US Supreme Court Briefs

No. 99-1240


In the Supreme Court of the United States


UNIVERSITY OF ALABAMA AT BIRMINGHAM,
BOARD OF TRUSTEES, ET AL., PETITIONERS

v.

PATRICIA GARRETT, ET AL.



ON PETITION FOR A 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
Acting Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
SETH M. GALANTER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



QUESTIONS PRESENTED

1. 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. III 1997), areproper exercises of Congress's power under Section 5 of the Fourteenth Amendment.

2. Whether petitioners are subject to suits under Section 504 of the RehabilitationAct of 1973, 29 U.S.C. 794, either because petitioners waived their EleventhAmendment immunity when they applied for and accepted federal financialassistance that Congress expressly conditioned upon a waiver of EleventhAmendment immunity, or because Congress has validly abrogated petitioners'immunity from suits under Section 5 of the Fourteenth Amendment.



In the Supreme Court of the United States


No. 99-1240

UNIVERSITY OF ALABAMA AT BIRMINGHAM,
BOARD OF TRUSTEES, ET AL., PETITIONERS

v.

PATRICIA GARRETT, ET AL.



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT



BRIEF FOR THE UNITED STATES


OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-48) is reported at 193F.3d 1214. The opinion of the district court (Pet. App. 49-55) 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. The jurisdictionof this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Americans with Disabilities Act of 1990 (Disabilities Act), 42 U.S.C.12101 et seq., is a "comprehensive national mandate for the eliminationof discrimination against individuals with disabilities." 42 U.S.C.12101(b)(1). Based on extensive study and fact-finding by Congress,1 andCongress's lengthy experience with the analogous nondiscrimination requirementin Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, Congressfound in the Disabilities Act that:

(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;

* * * * *

(5) 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; [and]

(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.

42 U.S.C. 12101(a). Based on those findings, Congress "invoke[d] thesweep of congressional authority, including the power to enforce the fourteenthamendment and to regulate commerce, in order to address the major areasof discrimination faced day-to-day by people with disabilities." 42U.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; Title II, 42 U.S.C. 12131-12165 (1994 & Supp. III 1997),addresses discrimination by governmental entities; and Title III, 42 U.S.C.12181-12189 (1994 & Supp. III 1997), addresses discrimination in publicaccommodations operated by private entities.

This petition involves two suits brought under Titles I and II of the DisabilitiesAct and Section 504 of the Rehabilitation Act of 1973. Title I providesthat "[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 any "person engaged in an industryaffecting commerce who has 15 or more employees," 42 U.S.C. 12111(2)and (5)(A), and the term "person" incorporates the definitionfrom Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.,which includes States. 42 U.S.C. 12111(7); cf. Fitzpatrick v. Bitzer, 427U.S. 445, 449 & n.2 (1976). The prohibition on discrimination may beenforced through private suits against public entities. See 42 U.S.C. 12117(a)(incorporating the enforcement provisions of Title VII); cf. Fitzpatrick,427 U.S. at 452.

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 expresslydefined to include "any State or local government" and "anydepartment, agency, special purpose district, or other instrumentality ofa State or States or local government." 42 U.S.C. 12131(1)(A) and (B).The prohibition on discrimination may be enforced through private suitsagainst public entities. See 42 U.S.C. 12133; see also Olmstead v. L.C.,119 S. Ct. 2176, 2182 (1999).

Congress intended the Disabilities Act to supplement, not supplant, Section504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, which addresses discriminationagainst persons with disabilities by programs or activities receiving federalfinancial assistance. See 42 U.S.C. 12201(b) (nothing in the DisabilitiesAct "shall be construed to invalidate or limit the remedies, rights,and procedures of any Federal law * * * that provides greater or equal protectionfor the rights of individuals with disabilities").2 Section 504 ofthe Rehabilitation Act of 1973 provides that "[n]o otherwise qualifiedindividual with a disability in the United States * * * shall, solely byreason of her or his disability, be excluded from the participation in,be denied the benefits of, or be subjected to discrimination under any programor activity receiving Federal financial assistance * * * ." 29 U.S.C.794(a). A "program or activity" is expressly defined to include"all of the operations" of "a department, agency, specialpurpose district, or other instrumentality of a State or local government."29 U.S.C. 794(b). The prohibition on discrimination may be enforced throughprivate suits against public entities. See 29 U.S.C. 794a(a)(2); cf. Olmstead,119 S. Ct. at 2182 n.4.

In both the Disabilities Act and the Rehabilitation Act, Congress expresslyremoved the States' Eleventh Amendment immunity from private suits in federalcourt. 42 U.S.C. 12202 (a "State shall not be immune under the eleventhamendment to the Constitution of the United States from an action in Federalor State court of competent jurisdiction for a violation of this chapter");42 U.S.C. 2000d-7(a)(1) (a "State shall not be immune under the EleventhAmendment of the Constitution of the United States from suit in Federalcourt for a violation of section 504 of the Rehabilitation Act of 1973").

2. Respondent Garrett has worked for petitioner University of Alabama since1977. In August 1994, respondent was diagnosed with breast cancer and underwenta lumpectomy and continued radiation and chemotherapy treatment throughJanuary 1995. Respondent's supervisor made negative comments regarding herillness and told her she would be permanently replaced unless she took leave.Partially in response to those actions, and on the advice of her doctor,respondent took four months leave under the Family and Medical Leave Actof 1993, 29 U.S.C. 2601 et seq. On her return in July 1995, it was initiallyagreed that respondent would continue in her previous position because sheremained able to perform the essential functions of her work. Approximatelyone week later, however, petitioner demoted her to a position with a significantlylower salary. Pet. App. 9; Garrett Compl. ¶¶ 8-11, 16.

Respondent Ash has worked for petitioner Alabama Department of Youth Servicessince 1993. He has several impairments, including severe chronic asthma,that substantially limit his ability to breathe. He informed his supervisorof his disability and of his doctor's recommendation that he not be exposedto carbon monoxide or other noxious fumes, such as cigarette smoke. However,petitioner refused to enforce its previously adopted non-smoking policyand required respondent to drive cars which leaked carbon monoxide fumesinto the passenger compartment. After respondent filed a complaint withthe Equal Employment Opportunity Commission (EEOC) concerning petitioner'sfailure to accommodate his respiratory disability, petitioner took adverseemployment action against him. Ash Compl. ¶¶ 5-12.

Respondents filed separate suits in the same district court, alleging thatpetitioners had violated Titles I and II of the Disabilities Act, Section504 of the Rehabilitation Act, and (for respondent Garrett) the Family andMedical Leave Act. Petitioners filed motions to dismiss on Eleventh Amendmentgrounds. The district court issued a single opinion dismissing both caseson the ground that none of the statutes validly abrogated petitioners' EleventhAmendment immunity. Pet. App. 49-55.

3. The United States intervened on appeal, pursuant to 28 U.S.C. 2403(a),to defend the constitutionality of Congress's removal of Eleventh Amendmentimmunity. The court of appeals reversed in pertinent part. Pet. App. 1-49.3The Eleventh Circuit had previously upheld the abrogation of immunity inthe Disabilities Act, and invalidated the abrogation of immunity in theAge Discrimination in Employment Act, 29 U.S.C. 621 et seq., in Kimel v.Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998), aff'd with respectto the Age Discrimination in Employment Act, 120 S. Ct. 631 (2000), cert.granted with respect to the Disabilties Act sub nom. Florida Departmentof Corrections v. Dickson, 120 S. Ct. 976 (2000), cert. dismissed, No. 98-829,2000 WL 215674 (Feb. 23, 2000). Following its prior ruling in Kimel, thecourt of appeals here upheld the Disabilities Act's abrogation of EleventhAmendment immunity. Pet. App. 6. The court also held that the analysis adoptedin Kimel compelled it to uphold the abrogation of Eleventh Amendment immunityfor Section 504, as "[t]he statutes serve the same purpose and wereborn of the same history of discrimination." Id. at 7.4

ARGUMENT

1. This Court should grant the petition for a writ of certiorari limitedto Question 1. On January 21, 2000, this Court granted a writ of certiorariin Florida Department of Corrections v. Dickson, No. 98-829, to addressthe validity of the abrogation of the States' Eleventh Amendment immunityto suits under Title I of the Disabilities Act. On January 25, 2000, theCourt granted a writ of certiorari in Alsbrook v. Arkansas, No. 99-423,to address the validity of the abrogation of the States' Eleventh Amendmentimmunity to suits under Title II of the Disabilities Act. On February 23,2000, and March 1, 2000, the writs of certiorari in No. 98-829 and No. 99-423,respectively, were dismissed in light of the parties' settlement of thecases.

a. As reflected in this Court's prior grants of writs of certiorari to addressthe immunity issue in both Title I and Title II earlier this year, the validityof the abrogation for both Titles of the Disabilities Act is ripe for reviewby this Court because there is an entrenched split in the circuits withrespect to both Titles and because the constitutional question presentedis of great importance.

Following this Court's decisions in Seminole Tribe v. Florida, 517 U.S.44 (1996), and City of Boerne v. Flores, 521 U.S. 507 (1997), four courtsof appeals held that the abrogation of Eleventh Amendment immunity containedin the Disabilities Act is a valid exercise of Congress's power under Section5 of the Fourteenth Amendment to "enforce" the Equal ProtectionClause. See Amos v. Maryland Dep't of Pub. Safety & Correctional Servs.,178 F.3d 212 (4th Cir. 1999) (Title II), vacated for reh'g en banc (Dec.28, 1999), appeal dismissed due to settlement, 2000 WL 248707 (Mar. 6, 2000);Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998) (Title I),rev'd in part, 120 S. Ct. 631 (2000), cert. granted sub nom. Florida Dep'tof Corrections v. Dickson, 120 S. Ct. 976 (2000), cert. dismissed, No. 98-829,2000 WL 215674 (Feb. 23, 2000); Coolbaugh v. Louisiana, 136 F.3d 430 (5thCir.) (Title II), cert. denied, 119 S. Ct. 58 (1998); Clark v. California,123 F.3d 1267 (9th Cir. 1997) (Title II), cert. denied, 524 U.S. 937 (1998);see also Torres v. Puerto Rico Tourism Co., 175 F.3d 1, 6 n.7 (1st Cir.1999) (in Title I case, court states "we have considered the issueof Congress's authority sufficiently to conclude that, were we to confrontthe question head-on, we almost certainly would join the majority of courtsupholding the provision").5 The en banc Eighth Circuit invalidatedthe Disabilities Act's abrogation of Eleventh Amendment immunity in a casearising under Title II of that Act. See Alsbrook v. City of Maumelle, 184F.3d 999 (1999), cert. granted in part, 120 S. Ct. 1003 (2000), cert. dismissed,No. 99-423, 2000 WL 230234 (Mar. 1, 2000), and subsequently extended itsholding to Title I of the Act, see DeBose v. Nebraska, 186 F.3d 1087 (1999),petition for cert. pending, No. 99-940.

In addition to the Eleventh Circuit in this case, three other courts ofappeals have considered or reconsidered the validity of the DisabilitiesAct's abrogation after the Eighth Circuit's decisions and this Court's decisionlast term in Florida Prepaid Postsecondary Education Expense Board v. CollegeSavings Bank, 119 S. Ct. 2199 (1999), and all have rejected the Eighth Circuit'sholding and have upheld the Disabilities Act's abrogation as valid Section5 legislation. See Dare v. California, 191 F.3d 1167 (9th Cir. 1999) (TitleII), petition for cert. pending, No. 99-1417; Martin v. Kansas, 190 F.3d1120 (10th Cir. 1999) (Title I); Muller v. Costello, 187 F.3d 298 (2d Cir.1999) (Title I). Furthermore, after this Court's decision in Kimel v. FloridaBoard of Regents, 120 S. Ct. 631 (2000), the Second Circuit again upheldthe constitutionality of the Disabilities Act's abrogation in two casesarising under Title I of the Act. See Kilcullen v. New York State Dep'tof Labor, No. 99-7208, 2000 WL 217465 (2d Cir. Feb. 24, 2000); Jackan v.New York State Dep't of Labor, No. 98-9589, 2000 WL 241648 (2d Cir. Mar.3, 2000).

The question of Congress's authority to abrogate the States' Eleventh Amendmentimmunity for Titles I and II of the Disabilities Act has thus been extensivelyevaluated and considered by the courts of appeals. The conflict is firmlyentrenched and incapable of resolution absent intervening action by thisCourt. As a consequence of the split in the circuits, moreover, the operationof this important civil rights legislation has been significantly impairedin seven States. Unlike litigants in the six circuits where the DisabilitiesAct's abrogation of Eleventh Amendment immunity has been sustained, personswith disabilities in the Eighth Circuit cannot fully enforce their federalrights under the Disabilities Act in federal court.

b. The present case provides the most appropriate vehicle to address theseissues, among the several petitions currently pending before the Court.The case was decided on a motion to dismiss. That clean record permits straightforwardand comprehensive consideration of the constitutional questions presented,without simultaneously requiring consideration of the occasionally difficultstatutory construction questions posed by the Act. The discrimination, reasonableaccommodation, and retaliation claims made by the petitioners, moreover,present a comprehensive overview of both the Act's practical operation andthe types of discrimination persons with disabilities encounter in the governmentworkplace. Finally, it contains claims under both Title I and Title II ofthe Act.6

A petition for a writ of certiorari is also pending in Zimmerman v. OregonDepartment of Justice, No. 99-243, which presents the question of the constitutionalityof the abrogation for Title II of the Disabilities Act. As we previouslystated in our Consolidated Supplemental Brief for the United States at 12,Florida Dep't of Corrections v. Dickson, No. 98-829, et al. (filed Jan.13, 2000), Zimmerman is a problematic vehicle for a number of reasons. First,the Eleventh Amendment immunity question is a late arrival to the litigation.It was raised for the first time by the plaintiff-not the State-in his petitionto this Court. It thus was not addressed by either the district court orthe court of appeals. The State, moreover, adopted the assertion of immunityonly after this Court called for a response to the petition. The abrogationquestion thus arises in an extraordinary posture where a State's EleventhAmendment immunity is presented in the litigation for the first time bya private party who does not believe immunity attaches, and the immunityissue is only belatedly adopted by the State. Cf. Wisconsin Dep't of Correctionsv. Schacht, 524 U.S. 381, 389 (1998) ("The Eleventh Amendment * * *does not automatically destroy original jurisdiction. * * * Unless the Stateraises the matter, a court can ignore it.") (citations omitted); seealso id. at 393-394 (Kennedy, J., concurring).

Second, Zimmerman would require resolution of the additional question whetherTitle II applies to employment decisions at all, a question on which thecircuits are also divided. See Davoll v. Webb, 194 F.3d 1116, 1130 (10thCir. 1999) (collecting cases). The cases involved in this petition, by contrast,do not necessitate resolution of that question because Eleventh Amendmentimmunity was the sole basis for the district court's ruling, it was theonly issue pressed by respondents in the court of appeals, and it was thesole ground for the court of appeals' decision. Thus, this Court could affirmor reverse the court of appeals' judgment that the district court had jurisdictionover the Title II claim without deciding whether plaintiffs stated a claim.See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) ("theabsence of a valid (as opposed to arguable) cause of action does not implicatesubject-matter jurisdiction"); cf. Olmstead, 119 S. Ct. at 2183 (interpretingregulation without addressing its underlying validity or constitutionality).In contrast, the Court would be unable to avoid the issue in Zimmerman becausethe statutory construction issue was the basis for petitioner's loss inthe court of appeals and would have to be reversed in order for him to beentitled to further proceedings.7

2. No further review of the second question presented is warranted. Petitionerscorrectly note (Pet. 9) that a split exists in the courts of appeals asto whether Congress, pursuant to the Fourteenth Amendment, validly abrogatedthe States' Eleventh Amendment immunity for claims under Section 504 ofthe Rehabilitation Act. Compare Kilcullen v. New York State Dep't of Labor,No. 99-7208, 2000 WL 217465, at *5 (2d Cir. Feb. 24, 2000) (upholding theabrogation for Section 504 as a valid exercise of the Fourteenth Amendment);Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997) (same), cert. denied,524 U.S. 937 (1998); Crawford v. Indiana Dep't of Corrections, 115 F.3d481, 487 (7th Cir. 1997) (same), with Bradley v. Arkansas Dep't of Educ.,189 F.3d 745, 755-756 (8th Cir.) (holding that Section 2000d-7 is not avalid abrogation for Section 504), vacated in other part for reh'g en bancsub. nom. Jim C. v. Arkansas Dep't of Educ., 197 F.3d 958 (8th Cir. 1999).

This Court need not resolve the question of whether Section 504 reflectsa proper exercise of Congress's Section 5 power to abrogate immunity becausethe removal of immunity must, in any event, be sustained as a congressionallyrequired waiver imposed as a condition upon the receipt of federal financialassistance.8 Section 504 was modeled on Title VI of the Civil Rights Actof 1964, 42 U.S.C. 2000d et seq., and Title IX of the Education Amendmentsof 1972, 20 U.S.C. 1681 et seq. "Under * * * Title VI, Title IX, and§ 504, Congress enters into an arrangement in the nature of a contractwith the recipients of the funds: the recipient's acceptance of the fundstriggers coverage under the nondiscrimination provision." United StatesDep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605 (1986).

In response to this Court's decision in Atascadero State Hosp. v. Scanlon,473 U.S. 234, 245-246 (1985), holding that Section 504 was not clear enoughto evidence Congress's intent to authorize private dam- ages actions againststate entities, Congress enacted 42 U.S.C. 2000d-7 as part of the RehabilitationAct Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003, 100 Stat.1845. Section 2000d-7 provides, in pertinent part:

A state shall not be immune under the Eleventh Amendment of the Constitutionof the United States from suit in Federal court for a violation of section504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the EducationAmendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Actof 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964[42 U.S.C. 2000d et seq.], or the provisions of any other Federal statuteprohibiting discrimination by recipients of Federal financial assistance.

Before the court of appeals, respondents argued that Section 2000d-7 couldbe upheld on the ground that petitioners had waived their Eleventh Amendmentimmunity by accepting federal funds after the effective date of Section2000d-7. See Gov't C.A. Br. 37-38; Appellants Br. 20-21. That position isconsistent with this Court's recognition in Alden v. Maine, 119 S. Ct. 2240(1999), that "the Federal Government [does not] lack the authorityor means to seek the States' voluntary consent to private suits." 119S. Ct. at 2267 (citing South Dakota v. Dole, 483 U.S. 203 (1987)). Similarly,in College Savings Bank v. Florida Prepaid Postsecondary Education ExpenseBoard, 119 S. Ct. 2219 (1999), this Court reaffirmed that Congress can conditionthe exercise of one of its Article I powers (the approval of interstatecompacts) on the States' agreement to waive their Eleventh Amendment immunityfrom suit. Id. at 2231 (reaffirming Petty v. Tennessee Mo. Bridge Comm'n,359 U.S. 275 (1959)). The Court also indicated that Congress retained theauthority under the Spending Clause to condition the receipt of federalfunds on the States' waiver of Eleventh Amendment immunity. 119 S. Ct. at2231; see also id. at 2227 n.2. This Court explained that, unlike Congress'spower under the Commerce Clause to regulate "otherwise lawful activity,"Congress's power to authorize interstate compacts and spend money was thegrant of a "gift" on which Congress could place reasonable conditionsthat a State was free to accept or reject. Id. at 2231.

While the court of appeals here did not address the Spending Clause argument,the Eleventh Circuit has subsequently held that Section 2000d-7's "plainlanguage manifests an unmistakable intent to condition federal funds ona state's waiver of sovereign immunity" and that there is "noconstitutional defect inherent in the explicit state immunity waiver enactedpursuant to the Spending Clause in Section 2000d-7." Sandoval v. Hagan,197 F.3d 484, 493, 494 (11th Cir. 1999). This is in accord with almost everyother court of appeals that has addressed the issue. See Litman v. GeorgeMason Univ., 186 F.3d 544, 553 (4th Cir. 1999), cert. denied, No. 99-596,2000 WL 198966 (Feb. 22, 2000); Clark v. California, 123 F.3d 1267, 1271(9th Cir. 1997), cert. denied, 524 U.S. 937 (1998); see also Little RockSch. Dist. v. Mauney, 183 F.3d 816, 831-832 (8th Cir. 1999) (same, for similarlanguage in Individuals with Disabilities Education Act, 20 U.S.C. 1403).9On February 22, 2000, this Court denied a petition for a writ of certioraripresenting the question of Congress's authority to effect the waiver inSection 2000d-7 under its Spending Clause power. George Mason Univ. v. Litman,No. 99-596, 2000 WL 198966 (Feb. 22, 2000). Because the removal of EleventhAmendment immunity for Section 504 suits can be sustained on this alternativeground for which further review is not warranted, this Court should denya writ of certiorari on the second question presented.10

CONCLUSION

As to the first question presented, regarding the validity of the abrogationof Eleventh Amendment immunity for Titles I and II of the Disabilities Act,the petition for a writ of certiorari should be granted. As to the secondquestion presented, regarding the validity of the removal of Eleventh Amendmentimmunity for Section 504 of the Rehabilitation Act, the petition for a writof certiorari should be denied.

Respectfully submitted.

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

MARCH 2000

1 Fourteen congressional hearings and 63 field hearings by a special congressionaltask force were held in the three years prior to passage of the DisabilitiesAct. See S. Rep. No. 116, 101st Cong., 1st Sess. 4-5, 8 (1989); H.R. Rep.No. 485, 101st Cong., 2d Sess. Pt. 2, at 24-28, 31 (1990); id. Pt. 3, at24-25; id. Pt. 4, at 28-29; see also Timothy M. Cook, The Americans withDisabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 393 &nn.1-3 (1991) (listing the individual hearings). Congress also drew uponreports submitted to Congress by the Executive Branch. See S. Rep. No. 116,supra, at 6 (citing United States Civil Rights Commission, Accommodatingthe Spectrum of Individual Abilities (1983); National Council on Disability,Toward Independence (1986); and National Council on Disability, On the Thresholdof Independence (1988)); H.R. Rep. No. 485, supra, Pt. 2, at 28 (same).

2 Subsequently, Congress amended its findings underlying the RehabilitationAct to conform, in large part, to those of the Disabilities Act. See RehabilitationAct Amendments of 1992, Pub. L. No. 102-569, § 101, 106 Stat. 4346(codified at 29 U.S.C. 701).

3 The panel affirmed the district court's judgment that Congress did notvalidly abrogate the States' Eleventh Amendment immunity in the Family andMedical Leave Act. Pet. App. 8-13. Judge Cook dissented from that aspectof the court's holding. Id. at 13-48. Neither the United States nor respondentsseek further review of that portion of the court of appeals' judgment.

4 Having upheld the Rehabilitation Act's abrogation provision as a properexercise of Congress's power under Section 5 of the Fourteenth Amendment,the court did not address whether the State had waived its Eleventh Amendmentimmunity by accepting federal funds conditioned on such a waiver.

5 The Seventh Circuit upheld the Disabilities Act's abrogation prior tothis Court's decision in Flores, supra. See Crawford v. Indiana Dep't ofCorrections, 115 F.3d 481, 487 (7th Cir. 1997) (Title II). The continuingvitality of Crawford has been challenged in a case arising under Title I,Erickson v. Board of Governors of State Colleges & Universities, No.95 C 2541, 1998 WL 748277 (N.D. Ill. Sept. 30, 1998), appeal pending, No.98-3614 (7th Cir.) (oral argument heard April 27, 1999). The constitutionalityof the Disabilities Act's abrogation for both Titles I and II is also pendingin a number of cases before the Sixth Circuit, for which a consolidatedoral argument was heard on October 24, 1999. See, e.g., Nihiser v. OhioEPA, 979 F. Supp. 1168 (S.D. Ohio 1997), appeal pending, No. 97-3933.

6 For those reasons this case is a better vehicle than DeBose v. Nebraska,186 F.3d 1087 (8th Cir. 1999), petition for cert. pending, No. 99-940. DeBosepresents only a Title I claim. Moreover, DeBose arises from a lengthy jurytrial, and the content, character, and strength of the evidence presentedhave never been summarized or reviewed by any of the lower court opinions.Therefore the Court may prefer to hold DeBose for a decision in Garrett.

7 A petition is also pending in Brown v. North Carolina Division of MotorVehicles, No. 99-424. As we explained in our Brief in Opposition in Brown(at 9-16), that case raises the quite narrow question of whether a particularJustice Department regulation as applied to an infrequently recurring factualscenario and premised on an unsettled construction of the regulation canbe sustained under the Section 5 power. Indeed, a panel of the Fourth Circuit,in a now vacated opinion, subsequently upheld the Disabilities Act's abrogationof immunity in another Title II case and limited Brown to its facts. SeeAmos, 178 F.3d at 221 n.8. Brown thus does not present an appropriate vehiclefor consideration of the important constitutional issues raised by thispetition. We are serving a copy of this brief on counsel in the DeBose,Zimmerman, and Brown cases.

8 Petitioner University of Alabama admitted it was a recipient of federalfinancial assistance. Garrett Compl. ¶ 4; Garrett Ans. ¶ 4. PetitionerAlabama Department of Youth Services has not yet responded to the allegationthat it was a recipient of federal financial assistance, Ash Compl. ¶4; Ash Ans. ¶ 4.

9 A panel of the Eighth Circuit reached the opposite conclusion in Bradleyv. Arkansas Department of Education, 189 F.3d 745, vacated in pertinentpart for reh'g en banc sub nom. Jim C. v. Arkansas Dep't of Educ., 197 F.3d958 (1999). The panel opinion was based on the mistaken premise that theState was required either to accept no federal money or to subject all ofits programs in every department to Section 504; the opinion was also basedon an unduly narrow understanding of Congress's power under the SpendingClause. The Eighth Circuit granted the United States' petition for rehearingen banc to address the Section 504 Spending Clause holding, and oral argumentwas heard on January 14, 2000.

10 Respondents' Disabilities Act claims have importance independent of theirRehabilitation Act claims for two reasons. First, the Disabilities Act governspetitioners' conduct regardless of whether they are recipients of federalfinancial assistance. See n.8, supra. Second, the standard for awardingdamages under the Rehabilitation Act for failure to reasonably accommodateis unsettled, while Title I plainly authorizes compensatory damages fora failure to reasonably accommodate, unless the employer undertakes "goodfaith efforts" to accommodate, 42 U.S.C. 1981a(a)(3). Thus, regardlessof the ultimate disposition of the Rehabilitation Act claims, the partieshave a distinct interest in resolving the dispute over the applicabilityof the Disabilities Act to petitioners' conduct.

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