing existence of unfair and unnecessary discrimination and prejudice,"Congress concluded, "denies people with disabilities the opportunityto compete on an equal basis and to pursue those opportunities for whichour free society is justifiably famous." 42 U.S.C. 12101(a)(9). Inshort, Congress found that persons with disabilities

have been faced with restrictions and limitations, subjected to a historyof purposeful unequal treatment, and relegated to a position of politicalpowerlessness in our society, based on characteristics that are beyond thecontrol of such individuals and resulting from stereotypic assumptions nottruly indicative of the individual ability of such individuals to participatein, and contribute to, society.

42 U.S.C. 12101(a)(7).

Based on those findings, Congress "invoke[d] the sweep of congressionalauthority, including the power to enforce the fourteenth amendment"as authority for its passage of the Disabilities Act. 42 U.S.C. 12101(b)(4).The Disabilities Act targets three particular areas of discrimination againstpersons with disabilities. Title I, 42 U.S.C. 12111-12117, addresses discriminationby employers affecting interstate commerce; Title II, 42 U.S.C. 12131-12165,addresses discrimination by governmental entities in the operation of publicservices, programs, and activities, including transportation; and TitleIII, 42 U.S.C. 12181-12189 (1994 & Supp. IV 1998), addresses discriminationin public accommodations operated by private entities. The term "disability"is defined as "a physical or mental impairment that substantially limitsone or more of the major life activities of [an] individual"; "arecord of such an impairment"; or "being regarded as having suchan impairment." 42 U.S.C. 12102(2).

This case involves suits filed under Titles I and II. Title I provides that"[n]o covered entity shall discriminate against a qualified individualwith a disability because of the disability of such individual in regardto job application procedures, the hiring, advancement, or discharge ofemployees, employee compensation, job training, and other terms, conditions,and privileges of employment." 42 U.S.C. 12112(a). A "coveredentity" is defined to include state and local governments, 42 U.S.C.12111(2), (5)(A) and (7); see Fitzpatrick v. Bitzer, 427 U.S. 445, 449 &n.2 (1976). "Discriminate" is defined to include "limiting,segregating, or classifying a job applicant or employee in a way that adverselyaffects the opportunities or status of such applicant or employee becauseof [a] disability," as well as the use of employment criteria that"screen out or tend to screen out" persons with disabilities,unless the criteria are "job-related for the position in question and[are] consistent with business necessity." 42 U.S.C. 12112(b)(1) and(b)(6). In addition, unlawful discrimination includes the failure to "mak[e]reasonable accommodations to the known physical or mental limitations ofan otherwise qualified individual with a disability," unless the accommodation"would impose an undue hardship" on the employer. 42 U.S.C. 12112(b)(5)(A).A "qualified individual with a disability" is a person who "canperform the essential functions of the job" with or without reasonableaccommodation. 42 U.S.C. 12111(8).

Title II of the Disabilities Act provides that "no qualified individualwith a disability shall, by reason of such disability, be excluded fromparticipation in or be denied the benefits of the services, programs, oractivities of a public entity, or be subjected to discrimination by anysuch entity." 42 U.S.C. 12132. A "public entity" is definedto include "any State or local government" and its components.42 U.S.C. 12131(1)(A) and (B).1 A "[q]ualified individual with a disability"is a person "who, with or without reasonable modifications * * * meetsthe essential eligibility requirements" for the governmental programor service, including employment. 42 U.S.C. 12131(2); 28 C.F.R. 35.140.2Title II does not normally require a public entity to make its existingphysical facilities accessible, although alterations of those facilitiesand any new facilities must be made accessible. 28 C.F.R. 35.150(a)(1),35.151. Department of Justice regulations provide that, except for new constructionand alterations, public entities need not take any steps that would "resultin a fundamental alteration in the nature of a service, program, or activityor in undue financial and administrative burdens." 28 C.F.R. 35.150(a)(3);see also 28 C.F.R. 35.130(b)(7), 35.164; Olmstead v. L.C., 527 U.S. 581,606 n.16 (1999).

Both Title I and Title II may be enforced through private suits againstpublic entities. 42 U.S.C. 12117(a), 12133. Congress expressly abrogatedthe States' Eleventh Amendment immunity to private suits in federal court.42 U.S.C. 12202.

2. Factual and Procedural Background: Respondent Patricia Garrett allegesthat, after working for the University of Alabama for 17 years, she wasdiagnosed with breast cancer. Garrett's supervisor made negative commentsregarding Garrett's illness and "repeatedly threatened to transferher to a less demanding job due to her condition." J.A. 38; Pet. App.9a. Upon returning from medical leave, Garrett was advised that she wouldcontinue in her position. J.A. 39. However, a week later, the Universitydemoted her even though she was able to perform the essential functionsof her job. Ibid; Pet. App. 9a.

Respondent Ash alleges that he has worked for petitioner Alabama Departmentof Youth Services since 1993. He has diabetes and several respiratory impairments,including chronic asthma. Ash requested that the Department enforce itsexisting non-smoking policy and not require him to drive cars that leakedcarbon monoxide fumes into the passenger compartment. The accommodationswere denied, and, after respondent filed a complaint, petitioner took adverseemployment action against him. J.A. 7-10.

Respondents filed separate suits in the same district court, alleging, asrelevant here, that petitioners had violated Titles I and II of the DisabilitiesAct. Petitioners filed motions to dismiss on Eleventh Amendment grounds,which the district court granted. Pet. App. 49a-55a. The United States intervenedon appeal, pursuant to 28 U.S.C. 2403(a), to defend the Disabilities Act'sabrogation of Eleventh Amendment immunity. Following circuit precedent,the court of appeals upheld the Disabilities Act's abrogation of EleventhAmendment immunity. Pet. App. 6a.

SUMMARY OF ARGUMENT

Application of the Americans with Disabilities Act to States and their subdivisionsfalls squarely within Congress's comprehensive legislative power under Section5 of the Fourteenth Amendment to prohibit, remedy, and prevent violationsof the rights secured by that Amendment. After decades of legislative experiencein the field, years of hearings and study, multitudinous submissions andtestimonials by citizens across the Nation, and thoroughgoing congressionalreview, Congress determined that persons with disabilities faced a virulenthistory of official governmental discrimination, isolation, and segregation.Indeed, this Court's decisions have long acknowledged the pernicious historyof mistreatment and discrimination suffered by persons with disabilities.Congress found, moreover, that, like race and gender discrimination, officialsegregation and discrimination against persons with disabilities have consequencesthat persist and have been perpetuated by state and local governmental decisionmaking,across the span of governmental operations.

Congress formulated a statute that, much like federal laws combating racialand gender discrimination, is carefully designed to root out present instancesof unconstitutional discrimination, to undo the effects of past discrimination,and to prevent future unconstitutional treatment by prohibiting discriminationand promoting integration where reasonable. At the same time, the DisabilitiesAct preserves the latitude and flexibility States legitimately require inthe administration of their programs and services. The Disabilities Actaccomplishes those objectives by requiring States to afford persons withdisabilities genuinely equal access to employment opportunities, services,and programs, while at the same time confining the statute's protectionsto "qualified individual[s]," who by definition meet all of theStates' legitimate and essential eligibility requirements. The Act simplyrequires "reasonable" accommodations for individuals with disabilitiesthat do not impose an undue burden and do not fundamentally alter the natureor character of the governmental program. The statute is thus carefullytailored to prohibit only state conduct that presents a substantial riskof violating the Constitution or that unreasonably perpetuates the exclusionaryeffects of the prior irrational political, economic, and social segregationof persons with disabilities.

ARGUMENT

BECAUSE IT COMBATS AN ENDURING LEGACY OF UNCONSTITUTIONAL DISCRIMINATIONAND SEGREGATION, THE AMERICANS WITH DISABILITIES ACT AS APPLIED TO THE STATESIS A VALID EXERCISE OF CONGRESS'S AUTHORITY UNDER SECTION 5 OF THE FOURTEENTHAMENDMENT

Section 5 of the Fourteenth Amendment is an affirmative grant of legislativepower to Congress, see Kimel v. Florida Bd. of Regents, 120 S. Ct. 631,644 (2000), and encompasses all legislation reasonably designed to enforcethe Fourteenth Amendment's guarantees, Ex parte Virginia, 100 U.S. 339,345-346 (1880). Section 5 thus "gives Congress broad power indeed,"Saenz v. Roe, 526 U.S. 489, 508 (1999), including the power to abrogatethe States' Eleventh Amendment immunity, Kimel, 120 S. Ct. at 644. While,under Section 5, Congress may enact prophylactic and remedial legislationdesigned to enforce Fourteenth Amendment rights, there must be a "congruenceand proportionality between the injury to be prevented or remedied and themeans adopted to that end." City of Boerne v. Flores, 521 U.S. 507,520 (1997). The Disabilities Act is appropriate Section 5 legislation becauseit is predicated on a pervasive history of unconstitutional conduct by theStates, which continues to infect contemporary governmental decisionmaking,and because the legislation is reasonably designed to remedy and preventthose constitutional violations.

A. Congress Found, After Exhaustive Investigation, Ample Evidence Of A LongHistory And A Continuing Problem Of Unconstitutional Treatment Of PersonsWith Disabilities By States And Their Subdivisions

At the core of the Equal Protection Clause is the principle that, in legislatingor administering government programs, a "State may not rely on a classificationwhose relationship to an asserted goal is so attenuated as to render thedistinction arbitrary or irrational." City of Cleburne v. CleburneLiving Ctr., 473 U.S. 432, 446 (1985). The Equal Protection Clause thusprohibits state action predicated on "mere negative attitudes"and "vague, undifferentiated fears," id. at 448-449, "divorcedfrom any factual context from which we could discern a relationship to legitimatestate interests," Romer v. Evans, 517 U.S. 620, 635 (1996). Petitionersdraw from that standard the conclusion that the power of courts-and of Congress-tosecure the constitutional rights of persons with disabilities is "virtuallynon-existent" (Pet. Br. 17); accordingly, petitioners characterize(id. at 30-39) the Disabilities Act as little more than the byproduct ofan uninformed Congress overreaching to address a nonexistent problem ofgovernmental discrimination against persons with disabilities, when "[t]heonly real evidence" before Congress "was of States overprotectingthe constitutional rights of the disabled" (id. at 38-39) (emphasisadded). Nothing could be further from the truth.

1. Congress exhaustively studied the problem

The Congress that enacted the Disabilities Act brought to that legislativeprocess more than 40 years of experience studying the scope and nature ofdiscrimination against persons with disabilities and testing incrementallegislative steps to combat that discrimination.3 See Fullilove v. Klutznick,448 U.S. 448, 503 (1980) (Powell, J., concurring) ("One appropriatesource [of evidence for Congress] is the information and expertise thatCongress acquires in the consideration and enactment of earlier legislation.After Congress has legislated repeatedly in an area of national concern,its Members gain experience that may reduce the need for fresh hearingsor prolonged debate when Congress again considers action in that area.").

Building on that expertise, Congress commissioned two reports from the NationalCouncil on the Handicapped, an independent federal agency, to report onthe adequacy of existing federal laws and programs addressing discriminationagainst persons with disabilities.4 Those reports revealed that "themost pervasive and recurrent problem faced by disabled persons appearedto be unfair and unnecessary discrimination." Nat'l Council on theHandicapped, On the Threshold of Independence 2 (1988) (Threshold). Personswith disabilities reported discrimination in the workplace, "denialsof educational opportunities, lack of access to public buildings and publicbathrooms, [and] the absence of accessible transportation." Id. at20-21, 41. Extensive surveys also revealed an "alarming rate of poverty,"5a dramatic educational gap,6 a "Great Divide" in employment,7and a life of social "isolat[ion]"8 for persons with disabilities.Id. at 14. The reports further found that "[c]omplexities, inconsistencies,and fragmentation in the various Federal laws and programs" had createda confused and ineffective "patchwork quilt of existing policies andprograms," Nat'l Council on the Handicapped, Toward Independence: AnAssessment of Federal Laws and Programs Affecting Persons with Disabilities7 (1986), and called for national legislation comprehensively prohibitingdiscrimination on the basis of disability, id. at 18-19; Threshold 19-21.

Congress itself engaged in extensive study and fact-finding concerning theproblem of discrimination against persons with disabilities, holding 13hearings devoted specifically to the consideration of the Disabilities Act.9In addition, a congressionally designated Task Force held 63 public forumsacross the country, which were attended by more than 7,000 individuals.Task Force on the Rights and Empowerment of Americans with Disabilities,From ADA to Empowerment 18 (1990) (Task Force Report). The Task Force alsopresented to Congress evidence submitted by nearly 5,000 individuals documentingthe problems with discrimination faced daily by persons with disabilities-oftenat the hands of state and local governments. See 2 Staff of the House Comm.on Educ. and Labor, 101st Cong., 2d Sess., Legis. Hist. of Pub. L. No. 101-336:The Americans with Disabilities Act, 100th Cong., 2d Sess. 1040 (Comm. Print1990) (Leg. Hist.); Task Force Report 16. Congress also considered severalreports and surveys. See S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989);H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 28 (1990); Task ForceReport 16.10

2. Congress amassed voluminous evidence of historic and enduring discriminationby state and local governments against persons with disabilities and deprivationof their fundamental rights

a. Historic Discrimination: The "propriety of any § 5 legislation'must be judged with reference to the historical experience . . . it reflects.'"Florida Prepaid Postsec. Educ. Expense Bd. v. College Sav. Bank, 527 U.S.627, 640 (1999). While petitioners and their amici ignore it, Congress andthis Court have long acknowledged the Nation's "history of unfair andoften grotesque mistreatment" of persons with disabilities. Cleburne,473 U.S. at 454 (Stevens, J., concurring); see id. at 461 (Marshall, J.,concurring in the judgment in part (hereinafter cited as (Marshall, J.)));see also Olmstead v. L.C., 527 U.S. 581, 608 (Kennedy, J., concurring) ("[O]fcourse, persons with mental disabilities have been subject to historic mistreatment,indifference, and hostility."); Alexander v. Choate, 469 U.S. 287,295 n.12 (1985) ("well-cataloged instances of invidious discriminationagainst the handicapped do exist").11

That "lengthy and tragic history," Cleburne, 473 U.S. at 461 (Marshall,J.), of discrimination, segregation, and denial of basic civil and constitutionalrights for persons with disabilities assumed an especially pernicious formin the early 1900s, when the eugenics movement and Social Darwinism labeledpersons with mental and physical disabilities "a menace to societyand civilization . . . responsible in a large degree for many, if not all,of our social problems." Cleburne, 473 U.S. at 462 (Marshall, J.);see also Civil Rights Comm'n, Accommodating the Spectrum of Individual Abilities19 (1983) (Spectrum). Persons with disabilities were portrayed as "sub-humancreatures" and "waste products" responsible for poverty andcrime. Spectrum 20. "A regime of state-mandated segregation and degradationsoon emerged that in its virulence and bigotry rivaled, and indeed paralleled,the worst excesses of Jim Crow." Cleburne, 473 U.S. at 462 (Marshall,J.). Every single State, by law, provided for the segregation of personswith mental disabilities and, frequently, epilepsy, and excluded them frompublic schools and other state services and privileges of citizenship.12States also fueled the fear and isolation of persons with disabilities byrequiring public officials and parents, sometimes at risk of criminal prosecution,to report the "feeble-minded" and segregate them into institutions.Spectrum 20, 33-34.13

With the aim of halting reproduction and "nearly extinguish[ing] theirrace," Cleburne, 473 U.S. at 462 (Marshall, J.), almost every Stateaccompanied forced segregation with compulsory sterilization and prohibitionsof marriage, see id. at 463. See also Buck v. Bell, 274 U.S. 200, 207 (1927)(upholding compulsory sterilization law "in order to prevent our beingswamped with incompetence"; "It is better for all the world, ifinstead of waiting to execute degenerate offspring for crime, or to letthem starve for their imbecility, society can prevent those who are manifestlyunfit from continuing their kind. * * * Three generations of imbeciles areenough.").14

Children with mental disabilities were labeled "ineducable" andcategorically excluded from public schools to "protect nonretardedchildren from them." Cleburne, 473 U.S. at 463 (Marshall, J.); seealso Board of Educ. v. Rowley, 458 U.S. 176, 191 (1982) ("many of thesechildren were excluded completely from any form of public education").Numerous States also restricted the rights of physically disabled peopleto enter into contracts, Spectrum 40, while a number of large cities enacted"ugly laws," which prohibited the physically disabled from appearingin public:

No person who is diseased, maimed, mutilated or in any way deformed so asto be an unsightly or disgusting object or improper person to be allowedin or on the public ways or other public places in this city, shall thereinor thereon expose himself to public view, under a penalty of not less thanone dollar nor more than fifty dollars for each offense.

Unequal Treatment 863 (quoting Chicago ordinance). Such laws were enforcedas recently as 1974. Id. at 864.15

b. The Enduring Legacy of Governmental Discrimination: "Prejudice,once let loose, is not easily cabined." Cleburne, 473 U.S. at 464 (Marshall,J.). "[O]ut-dated statutes are still on the books, and irrational fearsor ignorance, traceable to the prolonged social and cultural isolation"of those with disabilities "continue to stymie recognition of the[ir]dignity and individuality." Id. at 467 (emphasis added).16 Consequently,"our society is still infected by the ancient, now almost subconsciousassumption that people with disabilities are less than fully human and thereforeare not fully eligible for the opportunities, services, and support systemswhich are available to other people as a matter of right. The result ismassive, society-wide discrimination." S. Rep. No. 116, supra, at 8-9.17

Moreover, as we detail below (pp. 18-30, infra), based on the testimonyof hundreds of witnesses before Congress and at the Task Force's forums,18Congress found, as a matter of present reality and historical fact, thatdiscrimination pervaded state and local governmental operations and thatpersons with disabilities have been and are subjected to "widespreadand persisting deprivation of [their] constitutional rights." FloridaPrepaid, 527 U.S. at 645; see also 42 U.S.C. 12101(a)(2) and (a)(3). Inparticular, Congress reasonably discerned a substantial risk that personswith disabilities will be subjected to unconstitutional discrimination bystate and local governments in the form of (i) "arbitrary or irrational"distinctions and exclusions, Cleburne, 473 U.S. at 446; (ii) governmentaldecisions grounded in "mere negative attitudes," "vague,undifferentiated fears," id. at 448-449, "animosity," Romer,517 U.S. at 634, paternalism, United States v. Virginia, 518 U.S. 515, 541-544(1996), and false or overly broad stereotypes about ability, Olmstead, 527U.S. at 611 (Kennedy, J., concurring) ("[T]he line between animus andstereotype is often indistinct."); and (iii) governmental effectuationof private biases, Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

In addition, the evidence before Congress established that States and theirsubdivisions structure governmental programs and operations in a mannerthat has the effect of denying persons with disabilities the equal opportunityto obtain vital services and to exercise fundamental rights (such as therights to vote, to petition government officials, to adequate custodialtreatment, and to equal access to the courts and public education). Suchconduct falls within Congress's enforcement power for two reasons. First,there is a substantial risk that those decisions result from invidious intentand therefore violate the Constitution. Second, those decisions impermissiblycarry forward the effects of prior unconstitutional policies of segregationand isolation. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989)(opinion of O'Connor, J.) (Congress's Section 5 power "include[s] thepower to define situations which Congress determines threaten principlesof equality and to adopt prophylactic rules to deal with those situations").

(i) Employment: Substantial evidence of employment discrimination by stategovernments and their subdivisions was adduced. One witness "was toldby the Essex Junction School System that they were not hiring me becauseI used a wheelchair. I suspected it in other situations, but in that one,they actually said this was the reason." 2 Leg. Hist. 1076 (John Nelson).A woman "'crippled by arthritis' was denied a job, not because shecould not do the work but because 'college trustees [thought] 'normal studentsshouldn't see her.'" S. Rep. No. 116, supra, at 7; see also SchoolBd. of Nassau County v. Arline, 480 U.S. 273, 282-283 n.9 (1987). Anotherwitness "applied for a job [at a public library] and was told theyhad already hired someone with a disability and they had met their quota."Wis. 1759.19

Of particular relevance to the present case, "[t]estimony before theCommittee indicated that there still exists widespread irrational prejudiceagainst persons with cancer." S. Rep. No. 116, supra, at 39-40; H.R.Rep. No. 485, supra, Pt. 2, at 75. Indeed, a study before Congress revealedthat "most corporations and governmental agencies in [California] discriminatedin hiring against job applicants for an average period of five years aftertreatment for cancer." 2 Leg. Hist. 1619 (Arlene Mayerson).20

(ii) Education: "[E]ducation is perhaps the most important functionof state and local governments" because "it is doubtful that anychild may reasonably be expected to succeed in life if he is denied theopportunity of an education." Brown v. Board of Educ., 347 U.S. 483,493 (1954). Accordingly, where the State undertakes to provide a publiceducation, that right "must be made available to all on equal terms."Ibid. But Congress learned that irrational prejudices, fears, ignorance,and animus still operate to deny persons with disabilities an equal opportunityfor public education. For example, a quadriplegic woman with cerebral palsyand a high intellect, who scored well in school, was branded "retarded"by educators, denied placement in a regular school setting, and placed withemotionally disturbed children, where she was told she was "not collegematerial." Vt. 1635. Other school districts also simply labeled asmentally retarded a blind child and a child with cerebral palsy. Neb. 1031;Alaska 38 (noting that child with cerebral palsy subsequently obtained aMasters Degree). "When I was 5," another witness testified, "mymother proudly pushed my wheelchair to our local public school, where Iwas promptly refused admission because the principal ruled that I was afire hazard." S. Rep. No. 116, supra, at 7.21

State institutions of higher education suffered from the same stereotypesand prejudices. A person with epilepsy was asked to leave a state collegebecause her seizures were "disrupt[ive]" and, officials said,created a risk of liability. 2 Leg. Hist. 1162 (Barbara Waters). A doctorwith multiple sclerosis was denied admission to a psychiatric residencyprogram because the state admissions committee "feared the negativereactions of patients to his disability." Id. at 1617 (Arlene Mayerson).Another witness explained that, "when I was first injured, my collegerefused to readmit me" because "it would be 'disgusting' to myroommates to have to live with a woman with a disability." Wash. 1733.22

(iii) Voting and Political Access: Voting is the right that is "preservativeof all rights," Katzenbach v. Morgan, 384 U.S. 641, 652 (1966), andthe Equal Protection Clause guarantees "the opportunity for equal participationby all voters" in elections, Harper v. Virginia Bd. of Elections, 383U.S. 663, 670 (1966). But "in the past years people with disabilitieshave been turned away from the polling places after they have been registeredto vote because they did not look competent." 2 Leg. Hist. 1220 (NancyHusted-Jensen). When one witness turned in the registration card of a voterwho has cerebral palsy and is blind, the "clerk of the board of canvasserslooked aghast * * * and said to me, 'Is that person competent? Look at thatsignature." The clerk then arbitrarily invented a reason to rejectthe registration. Id. at 1219. Congress was also aware that a deaf voterwas told that "you have to be able to use your voice" to vote.Equal Access to Voting for Elderly and Disabled Persons: Hearings Beforethe Task Force on Elections of the House Comm. on House Admin., 98th Cong.,1st Sess. 94 (1984) (Equal Access to Voting Hearings). "How can disabledpeople have clout with our elected officials when they are aware that manyof us are prevented from voting?" Ark. 155.23

The denial of access to political officials and vital governmental servicesalso featured prominently in the testimony. For example, "[t]he courthousedoor is still closed to Americans with disabilities"-literally. 2 Leg.Hist. 936 (Sen. Harkin).

I went to the courtroom one day and * * * I could not get into the buildingbecause there were about 500 steps to get in there. Then I called for thesecurity guard to help me, who * * * told me there was an entrance at theback door for the handicapped people. * * * I went to the back door andthere were three more stairs for me to get over to be able to ring a bellto announce my arrival so that somebody would come and open the door andmaybe let me in. I was not able to do that. * * * This is the court systemthat is supposed to give me a fair hearing. It took me 2 hours to get in.* * * And when [the judge] finally saw me in the courtroom, he could notlook at me because of my wheelchair. * * * The employees of the courtroomcame back to me and told me, "You are not the norm. You are not thenormal person we see every day.

Id. at 1071 (Emeka Nwojke). Numerous other witnesses explained that accessto the courts24 and other important government buildings and officials25depended upon their willingness to crawl or be carried.

(iv) Public Transportation: Individuals also reported discriminatory treatmenton public transportation.

Some of the drivers are very rude and get mad if I want to take the bus.Can you believe that? I work and part of my taxes pay for public buses andthen they get mad just because I am using a wheelchair. * * * Maybe anotherperson using a wheelchair is trying to go to work or school and they shouldnot have to crawl up the stairs and get dirty. * * * It is hard for peopleto feel good about themselves if they have to crawl up the stairs of a bus,or if the driver passes by without stopping. * * * I learned in school thatblack people had problems with buses, too.

2 Leg. Hist. 993 (Jade Calegory).26 A "key" Connecticut transportationofficial responded to requests for accessibility by asking "Why can'tall the handicapped people live in one place and work in one place? It wouldmake it easier for us." Id. at 1085 (Edith Harris).27

(v) Law Enforcement: Persons with disabilities have also been victimizedin their dealings with law enforcement. When police in Kentucky learnedthat a man they arrested had AIDS, "[i]nstead of putting the man injail, the officers locked him inside his car to spend the night." 2Leg. Hist. 1005 (Belinda Mason). Police refused to accept a rape complaintfrom a blind woman because she could not make a visual identification, ignoringthe possibility of alternative means of identifying the perpetrator. N.M.1081. A person in a wheelchair was given a ticket and six-months of probationfor obstructing traffic on the street, even though the person could notuse the sidewalk because it lacked curb cuts. Va. 1684. Task Force ChairmanJustin Dart testified, moreover, that persons with hearing impairments "havebeen arrested and held in jail over night without ever knowing their rightsnor what they are being held for." 2 Leg. Hist. 1331.28 The discriminationcontinues in correctional institutions. "I have witnessed their jailersrational[ize] taking away their wheelchairs as a form of punishment as ifthat is different than punishing prisoners by breaking their legs."2 Leg. Hist. 1190 (Cindy Miller).29

(vi) Institutionalization: Unconstitutional denials of appropriate treatmentand unreasonable institutionalization of persons in state mental hospitalswere also catalogued. See 2 Leg. Hist. 1203 (Lelia Batten) (state law ineffective;state hospitals are "notorious for using medication for controllingthe behavior of clients and not for treatment alone. Seclusion rooms andrestraints are used to punish clients."); id. at 1262-1263 (EleanorC. Blake) (detailing the "minimal, custodial, neglectful, abusive"care received at state mental hospital, and willful indifference resultingin rape); Spectrum 34-35.30

(vii) Other Public Services: The scope of the testimony offered to Congressregarding unconstitutional treatment swept so broadly, touching virtuallyevery aspect of individuals' encounters with their government, as to defyisolating the problem into select categories of state action. Services andprograms as varied as zoning31; the operation of zoos,32 public libraries,33public swimming pools and park programs34; and child custody proceedings35exposed the discriminatory attitudes of officials.36

3. The existence of state laws against disability discrimination does notnegate Congress's finding of widespread discrimination by state governmentsand their subdivisions

Entirely ignoring the real-life experiences with disability discriminationthat hundreds of witnesses related at the congressional hearings and TaskForce forums, petitioners tell this Court that the only "real evidence"(Pet. Br. 38) of state action it should consider is the fact that Stateshave enacted laws against disability discrimination, and that Congress wasaware of that. Petitioners' argument is entirely mistaken.

First, substantial information and testimony before Congress demonstratedthat state laws were "inadequate to address the pervasive problemsof discrimination that people with disabilities are facing." S. Rep.No. 116, supra, at 18; see also ibid. (section of report entitled "CURRENTFEDERAL AND STATE LAWS ARE INADEQUATE"); H.R. Rep. No. 485, supra,Pt. 2, at 47 (same). The 50 State Governors' Committees "report[ed]that existing state laws do not adequately counter * * * discrimination."Ibid.37 The Illinois Attorney General testified that "[p]eople withdisabilities should not have to win these rights on a State-by-State basis"and that "[i]t is long past time * * * [for] a national policy thatputs persons with disabilities on equal footing with other Americans."May 1989 Hearings 77. And, although Ohio now tells this Court that applicationof the Disabilities Act to the States is unnecessary, that is not what Ohio'sGovernor told Congress at the time. May 1989 Hearings 778 ("[S]tateand local governments must also be held to the same standards" of ensuring"that there is no discrimination against people with disabilities inany program under their jurisdiction.").38

Second, petitioners' appendix of state laws (Br. App. A) neither establishesthe effectiveness of those laws nor disproves the existence of officialdiscrimination. As an initial matter, petitioners grossly exaggerate thecoverage of those laws. See generally Nat'l Ass'n of Protection & AdvocacyServs. Amicus Br.; J. Flaccus, Handicap Discrimination Legislation: WithSuch Inadequate Coverage at the Federal Level, Can State Legislation Beof Any Help?, 40 Ark. L. Rev. 261 (1986) (detailing gaps in coverage ofstate laws). Prior to 1990, nearly half of the States did not protect personswith mental illness and/or mental disabilities. See Flaccus, supra, at 278-280.New Hampshire excluded disabilities caused by illness, N.H. Rev. Stat. Ann.§ 354-A:3(XIII) (1984), while Arizona excluded disabilities which werefirst manifested after the age of 18, Ariz. Rev. Stat. § 36-551(11)(b)(1986). Flaccus, supra, at 285. Of particular relevance here, few Statesprotected against discrimination based on either a perceived disabilityor a history of illness such as cancer. See B. Hoffman, Employment DiscriminationBased on Cancer History, 1986 Temple L.Q. 1 (1986). Many States failed toprovide for private rights of action and compensatory damages, effectivelyleaving victims of discrimination without enforceable remedies. Id. at App.B; Flaccus, supra, at 300-310, 317-321.

Furthermore, petitioners' surmise about the effectiveness of those lawscannot supplant the first-hand testimony of witness after witness aboutthe instances of discrimination they faced and the ineffectiveness of statelaws. Just as state laws against race discrimination have neither eradicatedthe problem nor undermined the basis for subjecting state employers to federalprohibitions,39 Congress was equally justified in concluding that statelaws against disability discrimination had generally been ineffective incombating the lingering effects of prior official discrimination and exclusionarylaws and policies. Indeed, while the Disabilities Act was before Congress,the Advisory Commission on Intergovernmental Relations (ACIR)40 surveyedstate compliance with prohibitions on employment discrimination and reportedthat 35% of responding state and local governments had no employees withdisabilities, and half had only "one or two." ACIR, DisabilityRights Mandates 64 (1989). Further, 82% of state and local government employersharbored moderate to strong negative attitudes and misconceptions abouthiring persons with disabilities, based on stereotypes, prejudice, and "feelingsof discomfort in associating with disabled individuals." Id. at 72-73.That, unfortunately, "is the pervasive backdrop against which regulatorymandates are carried out." Id. at 96.41

Third, petitioners fail in their effort to show that Congress consideredstate disability discrimination laws to be effective. While petitionerscorrectly note (Br. 32) that the Senate Report stated that "[v]irtuallyall States prohibit unfair discrimination among persons of the same classand equal expectation of life," that statement referred not to stateanti-discrimination laws, but rather to state regulation of unfair insurancepractices. See S. Rep. No. 116, supra, at 84. Similarly, while it is truethat Attorney General Thornburgh noted that federal action should take accountof existing state laws (Pet. Br. 32), that statement referred to state lawsprohibiting only private-sector discrimination. Likewise, the National Coalitionof Cancer Survivorship did note that every State had laws regulating disabilitydiscrimination (Pet. Br. 33), but went on to explain that "[t]he scopeof these [state] laws, however, varies widely," and provided a lengthyand detailed critique (complete with chart) of the limitations of statelaws such as Alabama's. May 1989 Hearings 386-394. Indeed, as noted earlier,many witnesses testified, without contradiction, that "state laws havenot provided substantial protection to people with disabilities." 3Leg. Hist. 2245 (James Ellis) (cited at Pet. Br. 34, 37).42

4. Disability discrimination does not fall beyond Congress's Section 5 enforcementpower simply because it is subject to rational-basis review by courts

Petitioners contend (Br. 44-48) that, notwithstanding the voluminous evidenceof discrimination before it, Congress's hands are tied because disabilitydiscrimination is subject to rational-basis review by the courts. In petitioners'view, Section 5 permits Congress only to prohibit disability discriminationthat would be declared unconstitutional by a court, and not to identifyor prevent Fourteenth Amendment violations that might elude judicial review,because "the use of prophylactic authority under Section 5 in the contextof rights that warrant rational-basis review" (Pet. Br. 44-45) is impermissible.Of course, to the extent that the Disabilities Act enforces the Due ProcessClause of the Fourteenth Amendment by remedying and preventing governmentalconduct that burdens the fundamental rights of persons with disabilities-suchas the right to vote, to access the courts, to petition officials for theredress of grievances, to be accorded due process by law enforcement officials,and to humane conditions of confinement-petitioners' argument is misplaced.See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988) ("the most exactingscrutiny" applies to infringements of fundamental rights). And evenwhere rational-basis review applies, petitioners' theory finds no basisin the Constitution's text, this Court's precedents, or logic.

First, petitioners' proposed restriction appears nowhere in the text ofSection 5, which gives Congress the power to enforce the entire FourteenthAmendment. See Flores, 521 U.S. at 519. Nor could it be grounded in thehistory of Section 5, because the tiers of judicial scrutiny were unknownto the Framers of the Fourteenth Amendment and, in fact, did not appearuntil a century later.

Second, petitioners' attempt to exclude select categories of discriminationfrom Congress's enforcement power cannot be reconciled with this Court'sprecedents. In Cleburne, this Court held that disability discriminationshould receive rational-basis review by the courts, not because personswith disabilities lack the traditional indicia of a suspect class- theyin fact possess many of those criteria-but because heightened scrutiny wouldunduly limit legislative solutions. "How this large and diversifiedgroup is to be treated under the law is a difficult and often a technicalmatter, very much a task for legislators guided by qualified professionals."473 U.S. at 442-443. While the Court in Cleburne acknowledged the importantrole of state legislators in that process, id. at 442, it also recognizedthe appropriateness of congressional legislation, see id. at 439 (rational-basisscrutiny applies only "absent controlling congressional direction");id. at 443-444. Thus, the judiciary's application of rational-basis scrutinyis premised upon the enhanced-not diminished-capacity of Congress to addressthe problem.43

Indeed, if petitioners were correct, this Court likely would have mentionedthat categorical limitation in either Kimel, supra, or Oregon v. Mitchell,400 U.S. 112 (1970). In each of those cases, the Court invalidated Section5 legislation concerning age discrimination-subject only to rational-basisreview-without hinting at, let alone endorsing, petitioners' constitutionalfault line. Moreover, petitioners' theory is directly contradicted by thisCourt's ruling in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), sustainingunder Section 5 the extension of Title VII's ban on gender discriminationto the States at a time when a majority of the Court had not yet concludedthat gender discrimination warrants heightened scrutiny.44 In fact, anyclassification that is subject to judicial review for arbitrariness underthe Equal Protection Clause must also be subject to congressional legislationunder Section 5, because "[i]t is not * * * the judicial power"but "the power of Congress which has been enlarged" by Section5. Ex parte Virginia, 100 U.S. at 345.45

Third, the reasons for restricting courts to rational-basis review do notdisqualify Congress from providing appropriate enforcement measures. Rational-basisscrutiny "is a paradigm of judicial restraint," FCC v. Beach Communications,Inc., 508 U.S. 307, 315 (1993) (emphasis added), designed to cabin the exerciseof judicial power to invalidate duly-enacted state and federal legislation.It reflects the notion that stringent judicial review should largely bereserved for the protection of those groups with limited access to the politicalprocess.46 Thus, generally when courts entertain equal protection challenges,they must be exceedingly deferential to the underlying legislative judgmentsand factfinding, requiring those challenging the laws to show that "thelegislative facts on which the classification is apparently based couldnot reasonably be conceived to be true by the governmental decisionmaker."Vance v. Bradley, 440 U.S. 93, 111 (1979); see also Heller v. Doe, 509 U.S.312, 320-321 (1993).

By contrast, because congressional enforcement does not share either theanti-democratic character of judicial review or the limited capacity ofcourts to collect and review relevant information, Congress has "widelatitude" and a markedly different role from the courts when performingits "duty to make its own informed judgment on the meaning and forceof the Constitution," Flores, 521 U.S. at 520, 535.

The creation of national rules for the governance of our society simplydoes not entail the same concept of recordmaking that is appropriate toa judicial or administrative proceeding. Congress has no responsibilityto confine its vision to the facts and evidence adduced by particular parties.Instead, its special attribute as a legislative body lies in its broadermission to investigate and consider all facts and opinions that may be relevantto the resolution of an issue.

Fullilove, 448 U.S. at 502-503 (Powell, J., concurring).47

Accordingly, Congress's enforcement power under Section 5 extends to thefull spectrum of conduct that violates the Equal Protection Clause, andnot merely to the class of governmental actions that this Court stands readyto invalidate under heightened scrutiny.48 Rather, by drawing on a broadbase of knowledge and experience, Congress is able to apply this Court'sdefinition of equal protection to a set of legislatively determined factsand ascertain, in a way that courts cannot, whether and how often governmentalaction entails the "indiscriminate imposition of inequalities,"Romer, 517 U.S. at 633, or is the likely outgrowth of prior governmentaldiscrimination and exclusion, and the "negative attitudes" and"vague, undifferentiated fears," Cleburne, 473 U.S. at 448-449,that official segregation spawned.

B. The Americans With Disabilities Act Is Reasonably Tailored To RemedyingAnd Preventing Unconstitutional Discrimination Against Persons With Disabilities

When enacting Section 5 legislation, Congress "must tailor its legislativescheme to remedying or preventing" the unconstitutional conduct ithas identified. Florida Prepaid, 527 U.S. at 639. Congress, however, may"paint with a much broader brush than may this Court, which must confineitself to the judicial function of deciding individual cases and controversiesupon individual records." Fullilove, 448 U.S. at 501-502 n.3. Accordingly,"Congress' § 5 power is not confined to the enactment of legislationthat merely parrots the precise wording of the Fourteenth Amendment."Kimel, 120 S. Ct. at 644. Rather, "[l]egislation which deters or remediesconstitutional violations can fall within the sweep of Congress' enforcementpower even if in the process it prohibits conduct which is not itself unconstitutional."Lopez v. Monterey County, 525 U.S. 266, 282 (1999); see also United Statesv. Morrison, 120 S. Ct. 1740, 1755 (2000). The operative question thus isnot whether the Disabilities Act "prohibit[s] a somewhat broader swathof conduct," Kimel, 120 S. Ct. at 644, than would the courts, but whetherthe Disabilities Act sweeps more broadly than Congress could reasonablyhave deemed necessary to combat the historic and enduring legacy of discrimination,segregation, and isolation faced by persons with disabilities. It does not.

1. Discrimination on the basis of disability violates the Constitution morefrequently than most classifications subject only to rational-basis review

Petitioners assert (Br. 40-44) that the Disabilities Act is not proper enforcementlegislation because, like the age discrimination statute at issue in Kimel,it prohibits significant amounts of conduct that the Constitution does not.They are mistaken, because the gap between what the Constitution and thislegislation proscribes is far narrower than it was in Kimel. While bothage and disability discrimination are subject to rational-basis judicialreview, courts have far more readily found a rational basis for age discrimination,see Kimel, 120 S. Ct. at 646-647, than for disability discrimination, seeSection A.2, supra. The reason for that difference is, as Cleburne and Romerdemonstrate, that the determination whether governmental conduct lacks arational basis for purposes of the Equal Protection Clause is a contextualone, sensitive to the historical and social environment in which governmentaldecisionmaking arises. Heller, 509 U.S. at 321 (basis for governmental action"must find some footing in the realities of the subject addressed bythe legislation"); see also Plyler v. Doe, 457 U.S. 202, 223 (1982).Because persons with disabilities, unlike older persons (Kimel, supra) oropticians (Williamson v. Lee Optical, 348 U.S. 483 (1955)), have been "subjectedto a 'history of purposeful unequal treatment,'" Kimel, 120 S. Ct.at 645, disability discrimination is more likely in fact to result fromfalse stereotypes and unconstitutional animus.49 "Because prejudicespawns prejudice, and stereotypes produce limitations that confirm the stereotypeon which they are based, a history of unequal treatment requires sensitivityto the prospect that its vestiges endure." Cleburne, 473 U.S. at 473n.24 (Marshall, J.).

2. The Disabilities Act reaches no further than Congress reasonably deemednecessary to remedy and prevent unconstitutional discrimination

The Disabilities Act targets discrimination that is unreasonable. The Statesretain their discretion to exclude persons from employment programs, services,or benefits for any lawful reason unconnected with their disability or forno reason at all.50 The Disabilities Act also permits discrimination ifa person cannot "perform the essential functions of the employmentposition," 42 U.S.C. 12111(8), or "meet[] the essential eligibilityrequirements" of the governmental program or service, 42 U.S.C. 12131(2).But once an individual proves that she can perform all but the non-essentialtasks of a job or can meet all but the non-essential eligibility requirementsof a program or service, the government's interest in excluding that individualsolely "by reason of such disability," 42 U.S.C. 12132, is bothminimal and, in light of history, constitutionally circumscribed. At thesame time, permitting the States to retain and enforce their essential eligibilityrequirements protects their legitimate interests in selecting and structuringgovernmental activities.51 The Disabilities Act thus carefully balancesa State's legitimate operational interests against the right of a personwith a disability to be judged "by his or her own merit and essentialqualities." Rice v. Cayetano, 120 S. Ct. 1044, 1057 (2000).52

The statute thus requires more than the Constitution only to the extentthat some disability discrimination may be rational for constitutional purposes,but unreasonable under the standards of the Disabilities Act. That marginof statutory protection does not redefine the constitutional right at issue(see Pet. Br. 39). Instead, like Title VII on which the Disabilities Actwas modeled, the enhanced statutory protection is necessary to enforce thisCourt's constitutional standard by reaching unconstitutional conduct thatwould otherwise escape detection in court, remedying the continuing effectsof prior unconstitutional discrimination, and deterring future constitutionalviolations. "While the line between measures that remedy or preventunconstitutional actions and measures that make a substantive change inthe governing law is not easy to discern," Flores, 521 U.S. at 519,the Disabilities Act is on the remedial and prophylactic side of that line.

a. Disparate Impact: Petitioners thrice object (Pet. Br. 42-43 ¶¶4, 7, 9) that the Disabilities Act prohibits practices that have an unjustifieddisparate impact on persons with disabilities. However, prohibiting or requiringmodifications of rules, policies, and practices that have a discriminatoryimpact is a traditional and appropriate exercise of the Section 5 powerto combat a history of invidious discrimination.53 By proscribing governmentalpractices with a discriminatory impact, 42 U.S.C. 12112(b)(6), the DisabilitiesAct eliminates "built-in headwinds" for persons with disabilities,Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), and fleshes out "subconsciousstereotypes and prejudices," Watson v. Fort Worth Bank & Trust,487 U.S. 977, 990 (1988). At the same time, the Act protects the States'use of rules and practices that are necessary and reasonably related tothe job or program, 42 U.S.C. 12112(b)(6).

b. Reasonable Accommodation: As petitioners note (Br. 43 ¶¶ 5,6), the Disabilities Act requires "reasonable accommodation" inemployment, 42 U.S.C. 12111(8), 12111(b) (5)(A), and "reasonable modifications"in public services, 42 U.S.C. 12131(2). Those requirements, however, areprecisely tailored to the unique features of disability discrimination intwo ways.

First, given the history of segregation and isolation and the resultingentrenched stereotypes, fear, prejudices, and ignorance about persons withdisabilities, Congress reasonably determined that a simple ban on futurediscrimination would be insufficient to purge the stain of past discrimination.Therefore, the Disabilities Act affirmatively promotes the integration ofindividuals with disabilities- both in order to remedy past unconstitutionalconduct and to prevent future discrimination. Congress could reasonablyconclude that the demonstrated failure of state and local governments toundertake reasonable efforts to accommodate and integrate persons with disabilitieswithin their programs, services, and operations would freeze in place theeffects of their prior exclusion and isolation of individuals with disabilities,creating a self-perpetuating spiral of segregation, stigma, ill treatment,neglect, and degradation. Congress also correctly concluded that, by reducingstereotypes and misconceptions, integration reduces the likelihood thatconstitutional violations will recur. Cf. Olmstead, 527 U.S. at 600 (segregation"perpetuates unwarranted assumptions that persons so isolated are incapableor unworthy of participating in community life").

Second, to the extent that the accommodation requirement necessitates alterationsin some governmental policies and practices, it is an appropriate enforcementmechanism for many of the same reasons that a prohibition on disparate impactis. Like practices with a disparate impact and literacy tests for voting,54governmental refusals to make even reasonable accommodations for personswith disabilities often perpetuate the consequences of prior unconstitutionaldiscrimination, and thus fall within Congress's Section 5 power.55

Moreover, failure to accommodate the needs of qualified persons with disabilitiesmay often result directly from hidden unconstitutional animus and falsestereotypes. As petitioners' amicus recognizes (Crim. Justice Legal Found.Br. 7), employers regularly adjust the schedules and work functions of employeesto accommodate family needs, civic and charitable activities, union demands,and personal emergencies. The Disabilities Act simply makes certain thatthe refusal to accommodate an employee with a disability is genuinely basedon unreasonable cost or actual inability to accommodate, rather than ondiscomfort with or false stereotypes about the disability or unfounded concernabout the costs of accommodation. Likewise, building and program designsgenerally are structured to accommodate the target population. The DisabilitiesAct simply ensures that persons previously invisible to designers are nowconsidered part of government's service constituency. "Just as it isunthinkable to design a building with a bathroom only for use by men, itought to be just as unacceptable to design a building that can only be usedby able-bodied persons. It is exclusive designs, and not any inevitableconsequence of a disability that results in the isolation and segregationof persons with disabilities in our society." 3 Leg. Hist. 1987 n.4(Laura Cooper).56

Third, Congress tailored the accommodation requirement to the unconstitutionalgovernmental conduct it seeks to repair and prevent. The statute requiresaccommodations and modifications only where "reasonable," 42 U.S.C.12112(b)(5)(A), 12131(2). Governments need not make accommodations or modificationsthat "impose an undue hardship" or require "fundamental alterationsin the nature of a service, program, or activity," in light of theirnature or cost, agency resources, and the operational practices and structureof the position. 42 U.S.C. 12111(10), 12112(b)(5)(A); 28 C.F.R. 35.130(b)(7),35.150(a)(3), 35.164; Olmstead, 527 U.S. at 606 n.16.

Further, based on the consistent testimony of witnesses and expert studies,Congress determined that the vast majority of accommodations entail littleor no cost. For example, over 50% of accommodations in employment settingscost nothing; another 30% cost less than $500.57 One local government officialstressed that "[t]his bill will not impose great hardships on our countygovernments" because "the majority of accommodations for employeeswith disabilities are less than $50" and "[t]he cost of makingnew or renovated structures accessible is less than 1 percent of the totalcost of construction." 2 Leg. Hist. 1443 (Nikki Van Hightower, Treasurer,Harris Co., Tex.).58 Indeed, petitioners do not allege that enforcing anexisting no-smoking policy for Ash or permitting Garrett to retain a jobthat she was fully capable of performing would entail unreasonable cost.And any costs are further diminished when measured against the financialand human costs of denying persons with disabilities an education or consigningthem to unemployment or low-paying jobs and excluding them from needed governmentservices or the equal exercise of fundamental rights, thereby renderingthem a permanent underclass. Plyler, 457 U.S. at 223-224, 227.

In short, "[a] proper remedy for an unconstitutional exclusion * ** aims to eliminate so far as possible the discriminatory effects of thepast and to bar like discrimination in the future." Virginia, 518 U.S.at 547. Section 5 thus empowers Congress to do more than simply prohibitthe creation of new barriers to equality; it can require States to teardown the walls they erected during decades of discrimination and exclusion.See id. at 550 n.19 (Equal Protection Clause itself can require modificationof facilities and program to ensure equal access). The remedy for segregationis integration, not inertia.

c. Burden of Justification: Petitioners point to features of the DisabilitiesAct (Br. 42-43 ¶¶ 1, 2, 3, 8), which impose on States a burdenof justifying disability discrimination under the statute that is greaterthan what a court would require under Section 1 of the Fourteenth Amendment.They claim that, as a result, the Disabilities Act, like the Age Discriminationin Employment Act at issue in Kimel, unjustifiably "replaces one levelof judicial scrutiny with another" (id. at 44) and is for that reasonalone beyond Congress's enforcement authority under Section 5 of the FourteenthAmendment. But in this respect the Disabilities Act is quite unlike thestatutes at issue in Kimel and Flores, which, upon a minimal showing bya plaintiff, subjected constitutional state action to a level of rigid andprobing review that this Court characterized as tantamount to strict scrutiny.See Kimel, 120 S. Ct. at 648; Flores, 521 U.S. at 534. The DisabilitiesAct requires a more substantial showing by the plaintiff and offers thedefendant a less stringent standard of justification, thus preserving theStates' capacity to draw reasoned-and thus presumptively constitutional-distinctions based on disability or the genuine difficulty of accommodation.Nor is an elevated burden of justification necessarily an impermissibleeffort to redefine constitutional rights, as in Flores; it can be, as itis here and under Title VII, an appropriate means of rooting out hiddenanimus, and remedying and preventing discrimination that is unconstitutionalunder judicially defined standards.

3. The Disabilities Act's coverage is as broad as necessary

Finally, petitioners object (Br. 40-41) to the Disabilities Act's broadcoverage. The operative question, however, is not whether Section 5 legislationis broad, but whether it is broader than necessary. The Disabilities Actis not. The history of unconstitutional treatment and the risk of futurediscrimination found by Congress pertained to all aspects of governmentaloperations. Only a comprehensive effort to integrate persons with disabilitieswould end the cycle of isolation, segregation, and second-class citizenship,and deter further discrimination. Integration in education alone, for example,would not suffice if there were not going to be jobs for those who receivedthe education. Integration in employment would not suffice if persons withdisabilities lacked transportation. Ending unnecessary institutionalizationis of little gain if neither government services nor the social activitiesof public life (libraries, museums, parks, and recreation services) areaccessible to bring persons with disabilities into the life of the community.And none of those efforts would suffice if persons with disabilities continuedto lack equivalent access to government officials, courthouses, and pollingplaces. In short, Congress chose a comprehensive remedy because it confrontedan all-encompassing, inter-connected problem; to do less would be as ineffectualas "throwing an 11-foot rope to a drowning man 20 feet offshore andthen proclaiming you are going more than halfway," S. Rep. No. 116,supra, at 13. "Difficult and intractable problems often require powerfulremedies, and we have never held that § 5 precludes Congress from enactingreasonably prophylactic legislation." Kimel, 120 S. Ct. at 648. Thatdescribes the Disabilities Act to its very core.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
ELIZABETH SAVAGE
JESSICA DUNSAY SILVER
SETH M. GALANTER
Attorneys

AUGUST 2000


1 Congress extended the obligations of theDisabilities Act to itself and its instrumentalities in 1990. See Pub. L.No. 101-336, Title V, § 509, 104 Stat. 373, superseded by Pub. L. No.104-1, Title II, §§ 201, 210, 109 Stat. 7, 13, currently codifiedat 2 U.S.C. 1311(a)(3), 1331(b)(1) (Supp. IV 1998); 42 U.S.C. 12209 (1994& Supp. IV 1998). While the Disabilities Act does not apply to the executivebranch of the federal government, virtually identical prohibitions are imposedby Sections 501, 504, and 505 of the Rehabilitation Act, which, since 1978,has governed "any program or activity conducted by any Executive agency,"29 U.S.C. 794(a) (1994 & Supp. IV 1998), and which subjects the federalgovernment to Title I's standards, 29 U.S.C. 791(g), and remedies, 29 U.S.C.794a(a)(1); 42 U.S.C. 1981a(a)(2). The principal distinction (see Pet. Br.40) between the coverage of the States and the federal government is that,in the context of government programs other than employment, damages areavailable against the States under Title II of the Disabilities Act butare not available against the federal government. That is presumably becauseCongress believed it had greater direct authority over federal programs,through the use of its appropriations and oversight power, and thus lessneed of additional enforcement through private damages actions.

2 Whether Title II covers the employment decisions of state and local governmentsis a question on which the circuits are divided. See Davoll v. Webb, 194F.3d 1116, 1130 (10th Cir. 1999) (collecting cases). For purposes of thejurisdictional question currently before the Court, however, this Courtmay assume that the respondents have properly stated a claim under TitleII. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998).

3 See, e.g., Act of June 10, 1948, ch. 434, 62 Stat. 351 (prohibiting employmentdiscrimination by the United States Civil Service against World War II veteranswith disabilities); Architectural Barriers Act of 1968, 42 U.S.C. 4151 etseq.; Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.; Education of theHandicapped Act, Pub. L. No. 91-230, Title VI, 84 Stat. 175 (reenacted in1990 as the Individuals with Disabilities Education Act, 20 U.S.C. 1400et seq.); Developmental Disabilities Assistance and Bill of Rights Act,42 U.S.C. 6000 et seq.; Voting Accessibility for the Elderly and HandicappedAct, 42 U.S.C. 1973ee; Air Carrier Access Act of 1986, 49 U.S.C. 41705;Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C.10801; Fair Housing Amendments of 1988, 42 U.S.C. 3604.

4 See Rehabilitation Act Amendments of 1984, Pub. L. No. 98-221, Title I,§ 141(a), 98 Stat. 26; Rehabilitation Act Amendments of 1986, Pub.L. No. 99-506, § 502(b), 100 Stat. 1807.

5 Twenty percent of persons with disabilities had family incomes below thepoverty line (more than twice the percentage of the general population),and 15% of persons with disabilities had incomes of $15,000 or less. Threshold13-14.

6 Forty percent of persons with disabilities did not finish high school(triple the rate for the general population). Only 29% of persons with disabilitieshad some college education, compared with 48% for the general population.Threshold 14.

7 Two-thirds of all working-age persons with disabilities were unemployed;only one in four worked full-time. Threshold 14.

8 Two-thirds of persons with disabilities had not attended a movie or sportingevent in the past year; three-fourths had not seen live theater or musicperformances; persons with disabilities were three times more likely notto eat in restaurants; and 13% of persons with disabilities never go togrocery stores. Threshold 16-17.

9 See Americans with Disabilities Act of 1989: Hearings on H.R. 2273 Beforethe House Comm. on the Judiciary and the Subcomm. on Civil and Const. Rights,101st Cong., 1st Sess. (1989); Americans with Disabilities Act: Hearingon H.R. 2273 and S. 933 Before the Subcomm. on Transp. and Haz. Materialsof the House Comm. on Energy and Commerce, 101st Cong., 1st Sess. (1990);Americans with Disabilities Act: Hearings on H.R. 2273 Before the Subcomm.on Surface Transp. of the House Comm. on Pub. Works and Transp., 101st Cong.,1st Sess. (1990); Americans with Disabilities: Telecomm. Relay Servs., Hearingon Title V of H.R. 2273 Before the Subcomm. on Telecomm. and Fin. of theHouse Comm. on Energy and Commerce, 101st Cong., 1st Sess. (1990); Americanswith Disabilities Act of 1989: Hearing on H.R. 2273 Before the Subcomm.on Select Educ. of the House Comm. on Educ. and Labor, 101st Cong., 1stSess. (1989); Field Hearing on Americans with Disabilities Act: HearingBefore the Subcomm. on Select Educ. of the House Comm. on Educ. and Labor,101st Cong., 1st Sess. (1989); Hearing on H.R. 2273, The Americans withDisabilities Act of 1989: Joint Hearing Before the Subcomm. on EmploymentOpps. and Select Educ. of the House Comm. on Educ. and Labor, 101st Cong.,1st Sess. (July 18 & Sept. 13, 1989) (two hearings); Oversight Hearingon H.R. 4498, Americans with Disabilities Act of 1988: Hearing Before theSubcomm. on Select Educ. of the House Comm. on Educ. and Labor, 100th Cong.,2d Sess. (1989); Americans with Disabilities Act: Hearing Before the HouseComm. on Small Bus., 101st Cong., 2d Sess. (1990); Americans with DisabilitiesAct of 1989: Hearings on S.933 Before the Senate Comm. on Labor and HumanRes. and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. (1989)(May 1989 Hearings); Americans with Disabilities Act of 1988: Joint Hearingon S. 2345 Before the Subcomm. on the Handicapped of the Senate Comm. onLabor and Human Res. and the Subcomm. on Select Educ. of the House Comm.on Educ. and Labor, 100th Cong., 2nd Sess. (1989); see also T. Cook, TheAmericans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev.393, 393 & nn.1-3 (1991) (Move to Integration).

10 These included the two reports of the National Council on the Handicapped;the Civil Rights Commission's Accommodating the Spectrum of Individual Abilities(1983) (Spectrum); two polls conducted by Louis Harris & Associates:The ICD Survey Of Disabled Americans: Bringing Disabled Americans into theMainstream (1986), and The ICD Survey II: Employing Disabled Americans (1987);a report by the Presidential Commission on the Human Immunodeficiency VirusEpidemic (1988); and eleven interim reports submitted by the Task Force.

11 Courts have found unconstitutional treatment of persons with disabilitiesin a wide variety of contexts, including violations of the Equal ProtectionClause, the Due Process Clause, and the Eighth Amendment, as incorporatedinto Section 1 of the Fourteenth Amendment. See, e.g., Youngberg v. Romeo,457 U.S. 307 (1982) (unconstitutional conditions of confinement); O'Connorv. Donaldson, 422 U.S. 563, 567-575 (1975) (impermissible confinement);Chalk v. United States Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701 (9thCir. 1988) (certified teacher barred from teaching after diagnosis of AIDS);LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) (Powell, J.) (failure to provideparaplegic inmate with an accessible toilet is cruel and unusual punishment);Pushkin v. Regents of the Univ. of Colo., 658 F.2d 1372 (10th Cir. 1981)(doctor with multiple sclerosis denied residency out of concern about patients'reactions); Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977) (irrebuttablepresumption that blind teacher cannot instruct sighted students); Garrityv. Gallen, 522 F. Supp. 171, 214 (D.N.H. 1981) ("blanket discriminationagainst the handicapped * * * is unfortunately firmly rooted in the historyof our country"); New York State Ass'n for Retarded Children, Inc.v. Carey, 466 F. Supp. 487 (E.D.N.Y. 1979); Smith v. Fletcher, 393 F. Supp.1366, 1368 (S.D. Tex. 1975) (government assigned paraplegic, who had a Master'sdegree in physiology, to menial clerical tasks based on "arbitraryand unfounded decision as to her physical capabilities"), aff'd asmodified, 559 F.2d 1014 (5th Cir. 1977); Mills v. Board of Educ., 348 F.Supp. 866 (D.D.C. 1972); Pennsylvania Ass'n for Retarded Children v. Pennsylvania,334 F. Supp. 1257 (E.D. Pa. 1971); Connecticut Inst. for the Blind v. ConnecticutComm'n on Human Rights & Opps., 405 A.2d 618, 621 (Conn. 1978) (blanketexclusion from state jobs of persons with visual impairments), modified,355 N.Y.S.2d 185 (App. Div. 1974); Bevan v. New York State Teachers' RetirementSys., 345 N.Y.S.2d 921 (Sup. Ct. 1973) (statute allowing forced retirementof teacher who became blind); Spectrum 62-66, 131-133, 141 (citing additionalcases); M. Burgdorf & R. Burgdorf, A History of Unequal Treatment: TheQualifications of Handicapped Persons as a "Suspect Class" Underthe Equal Protection Clause, 15 Santa Clara Lawyer 855, 863 (1975) (UnequalTreatment) (citing additional cases).

12 See People First Cert. Amicus Br., Alsbrook v. City of Maumelle, No.99-423, App. A (Compendium of State Laws); see also Cleburne, 473 U.S. at463 (Marshall, J.) (state laws deemed persons with mental disorders "unfitfor citizenship"); Note, Mental Disability and the Right to Vote, 88Yale L.J. 1644 (1979).

13 See Compendium of State Laws A5, A21-A22, A25, A28-A29, A40, A44, A46-A49,A50-A51, A56, A61-A63, A65-A66, A71, A74-A75.

14 See also 3 Leg. Hist. 2242 (James Ellis); Unequal Treatment 887- 888.

15 See also State ex rel. Beattie v. Board of Educ., 172 N.W. 153, 153 (Wis.1919) (approving exclusion of a boy with cerebral palsy from public schoolbecause he "produces a depressing and nauseating effect upon the teachersand school children") (noted at 2 Leg. Hist. 2243); see generally Moveto Integration 399-407.

16 For example, as recently as 1983, 15 States continued to have compulsorysterilization laws on the books, four of which included persons with epilepsy.Spectrum 37; see also Stump v. Sparkman, 435 U.S. 349, 351 (1978) (Indianajudge ordered the sterilization of a "somewhat retarded" 15 yearold girl). As of 1979, "most States still categorically disqualified'idiots' from voting, without regard to individual capacity and with discretionto exclude left in the hands of low-level election officials." Cleburne,473 U.S. at 464 (Marshall, J.).

17 See also 3 Leg. Hist. 2020 (Att'y Gen. Thornburgh) ("But personswith disabilities are all too often not allowed to participate because ofstereotypical notions held by others in society-notions that have, in largemeasure, been created by ignorance and maintained by fear."); 2 Leg.Hist. 1606 (Arlene Mayerson) ("Most people assume that disabled childrenare excluded from school or segregated from their non-disabled peers becausethey cannot learn or because they need special protection. Likewise, theabsence of disabled co-workers is simply considered confirmation of theobvious fact that disabled people can't work. These assumptions are deeplyrooted in history."); 134 Cong. Rec. E1311 (daily ed. Apr. 28, 1988)(Rep. Owens) ("The invisibility of disabled Americans was simply takenfor granted. Disabled people were out of sight and out of mind.").

18 The Task Force submitted to Congress "several thousand documents"evidencing "massive discrimination and segregation in all aspects oflife" and "the most extreme isolation, unemployment, poverty,psychological abuse and physical deprivation experienced by any segmentof our society." 2 Leg. Hist. 1324-1325. Those documents-mostly handwrittenletters and commentary collected during the Task Force's forums-were partof the official legislative history of the Disabilities Act. See id. at1336, 1389. Because the handwritten submissions were never formally indexedby Congress, we cite to them by State and Bates stamp number. Although theTask Force presented 5,000 such submissions to Congress-approximately 600of which alleged discrimination by state actors-we are lodging with theClerk of the Court only those testimonials that we cite; the balance willbe provided to the Court upon request.

19 See also H. R. Rep. No. 485, supra, Pt. 2, at 29 (woman denied teachingcredential because of her paralysis); 2 Leg. Hist. 1174-1175 (Susan Downie)(state facility asks person with disability during job interview "humiliating,unethical, and illegal questions about my disability * * * [such as] ifmy mother had taken drugs while she was pregnant with me" and thendenied her the job); id. at 1169-1170 (Sara Bloor) (epileptic denied teachingposition even though seizure free); id. at 1611 n.9 (Arlene Mayerson) (teachinglicense denied "on the grounds that being confined to a wheelchairas a result of polio, she was physically and medically unsuited for teaching");id. at 1005 (Belinda Mason) (woman fired from school cafeteria managementposition when her son contracted AIDS); May 1989 Hearings 404 (Nat'l Orgs.Responding to AIDS) (professor of veterinary medicine at state universityin Kansas fired when it was learned that he had AIDS); Task Force Report21 (employee with mental retardation forced to quit job due to harassmentand ridicule by superior in the California Conservation Corps); Kan. 676(Kansas Department of Transportation fired me "for the stated reasonthat I have epilepsy," even though performance surpassed establishedexpectations); S.D. 1472 ("[A]s a state employee, I daily see covertdiscrimination in hiring or not hiring people with disabilities.");N.C. 1157, 1159 (department head at University of North Carolina told interviewee"[I]f I knew you were blind I wouldn't have bothered bringing you infor an interview"); Ill. 550 (teacher told "point blank"that she was not hired to work with children because "the way my eyeswere [the left eye doesn't always move with the right], that the childrenwould, 'try to imitate me'"); Haw. 478 (school board did not want tointerview an individual with a deformed hand to teach language because offeared reactions of parents); Mass. 836 ("For the job of persuadingemployers to hire disabled people, [state] Voc-Rehab had hired an able-bodiedperson over a disabled one."); Advisory Comm'n on IntergovernmentalRelations, Disability Rights Mandates (1989) (survey of state officialson the perceived impediments to employment of persons with disabilitiesin state governments); Tex. Rehab. Comm'n, Placement of the Handicappedin State Gov't Serv. (1972) (Texas Report) (documenting reluctance of stateemployers to hire and promote persons with disabilities); Greenleigh Assoc.,A Study to Develop a Model for Employment Servs. for the Handicapped 122(1969) (in one State's civil service system, "[f]or each 'clerk-typist,Grade X,' there is also a 'clerk-typist, Grade X, visually handicapped,'with a lower salary range"); Civil Rights Restoration Act of 1987:Hearings Before the Sen. Comm. on Labor & Human Res., 100th Cong., 1stSess. 80 (1987) (Ted Kennedy, Jr.) (none of 23 California jurisdictionswas willing to hire blind applicants; many excluded applicants with a historyof cancer; one county will not hire an applicant for any job if he or shehas lost a leg, regardless of the job-relatedness of the impairment; andanother jurisdiction prohibits the hiring of an amputee for any job unlesshe or she makes use of a prosthesis, even though it may not be requiredfor success on the job).

20 See also S. Rep. No. 116, supra, at 7 ("Discrimination also includesharms affecting individuals with a history of disability, and those regardedby others as having a disability as well as persons associated with suchindividuals."); Arline, 480 U.S. at 284 & n.13; 2 Leg. Hist. 1551(EEOC Comm'r Evan Kemp) (people who "had cancer 30 years ago * * *are discriminated [against] because of that cancer"); May 1989 Hearings24 ("Cancer survivors are discriminated against by the outside worldin both the public and in the private sectors."); Burris v. City ofPhoenix, 875 P.2d 1340, 1343 (Ariz. Ct. App. 1993) (applicant denied firefighterposition even though he "was completely cured" of cancer).

21 See also 136 Cong. Rec. H2480 (daily ed. May 17, 1990) (Rep. McDermott)(school board excluded Ryan White, who had AIDS, not because the board "thoughtRyan would infect others" but because "some parents were afraidhe would"); 2 Leg. Hist. 989 (Mary Ella Linden) ("I was consideredtoo crippled to compete by both the school and my parents. In fact, the[segregated] school never even took the time to teach me to write! * * *The effects of the school's failure to teach me are still evident today.");Or. 1375 (child with cerebral palsy was "given cleaning jobs whileother[] [non-disabled students] played sports"); Spectrum 28, 29 ("agreat many handicapped children" are "excluded from the publicschools" or denied "recreational, athletic, and extracurricularactivities provided for non-handicapped students"); see also Educationfor All Handicapped Children, 1973-1974: Hearings Before the Subcomm. onthe Handicapped of the Senate Comm. on Labor & Pub. Welfare, 93d Cong.,1st Sess. 384 (1973) (Peter Hickey) (student in Vermont was forced to attendclasses with students two years behind him because he could not climb staircaseto attend classes with his peers); id. at 793 (Christine Griffith) (first-gradestudent "was spanked every day" because her deafness preventedher from following instructions); id. at 400 (Mrs. Richard Walbridge) (studentwith spina bifida barred from the school library for two years "becauseher braces and crutches made too much noise"); Calif. Att'y Gen., Commissionon Disability: Final Report 17 (Dec. 1989) (Calif. Report) ("A brightchild with cerebral palsy is assigned to a class with mentally retardedand other developmentally disabled children solely because of her physicaldisability."); id. at 81 (in one town, all disabled children are groupedinto a single classroom regardless of individual ability).

22 See also 2 Leg. Hist. 1224 (Denise Karuth) (state university professorasked a blind student enrolled in his music class "'What are you doingin this program if you can't see'"; student was forced to drop class);id. at 1225 (state commission refuses to sponsor legally blind student formasters degree in rehabilitation counseling because "the State wouldnot hire blind rehabilitation counselors, '[s]ince,' and this is a quote:'they could not drive to see their clients'"); Wis. 1757 (a doctoralprogram would not accept a person with a disability because "it neverworked out well"); S.D. 1476 (University of South Dakota dean and hissuccessor were convinced that blind people could not teach in the publicschools); Calif. Report 138; J. Shapiro, No Pity 45 (1994) (Dean of theUniversity of California at Berkeley told a prospective student that "[w]e'vetried cripples before and it didn't work").

23 "A blind woman, a new resident of Alabama, went to vote and wasrefused instructions on the operation of the voting machine." Ala.16. Another voter with a disability was "told to go home once whenI came to the poll and found the voting machines down a flight of stairswith no paper ballots available"; on another occasion that voter "hadto shout my choice of candidates over the noise of a crowd to a precinctjudge who pushed the levers of the machine for me, feeling all the whileas if I had to offer an explanation for my decisions." Equal Accessto Voting Hearings 45. The legislative record also documented that manypersons with disabilities "cannot exercise one of your most basic rightsas an American" because polling places were frequently inaccessible.S. Rep. No. 116, supra, at 12. As a consequence, persons with disabilities"were forced to vote by absentee ballot before key debates by the candidateswere held." Ibid.; see also May 1989 Hearings 76 (Ill. Att'y Gen. Hartigan)(similar). And even when persons with disabilities have voted absentee,they have been treated differently from other absentee voters. See 2 Leg.Hist. 1745 (Nanette Bowling) ("[S]ome jurisdictions merely encouragedpersons with disabilities to vote by absentee ballot * * * [which] deprivesthe disabled voter of an option available to other absentee voters, theright to change their vote by appearing personally at the polls on electionday."); Equal Access to Voting Hearings 17 & 461 (criticizing States'imposition of special certification requirements on persons with disabilitiesfor absentee voting); see generally 2 Leg. Hist. 1767 (Rick Edwards) ("TheTwenty-sixth Amendment to the Constitution gives me the right to vote, yetuntil last year my polling place was inaccessible."); Wis. 1756 (allegingthat 37%-40% of Milwaukee polling places are inaccessible to wheelchairusers); Mont. 1024, 1027 (Cascade County's polling place is completely inaccessible);Mich. 922 (alleging that 65% of Detroit voting precincts are inaccessible);N.D. 1185 ("In rural North Dakota many voting sites are inaccessible.");Del. 307, Pa. 1436, Okla. 1280, Colo. 277 (all: polling places inaccessible);FEC, Polling Place Accessibility in the 1988 General Election 7 (1989) (21%of polling places inaccessible; 27% were inaccessible in 1986 elections).

24 See, e.g., Ala. 15 ("A man, called to testify in court, had to getout of his wheelchair and physically pull himself up three flights of stairsto reach the courtroom."); W. Va. 1745 (witness in court case had tobe carried up two flights of stairs because sheriff would not let him usethe elevator); Consol. Gov't C.A. Br. at 3, Lane v. Tennessee, No. 98-6730(6th Cir.) (Lane arrested for two misdemeanors and ordered to report forhearing at inaccessible courthouse; the first day he crawled up the stairsto the courtroom; the second day he was arrested for failure to appear whenhe refused to crawl or be carried up the stairs; hearing later held withdefendant forced to remain outside while counsel shuttled between him andthe courtroom).

25 See, e.g., H.R. Rep. No. 485, supra, Pt. 2, at 40 (town hall and publicschools inaccessible); 2 Leg. Hist. 1331 (Justin Dart) ("We have clientswhose children have been taken away from them and told to get parent information,but have no place to go because the services are not accessible. What chancedo they ever have to get their children back?"); Spectrum 39 (76% ofstate-owned buildings offering services and programs for the general publicare inaccessible and unusable for persons with disabilities); May 1989 Hearings488, 491 (Ill. Att'y Gen. Hartigan) ("I have had innumerable complaintsregarding lack of access to public services-people unable to meet with theirelected representatives because their district office buildings were notaccessible or unable to attend public meetings because they are held inan inaccessible building"; "individuals who are deaf or hearingimpaired call[] our office for assistance because the arm of governmentthey need to reach is not accessible to them"); id. at 76 ("[Y]oucannot attend town council meetings on the second story of a building thatdoes not have an elevator."); id. at 663 (Dr. Mary Lynn Fletcher) (toattend town meetings, "I (or anyone with a severe mobility impairment)must crawl up three flights of circular stairs to the 'Court Room.' In thisroom all public business is conducted by the county government whether ontaxes, zoning, schools or any type of public business."); Alaska 73("We have major problems in Seward, regarding accessibility to Cityand State buildings for the handicapped and disabled."; City Managerresponded that "[H]e runs this town * * * and no one is going to tellhim what to do."); Ind. 626 ("Raney, who has been in a wheelchairfor 12 years, tried three times last year to testify before state legislativecommittees. And three times, he was thwarted by a narrow set of Statehousestairs, the only route to the small hearing room."); Ind. 651 (personwith disabilities could not attend government meetings or court proceedingsbecause entrances and locations were inaccessible); Wis. 1758 (lack of accessto City Hall); Wyo. 1786 (individual unable to get a marriage license becausethe county courthouse was not wheelchair accessible); Calif. Report 70 ("Peoplewith disabilities are often unable to gain access to public meetings ofgovernmental and quasi-governmental agencies to exercise their legal rightto comment on issues that impact their lives.").

26 See also 2 Leg. Hist. 1257 (Speed Davis) (similar); Mass. 831 ("Blackswanted to ride in the front of the bus. Disabled people just want[] on.").

27 See also 2 Leg. Hist. 1097 (Bill Dorfer) ("And many of these busesquite often bypass men and women in wheelchairs or with crutches, walkers,because they do not want to take the time, quite frankly, to stop and toassist these people on the buses"); id. at 1190 (Cindy Miller) ("Itis a 20-minute bus ride [to work], but I have to leave an hour and a halfearly because the bus lifts are not maintained. * * * But sometimes, likethis morning, the bus with the lift just does not stop for me."); Wash.1716 (person with service dog not allowed to board bus).

28 See also 2 Leg. Hist. 1115 (Paul Zapun) (sheriff threatens persons withdisabilities who stop in town due to car trouble); id. at 1196 (Cindy Miller)(police "do not provide crime prevention, apprehension or prosecutionbecause they see it as fate that Americans with disabilities will be victims");id. at 1197 (police officer taunted witness by putting a gun to her headand pulling the trigger on an empty barrel, "because he thought itwould be 'funny' since I have quadraparesis and couldn't flee or fight");Tex. 1541 (police refused to take an assault complaint from a person witha disability); Calif. Report 101-104 (additional examples). In addition,persons with disabilities, such as epilepsy, are "frequently inappropriatelyarrested and jailed" and "deprived of medications while in jail."H.R. Rep. No. 485, supra, Pt. 3, at 50; see also 136 Cong. Rec. H2633 (dailyed. May 22, 1990) (Rep. Levine); Wyo. 1777; Idaho 517.

29 See also Spectrum 168 (noting discrimination in treatment and rehabilitationprograms available to inmates with disabilities and inaccessible jail cellsand toilet facilities); Parrish v. Johnson, 800 F.2d 600, 603, 605 (6thCir. 1986) (prison guard repeatedly assaulted paraplegic inmates with knife,forced them to sit in own feces, and taunted them with remarks like "crippledbastard" and "[you] should be dead"); Harrelson v. ElmoreCounty, 859 F. Supp. 1465, 1466 (M.D. Ala. 1994) (paraplegic prisoner denieduse of a wheelchair and forced to crawl around his cell); Calif. Report103 ("[A] parole agent sent a man who uses a wheelchair back to prisonsince he did not show up for his appointments even though he explained thathe could not make the appointments because he was unable to get accessibletransportation.").

30 See also Calif. Report 114. Congress also brought to bear the knowledgeit had acquired of this problem in enacting the Civil Rights of InstitutionalizedPersons Act of 1980, Pub. L. No. 96-247, 94 Stat. 349, codified at 42 U.S.C.1997 et seq., and the Developmental Disabilities Act of 1984, 42 U.S.C.6000 et seq. See, e.g., 132 Cong. Rec. S5914-01 (daily ed. May 14, 1986)(Sen. Kerry) (findings of investigation of state-run mental health facilities"were appalling. The extent of neglect and abuse uncovered in theirfacilities was beyond belief."); Civil Rights of Instit. Persons: Hearingson S. 1393 Before the Subcomm. on the Const. of the Sen. Comm. on the Judiciary,95th Cong., 1st Sess. 127 (1977) (Michael D. McGuire, M.D.) ("it becamequite clear * * * that the personnel regarded patients as animals, * * *and that group kicking and beatings were part of the program"); id.at 191-192 (Dr. Philip Roos) (characterizing institutions for persons withmental retardation throughout the nation as "dehumanizing," "unsanitaryand hazardous conditions," "replete with conditions which fosterregression and deterioration," "characterized by self-containmentand isolation, confinement, separation from the mainstream of society");Civil Rights for Instit. Persons: Hearings on H.R. 2439 and H.R. 5791 Beforethe Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of theHouse Comm. on the Judiciary, 95th Cong., 1st Sess. 239 (1977) (StanleyC. Van Ness) (describing "pattern and practice of physical assaultsand mental abuse of patients, and of unhealthy, unsanitary, and anti-therapeuticliving conditions" in New Jersey state institutions); Civil Rightsof Instit. Persons: Hearings on H.R. 10 Before the Subcomm. on Courts, CivilLiberties, and the Admin. of Justice of the House Comm. on the Judiciary,96th Cong., 1st Sess. 34 (1979) (Paul Friedman) ("[A] number of theresidents were literally kept in cages. A number of those residents whohad been able to walk and who were continent when they were committed hadlost the ability to walk, had become incontinent, and had regressed becauseof these shockingly inhumane conditions of confinement.").

31 Congress knew that Cleburne was not an isolated incident. See 2 Leg.Hist. 1230 (Larry Urban); see also People First Cert. Amicus Br., supra,at 20 n.94; Wyo. 1781 (zoning board declined to authorize group home becauseof "local residents' unfounded fears that the residents would be adanger to the children in a nearby school"); Nev. 1050 (Las Vegas haspassed an ordinance that disallows the mentally ill from living in residentialareas); N.J. 1068 (group home for those with head injuries barred becausepublic perceived such persons as "totally incompetent, sexual deviants,and that they needed 'room to roam'"; "Officially, the applicationwas turned down due to lack of parking spaces, even though it was earlyestablished that the residents would not have automobiles.").

32 A zoo keeper refused to admit children with Down Syndrome "becausehe feared they would upset the chimpanzees." S. Rep. No. 116, supra,at 7; H. R. Rep. No. 485, supra, Pt. 2, at 30.

33 See 2 Leg. Hist. 1100 (Shelley Teed-Wargo) (town library refused to letperson with mental retardation check out a video "because he livesin a group home," unless he was accompanied by a staff person or hada written permission slip); Pa. 1391 (public library will not issue librarycards to residents of group homes without the countersignature of a staffmember-this rule applies to "those having physical as well as mentaldisabilities").

34 A paraplegic Vietnam veteran was forbidden to use a public pool in NewYork; the park commissioner explained that "[i]t's not my fault youwent to Vietnam and got crippled." 3 Leg. Hist. 1872 (Peter Addesso);see also id. at 1995 (Rev. Scott Allen) (woman with AIDS and her childrendenied entry to a public swimming pool); May 1989 Hearings 76 (Ill. Att'yGen. Hartigan) (visually impaired children with guide dogs "cannotparticipate in park district programs when the park has a 'no dogs' rule").

35 See H.R. Rep. No. 485, supra, Pt. 3, at 25 ("These discriminatorypolices and practices affect people with disabilities in every aspect oftheir lives * * * [including] securing custody of their children.");id., Pt. 2, at 41 ("[B]eing paralyzed has meant far more than beingunable to walk-it has meant being excluded from public schools * * * andbeing deemed an 'unfit parent'" in custody proceedings.); 2 Leg. Hist.1611 n.10 (Arlene Mayerson) ("Historically, child-custody suits almostalways have ended with custody being awarded to the non-disabled parent.");Mass. 829 (government refuses to authorize couple's adoption solely becausewoman had muscular dystrophy); Spectrum 40; No Pity, supra, at 26 (womanwith cerebral palsy denied custody of her two sons; children placed in fostercare instead); Carney v. Carney, 598 P.2d 36, 42 (Cal. 1979) (lower court"stereotype[d] William as a person deemed forever unable to be a goodparent simply because he is physically handicapped").

36 See also H.R. Rep. No. 485, supra, Pt. 2, at 46 ("How many welleducated and highly capable people with disabilities must sit down at homeevery day, not because of their lack of ability, but because of the attitudesof employers, service providers, and government officials?"); 2 Leg.Hist. 1061 (Eric Griffin) ("I come to you as one of those * * * whowas denied a public education until age 18, one who has been put throughthe back door, and kept out of the front door and segregated even if youcould get in."); id. at 1078 (Ellen Telker) ("State and localmunicipalities do not make many materials available to a person who is unableto read print."); id. at 1116 (Virginia Domini) (persons with disabilities"must fight to function in a society where busdrivers start movingbefore I have my balance or State human resources [sic] yell 'I can't understandyou,' to justify leaving a man without food or access to food over the weekend.");id. at 1017 (Judith Heumann) ("Some of these people are in very highplaces. In fact, one of our categories of great opposition is local administrators,local elected officials."); 3 Leg. Hist. 2241 (James Ellis) ("Becauseof their disability, people with mental retardation have been denied theright to marry, the right to have children, the right to vote, the rightto attend public school, and the right to live in their own community, withtheir own families and friends."); 2 Leg. Hist. 1768 (Rick Edwards)("Why are the new drinking fountains in our State House erected outof reach of persons in wheelchairs? And why were curb cuts at the IndianapolisAirport filled in with concrete?); Task Force Report 21 (six wheelchairusers arrested for failing to leave restaurant after manager complainedthat "they took up too much space"); see generally Spectrum App.A (identifying 20 broad categories of state-provided or supported servicesand programs in which discrimination against persons with disabilities arises);Unequal Treatment, supra.

37 See also 136 Cong. Rec. H2627 (May 22, 1990) (Rep. Wolpe), id. at H2633(Rep. Levine); 134 Cong. Rec. S5116 (Apr. 28, 1988) (Sen. Simon); 2 Leg.Hist. 963 (Sandra Parrino); id. at 967 (Adm. James Watkins) ("Too manyStates, for whatever reason, still perpetuate confusion. It is time forFederal action."); id. at 1642-1643 (Arlene Mayerson) (noting variationsand gaps in coverage of state statutes); 3 Leg. Hist. 2245 (Robert Burgdorf).

38 Other state officials echoed those sentiments. See Dep't of Health &Human Servs., Visions of: Independence, Productivity, Integration for Peoplewith Developmental Disabilities 29 (1990) (19 States strongly recommendedpassage of the Disabilities Act); 2 Leg. Hist. 1050 (Elmer Bartels, Mass.Rehab. Comm'n); id. at 1455-1456 (Nikki Van Hightower, Treas., Harris Co.,Tex.); id. at 1473-1474 (Robert Lanier, Chair, Metro. Transit Auth. of HarrisCo., Tex.); id. at 1506 (Texas State Sen. Chet Brooks) ("We cannoteffectively piece these protections together state by state, person by person.");id. at 1508.

Congress likewise recognized that the prior piecemeal approach of federallegislation had not succeeded and, in fact, had created "a patchworkquilt in need of repair * * * [with] holes in the fabric, serious gaps incoverage that leave persons with disabilities without adequate civil rightsprotections." S. Rep. No. 116, supra, at 19 (quoting Att'y Gen. Thornburgh).Similarly, the Illinois Attorney General testified that the RehabilitationAct's scheme of prohibiting discrimination by entities receiving federalfunds "[u]nfortunately * * * translates [into] total confusion forthe disabled community and the inability to expect consistent treatment."May 1989 Hearings 77-78; see also 26 Weekly Comp. Pres. Doc. 1165 (July26, 1990) (President Bush's signing statement observes that "[e]xistinglaws and regulations * * * have left broad areas of American life untouchedor inadequately addressed"); H.R. Rep. No. 485, supra, Pt. 4, at 24;134 Cong. Rec. S5116 (daily ed. Apr. 28, 1988) (Sen. Simon); id. at S5107(Sen. Weicker); 2 Leg. Hist. 1272 (Rep. Owens); 3 Leg. Hist. 2015 (Att'yGen. Thornburgh); id. at 2244-2245 (Robert Burgdorf).

39 See, e.g., S. Rep. No. 415, 92d Cong., 1st Sess. 19 (1971) (37 Stateshad equal employment laws at the time Title VII was extended to the States).

40 The Commission's membership included six Members of Congress and 11 representativesfrom state and local governments.

41 See also Ala. 17 (every day at her job, the Director of Alabama's DisabledPersons Protection Commission "ha[d] to drive home to use the bathroomor call my husband to drive in and help me because the newly renovated StateHouse" lacked accessible bathrooms); Calif. Report 22-23 (noting "gaps"and "contradictions" in state law); Texas Report 9 (noting thatcommitment of high-level policymakers to non-discrimination not alone sufficientbecause "it comes down to the choice made by an immediate supervisor* * * [and] [i]f this person does not share the philosophy that hiring thehandicapped is good business it is all over for that person. Then what weare doing actually is, we are giving lip service to it but it is not goingto happen.").

42 Petitioners' repeated reliance (Br. 4, 33) on Rep. Moakley's commentthat state laws are "out in front" of federal law ignores thatRep. Moakley had earlier decried the weaknesses of state laws. EmploymentDiscrim. Against Cancer Victims and the Handicapped: Hearing Before theSubcomm. on Employment Opp. of the House Comm. on Educ. & Labor, 99thCong., 1st Sess. 62 (1985) (Rep. Moakley) ("[O]ne-fourth of the stateshave no protection for the handicapped. Additionally, even those stateswith laws differ greatly in their regulations.") (attaching ten-statesurvey showing gaps in coverage of laws like Alabama's). Placed in context,then, the quotation petitioners rely so heavily upon is more fairly readas a complaint about the deficiencies and gaps in federal law, rather thanan assertion of the sufficiency of state law. Compare also Pet. Br. 31 (quotingBarbara Hoffman), with Discrimination Against Cancer Victims and the Handicapped:Hearing Before the Subcomm. on Employment Opportunities of the House Comm.on Educ. & Labor, 100th Cong., 1st Sess. 86 (1987) (Barbara Hoffman)("most [state] laws do not clearly protect cancer survivors" fromdiscrimination; for those few that do, the "State agency which enforcesthat law still will not strike down the civil service regulations whichblatantly are violative of the act").

43 The Disabilities Act does not affect or impair the ability of the Statesto "provide[] greater or equal protection for the rights of individualswith disabilities." 42 U.S.C. 12201(b).

44 Not until the Term after Fitzpatrick did the Court hold that gender discriminationwarrants heightened scrutiny. Craig v. Boren, 429 U.S. 190, 197-199 (1976).A year after the 1972 amendments, a plurality of this Court had expressedits view that gender distinctions merit enhanced scrutiny, Frontiero v.Richardson, 411 U.S. 677, 682-688 (1973) (opinion of Brennan, J.), but theconstitutionality of Title VII's abrogation did not turn upon that fact.Fitzpatrick did not cite Frontiero or discuss the applicable equal protectionstandard. See also Maher v. Gagne, 448 U.S. 122, 132 (1980) (Section 5 powervalidly abrogated Eleventh Amendment immunity for attorney's fees even whereconstitutional claims at issue were subject to rational-basis review).

45 Petitioners' concern that sustaining the Disabilities Act as an exerciseof the Section 5 power will open the floodgates to federal legislation ismisplaced. This Court has devised a test for evaluating the propriety ofSection 5 legislation that has proven perfectly capable of policing congressionaloverreaching. See United States v. Morrison, 120 S. Ct. 1740 (2000); Kimel,supra; Flores, supra.

46 See Cleburne, 473 U.S. at 441 ("courts have been very reluctant,as they should be in our federal system and with our respect for the separationof powers, to closely scrutinize legislative choices"); see also UnitedStates v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

47 See also Heller, 509 U.S. at 320 ("[A] legislative choice is notsubject to courtroom factfinding and may be based on rational speculationunsupported by evidence or empirical data."); Bush v. Lucas, 462 U.S.367, 389 (1983) (Congress "may inform itself through factfinding proceduressuch as hearings that are not available to the courts."); South Carolinav. Katzenbach, 383 U.S. 301, 330 (1966) ("In identifying past evils,Congress obviously may avail itself of information from any probative source.").

48 To hold otherwise would "depreciate both congressional resourcefulnessand congressional responsibility for implementing the [Fourteenth] Amendment"and would, contrary to this Court's rulings, consign Congress "to theinsignificant role of abrogating only those state laws that the judicialbranch was prepared to adjudge unconstitutional, or of merely informingthe judgment of the judiciary by particularizing the 'majestic generalities'of § 1 of the Amendment." Morgan, 384 U.S. at 648-649; see alsoCroson, 488 U.S. at 519 (Kennedy, J., concurring in part & concurringin the judgment) ("[I]t diminishes the constitutional responsibilitiesof the political branches to say they must wait to act until ordered todo so by a court."); Oregon, 400 U.S. at 296 (opinion of Stewart, J.)(Congress can find invidious discrimination in state action "even thougha court in an individual lawsuit might not have reached that factual conclusion").

49 For example, while government generally may use age as a proxy for employmentdecisionmaking regardless of the nexus to actual ability, Kimel, 120 S.Ct. at 646, a governmental policy of refusing to hire all persons with disabilitiesor requiring the retirement of all wheelchair users even where the disabilitybears no relation to job functions, would likely meet a different constitutionalfate.

50 The types of disabilities covered by the Act, moreover, are generallyconfined to those substantially limiting conditions that have given riseto discriminatory treatment in the past. See Sutton v. United Air Lines,Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Serv., 527 U.S. 516 (1999);Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999).

51 Cf. Southeastern Community College v. Davis, 442 U.S. 397, 406- 407,409-410 (1979) (under Section 504 of the Rehabilitation Act, State neednot abandon essential requirements of its nursing program or fundamentallyalter the nature of the program).

52 See also Plyler, 457 U.S. at 221-222 ("[O]ne of the goals of theEqual Protection Clause [is] the abolition of governmental barriers presentingunreasonable obstacles to advancement on the basis of individual merit.").

53 See Fullilove, 448 U.S. at 477 (opinion of Burger, C.J.) ("[C]ongressionalauthority [under Section 5] extends beyond the prohibition of purposefuldiscrimination to encompass state action that has discriminatory impactperpetuating the effects of past discrimination."); id. at 502 (Powell,J., concurring) ("It is beyond question * * * that Congress has theauthority to identify unlawful discriminatory practices, to prohibit thosepractices, and to prescribe remedies to eradicate their continuing effects.");City of Rome v. United States, 446 U.S. 156, 176-177 (1980) (under its CivilWar Amendment powers, Congress may prohibit conduct that is constitutionalif it perpetuates the effects of past discrimination); South Carolina v.Katzenbach, 383 U.S. at 325-333; see also Thornburg v. Gingles, 478 U.S.30, 35 (1986) (discriminatory effects test for voting); cf. Washington v.Davis, 426 U.S. 229, 242 (1976) ("an invidious discriminatory purposemay often be inferred from * * * the fact, if it is true, that the law bearsmore heavily on one race than another").

54 See Oregon v. Mitchell, 400 U.S. 112 (upholding nationwide ban on literacytests even though they are not unconstitutional per se); Gaston County v.United States, 395 U.S. 285, 293, 296-297 (1969) (Congress can proscribeconstitutional action, such as literacy tests, to combat ripple effectsof earlier discrimination in other governmental activities); South Carolinav. Katzenbach, 383 U.S. at 333-334.

55 Of course, the obligation to accommodate is less intrusive than the traditionaldisparate impact remedy because the government is not required to abandonthe practice in toto, but may simply modify it to accommodate those otherwisequalified individuals with disabilities who are excluded by the practice'seffect.

56 Likewise, child-size and adult-size water fountains routinely appearin buildings; requiring accessible fountains just expands that routine designprocess. 2 Leg. Hist. 993-994 (Jade Calegory) ("Black people had touse separate drinking fountains and those of us using wheelchairs cannoteven reach some drinking fountains. We get thirsty, too.").

57 GAO, Briefing Report on Costs of Accommodations, Americans with DisabilitiesAct: Hearing Before the House Comm. on Small Business, 101st Cong., 2d Sess.190 (1990); 2 Leg. Hist. 1638.

58 See, e.g., S. Rep. No. 116, supra, at 10-12, 89, 92; H.R. Rep. No. 485,supra, Pt. 2, at 34; 2 Leg. Hist. 1552 (EEOC Comm'r Evan Kemp); id. at 1077(John Nelson); id. at 1388-1389 (Justin Dart); id. at 1456-1457; id. at1560 (Jay Rochlin); 3 Leg. Hist. 2190-2191 (Robert Burgdorf); Task ForceReport 27; Spectrum 2, 30, 70. The federal government, moreover, providessubstantial funding to cover many of those costs. The Department of Transportationwill pay 90% of the costs of purchasing accessible busses and transit systems,49 U.S.C. 5323(i), and will pay 100% of the cost of curb cuts and rampsdesigned, as part of a federal-aid project, to make public sidewalks accessible.Transp. Equity Act, Pub. L. No. 105-178, § 1108(a)(3)(B), 112 Stat.139. Congress has also authorized grants for the removal of architecturalbarriers, 42 U.S.C. 5305(a)(5), and, in the last two fiscal years, has providedStates $10.1 billion to assist in the education of students with disabilities.

 



APPENDIX

CONSTITUTION OF THE UNITED STATES

AMENDMENT XI

The Judicial power of the United States shall not be construed to extendto any suit in law or equity, commenced or prosecuted against one of theUnited States by Citizens of another State, or by Citizens or Subjects ofany Foreign State.

AMENDMENT XIV

SECTION 1. All persons born or naturalized in the United States, and subjectto the jurisdiction thereof, are citizens of the United States and of theState wherein they reside. No State shall make or enforce any law whichshall abridge the privileges or immunities of citizens of the United States;nor shall any State deprive any person of life, liberty, or property, withoutdue process of law; nor deny to any person within its jurisdiction the equalprotection of the laws.

* * * * *

SECTION 5. The Congress shall have power to enforce, by appropriate legislation,the provisions of this article.


THE AMERICANS WITH DISABILITIES ACT OF 1990

§ 12101. Findings and purpose

(a) Findings

The Congress finds that-

(1) some 43,000,000 Americans have one or more physical or mental disabilities,and this number is increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and segregate individualswith disabilities, and, despite some improvements, such forms of discriminationagainst individuals with disabilities continue to be a serious and pervasivesocial problem;

(3) discrimination against individuals with disabilities persists in suchcritical areas as employment, housing, public accommodations, education,transportation, communication, recreation, institutionalization, healthservices, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basisof race, color, sex, national origin, religion, or age, individuals whohave experienced discrimination on the basis of disability have often hadno legal recourse to redress such discrimination;

(3) individuals with disabilities continually encounter various forms ofdiscrimination, including outright intentional exclusion, the discriminatoryeffects of architectural, transportation, and communication barriers, overprotectiverules and policies, failure to make modifications to existing facilitiesand 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 thatpeople with disabilities, as a group, occupy an inferior status in our society,and are severely disadvantaged socially, vocationally, economically, andeducationally;

(7) individuals with disabilities are a discrete and insular minority whohave been faced with restrictions and limitations, subjected to a historyof purposeful unequal treatment, and relegated to a position of politicalpowerlessness in our society, based on characteristics that are beyond thecontrol of such individuals and resulting from stereotypic assumptions nottruly indicative of the individual ability of such individuals to participatein, and contribute to, society;

(8) the Nation's proper goals regarding individuals with disabilities areto assure equality of opportunity, full participation, independent living,and economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and unnecessary discrimination andprejudice denies people with disabilities the opportunity to compete onan equal basis and to pursue those opportunities for which our free societyis justifiably famous, and costs the United States billions of dollars inunnecessary expenses resulting from dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter-

(1) to provide a clear and comprehensive national mandate for the eliminationof discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressingdiscrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcingthe standards established in this chapter on behalf of individuals withdisabilities; and

(4) to invoke the sweep of congressional authority, including the powerto enforce the fourteenth amendment and to regulate commerce, in order toaddress the major areas of discrimination faced day-to-day by people withdisabilities.

Title I of The Americans With Disabilities Act

§ 12102. Definitions

As used in this chapter:

(1) Auxiliary aids and services

The term "auxiliary aids and services" includes-

(A) qualified interpreters or other effective methods of making aurallydelivered materials available to individuals with hearing impairments;

(B) qualified readers, taped texts, or other effective methods of makingvisually delivered materials available to individuals with visual impairments;

(C) acquisition or modification of equipment or devices; and

(D) other similar services and actions.

(2) Disability

The term "disability" means, with respect to an individual-

(A) a physical or mental impairment that substantially limits one or moreof the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

(3) State

The term "State" means each of the several States, the Districtof Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, theVirgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealthof the Northern Mariana Islands.

§ 12111. Definitions

As used in this subchapter:

(1) Commission

The term "Commission" means the Equal Employment Opportunity Commissionestablished by section 2000e-4 of this title.

(2) Covered entity

The term "covered entity" means an employer, employment agency,labor organization, or joint labor-management committee.

(3) Direct threat

The term "direct threat" means a significant risk to the healthor safety of others that cannot be eliminated by reasonable accommodation.

(4) Employee

The term "employee" means an individual employed by an employer.With respect to employment in a foreign country, such term includes an individualwho is a citizen of the United States.

(5) Employer

(A) In general

The term "employer" means a person engaged in an industry affectingcommerce who has 15 or more employees for each working day in each of 20or more calendar weeks in the current or preceding calendar year, and anyagent of such person, except that, for two years following the effectivedate of this subchapter, an employer means a person engaged in an industryaffecting commerce who has 25 or more employees for each working day ineach of 20 or more calendar weeks in the current or preceding year, andany agent of such person.

(B) Exceptions

The term "employer" does not include-

(i) the United States, a corporation wholly owned by the government of theUnited States, or an Indian tribe; or

(ii) a bona fide private membership club (other than a labor organization)that is exempt from taxation under section 501(c) of title 26.

(6) Illegal use of drugs

(A) In general

The term "illegal use of drugs" means the use of drugs, the possessionor distribution of which is unlawful under the Controlled Substances Act[21 U.S.C. 801 et seq.]. Such term does not include the use of a drug takenunder supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Actor other provisions of Federal law.

(B) Drugs

The term "drug" means a controlled substance, as defined in schedulesI through V of section 202 of the Controlled Substances Act [21 U.S.C. 812].

(7) Person, etc.

The terms "person", "labor organization", "employmentagency", "commerce", and "industry affecting commerce",shall have the same meaning given such terms in section 2000e of this title.

(8) Qualified individual with a disability

The term "qualified individual with a disability" means an individualwith a disability who, with or without reasonable accommodation, can performthe essential functions of the employment position that such individualholds or desires. For the purposes of this subchapter, consideration shallbe given to the employer's judgment as to what functions of a job are essential,and if an employer has prepared a written description before advertisingor interviewing applicants for the job, this description shall be consideredevidence of the essential functions of the job.

(9) Reasonable accommodation

The term "reasonable accommodation" may include-

(A) making existing facilities used by employees readily accessible to andusable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignmentto a vacant position, acquisition or modification of equipment or devices,appropriate adjustment or modifications of examinations, training materialsor policies, the provision of qualified readers or interpreters, and othersimilar accommodations for individuals with disabilities.

(10) Undue hardship

(A) In general

The term "undue hardship" means an action requiring significantdifficulty or expense, when considered in light of the factors set forthin subparagraph (B).

(B) Factors to be considered

In determining whether an accommodation would impose an undue hardship ona covered entity, factors to be considered include-

(i) the nature and cost of the accommodation needed under this chapter;

(ii) the overall financial resources of the facility or facilities involvedin the provision of the reasonable accommodation; the number of personsemployed at such facility; the effect on expenses and resources, or theimpact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overallsize of the business of a covered entity with respect to the number of itsemployees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, includingthe composition, structure, and functions of the workforce of such entity;the geographic separateness, administrative, or fiscal relationship of thefacility or facilities in question to the covered entity.

§ 12112. Discrimination

(a) General rule

No covered entity shall discriminate against a qualified individual witha disability because of the disability of such individual in regard to jobapplication procedures, the hiring, advancement, or discharge of employees,employee compensation, job training, and other terms, conditions, and privilegesof employment.

(b) Construction

As used in subsection (a) of this section, the term "discriminate"includes-

(1) limiting, segregating, or classifying a job applicant or employee ina way that adversely affects the opportunities or status of such applicantor employee be-cause of the disability of such applicant or employee;

(2) participating in a contractual or other arrangement or relationshipthat has the effect of subjecting a covered entity's qualified applicantor employee with a disability to the discrimination prohibited by this subchapter(such relationship includes a relationship with an employment or referralagency, labor union, an organization providing fringe benefits to an employeeof the covered entity, or an organization providing training and apprenticeshipprograms);

(3) utilizing standards, criteria, or methods of administration-

(A) that have the effect of discrimination on the basis of disability; or

(B) that perpetuate the discrimination of others who are subject to commonadministrative control;

(4) excluding or otherwise denying equal jobs or benefits to a qualifiedindividual because of the known disability of an individual with whom thequalified individual is known to have a relationship or association;

(5)(A) not making reasonable accommodations to the known physical or mentallimitations of an otherwise qualified individual with a disability who isan applicant or employee, unless such covered entity can demonstrate thatthe accommodation would impose an undue hardship on the operation of thebusiness of such covered entity; or

(B) denying employment opportunities to a job applicant or employee whois an otherwise qualified individual with a disability, if such denial isbased on the need of such covered entity to make reasonable accommodationto the physical or mental impairments of the employee or applicant;

(6) using qualification standards, employment tests or other selection criteriathat screen out or tend to screen out an individual with a disability ora class of individuals with disabilities unless the standard, test or otherselection criteria, as used by the covered entity, is shown to be job-relatedfor the position in question and is consistent with business necessity;and

(7) failing to select and administer tests concerning employment in themost effective manner to ensure that, when such test is administered toa job applicant or employee who has a disability that impairs sensory, manual,or speaking skills, such test results accurately reflect the skills, aptitude,or whatever other factor of such applicant or employee that such test purportsto measure, rather than reflecting the impaired sensory, manual, or speakingskills of such employee or applicant (except where such skills are the factorsthat the test purports to measure).

(c) Covered entities in foreign countries

(1) In general

It shall not be unlawful under this section for a covered entity to takeany action that constitutes discrimination under this section with respectto an employee in a workplace in a foreign country if compliance with thissection would cause such covered entity to violate the law of the foreigncountry in which such workplace is located.

(2) Control of corporation

(A) Presumption

If an employer controls a corporation whose place of incorporation is aforeign country, any practice that constitutes discrimination under thissection and is engaged in by such corporation shall be presumed to be engagedin by such employer.

(B) Exception

This section shall not apply with respect to the foreign operations of anemployer that is a foreign person not controlled by an American employer.

(C) Determination

For purposes of this paragraph, the determination of whether an employercontrols a corporation shall be based on-

(i) the interrelation of operations;

(ii) the common management;

(iii) the centralized control of labor relations; and

(iv) the common ownership or financial control, of the employer and thecorporation.

(d) Medical examinations and inquiries

(1) In general

The prohibition against discrimination as referred to in subsection (a)of this section shall include medical examinations and inquiries.

(2) Preemployment

(A) Prohibited examination or inquiry

Except as provided in paragraph (3), a covered entity shall not conducta medical examination or make inquiries of a job applicant as to whethersuch applicant is an individual with a disability or as to the nature orseverity of such disability.

(B) Acceptable inquiry

A covered entity may make preemployment inquiries into the ability of anapplicant to perform job-related functions.

(3) Employment entrance examination

A covered entity may require a medical examination after an offer of employmenthas been made to a job applicant and prior to the commencement of the employmentduties of such applicant, and may condition an offer of employment on theresults of such examination, if-

(A) all entering employees are subjected to such an examination regardlessof disability;

(B) information obtained regarding the medical condition or history of theapplicant is collected and maintained on separate forms and in separatemedical files and is treated as a confidential medical record, except that-

(i) supervisors and managers may be informed regarding necessary restrictionson the work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, ifthe disability might require emergency treatment; and

(iii) government officials investigating compliance with this chapter shallbe provided relevant information on request; and

(C) the results of such examination are used only in accordance with thissubchapter.

(4) Examination and inquiry

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical examination and shall not makeinquiries of an employee as to whether such employee is an individual witha disability or as to the nature or severity of the disability, unless suchexamination or inquiry is shown to be job-related and consistent with businessnecessity.

(B) Acceptable examinations and inquiries

A covered entity may conduct voluntary medical examinations, including voluntarymedical histories, which are part of an employee health program availableto employees at that work site. A covered entity may make inquiries intothe ability of an employee to perform job-related functions.

(C) Requirement

Information obtained under subparagraph (B) regarding the medical conditionor history of any employee are subject to the requirements of subparagraphs(B) and (C) of paragraph (3).

§ 12113. Defenses

(a) In general

It may be a defense to a charge of discrimination under this chapter thatan alleged application of qualification standards, tests, or selection criteriathat screen out or tend to screen out or otherwise deny a job or benefitto an individual with a disability has been shown to be job-related andconsistent with business necessity, and such performance cannot be accomplishedby reasonable accommodation, as required under this subchapter.

(b) Qualification standards

The term "qualification standards" may include a requirement thatan individual shall not pose a direct threat to the health or safety ofother individuals in the workplace.

(c) Religious entities

(1) In general

This subchapter shall not prohibit a religious corporation, association,educational institution, or society from giving preference in employmentto individuals of a particular religion to perform work connected with thecarrying on by such corporation, association, educational institution, orsociety of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicantsand employees conform to the religious tenets of such organization.

(d) List of infectious and communicable diseases

(1) In general

The Secretary of Health and Human Services, not later than 6 months afterJuly 26, 1990, shall-

(A) review all infectious and communicable diseases which may be transmittedthrough handling the food supply;

(B) publish a list of infectious and communicable diseases which are transmittedthrough handling the food supply;

(C) publish the methods by which such diseases are transmitted; and

(D) widely disseminate such information regarding the list of diseases andtheir modes of transmissability1 to the general public.

Such list shall be updated annually.

1 So in original. Probably should be "transmissibility".

(2) Applications

In any case in which an individual has an infectious or communicable diseasethat is transmitted to others through the handling of food, that is includedon the list developed by the Secretary of Health and Human Services underparagraph (1), and which cannot be eliminated by reasonable accommodation,a covered entity may refuse to assign or continue to assign such individualto a job involving food handling.

(3) Construction

Nothing in this chapter shall be construed to preempt, modify, or amendany State, county, or local law, ordinance, or regulation applicable tofood handling which is designed to protect the public health from individualswho pose a significant risk to the health or safety of others, which cannotbe eliminated by reasonable accommodation, pursuant to the list of infectiousor communicable diseases and the modes of transmissability1 published bythe Secretary of Health and Human Services.



1 So in original. Probably should be "transmissibility".

§ 12114. Illegal use of drugs and alcohol

(a) Qualified individual with a disability

For purposes of this subchapter, the term "qualified individual witha disability" shall not include any employee or applicant who is currentlyengaging in the illegal use of drugs, when the covered entity acts on thebasis of such use.

(b) Rules of construction

Nothing in subsection (a) of this section shall be construed to excludeas a qualified individual with a disability an individual who-

(1) has successfully completed a supervised drug rehabilitation programand is no longer engaging in the illegal use of drugs, or has otherwisebeen rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longerengaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engagingin such use;

except that it shall not be a violation of this chapter for a covered entityto adopt or administer reasonable policies or procedures, including butnot limited to drug testing, designed to ensure that an individual describedin paragraph (1) or (2) is no longer engaging in the illegal use of drugs.

(c) Authority of covered entity

A covered entity-

(1) may prohibit the illegal use of drugs and the use of alcohol at theworkplace by all employees;

(2) may require that employees shall not be under the influence of alcoholor be engaging in the illegal use of drugs at the workplace;

(3) may require that employees behave in conformance with the requirementsestablished under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 etseq.);

(4) may hold an employee who engages in the illegal use of drugs or whois an alcoholic to the same qualification standards for employment or jobperformance and behavior that such entity holds other employees, even ifany unsatisfactory performance or behavior is related to the drug use oralcoholism of such employee; and

(5) may, with respect to Federal regulations regarding alcohol and the illegaluse of drugs, require that-

(A) employees comply with the standards established in such regulationsof the Department of Defense, if the employees of the covered entity areemployed in an industry subject to such regulations, including complyingwith regulations (if any) that apply to employment in sensitive positionsin such an industry, in the case of employees of the covered entity whoare employed in such positions (as defined in the regulations of the Departmentof Defense);

(B) employees comply with the standards established in such regulationsof the Nuclear Regulatory Commission, if the employees of the covered entityare employed in an industry subject to such regulations, including complyingwith regulations (if any) that apply to employment in sensitive positionsin such an industry, in the case of employees of the covered entity whoare employed in such positions (as defined in the regulations of the NuclearRegulatory Commission); and

(C) employees comply with the standards established in such regulationsof the Department of Transportation, if the employees of the covered entityare employed in a transportation industry subject to such regulations, includingcomplying with such regulations (if any) that apply to employment in sensitivepositions in such an industry, in the case of employees of the covered entitywho are employed in such positions (as defined in the regulations of theDepartment of Transportation).



(d) Drug testing

(1) In general

For purposes of this subchapter, a test to determine the illegal use ofdrugs shall not be considered a medical examination.

(2) Construction

Nothing in this subchapter shall be construed to encourage, prohibit, orauthorize the conducting of drug testing for the illegal use of drugs byjob applicants or employees or making employment decisions based on suchtest results.

(e) Transportation employees

Nothing in this subchapter shall be construed to encourage, prohibit, restrict,or authorize the otherwise lawful exercise by entities subject to the jurisdictionof the Department of Transportation of authority to-

(1) test employees of such entities in, and applicants for, positions involvingsafety-sensitive duties for the illegal use of drugs and for on-duty impairmentby alcohol; and

(2) remove such persons who test positive for illegal use of drugs and on-dutyimpairment by alcohol pursuant to paragraph (1) from safety-sensitive dutiesin implementing subsection (c) of this section.

§ 12115. Posting notices

Every employer, employment agency, labor organization, or joint labor-managementcommittee covered under this subchapter shall post notices in an accessibleformat to applicants, employees, and members describing the applicable provisionsof this chapter, in the manner prescribed by section 2000e-10 of this title.

§ 12116. Regulations

Not later than 1 year after July 26, 1990, the Commission shall issue regulationsin an accessible format to carry out this subchapter in accordance withsubchapter II of chapter 5 of title 5.

§ 12117. Enforcement

(a) Powers, remedies, and procedures

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5,2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies,and procedures this subchapter provides to the Commission, to the AttorneyGeneral, or to any person alleging discrimination on the basis of disabilityin violation of any provision of this chapter, or regulations promulgatedunder section 12116 of this title, concerning employment.

(b) Coordination

The agencies with enforcement authority for actions which allege employmentdiscrimination under this subchapter and under the Rehabilitation Act of1973 [29 U.S.C. § 701 et seq.] shall develop procedures to ensure thatadministrative complaints filed under this subchapter and under the RehabilitationAct of 1973 are dealt with in a manner that avoids duplication of effortand prevents imposition of inconsistent or conflicting standards for thesame requirements under this subchapter and the Rehabilitation Act of 1973.The Commission, the Attorney General, and the Office of Federal ContractCompliance Programs shall establish such coordinating mechanisms (similarto provisions contained in the joint regulations promulgated by the Commissionand the Attorney General at part 42 of title 28 and part 1691 of title 29,Code of Federal Regulations, and the Memorandum of Understanding betweenthe Commission and the Office of Federal Contract Compliance Programs datedJanuary 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations implementingthis subchapter and Rehabilitation Act of 1973 not later than 18 monthsafter July 26, 1990.

Title II, Part A, of The Americans With Disabilities Act

§ 12131. Definitions

As used in this subchapter:

(1) Public entity

The term "public entity" means-

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentalityof a State or States or local government; and

(C) the National Railroad Passenger Corporation, and any commuter authority(as defined in section 2410(4) of title 49).

(2) Qualified individual with a disability

The term "qualified individual with a disability" means an individualwith a disability who, with or without reasonable modifications to rules,policies, or practices, the removal of architectural, communication, ortransportation barriers, or the provision of auxiliary aids and services,meets the essential eligibility requirements for the receipt of servicesor the participation in programs or activities provided by a public entity.

§ 12132. Discrimination

Subject to the provisions of this subchapter, no qualified individual witha disability shall, by reason of such disability, be excluded from participationin or be denied the benefits of the services, programs, or activities ofa public entity, or be subjected to discrimination by any such entity.

§ 12133. Enforcement

The remedies, procedures, and rights set forth in section 794a of title29 shall be the remedies, procedures, and rights this subchapter providesto any person alleging discrimination on the basis of disability in violationof section 12132 of this title.

§ 12134. Regulations

(a) In general

Not later than 1 year after July 26, 1990, the Attorney General shall promulgateregulations in an accessible format that implement this part. Such regulationsshall not include any matter within the scope of the authority of the Secretaryof Transportation under section 12143, 12149, or 12164 of this title.

(b) Relationship to other regulations

Except for "program accessibility, existing facilities", and "communications",regulations under subsection (a) of this section shall be consistent withthis chapter and with the coordination regulations under part 41 of title28, Code of Federal Regulations (as promulgated by the Department of Health,Education, and Welfare on January 13, 1978), applicable to recipients ofFederal financial assistance under section 794 of title 29. With respectto "program accessibility, existing facilities", and "communications",such regulations shall be consistent with regulations and analysis as inpart 39 of title 28 of the Code of Federal Regulations, applicable to federallyconducted activities under such section 794 of title 29.

(c) Standards

Regulations under subsection (a) of this section shall include standardsapplicable to facilities and vehicles covered by this part, other than facilities,stations, rail passenger cars, and vehicles covered by part B of this subchapter.Such standards shall be consistent with the minimum guidelines and requirementsissued by the Architectural and Transportation Barriers Compliance Boardin accordance with section 12204(a) of this title.

Title IV of The Americans With Disabilities Act

§ 12201. Construction

(a) In general

Except as otherwise provided in this chapter, nothing in this chapter shallbe construed to apply a lesser standard than the standards applied undertitle V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or theregulations issued by Federal agencies pursuant to such title.

(b) Relationship to other laws

Nothing in this chapter shall be construed to invalidate or limit the remedies,rights, and procedures of any Federal law or law of any State or politicalsubdivision of any State or jurisdiction that provides greater or equalprotection for the rights of individuals with disabilities than are affordedby this chapter. Nothing in this chapter shall be construed to precludethe prohibition of, or the imposition of restrictions on, smoking in placesof employment covered by subchapter I of this chapter, in transportationcovered by subchapter II or III of this chapter, or in places of publicaccommodation covered by subchapter III of this chapter.

(c) Insurance

Subchapters I through III of this chapter and title IV of this Act shallnot be construed to prohibit or restrict-

(1) an insurer, hospital or medical service company, health maintenanceorganization, or any agent, or entity that administers benefit plans, orsimilar organizations from underwriting risks, classifying risks, or administeringsuch risks that are based on or not inconsistent with State law; or

(2) a person or organization covered by this chapter from establishing,sponsoring, observing or administering the terms of a bona fide benefitplan that are based on underwriting risks, classifying risks, or administeringsuch risks that are based on or not inconsistent with State law; or

(3) a person or organization covered by this chapter from establishing,sponsoring, observing or administering the terms of a bona fide benefitplan that is not subject to State laws that regulate insurance.

Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evadethe purposes of subchapter 60 I and III of this chapter.

2 So in original. Probably should be "subchapters".

(d) Accommodations and services

Nothing in this chapter shall be construed to require an individual witha disability to accept an accommodation, aid, service, opportunity, or benefitwhich such individual chooses not to accept.

§ 12202. State immunity

A State shall not be immune under the eleventh amendment to the Constitutionof the United States from an action in61 Federal or State court of competentjurisdiction for a violation of this chapter. In any action against a Statefor a violation of the requirements of this chapter, remedies (includingremedies both at law and in equity) are available for such a violation tothe same extent as such remedies are available for such a violation in anaction against any public or private entity other than a State.

3 So in original. Probably should be "in a".

§ 12203. Prohibition against retaliation and coercion

(a) Retaliation

No person shall discriminate against any individual because such individualhas opposed any act or practice made unlawful by this chapter or becausesuch individual made a charge, testified, assisted, or participated in anymanner in an investigation, proceeding, or hearing under this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere withany individual in the exercise or enjoyment of, or on account of his orher having exercised or enjoyed, or on account of his or her having aidedor encouraged any other individual in the exercise or enjoyment of, anyright granted or protected by this chapter.

(c) Remedies and procedures

The remedies and procedures available under sections 12117, 12133, and 12188of this title shall be available to aggrieved persons for violations ofsubsections (a) and (b) of this section, with respect to subchapter I, subchapterII and subchapter III of this chapter, respectively.

§ 12204. Regulations by Architectural and Transportation Barriers ComplianceBoard

(a) Issuance of guidelines

Not later than 9 months after July 26, 1990, the Architectural and TransportationBarriers Compliance Board shall issue minimum guidelines that shall supplementthe existing Minimum Guidelines and Requirements for Accessible Design forpurposes of subchapters II and III of this chapter.

(b) Contents of guidelines

The supplemental guidelines issued under subsection (a) of this sectionshall establish additional requirements, consistent with this chapter, toensure that buildings, facilities, rail passenger cars, and vehicles areaccessible, in terms of architecture and design, transportation, and communication,to individuals with disabilities.

(c) Qualified historic properties

(1) In general

The supplemental guidelines issued under subsection (a) of this sectionshall include procedures and requirements for alterations that will threatenor destroy the historic significance of qualified historic buildings andfacilities as defined in 4.1.7(1)(a) of the Uniform Federal AccessibilityStandards.

(2) Sites eligible for listing in National Register

With respect to alterations of buildings or facilities that are eligiblefor listing in the National Register of Historic Places under the NationalHistoric Preservation Act (16 U.S.C. 470 et seq.), the guidelines describedin paragraph (1) shall, at a minimum, maintain the procedures and requirementsestablished in 4.1.7(1) and (2) of the Uniform Federal Accessibility Standards.



(3) Other sites

With respect to alterations of buildings or facilities designated as historicunder State or local law, the guidelines described in paragraph (1) shallestablish procedures equivalent to those established by 4.1.7(1)(b) and(c) of the Uniform Federal Accessibility Standards, and shall require, ata minimum, compliance with the requirements established in 4.1.7(2) of suchstandards.

§ 12205. Attorney's fees

In any action or administrative proceeding commenced pursuant to this chapter,the court or agency, in its discretion, may allow the prevailing party,other than the United States, a reasonable attorney's fee, including litigationexpenses, and costs, and the United States shall be liable for the foregoingthe same as a private individual.

* * * * *

§ 12208. Transvestites

For the purposes of this chapter, the term "disabled" or "disability"shall not apply to an individual solely because that individual is a transvestite.



§ 12209. Instrumentalities of the Congress

The General Accounting Office, the Government Printing Office, and the Libraryof Congress shall be covered as follows:

(1) In general

The rights and protections under this chapter shall, subject to paragraph(2), apply with respect to the conduct of each instrumentality of the Congress.

(2) Establishment of remedies and procedures by instrumentalities

The chief official of each instrumentality of the Congress shall establishremedies and procedures to be utilized with respect to the rights and protectionsprovided pursuant to paragraph (1).

(3) Report to Congress

The chief official of each instrumentality of the Congress shall, afterestablishing remedies and procedures for purposes of paragraph (2), submitto the Congress a report describing the remedies and procedures.

(4) Definition of instrumentality

For purposes of this section, the term "instrumentality of the Congress"means the following:,1 the General Accounting Office, the Government PrintingOffice, and the Library of Congress,.2

1 So in original.

2 So in original.

(5) Enforcement of employment rights

The remedies and procedures set forth in section 2000e-16 of this titleshall be available to any employee of an instrumentality of the Congresswho alleges a violation of the rights and protections under sections 12112through 12114 of this title that are made applicable by this section, exceptthat the authorities of the Equal Employment Opportunity Commission shallbe exercised by the chief official of the instrumentality of the Congress.

(6) Enforcement of rights to public services and accommodations

The remedies and procedures set forth in section 2000e-16 of this titleshall be available to any qualified person with a disability who is a visitor,guest, or patron of an instrumentality of Congress and who alleges a violationof the rights and protections under sections 12131 through 12150 or section12182 or 12183 of this title that are made applicable by this section, exceptthat the authorities of the Equal Employment Opportunity Commission shallbe exercised by the chief official of the instrumentality of the Congress.

(7) Construction

Nothing in this section shall alter the enforcement procedures for individualswith disabilities provided in the General Accounting Office Personnel Actof 1980 and regulations promulgated pursuant to that Act.



§ 12210. Illegal use of drugs

(a) In general

For purposes of this chapter, the term "individual with a disability"does not include an individual who is currently engaging in the illegaluse of drugs, when the covered entity acts on the basis of such use.

(b) Rules of construction

Nothing in subsection (a) of this section shall be construed to excludeas an individual with a disability an individual who-

(1) has successfully completed a supervised drug rehabilitation programand is no longer engaging in the illegal use of drugs, or has otherwisebeen rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longerengaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engagingin such use;

except that it shall not be a violation of this chapter for a covered entityto adopt or administer reasonable policies or procedures, including butnot limited to drug testing, designed to ensure that an individual describedin paragraph (1) or (2) is no longer engaging in the illegal use of drugs;however, nothing in this section shall be construed to encourage, prohibit,restrict, or authorize the conducting of testing for the illegal use ofdrugs.

(c) Health and other services

Notwithstanding subsection (a) of this section and section 12211(b)(3) ofthis title, an individual shall not be denied health services, or servicesprovided in connection with drug rehabilitation, on the basis of the currentillegal use of drugs if the individual is otherwise entitled to such services.

(d) "Illegal use of drugs" defined

(1) In general

The term "illegal use of drugs" means the use of drugs, the possessionor distribution of which is unlawful under the Controlled Substances Act[21 U.S.C. 801 et seq.]. Such term does not include the use of a drug takenunder supervision by a licensed health care professional, or other usesauthorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or otherprovisions of Federal law.

(2) Drugs

The term "drug" means a controlled substance, as defined in schedulesI through V of section 202 of the Controlled Substances Act [21 U.S.C. 812].

§ 12211. Definitions

(a) Homosexuality and bisexuality

For purposes of the definition of "disability" in section 12102(2)of this title, homosexuality and bisexuality are not impairments and assuch are not disabilities under this chapter.

(b) Certain conditions

Under this chapter, the term "disability" shall not include-

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism,gender identity disorders not resulting from physical impairments, or othersexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegaluse of drugs.

§ 12212. Alternative means of dispute resolution

Where appropriate and to the extent authorized by law, the use of alternativemeans of dispute resolution, including settlement negotiations, conciliation,facilitation, mediation, factfinding, minitrials, and arbitration, is encouragedto resolve disputes arising under this chapter.

§ 12213. Severability

Should any provision in this chapter be found to be unconstitutional bya court of law, such provision shall be severed from the remainder of thischapter and such action shall not affect the enforceability of the remainingprovisions of this chapter.

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