US Supreme Court Briefs

GRANTED
Supreme Court. U.S.
F II. ED

JUN22 2000
No. 99-12$O
IN THE' CLERK

~upr~mi~ court of t~t ~uitrb ~tate~

TI IL BOARD OF TRUSTEES OF THE UNIVERSITY
OF ALABAMA AND THE ALABAMA


Petitioners,



Respondents.
DEPARTIVIENT OF YOUTH SERVICES,

V.


PATRICIA GARRET AND MILTON ASH,
On Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit


BRIEF FOR PETITIONERS


JEFFREY S. SIJVFoN
Counsel of Record
CHAD A READIER

RONNELL A. JONES
JONES, D1xY, REAVIS & POGUE
1900 Huntington Center
Columbus, OH 43215
(614) 469-3855

GREGORY 6. KATSAS
JONES, DAY, REAVIS & POGUE
51 Louisiana Avenue. NW.
Washington. D.C. 20001
(202) 879-3939

(7ounselfrr Petitioners
BILL PRYOR
Attorney General of Alabama
ALICE ANrN BYRNE
MARGARET L. FLEMING
Assistant Attorneys General
State House
ii South Union Street
Montgomery, AL 36130
(334) 242-7300

LISA HuGGINs
Office of Counsel
University of Alabama System
AB 820, 1530 Third Ave. South
Birmingham. AL 35294
(205) 934-3474

QUESTION PRESENTED

Do Title I and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., exceed Congress's enforcement authority under section 5 of the Fourteenth Amendment?
11

TABLE OF CONTENTS
Page
QUESTION PRESENTED..
TABLE OF AUTHORITIES iv

OPINIONS BELOW
JURISDICTiON 1

RELEVANT STATUTORY AND CONSTITUTIONAL
PROVISIONS 1
STATEMENT 2
A. History of State Disability 5
B. History of Alabama Disability Laws 7
C. HistoryoftheADA 10
D. Factual Background 15
SUMMARY OF ARGUMENT 17
ARGUMENT 20

I. THE SECTION 5 POWER IS REMEDIAL IN
NATURE AND MUST BE EXERCISED
CONGRUENT WITH AND PROPORTIONAL
TO CONSTITUTIONAL WRONGS .... 22

II THE ADA CANNOT BE SUSTAINED AS
TRADITIONAL ENFORCEMENT
LEGISLATION THAT PROHIBITS
CONSTITUTIONAL VIOLATIONS 24
A. Alleged Discrimination Against The
Disabled Receives Rational-Basis Review 24
111


TABLE OF CONTENTS (cont'd)
Page
iv

TABLE OF AUTHORITIES
B. Judicial Review Under The ADA Is Far More Rigorous Than It Is Under The Equal Protection Clause

III. THE ADA IS NOT "PROPER PROPHYLACTIC" LEGISLATION

A. The ADA Does Not Respond To A "Predicate" Pattern Of Unconstitutional State Action

B. The ADA Independently Fails The Proportionality Requirements Of Section 5.
Page

Cases
Alden v. Maine, 527 U.S. 706 (1999)
Boiling v. Sharpe, 347 U.S. 497 (1954)
City of Boerne v. Flores, 521 U.S. 507 (1997)
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)
28


30



30


39
IV. THE CONCLUSION THAT THE ADA
EXCEEDS CONGRESSIONAL POWER FITS
WELL WITHIN THE COURT'S SECTION 5
HOLDINGS, AND PRESERVES VITAL
PRINCIPLES OF FEDERALISM 44
CONCLUSlON 49
47
40
passim

passim
City of Rome v. United States, 446 U.S. 156(1980) . . . 47
Civil Rights Cases, 109 U.S. 3 (1883) . . 34, 46, 47
College Savings Bank v. Florida Prepaid
Postsecondary Education Expense Board,
527U.S.666(1999) 20,46
Employees of the Dep't of Pub. Health
and Welfare v. Missouri Pub. Health
Dep't, 411 U.S. 279(1973) 21
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993) 18, 28, 43
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 3, 22
Florida Prepaid Postsecondary Edu. Expense Expense Bd v. College Savings Bank, 527 U.S. 627 (1999)
Garcia v. San Antonio Metro. Transit Auth., 469U.S. 528 (1985)
Gregory v. Ashcroft, 501 U.S. 452 (1991) Heller v. Doe,
509U.S. 312 (1993)
Katzenbach v. Morgan, 384 U.S. 641 (1966)... Kimel v. Florida Board of Regents,
139 F.3d 1426(llthCir. 1998) Kimel v. Florida Board of Regents,
120 S. Ct. 631 (2000) Lane v. Pena, 518 U.S. 187 (1996) Marbury v. Madison, 5 U.S. (1 Cranch)
passim

21
3

passim
37, 41, 46

17
passim
14,40
137(1803) . . . 23

v vl

TABLE OF AUTHORITIES (cont'd)
Page

Massachusetts Board of Retirement v. Murgia,
427 U.S. 307 (1976) 25
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819) 2
New Yorkv. United States, 505 U.S. 144(1992) 20
Nordlinger v. Hahn, 505 U.S. 1 (1992) 28, 29
Olmsteadv.L.C., 119 5. Ct. 2176(1999) 42
Olmstead v. United States, 277 U.S. 438 (1928) 4
Oregon v. Mitchell, 400 U.S. 112 (1970) . . 20,44,45
Penn Central Transp. Co. v. New York, 438 U.S. 104
(1978) 47
PersonnelAdm'r v. Feeney, 442 U 5 256 (1979) 19
Schweiker v. Wilson, 450 U.S. 221 (1981) .... 4, 24, 25, 43
Seminole Tribe v. Florida, 517 U.S. 44 (1996) 20
South Carolina v. Katzenbach, 383 U.S. 301 (1966) 46
Strauder v. West Virginia, 100 U.S. 303 (1879) 23
United States v. Morrison,
120 5. Ct. 1740 (2000) 23, 34, 41
Vance v. Bradley, 440 U.S. 93 (1979) 38, 43
Exparte Virginia, 100 U.S. 339 (1879) 23, 46
Washington v. Davis, 426 U.S. 229 (1976) 19
Western Air Lines, Inc. v. Criswell, 472 U.S. 400
(1985) 30
ExparteYoung,209U5 123(1908) 21,37
Constitutional Provisions and Statutes
U.S. Const. amend. XIV, 1 2, 22
U.S. Const. amend. XIV, S 2, 22, 29
Americans with Disabilities Act of 1990,
42 U.S.C. 12101 etseq passim
28U5C 1254(1) I
29U5C 794 10
TABLE OF AUTHORITIES (cont'd)
Page
29 U.S.C. 794a 13
29 U.S.C. 794a(a)(2) 40
42U5C 1983 23
42U5C 2000e 12
42 U.S.C. 2000e-5 13
Act of Aug. 10, 1965, No. 226, 1965 Ala. Acts 323
(codified at ALA. CODE 2 1-5-1 (1975)) 8
Act of Aug. 9, 1965, No. 224, 1965 Ala. Acts 315
(codified as amended at ALA. CODE 21-4-1
to 21-4-7 (1975)) 8
Act of Feb. 18, 1867, No. 490, 1866-67 Ala Acts 550 . . 7
Act of Jan. 27, 1860, No. 253, 1859-60 Ala. Acts 344 . . . 7
Act of Sept. 30, 1965, No. 119, Ala. Acts, 2d Ex. Sess. 166 (codified at ALA. CODE
36-26-16 (1975) 8
Act of Oct. 7, 1975, No. 869, 1975 Ala. Acts 1711
(codified at ALA. CODE 2 1-7-1) 9
ALA.CoDE21-1-15 7
ALA. CODE 21-1-40 to -41 8
ALA.CoDE21-2-lto-4 8
ALA.CoDE21-5-lto-10 . 8
ALA.CoDE21-7-1 9
ALA. CODE 21-7-2 9
ALA. CODE 21-7-3 9
ALA. CODE21-7-5 9
ALA.CoDE21-7-8 9
ALA. CODE 36-26-16 8, 9
Ala. Admin. Code r. 670-x-4-.01 . 10
Ala. Admin. Code r. 670-x-4-.03 . 10
ARIz.REv.STAT.11-1024 6
1941 Mo. Laws p. 344 I (codified at Mo REV STAT
209.150) 6

Vll '~1II

TABLE OF AUTHORITIES (cont'd)
Page
1965 Wis. Lawsch. 230 6

Regulations
28 C FR 35 130(b)(7) 18, 19, 29,42
28 C F R 35 130(b)(1)(ii) 43
28 C F R 35 130(b)(1)(iii) 43
29CFRPartI63O 41,43
29CFR l&3O.2(p) 43
29CFR 1630.2(r) 43
29CFR 1630.9 18
29CFR 1630.9(a) 43
29CFR 1630.15 43

Congressional History
135 Cong. Rec. S4993 (daily ed. May 9, 1989)
136 Cong. Rec. H2276 (daily ed. May 15, 1990)
136 Cong. Rec. H2319 (daily ed. May 15, 1990)
136 Cong. Rec. H2614 (daily ed. May 22, 1990)
HR Rep No 101-485 (1990)
S Rep No 101-116 (1989)
33
35
40
33
36
36
Hearing Before the House Subcommittee on Employment Opportunities, 100 Cong. 55
(June 17, 1987) 35
Hearing Before the House Subcommittee on
Employment Opportunities, 100 Cong 86
(June 17, 1987) 32, 35
Hearing Before the House Subcommittee on
Employment Opportunities, 101 Cong. 3
(June 17, 1987) 36
TABLE OF AUTHORITIES (cont'd)
Page

Hearing Before the House Subcommittees on Employment Opportunities and Select
Education, 101 Cong. 1 (Sept. 13, 1989) . .. 31, 34, 35 Hearing Before the House Subcommittee on Select
Education, 101 Cong. 5 (Oct. 6, 1989) 4, 32, 36 Hearing Before the House Subcommittee on
Employment Opportunities, 101 Cong. 7
(June 17, 1989) 33
Hearing Before the House Subcommittee on Select
Education, 101 Cong. 8 (Aug. 28, 1989) 31
Hearing Before the House Subcommittee on
Employment Opportunities, 101 Cong. 16
(June 17, 1987) 32, 37
Hearing Before the House Subcommittee on Sekct
Education, 101 Cong. 36-37 (Oct. 9, 1989) 35
Hearing Before the House Committee on the
Judiciary and Subcommittee on Civil and
Constitutional Rights, 101 Cong. 41
(Aug. 3, 1989) 36
Hearing Before the House Subcommittee on
Employment Opportunities and Select
Education, 101 Cong. 41 (Sept. 13, 1989) 35
Hearing Before the House Committee on the
Judiciary and Subcommittee on Civil and
Constitutional Rights, 101 Cong. 58
(Aug. 3, 1989) 34
Hearing Before the House Subcommittee on Surface
Transportation, 101 Cong. 293 (Sept. 20, 1989) 6
Hearing Before the House Subcommittee on Surface
Transportation, 101 Cong. 304 (Sept. 26, 1989) . . . . 33 Hearing Before the Senate Subcommittee on
Handicapped, 101 Cong. 386 (May 9, 1989) 32


TABLE OF AUTHORITIES (cont'd)
Page
.6

43
lx x

Hearing Before the House Subcommittee on Civil and Constitutional Rights, 101 Cong. 418-19 (Oct. 12, 1989)
Hearing Before the House Committee on the Judiciary and Subcommittee on Civil and Constitutional Rights, 101 Cong. 422-23 (Oct. 12, 1989)
Hearing Before the Senate Subcommittee on the Handicapped and House Subcommittee on Sekct Education, 100 Cong. 54 (Sept. 27, 1988)
Hearing Before the Senate Subcommittee on the Handicapped, 101 Cong. 196 (June 22, 1989)
TABLE OF AUTHORITIES (cont'd)

Page
34
Richard K. Scotch, From Good Will to Civil Rights. Transforming Federal Disability Policy
(1984)
United States Department of Justice, Technical Assistance Manual to Title II
George R. Weir, Government and the Handcapped. The Alabama Vocational Rehabilitation Program (1960)
36
35

32

Miscellaneous

Gary L. Albrecht, The Disability Business:
Rehabilitation in America (1992) 5
W. Scott Allan, Rehabilitation: A Community Challenge
(1958) 5,6
Edward Berkowitz, Supporting Disability: An
Historical Perspective, American Rehabilitation,
Apr. 1, 1999 5
Robert Hill Couch & Jack Hawkins, Jr.,
Out of Silence and Darkness: The History
of the Alabama Institute for Deaf and Blind
1858-1983 (1983) 7
Department of Vocational Teacher Education,
University of Arkansas & Arkansas Vocational
Rehabilitation Agency, History. Philosophy and
Principles of Vocational Rehabilitation (1957) 5
Equal Employment Opportunity Commission,
A Technical Assistance Manual on the
Employment Provisions (Title D of the
Americans With Disabilities Act 41
1

OPINIONS BELOW

The decision of the United States Court of Appeals for the Eleventh Circuit is reported at 193 F.3d 1214 (1999), and the decision of the United States District Court for the Northern District of Alabama is reported at 989 F. Supp. 1409 (1998).

JURISDICTION

The Eleventh Circuit issued its decision on October 26, 1999, and petitioners filed their petition for a writ of certiorari on January 24, 2000. Jurisdiction in this Court exists under 28 U.S.C. 1254(1).

RELEVANT STATUTORY
AND CONSTITUTIONAL PROVISIONS

Title I of the ADA provides in part:

"No covered entity shall discriminate against a qualified Individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.~~

42 U.S.C. 12112(a).

Title II of the ADA provides in part:

"Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

42 U.S C. 12132.

The relevant provisions of Title I and Title II, together with the abrogation provision applicable to both of them, see 42 U.S.C. 12202, are reproduced at Appendix D of this brief
2 3

The Fourteenth Amendment provides in pertinent part:

Section 1 "No State shall ... deny to any person within its jurisdiction the equal protection of the laws."
Section 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

STATEMENT

As this case comes to the Court, all 50 States prohibit government-based discrimination against the disabled and, more, affirmatively require all manner of employment and public-access accommodations designed to provide the disabled with the kind of equal opportunity and dignity that all individuals deserve. See App. A. The Federal government, to its credit, does likewise.

The United States Constitution places few if any limitations on the passage of such sensible measures, be they Federal laws applicable to its employees and its services or equivalent State laws. But it does limit the authority of one sovereign to regulate another sovereign's efforts to advance these vital objectives. No State, for example, may impose a money-damages remedy on the Federal government for its mistreatment of a disabled Federal employee. And that is true even though the employee resides in the State, even though all other disabled residents of the State may invoke its civil-rights laws for their protection, and even though the Federal government does not provide a comparable money-damages remedy. The Federal government does not permit, and to our knowledge never has permitted, a State so to abrogate the United States' immunity from suit. In protecting that policy choice, the Constitution leaves such waivers to the National Government and to it alone. As McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), indicates, even the most muscular view of the Constitution's protection of individual liberties faces structural limitations, whether in the area of age, free exercise, or disability discrimination.
Consistent with a government of "dual sovereigns," Gregory
v. Ashcroft, 501 U.S. 452, 457 (1991), these structural limitations run in the other direction as well. Much as the Supremacy Clause prevents States from providing Federal employees with injunctive or monetary remedies under State law, the Eleventh Amendment limits Congress's authority unilaterally to impose Federal money-damages remedies on State employers. Save when the States have violated the constitutional rights of their citizens in the past or stand prepared to do so in the future, no such remedial authority exists. See City of Boerne v. Flores, 521 U.S. 507 (1997).

This constitutional case thus does not turn on whether two governmental remedies for claims of disability discrimination
one State, one Federal are preferable to one. It instead turns on whether Congress has satisfied the traditional requirements for imposing extra-constitutional obligations on the States. Yet, in enacting Title I and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. ("ADA"), and more specifically in enacting the abrogation provision applicable to each title, see 42 U.S.C. 12202, Congress did not comply with these structural requirements.

Alabama does not make this claim lightly. The ADA advances a commendable objective mandatory accommodation of the disabled and does so at the end of a lawmaking process that is as deserving of respect as each of the State lawmaking processes that it purports to displace. But the ADA's attempted "expansion of Congress's powers" at the expense of a "corresponding diminution of state sovereignty," Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976), would work a reallocation of the Federal-State balance that in the end would pose more threats to the cause of liberty than it would cure.

Nor has the preservation of this Federal-State balance and these dual lines of accountability been without effect.

4 5

"[T]each[ing]" by their "example," Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting), all 50 States have provisions of their own designed to guard against disability discrimination by the sovereign. See App. A. These laws and administrative regulations predate passage of the ADA, far exceed the rational-basis requirements of equal-protection review, see Schweiker v. Wilson, 450 U.S. 221 (1981); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Heller v. Doe, 509 U.S. 312 (1993), all permit monetary relief against the sovereign, and in the end markedly overprotect rather than underprotect the constitutional rights of the disabled. See App. A. As one Federal legislator pointedly acknowledged during debates over the ADA: "This is probably one of the few times where the states are so far out in front of the federal government, it's not funny." Hearing Before the House Subcommittee on Select Education, 101 Cong. 5 (Oct. 6, 1989) (Rep. Moakley).

On this record, the extra-constitutional requirements of the ADA cannot credibly be justified as permissible section 5 legislation. No pattern and practice of State equal-protection violations exist when it comes to alleged employment or public-access discrimination by State governments. Neither does any tenable threat of future unconstitutional discrimination exist, least of all the kind that would justify imposing this type of legislation on every State in the country or would justify doing so into perpetuity. The legislative record also demonstrates nothing to the contrary. Congress did not show, or even try to show, that the States have previously violated the constitutional rights of the disabled. Accordingly, while States remain free to waive their sovereign Immunity from disability-discrimination claims on their own, Congress cannot in this instance abrogate that immunity for them.
A. History of State Disability Laws.

Disability-discrimination laws are a twentieth century innovation, and a State innovation at that. Before the mid-nineteenth century, most Americans treated disabilities at home if they treated them at all Social policies for supporting the disabled varied so greatly from place to place that it would be difficult to speak of any uniform approach. As exemplified by an 1849 Wisconsin law, each community coped as best it could under a general obligation to "relieve and support all poor and Indigent persons, lawfully settled therein, whenever they shall stand in need thereof" Edward Berkowitz, Supporting
Disability: An Historical Perspective, American Rehabilitation, Apr. 1, 1999, at 27.

Prompted in part by the large number of veterans returning home from the Civil War, localized movements aimed at rehabilitating rather than just supporting persons with disabilities emerged in the late nineteenth century. See Gary L. Albrecht, The Disability Business: Rehabilitation in America 97 (1992). Again, however, these efforts most of them privately sponsored involved not the creation of legal rights for the disabled but additional mechanisms for supporting and rehabilitating them. For example: In 1889, the Cleveland Rehabilitation Center "began as a program for crippled children" which "gradually oriented toward the problems of the disabled adult as well," W. Scott Allan, Rehabilitation: A Community Challenge 7 (1958); in 1893, Boston established a vocational school for disabled children; and in 1897 Minnesota became the first State to make provisions for medical care for disabled children, Department of Vocational Teacher Education, University of Arkansas & Arkansas Vocational Rehabilitation Agency, History, Philosophy and Principles of Vocational Rehabilitation 5 (1957). The Curative Workshop of Milwaukee, begun in 1919, was another early venture into the field of rehabilitation. See Allan, supra,

6 7

at 7. By 1920, twelve States had enacted legislation for the vocational training and rehabilitation of disabled citizens. Id.

Not until the 1940s, however, did the first laws designed to guarantee access rights for the disabled come into existence. They were State provisions and were known as "white cane" laws. Authored by Jacobus tenBroek, president of the National Federation of the Blind, see Hearing Before the House Subcommittee on Surface Transportation, 101 Cong. 293 (Sept. 20, 1989) (James Gashel, National Foundation of the Blind), they initially applied just to the visually impaired. To our knowledge, Missouri became the first State to enact such a law in 1941, when it provided that "[a]ny blind person
shall . . . be entitled to any and all accommodations, advantages, facilities and privileges of all public conveyances and all places of public accommodations." 1941 Mo. Laws p. 344 1 (codified at Mo. REV. STAT. 209.150). Other States soon followed suit and eventually extended the provisions to other disabilities as well. The current Arizona law is typical:
"The legally blind, visually impaired, the deaf and auditorially impaired and the physically handicapped have the same rights as all persons to the use of all streets, highways, walkways, common carriers, public lodging places, public eating places, public amusements and other places to which the general public is invited." ARIZ. REV. STAT. 11-1024 (1990 & Supp. 1999). These State laws represented "[plerhaps the first attempts to ensure greater access for disabled people through statutory protections." Richard K. Scotch, From Good Will to Civil
Rights: Transforming Federal Disability Policy 28 (1984). Today, all 50 States have comprehensive measures guaranteeing the disabled access to public services and places. See App A.

States also marked the initial legislative path in enacting laws barring disability discrimination in the workplace. Twenty-five years before passage of the ADA, Wisconsin in 1965 enacted a disability-discrimination law applicable to
public and private employers. See 1965 Wis. Laws ch. 230. Led by Wisconsin's example, other State legislatures soon followed course By 1980, more than 30 States had enacted such measures. And by 1990, when Congress enacted the ADA, 50 States had passed such laws or regulations. See App.
A.

Today, all States still have disability-discrimination provisions applicable to public employment. Now, as then, they continue to bar disability discrimination in a variety of contexts (e.g., hiring, terms of employment, discharge), permit injunctive relief, permit monetary-relief claims against the sovereign, cover virtually all forms of public employment, in some instances authorize punitive damages, and in other instances authorize criminal penalties. See App. A. Not only do these laws forbid the same types of practices as the ADA, but many of them offer more avenues of relief and contain proactive hiring policies designed affirmatively to attract the disabled to public service. Id

B. History of Alabama Disability Laws.

Like its sister States, Alabama has a long history of providing support, rehabilitation and protection for individuals with disabilities. Two years before the Civil War and ten years before ratification of the Fourteenth Amendment, Dr. Joseph Henry Johnson founded the Alabama School for the Deaf in 1858. Robert Hill Couch & Jack Hawkins, Jr., Out of Silence and Darkness: The History of the Alabama Institute for Deaf and Blind 1858-1983 21-32 (1983); see Act of Jan. 27, 1860, No. 253, 1859-60 Ala. Acts 344. Nine years later, the State opened the Alabama Academy for the Blind on the same campus. Id at 44; see Act of Feb. 18, 1867, No. 490, 1866-67 Ala. Acts 550. The Alabama legislature created the Department of Adult Blind and Deaf in 1939. See ALA. CODE 21-1-15. And in 1955, the Alabama Institute for the Deaf and Blind began a program for deaf-blind children, later named the Helen Keller School of Alabama. Couch & Hawkins,

8 9

supra, at 178-79. That same year, the State legislature expanded employment opportunities for the visually impaired by establishing Home Industries for the Blind, ALA. CODE 2 1-2-1 to -4, and passed a law providing for the operation of vending stands by blind persons in all State owned or leased properties. See ALA. CODE 21-1-40 to -41.

Nor have Alabama's efforts been confined to the visually and hearing impaired. Prompted by the return of veterans from World War I, Alabama like much of the Nation launched additional governmental efforts to support rehabilitation and employment of persons with other disabilities in the 1920s. See generally George R. Weir, Government and the
Handicapped: The Alabama Vocational Rehabilitation Program 3-5 (1960) (describing growth of the Alabama vocational rehabilitation program from the 1920s to 1950s). By the late 1 950s, Alabama's vocational rehabilitation program included services for persons with physical disabilities, mental disabilities, and severe disabilities, as well as the deaf and blind. Id at 10-14.

In addition to these efforts, Alabama launched several other initiatives in the 1960s. It enacted legislation giving persons with disabilities preferential treatment in hiring for State employment under the State Merit System. Act of Sept. 30, 1965, No. 119, 1965 Ala. Acts, 2d Ex. Sess. 166 (codified at ALA. CODE 36-26-16 (1975)). Three years prior to the federal Architectural Barriers Act of 1968, it enacted legislation making all public buildings and facilities accessible to disabled persons. Act of Aug. 9, 1965, No. 224, 1965 Ala. Acts 315 (codified as amended at ALA. CODE 2 1-4-1 to -7 (1975)). And in 1965, it created the Governor's Committee on Employment of the Handicapped "to promote the employment of the physically, mentally, emotionally, and otherwise handicapped citizens of Alabama." Act of Aug. 10, 1965, No. 226, 1, 1965 Ala. Acts 323, 323 (codified at ALA. CODE
21-5-1 (1975)); see generally ALA. CODE 21-5-1 to -10 (1975).

In 1975, after an assassination attempt left Alabama's Governor paralyzed from the waist down, the State enacted other measures codifying the rights of disabled persons. "It is the policy of this State," one such measure said, "to encourage and enable the blind, the visually handicapped and the otherwise physically disabled to participate fully in the social and economic life of the State and to engage in remunerative employment." Act of Oct. 7, 1975, No. 869, 1, 1975 Ala. Acts 1711, 1711 (codified at ALA. CODE 21-7-1); see generally ALA. CODE 21-7-1 to 21-7-10 (1975). The legislation gave disabled persons additional guarantees of access to public buildings, facilities and property, ALA. CODE 21-7-2, and declared that persons with disabilities were "entitled to full and equal accommodations, advantages, facilities and privileges of all common carriers" and in all "places of public accommodation." ALA. CODE 2 1-7-3. At the same time, the legislation reinvigorated the State's commitment to employing persons with disabilities in the civil service, ensuring that they

shall be employed in the state service, the service of the political subdivisions of the state, in the public schools and in all other employment supported in whole or in part by public funds on the same terms and conditions as the able-bodied, unless it is shown that the particular disability prevents the performance of the work involved.

ALA. CODE 21-7-8. Finally, the legislation made denial of or interference with the rights of disabled persons a criminal misdemeanor. ALA. CODE 21-7-5.

Today, Alabama residents with disabilities continue to be given preferential treatment in hiring for State employment. ALA. CODE 2 1-7-8, 36-26-16. And while the focus of the State's employment laws centers on giving individuals the right

10 11

to seek a job, not the right to file a lawsuit, the State also provides equitable and monetary remedies to disabled persons who experience employment discrimination by State governmental agencies. Ala. Admin. Code r. 670-x-4-.01, .03 (1981). A more complete summary of the programs Alabama provides for its disabled residents, including those provided by the University of Alabama, is produced at Appendix B.

C. History of the ADA.

The States have not been alone in addressing these issues. To the National Government's credit, many Federal laws provide support and rehabilitation for disabled individuals, many others create civil rights for the disabled, and still others provide extensive funding for national and local efforts designed to remove barriers to full participation by the disabled in a diverse array of public and private services. See App. C.

The first Federal anti-discrimination law regarding the issues presented in this case employment and access to public services dates from 1973. In that year, Congress enacted section 504 of the Rehabilitation Act, which prohibited State recipients of Federal funding from discriminating on the basis of disability with respect to employment and access to governmental services. See 29 U.S.C. 794. This Spending Clause legislation, however, did not apply generally to private entities, did not apply to Congress, did not apply to Federal agencies (until 1978), and did not apply to State entities who had not received Federal funding.

In 1990, Congress took a different tack. In enacting the Americans with Disabilities Act, it extended the requirements of the Rehabilitation Act, among others, to private employers and to all States without regard to whether they had received Federal funding. The Act contains a series of legislative findings, then sets forth prohibitions against discrimination in employment (Title I), public services (Title II), and public accommodations (Title III).
Findings and Purpose. At no point do the statutory findings or purpose indicate that the Act is designed to remediate or deter constitutional violations. While the Act invokes Congress's section 5 and Commerce Clause powers, 42 U.S.C. 12101 (b)(4), the findings do not identify any pattern and practice of State violations of the Equal Protection Clause or for that matter even a single State violation of this or any other constitutional guarantee. The statute itself acknowledges that its purpose is to "enforc[e] the standards established in this chapter," as opposed to the standards established by the Fourteenth Amendment. 42 U.S.C. 12101(b)(3).

The findings provide that "individuals with disabilities are a discrete and insular minority who have been.., relegated to a position of political powerlessness in our society." 42 U.S.C. 12101(a)(7). They analogize disability with age, noting that some 43 million Americans "have one or more physical or mental disabilities," the number of which "is increasing as the population as a whole is growing older." Id at (a)(1). They provide that the disabled have long been subjected to "discrimination" but do not claim that this differential treatment stems from State action, let alone unconstitutional State action. Id. at (a)(2-5). They describe several societal problems suffered by the disabled: (1) that "historically, society has tended to isolate and segregate individuals with disabilities," and, "despite some improvements, such forms of disc~nation... continue to be a serious and pervasive social problem," id at (a)(2); (2) that "census data, national polls, and other studies have documented that people with disabilities
are severely disadvantaged socially, vocationally, economically, and educationally," id at (a)(6), and (3) that "unfair and unnecessary discrimination . . . costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity," id at (a)(9). The findings also identify several aspirational goals regarding treatment of the disabled among them "to assure equality of opportunity, full participation, independent living, and economic self-

12 13

sufficiency," id at (a)(8), and to provide "legal recourse" that the disabled often have not had, id at (a)(4).

Employment. Title I of the ADA addresses employment. It prohibits any "covered entity," which is defined to include States, 42 U.S.C. 12111(2), (5)(A), & (7) (incorporating 42 U.S.C. 2000e), from "discriminat[ing] against a qualified individual with a disability" with respect to hiring, advancement, discharge, compensation or other terms of employment. 42 U.S.C. 12112(a). The Act defines "qualified individual with a disability" based on the ability to perform "the essential functions" of the job. 42 U.S.C. 12111(8). Among other prohibitions, the general rule against discrimination "includes":

(1) "not making reasonable accommodations to the known physical or mental limitations" of an individual that would impose no 'undue hardship," 42 U.S.C. 121 12(b)(5)(A);

(2) "utilizing standards, criteria, or methods of administration.., that have the effect of discrimination on the basis of disability," id at (b)(3);

(3) "denying equal jobs or benefits" because of the disability of someone with whom the employee or applicant has a relationship or association, id at (b)(4);

(4) "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out" Individuals with disabilities, unless the test is 'lob-related" and "consistent with business necessity," id at (b)(6); and

(5) "failing to select and administer tests concerning employment in the most effective manner to ensure that" they reflect the skills of the applicant rather than "reflecting impaired sensory, manual, or speaking skills," id at (b)(7).

The Act also indicates that prohibited discrimination "shall include medical examinations and inquiries." 42 U.S.C. 121 12(d)(1). In a pre-employment setting, such
examinations are permitted only "after an offer of employment." Id. at (d)(3). Once the individual becomes an employee, such examinations may not be required unless they are "shown to be job-related and consistent with business necessity." Id at (d)(4)(A).

Each of these requirements are subject to the "enforcement" provisions of Title I. Under that section, a claimant may seek relief against his or her employer under the "powers, remedies, and procedures" of Title VII, which includes authority to seek money damages. See 42 U.S.C. 12117(a), 2000e-5. In enacting this provision, Congress purported to abrogate the States' immunity from suit. 42 U.S.C. 12202.

Access To Public Services. Title II of the ADA applies to "public services" furnished by governmental entities and is divided into two parts. Part A contains a general accommodation provision applicable to any "public entity," which is defined to cover "any State or local government." 42
U.S.C. 1213 1(1)(A). The core term "qualified individual with a disability" is defined to include individuals

who, ~th... reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. 1213 1(2) The accommodation rule then provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132. Any violation of the provision is subject to the "enforcement" requirements of Title II, which incorporates the "remedies, procedures, and rights" applicable

14 15

to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794a, including money damages. 42 U.S.C. 12133. Congress again purported to abrogate the States' immunity from suit in enacting this provision. See 42 U.S.C. 12202.

Part B of Title II contains extensive provisions regulating public transportation services. These include requirements regarding handicap access to public buses and passenger trains.
42 U S.C 12141-12165.

Title Ill essentially repeats many of the accommodation and access requirements of Title II, but it applies only to private entities. In contrast to Title II, however, the enforcement provision permits only injunctive, not money-damages, relief unless the United States (as opposed to a private litigant) brings the action. See 42 U.S.C. 12 188(a), (b).

In 1990, as today, neither Title I nor Title II applies generally to the Federal government. While the Congressional Accountability Act of 1995 extends the provisions of the ADA to both houses of Congress, the ADA still does not apply to the executive-branch agencies of the United States. After the 1978 amendments to the Rehabilitation Act of 1973, to be sure, section 501 of that Act (concerning employment, like Title I of the ADA) and section 504 of that Act (concerning public access, like Title II of the ADA) apply to Federal agencies. Yet the United States permits money-damages actions against Federal agencies only in the context of section 501/employment claims, though not generally in the context of section 504/public-access claims. See Lane v. Pena, 518 U.S. 187 (1996). In contrast, the ADA permits money-damages relief against the States under both Title I and Title II and purports expressly to abrogate the States' immunity from suit in doing so. See 42 U.S.C. 12202. It is this attempted abrogation that became the prologue to this dispute.
D. Factual Background

Two claimants filed these actions, one against the Alabama Department of Youth Services, the other against the University of Alabama. In both instances, claimants sought money-damages relief against their State employers and in both instances did so in Federal court.

a. Ash v. Alabama I.Jepartment of Youth Services. In 1997, Milton Ash filed this action in the Northern District of Alabama, Southern Division, against his employer, the Alabama Department of Youth Services. In doing so, he sought relief for alleged discrimination under Titles I and II of the ADA along with section 504 of the Rehabilitation Act of 1973. According to the complaint, his alleged disability consists of "severe chronic asthma, sleep apnea, obstructive pulmonary disease and diabetes," all of which "limit his ability to . . sleep, breathe, care for himself and work." Joint Appendix ("J.A.") 6.

Mr. Ash began working for the Department in 1993 as a security officer, at which point he allegedly told his employer that he should not be exposed to carbon monoxide or cigarette smoke. J.A. 7. In his view, he was initially discriminated against because his job required him to drive cars that emitted carbon monoxide into the passenger compartment and because the Department did not enforce its no-smoking policy. Id Then, after he complained about these problems, he alleges that the Department retaliated against him specifically, by just giving him "meets standards" evaluations rather than the "exceeds standards" evaluations to which he had become accustomed and by declining a request to work the day shift to accommodate his sleep apnea. Id. at 8-9. Mr. Ash sought "compensatory and punitive damages" for this alleged discrimination, id at 11, after which the State filed a motion to dismiss on sovereign immunity grounds.

16 17

b. Garrett v. The University of Alabama. On January 14, 1997, Patricia Garrett filed this action against her employer, the Board of Trustees of the University of Alabama ("UAB"), in the Northern District of Alabama, Southern Division. She likewise brought the action under Title I and Title II of the ADA and section 504 of the Rehabilitation Act, and also sought relief under the Family Medical Leave Act ("FMLA"). Id at 21.

Ms. Garrett began working at the University of Alabama Hospital, located on the campus of the University of Alabama at Birmingham, in 1977. She started her employment there as a registered nurse and along the way received several administrative promotions. In September 1994, she was diagnosed with breast cancer after which she underwent a lumpectomy followed by radiation and chemotherapy. Id at
39. According to the complaint, this condition "substantially limits her ability to. . . sleep, care for herself and work." Id. at
38. When she began undergoing chemotherapy in January
1995, she took intermittent leave under the FMLA and from March 1995 to July 1995 she eventually took full leave under the law. Id. at 39-40. Upon her return from family medical leave, Ms. Garrett alleges that the hospital transferred her to a new position with a decrease in salary, then claims that the transfer amounted to discrimination on the basis of disability and a failure to accommodate her disability. Id at 41-42. Ms. Garrett also seeks "compensatory and punitive damages," id at 43. UAB also filed a motion to dismiss on sovereign immunity grounds.

c. District Court. Presented with two cases involving money-damages claims against "instrumentalities of the State of Alabama," the district court issued a single opinion addressing each action. Garrett v. Board of Trustees of the University of Alabama, 989 F. Supp. 1409 (ND. Ala. 1998). In the court's view, the ADA exceeded Congress's enforcement power under section 5 of the Fourteenth
Amendment because it compelled States to provide equal treatment "by guaranteeing special treatment or 'accommodation' for disabled persons." Id. at 1410. As a matter of law, it accordingly dismissed each of the ADA claims in their entirety, and ultimately did the same with respect to the Rehabilitation Act and FMLA claims.

d. Eleventh Circuit. After consolidating the two cases, the court of appeals reversed. "[B]ound" by its prior decision in Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998), which addressed the constitutionality of the ADA and the Age Discrimination in Employment Act, the court concluded that the ADA constituted legitimate section 5 legislation.

SUMMARY OF ARGUMENT

Title I and Title II of the ADA cannot be sustained as permissible exercises of Congress's unconditional power to supply a remedy for Fourteenth Amendment violations or of its conditional power to prohibit what the Constitution does not.

1. In purporting to address unconstitutional State discrimination against the disabled, the ADA does not proscribe what the Equal Protection Clause proscribes. Equal protection review of classifications based on disability, like those based on age, requires only that the law "be rationally related to a legitimate governmental purpose." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446 (1985);Kimelv. FloridaBd of Regents, 120 S. Ct. 631, 645 (2000). The ADA, in contrast, imposes disparate-impact and mandatory-accommodation rules that have no pedigree in any constitutional setting, whether the claim involves denial of equal protection based on race, religion, age or disability. While judicial second-guessing of a State's policy choices is virtually non-existent under rational-basis review, the ADA also requires courts to scrutinize all such decisions affecting the disabled and imposes the burden of persuasion on the States in

18 19

doing so. What the ADEA did for the elderly, the ADA ultimately attempts to do for the disabled, if not more. At a minimum, it "has effectively elevated the standard for analyzing [disability] discrimination to heightened scrutiny." Kimel, 120
S. Ct. at 648. Neither Title I nor Title II of the ADA accordingly can be sustained on core section 5 grounds that they supply a remedy for constitutional violations.

2. The ADA also cannot be sustained as a permissible exercise of Congress's prophylactic authority to ban what the Constitution does not.

a. The law, to begin with, lacks the necessary predicate of a "widespread pattern" of unconstitutional conduct for Invoking this unique authority. Kimel, 120 5. Ct. at 649 (citing Florida PrepaidPostsecondary Educ. Expense Bd v. College Savings Bank, 527 U.S. 627, 641 (1999) (quotation omitted)). In passing the ADA, Congress did not identify any pattern or practice of unconstitutional State action, or for that matter even a single instance of such conduct. Add to this the fact that all 50 States currently ban public-access and employment discrimination against the disabled, and it becomes clear that "Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of [disability]" or doing so with respect to public-access accommodations. Kimel, 120 5. Ct. at 636.

b. The ADA also independently fails the Court's proportionality requirement. Above all, it is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 521 U.S. at 532. Start with the manifest differences between judicial review of an ADA claim and review of an equal-protection claim: (1) The ADA requires individualized case-by-case determinations as to whether a disabled employee is qualified for the job, 29
C.F.R. 1630.9, 42 U.S.C. 12112(b)(5)(A), 12131(2), 28
C.F.R. 35. 130(b)(7), not "generalization[s]" based on physical and mental capacity, Heller, 509 U.S. at 312; (2) the ADA places the burden of proof on States to justify their conduct, 42 U.S.C. 121 12(b)(5)(A), (b)(6), not the claimant, Heller, 509 U.S. at 319; (3) the ADA prohibits any rule or practice that has a disparate impact unless the State can prove that it is 'job-related" or "consistent with business necessity," 42 U.S.C. 121 12(b)(6), while the Constitution permits rules that "in practice. . . result[] in some inequality," Heller, 509 U.S. at 320-21, and does so even in the area of race and gender discrimination, Personnel Adm 'r v. Feeney, 442 U.S. 256 (1979); Washington v. Davis, 426 U.S. 229 (1976); (4) the ADA compels States to provide "reasonable accommodations" for disabled employees unless it "impose[s] an undue hardship," 42 U.S.C. 121 12(b)(5)(A), while the Constitution permits employment decisions based on disability so long as they are rationally based, City of Cleburne, 473 U.S. at 444; and (5) the ADA compels the State to make "reasonable modifications" in its public services to accommodate the disabled unless they would "fundamentally alter" the nature of the program, 42 U.S.C. 1213 1(2), 12132; 28 C.F.R. 35.130(b)(7), while the Constitution contains no such requirement, City of Cleburne, 473 U.S. at
444. Far from being calibrated to correct rational-basis violations, the ADA borrows from and even extends the constitutional framework associated with discrimination claims based on race, gender or religion. As in Kimel, the law represents an impermissibly disproportionate exercise of section 5 authority.

c. Nor has the Court ever upheld a prophylactic exercise of section 5 power in the setting of non-suspect classifications. Still less has it done so in the context of a congressional record revealing no State equal-protection violations plus the existence of 50 State anti-discrimination provisions, all of them pre-dating the ADA's application to the States. Under these circumstances, the ADA has no more connection to correcting

20 21

Fourteenth Amendment violations than the Age Discrimination in Employment Act in Kimel, the RFRA in City of Boerne, the Lan ham Act in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), the Patent Remedy Act in Florida Prepaid, or the voting-rights provisions in Oregon v. Mitchell, 400 U.S. 112 (1970).

A contrary view not only would abandon precedent but also would have no fathomable stopping point. Only a most unimaginative legislature would be unable to use this theory to nationalize all manner of equal protection, procedural due process, substantive due process, or incorporated Bill of Rights' standards. And any law that is itself rational could fairly be said to curb the risk of irrational State lawmaking in the area. No doubt the Federal government may lead by example in regulating the rights of its own employees, or even more so, by waiving its immunity from State-law anti-discrimination actions filed in State court. But it is not the case that self-restraint remains the only restriction that the Constitution's "limited and enumerated powers" (New York v. United States, 505 U.S. 144, 156 (1992)) place on Congress's efforts to exercise such broad lawmaking authority over the States.

ARGUMENT

Three lines of constitutional precedent frame this dispute and go a long way to resolving it. The first is that Congress may not use its Commerce Clause powers to abrogate a State's immunity from suit; only a permissible exercise of Congress's enforcement authority under the Fourteenth Amendment may do so. See Seminole Tribe v. Florida, 517 U.S. 44 (1996). The second is that section 5 allows Congress only to remediate or deter constitutional violations; it does not authorize the legislative branch to redefine the right or what comes to the same thing stack one protective rule upon another in a way that lacks any congruence or proportionality to the underlying
constitutional guarantee. See City of Boerne v. Flores, 521 U.S. 507 (1997). The third is that classifications regarding the disabled, like classifications regarding the aged, receive rational-basis review, not heightened scrutiny such as legislative distinctions affecting race or gender. See Heller v. Doe, 509 U.S. 312 (1993); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).

At no point in this case have plaintiffs or the Federal government challenged any of these underlying tenets. Nor, unlike the lower-court proceedings in this case regarding the validity of section 504 of the Rehabilitation Act, do they rely on the Spending Clause to sustain the ADA.

Alabama likewise has not challenged Congress's authority under the Commerce Clause to regulate State employees through the ADA. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Nor has it challenged an individual's authority to bring an injunction action against State officials in Federal court, see Exparte Young, 209 U.S. 123 (1908), or the Federal government's authority to bring a claim for injunctive and monetary relief against States in Federal court, see Employees of the Dep 't of Pub. Health and Welfare v. Missouri Pub. Health Dep 't, 411 U.S. 279, 286 (1973).

In resolving a similar dispute last Term, see Kimel v. Florida Bd of Regents, 120 5. Ct. 631(2000), the Court applied a virtually identical framework. There, as here, the underlying constitutional claim received rational-basis review. There, as here, Congress failed to establish any record of constitutional violations by State governments. And there, as here, all 50 States had laws and regulations of their own designed to root out precisely such forms of discrimination. Under these circumstances, Kimel declined to allow Congress to use its section 5 authority to convert presumptively constitutional classifications based on age into presumptively invalid classifications under the Age Discrimination in Employment

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Act. A similar conclusion applies to Title I and Title II of the
ADA.

I. THE SECTION 5 POWER IS REMEDIAL IN
NATURE AND MUST BE EXERCISED
CONGRUENT WITH AND PROPORTIONAL TO
CONSTITUTIONAL WRONGS.

"Section 1 . . . No State shall. . . deny to any person within its jurisdiction the equal protection of the laws."

U.S. Const. amend. XIV, 1.

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

U.S. Const. amend. XIV, 5.

By its terms, section 5 combines a broad power (to pass ''appropriate legislation'') with a broad limitation on that power (to do so only when "enforc[ing] . . . the provisions of this article"). "[T]he same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power." Kimel, 120 5. Ct. at 644. Consistent with the "design of the Amendment and the text of 5," the Court has made clear that the enforcement power is a "remedial" one. City of Boerne, 521 U.S. at 519.

In accordance with the remedial nature of section 5, judicial review of enforcement legislation "must first identify the Fourteenth Amendment 'evil' or 'wrong' that Congress intended to remedy." Florida Prepaid, 527 U.S. at 639 (citing City of Boerne, 521 U.S. at 525); see Fitzpatrick v. Bitzer, 427 U.S. 445, 453 (1976) (section 5 "stand[s] behind," not in front of, the "imperatives" of section 1). The Court then asks whether the legislation merely bans violations of the Fourteenth Amendment as the Court has defined them, or exceeds those requirements in order correctively to "remedy" past violations or "prevent" future ones.
Congress has "much deference" (City of Boerne, 521 U.S. at 536) in the first respect. When passing laws that remedy ongoing State action that itself violates the Fourteenth Amendment, Congress poses no threat to the national separation of powers and specifically "the province of the Judicial Branch. . . to say what the law is," id at 536 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Nor, so long as there is some "proportionality" between the underlying violation and the law's remedy, does such legislation threaten the Federal separation of powers by "contradict[ing] vital principles necessary to maintain" the "balance" between the States and the National Government. Id Accordingly, whether exercising its right to prohibit State action that violates the Fourteenth Amendment , see, e.g., Ex parte Virginia, 100 U.S. 339 (1879), to establish a cause of action for violations of the Amendment, see 42 U.S.C. 1983, or to provide a forum for constitutional claims, see Strauder v. West Virginia, 100 U.S. 303 (1879), Congress has broad power to legislate in this regard.

Section 5 legislation that prohibits what the Constitution does not, however, is another matter. Such laws invariably present the twin risks of parliamentarian supremacy, in which the legislature assumes plenary authority to define the outer limits of its own power and plenary authority to bend State sovereign functions to its will. "[L]imitations" on the exercise of such potential power "are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government." United States v. Morrison, 120 5. Ct. 1740, 1755 (2000). Before upholding such legislation, the Court thus imposes at least two requirements: (1) a predicate "pattern or practice of unconstitutional conduct," City of Boerne, 521 U.S. at 534;Flori da Prepaid, 527 U.S. at 639-41; Kimel, 120 5. Ct. at 648-49; and (2) a "congruence and proportionality between the injury to be prevented or remedied

24 25

and the means adopted to that end," City of Boerne, 521 U.S. at 520; Kimel, 120 5. Ct. at 644.

II. THE ADA CANNOT BE SUSTAINED AS
TRADITIONAL ENFORCEMENT LEGISLATION
THAT PROHIBITS CONSTITUTIONAL
VIOLATIONS.

A. Alleged Discrimination Against The Disabled Receives Rational-Basis Review.

The Court has applied traditional rational-basis review in at least three equal-protection cases involving the disabled. See Heller, 509 U.S. at 321. The first of these cases involved an allegation that the Federal government had discriminated against the disabled in the provision of Medicaid benefits. At issue in Schweiker v. Wilson, 450 U.S. 221 (1981), was whether the United States had denied equal protection by giving supplemental social security benefits to individuals in public mental institutions funded under Medicaid while denying benefits to those situated in hospitals that were not Medicaid funded. Claimants argued that the disability classifications triggered heightened scrutiny, and that the law at any rate failed the more modest requirements of rational-basis review. Unconvinced that the Federal law ultimately "classiflied] directly on the basis of mental health," id at 231, the Court did not "reach" the claim that "heightened" review applied, and accordingly it applied rational-basis scrutiny, id at 230-31.

In doing so, the Court pointed out that the standard did "not allow" it "to substitute . . . personal notions of good public policy for those of Congress." Id at 234. So long as the law advances a rational public objective, the Court would "disregard the existence of other methods of allocation that we, as individuals, perhaps would have preferred." Id at 235. The Court ultimately found the legislative scheme rationally justified by Federal "budgetary constraints" and the view "that
Congress should have discretion in deciding how to expend necessarily limited resources." Id at 238-39.

The next case came four years later this time involving a city. In City of Cleburne, 473 U.S. 432, the issue was whether a municipality had violated equal protection by denying a zoning permit requested by a group home for mentally disabled individuals. Claimants again sought heightened review of their claim.

At the outset the Court described the differences between rational-basis review and heightened scrutiny. "The general rule," the Court began, "is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Id at 440. "When social or economic legislation is at issue," the Court continued, "the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." Id (citations omitted).

In contrast, race and gender receive "heightened" scrutiny because they "are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy" and rarely provide a "sensible ground for differential treatment." Id. Laws, for example, "distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women." Id at 441. In contrast, the Court noted, it had "declined ... to extend heightened review to differential treatment based on age" in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). 473 U.S. at 441. "The lesson of Murgia," the Court continued, "is that where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the

26 27

separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued." Id at 441-42. "In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end." Id at 442.

Against this backdrop, the Court concluded that disability did not "call[] for a more exacting standard of judicial review than is normally accorded economic and social legislation." Id at 442. First, the Court reasoned that "those who are mentally retarded have a reduced ability to cope with and function in the everyday world'' and are not ''all cut from the same pattern,~~ "rang[ing] from those whose disability is not immediately evident to those who must be constantly cared for. They are thus different, immutably so, in relevant respects, and the States' interest in dealing with and providing for them is plainly a legitimate one." Id at 442. Second, the State and National legislative "response ... to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary." Id at 443. After cataloguing the broad number of State and Federal laws "singling out the retarded for special treatment," the Court observed: "[t]hat a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable." 473 U.S. at 444.

Third, this national set of legislative initiatives, "which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers." Id at 445. Finally, the Court reasoned that if the "large and amorphous class of the mentally retarded" were treated as "quasi-suspect," "it would
be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others" including "the aging, the disabled, the mentally ill, and the infirm." Id at 445-46. In the end, as with classifications based on age, the Court indicated that "we will not presume that any given legislative action, even one that disadvantages retarded individuals, is rooted in considerations that the Constitution will not tolerate." Id at 446.

In applying this standard, however, the Court held that each of the conceivable justifications offered by the city for denying the proposed zoning permit "rest[ed] on an irrational prejudice against the mentally retarded." Id at 450. Accordingly, the Court invalidated the city's application of its zoning requirement.

Eight years later, Heller v. Doe, 509 U.S. 312 (1993), adhered to this same framework in addressing a challenge to the different procedures that Kentucky used for involuntary civil commitment proceedings for those alleged to be mentally retarded and for those alleged to be mentally ill. As to the former, the burden of proof for involuntary commitment was clear and convincing evidence, while for the latter it was proof beyond a reasonable doubt. In addressing claimants' arguments that these distinctions violated equal protection, the Court initially rejected their efforts to apply heightened scrutiny. Although claimants had prevailed below and thus attempted to present an alternative ground for affirmance, the Court held the argument was "not properly presented" and proceeded to decide the "case as it has been presented" to the lower courts. Id at 319.

In applying rational-basis review, Heller reaffirmed the difficulty of invalidating legislation on this ground. The law in such cases is not only accorded "a strong presumption of validity," id., but the attacking party must "negative every conceivable basis which might support it," and the courts must "accept a legislature's generalizations even when there is an

28 29

imperfect fit between means and ends," id at 320-21 (quotation omitted). Such "' [a] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data."' Id at 320 (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993)). Accordingly, even though the classification "in practice.. . results in some inequality," it will be upheld in view of the fact that "[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations." Id. at 321 (quotations omitted).

Other decisions in other settings confirm that rational-basis review remains "a paradigm of judicial restraint," and, where applicable, makes State and Federal action "virtually unreviewable" under the Constitution. Beach Communications, 508 U.S. at 314, 316. Neither must the government "actually articulate at any time the purpose or rationale supporting its classification," Nordlinger v. Hahn, 505 U.S. 1, 15 (1992), as long as there is "any reasonably conceivable state of facts that could provide a rational basis for the classification," Beach Communications, 508 U.S. at 313. These decisions demonstrate that government rarely violates the Constitution by treating individuals differently on the basis of disability. If employment decisions subject to rational basis review need only be justified by some rational justification after the fact, see, e.g., id. at 3 13-15; Nordlinger, 505 U.S. at 16-18, and if"govemment[] consideration[s]" of disability "in the vast majority of situations is not only legitimate but also desirable," City of Cleburne, 473 U.S. at 444, then it is the rare classification based on disability that would rise to the level of a constitutional violation.
B. Judicial Review Under The ADA Is Far More Rigorous Than It Is Under The Equal Protection Clause.

By any measure, it cannot tenably be argued that the ADA and the Equal Protection Clause apply the same level of scrutiny to alleged discrimination against the disabled. According to the Court, legislative decisions in this area receive rational-basis review, and will not be invalidated unless they are "palpably arbitrary" and no conceivable set of facts supports them. Nordlinger, 505 U.S. at 18. Yet, according to Congress's purported efforts to enforce that provision, the ADA provides that unlawful "discrimination" includes (1) refusing to make all "reasonable accommodations" for the disabled that fall short of an "undue hardship," 42 U.S.C. 121 12(b)(5)(A), (2) using employment standards "that have the effect of discrimination," 42 U.S.C. 12112(b)(3)(A), and (3) refusing to make "reasonable modifications" in its public services to accommodate the disabled unless they would "fundamentally alter" the nature of the program, 42 U.S.C. 1213 1(2), 12132; 28 C.F.R. 35.130(b)(7).

These disparate-effect and reasonable-accommodation requirements far exceed the minimal strictures of rational-basis review. To illustrate, look no further than the facts of these two cases. In his complaint, Mr. Ash acknowledges that his alleged disabilities "limit his ability to.. . work," JA. 6, while Ms. Garrett likewise admits that her cancer "limits her ability to. . . work," J.A. 22. On these facts, a motion to dismiss an equal protection claim would be compelled. However difficult the factfinding and policy implications of an employment decision in this area, it is not difficult to conclude that an employer acts rationally and therefore constitutionally by refusing to promote or hire individuals on the ground that they have a medical condition that "limits" their ability "to work." Yet it is precisely the objective of the ADA to regulate such employment decisions, to make them presumptively

30 31

impermissible, and to allow them only when they can be justified by "necessity." In this respect, the ADA not only goes further than rational-basis review but also exceeds even the requirements of the Age Discrimination in Employment Act, which does not by its terms contain a disparate-effects test and which the Court has already found "is inconsistent with" and "significantly different" from "rational basis" review. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 421-22 (1985); Kimel, 120 5. Ct. at 647.

The ADA thus cannot be justified on the ground that it asks the States merely to do what the Equal Protection Clause already requires. Far from applying the same standards of care, the two mandates are worlds apart in their substantive rules, allocation of the burden of proof, system of adjudication and ultimate application. To respect the one standard of review invariably slights the other. As in Kimel, "[t]he Act, through its broad restriction on the use of [disability] as a discriminating factor, prohibits substantially more state employment [and public-access] decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard." Id. at 635.

IH. THE ADA IS NOT "PROPER PROPHYLACTIC" LEGISLATION.

A. The ADA Does Not Respond To A "Predicate" Pattern Of Unconstitutional State Action.

"[P]roper prophylactic section 5 legislation" must fairly anticipate or "respond to a history of 'widespread and persisting deprivation of constitutional rights."' Florida Prepaid, 522 U.S. at 645 (quoting City of Boerne, 521 U.S. at 526). See Kimel, 120 5. Ct. at 649 ("it is sufficient for these cases to note that Congress failed to identify a widespread pattern of age discrimination by the States"). The ADA, however, does no such thing. Whether one considers prior
equal protection violations or potential future ones, the congressional record is conspicuously silent in either direction.

Congress did not identify a pattern of prior State constitutional violations. A brief review of the text and legislative record of the ADA confirms that it does not even pretend to "respond" to State action, to say nothing of unconstitutional State action, but instead turns entirely on Article I policy concerns. One searches in vain for the "predicate unconstitutional conduct that Congress intended to remedy" by extending the ADA to the States in 1990. Florida Prepaid, 527 U.S. at 647.

The text of the ADA, to begin with, makes no mention of any pattern of State violations of the equal-protection rights of the disabled. Not one instance of such conduct is identified, whether in the findings and purpose section of the law or in any other Title of the Act.

The legislative record is no different. Far from reflecting State insensitivity to the equal-protection rights of their citizens, the legislative record of the ADA "acknowledg[es] that 'states are willing and able to respect [the employment and public-access] rights"' of the disabled. Florida Prepaid, 527 U.S. at 640. At several instances during the hearings on the ADA, national legislators complimented State efforts in this area:
* "All but one State I believe now, at the most recent
count, has some kind of disability rights protection."
Hearing Before the House Subcommittee on
Employment Opportunities, 100 Cong. 86 (June 17,
1987) (Barbara Hoftinan, Esq., Coalition for Cancer
Survivorship).

* "Forty-five States have very similar laws as the one we
are trying to put on the books here in the Federal Government." Id. at 5 (Rep. Moakley).

32 33

* Stating that 35 States already have legislation

prohibiting discrimination and promoting accessibility.
Hearing Before the House Subcommittee on Select
Education, 101 Cong. 8 (Aug. 28, 1989) (Rep.
Bartlett).
* "[T]he fact is that many States already provide this protection. This bill enables the whole country to be governed under the same conditions as those States that have had the foresight to pass such legislation." Hearing Before the House Subcommittees on Employment Opportunities and Select Education, 101 Cong. 1 (Sept. 13, 1989) (Rep. Martinez).
* "Virtually all States prohibit unfair discrimination among persons of the same class and equal expectation of life. The ADA adopts this prohibition of discrimination." S. Rep. No. 101-116, at 84 (1989).
* "All states currently mandate accessibility in newly constructed state-owned public buildings.. . ." Id at
92.
* "Federal action in this area should likewise recognize that States can act, and most have already acted, to protect the rights of persons with disabilities in ways tailored to each State's particular circumstances." Hearing Before the Senate Subcommittee on the Handicapped, 101 Cong. 196 (June 22, 1989) (Attorney General Richard Thornburgh).
* "A large majority of the states (45) prohibit this type of discrimination." Hearing Before the House Subcommittee on Employment Opportunities, 101 Cong. 16 (June 17, 1987) (Congressional Research Service Survey) (also noting that just six States do not have a general prohibition against discrimination, but that five of those States have a policy of employing
handicapped persons in State service) (including table of State statutes).
* "Every state has a law that, to some extent, regulates employment decisions based on disability." Hearing Before the Senate Subcommittee on the Handicapped, 101 Cong. 386 (May 9, 1989) (National Coalition of Cancer Survivorship).

In addition to recognizing the innumerable State laws designed to accommodate and protect the disabled, other legislators observed that the States had been leaders rather than recalcitrant followers in this area. As Representative Mario Biaggi testified: "It is a sad commentary on the Congress of the United States when you see so many states in the vanguard, who long since have established more humane policy in this area." Hearing Before the House Subcommittee on Employment Opportunities, 101 Cong. 7 (June 17, 1989). And Representative John Moakley echoed the point: "This is probably one of the few times where the States are so far out in front of the Federal Government, it's not funny." Id. at 5. Still others suggested that the ADA was modeled after State anti-discrimination laws. See 136 Cong. Rec. H2614 (daily ed. May 22, 1990) (Rep. Berman) ("States like California, Pennsylvania, New York, North Carolina, Massachusetts, Connecticut, Iowa, illinois, and others have offered models on which many aspects of the ADA are based").

Why, then, did Congress extend the ADA to the States as opposed merely to making it applicable to private employers? To the extent Congress gave any explanation for the decision, it did not relate to remediating Fourteenth Amendment violations. One legislative concern was ensuring that public sector employees obtained the same protections that private sector employees receive. See 135 Cong. Rec. S4993 (daily ed. May 9, 1989) ("The Americans With Disabilities Act applies to both the public sector and the private sector. It prohibits discrimination on the basis of disability in

34 35

employment, public accommodations, transportation, and communications. Its goal is nothing less than to give every disabled American a fair share of the American dream.") (Sen. Kennedy); Hearing Before the House Subcommittee on Surface Transportation, 101 Cong. 304 (Sept. 26, 1989) (Rep. Rahall). Yet, as the Court has held, an effort to level the regulatory requirements applicable to public and private employers represents a Commerce Clause, not a Fourteenth Amendment, concern. See Florida Prepaid, 527 U.S. at 645-48 (goal of "plac[ing] States on the same footing as private parties is a proper Article I," not section 5, "concernE]").

Another concern was addressing a history of societal discrimination against the disabled. In its statement of legislative findings, Congress found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination
continue to be a serious and pervasive social problem." 42 U.S.C. 12101(a)(2). The legislative history conveys similar concerns. See, e.g., Hearing Before the House Subcommittee on Civil and Constitutional Rights, 101 Cong. 418-19 (Oct. 12, 1989) (James Ellis, American Association on Mental Retardation). But a finding of "discrimination in the private sector is beside the point," Kimel makes clear, because it does not show unconstitutional "discrimination by the States." 120 S. Ct. at 649 (citation omitted); see also Morrison, 120 5. Ct. at 1757-58 (section 5 legislation "must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of [s]tate officers") (quoting Civil Rights Cases, 109 U.S. 3, 18 (1883)).

An additional concern was ensuring that State agencies not covered by the Rehabilitation Act (because they do not receive Federal funding) were covered by a Federal disability law. See, e.g., Hearing Before the House Committee on the Judiciary and Subcommittee on Civil and Constitutional Rights, 101
Cong. 58 (Aug. 3, 1989) (Chai Feldblum, ACLU Legislative Counsel) (noting that most programs and activities of States are already covered by section 504 when Federal funds are received, but that Title II of the ADA will extend the same coverage to the rest of the State activities); Hearing Before the House Subcommittees on Employment Opportunities and Select Education, 101 Cong. I (Sept. 13, 1989) (Rep. Martinez) ("the fact is that many states already provide this protection. This bill enables the whole country to be governed under the same conditions as those states that have had the foresight to pass such legislation"). Again, however, these policy considerations at best represent Commerce Clause concerns, not indications that the States have been violating, or stand prepared to violate, the constitutional rights of their disabled citizens.

In a similar vein, other participants in the legislative debate expressed concern that the various State laws in this area did not contain all of the substantive requirements that the ADA contains. Id. at 18; Hearing Before the House Subcommittee on Employment Opportunities, 100 Cong. 55 (June 17, 1987) (Grace Powers Monaco, Esq.) (noting that most State laws do not include cancer as a handicap); Hearing Before the Senate Subcommittee on the Handicapped and House Subcommittee on Select Education, 100 Cong. 54 (Sept. 27, 1988) (Admiral James Watkins) (recommending that States amend their disability laws to prohibit discrimination against the disabled, including IIIV infected persons and persons with AIDS). This explanation, though, reveals not a constitutional but a policy concern, and it is one at any rate that is amply satisfied by the unchallenged authority of Congress to extend the ADA's substantive provisions (though not its abrogation provision, see 42 U.S.C. 12202) to State employers under the Commerce Clause.

Still others expressed diverse concerns about the importance of accommodating the disabled in view of the aging

36 37

American population, Hearing Before the House Subcommittee on Select Education, 101 Cong. 36-37 (Oct. 9, 1989) (Janna Shishler), the fact that one disability or another ultimately affects every family if not every American, and the economic benefits of accommodating disabled individuals, Hearing Before the House Subcommittees on Employment Opportunities and Select Education, 101 Cong. 41 (Sept. 13,
1989) (Mark Donovan, Marriott Corporation)
("Accommodation is not a disability issue. Accommodation is an employment issue ); 136 Cong. Rec. H2276 (daily ed. May 15, 1990) (Rep. McDermott) ("The ADA will not just help the disabled. It will help everyone, by giving America's economy the full benefit of their productive energies and talents."); HR. Rep. No. 101-485, at 43-45 (1990). These objectives, too, advance Commerce Clause goals, and at the same time confirm the parallels between Congress's extension of the ADEA to the States and its comparable decision to do so with regard to the ADA.

Nor does the legislative history reveal any discussion of what the Constitution requires in this area or how the ADA is designed to meet those requirements. To the extent Congress mentioned the constitutional rights of the disabled, it was to argue that the 43 million disabled individuals in this country (42
U.S.C. 12101(a)(l)) should be treated as "a discrete and insular minority," 42 U.S.C. 12101(a)(7), S. Rep. No. 101-116, at 15 (1989), HR. Rep. No. 101-485, at 40 (1990), or receive the same "civil rights protections that women and other minority groups have." Hearing Before the House Committee on the Judiciary and Subcommittee on Civil and Constitutional Rights, 101 Cong. 41 (Aug. 3, 1989) (James Brady, National Organization on Disability); Hearing Before the House Subcommittee on Employment Opportunities, 101 Cong. 3 (June 17, 1987) (Rep. Moakley).

[The Court has] consigned cases involving disability discrimination to the level or 'tier' of judicial scrutiny least
favorable to the individual who suffers the discrimination
the so-called 'rational basis' test. City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). What this means in practical terms is that any halfway plausible rationalization for governmental discrimination against people with mental or physical disabilities will be enough to satisfy the Federal courts.

Hearing Before the House Committee on the Judiciary and Subcommittee on Civil and Constitutional Rights, 101 Cong. 422-23 (Oct. 12, 1989) (James Ellis, President, American Ass'n on Mental Retardation). While these disagreements over the appropriate constitutional scrutiny for disability discrimination may be permissible justifications for Commerce Clause legislation, they do not reflect the "specially informed legislative competence" that section 5 entrusts to Congress, Katzenbach v. Morgan, 384 U.S. 641, 656 (1966) (emphasis added), and disrespect the inter-branch imperative that "it this Court's precedent," not Congress's view of that precedent, "which must control." City of Boerne, 521 U.S. at 536. "Congress does not enforce a constitutional right," it is by now clear, "by changing what the right is." Id at 519.

Congress did not identify any threat of future State constitutional violations. Nor does the future look any more threatening than the past. To our knowledge, Congress nowhere expressed any such concern, whether in the text of the law or in the legislative record. Nor can any such threat be contrived today.

Besides being governed by democratically-elected officials sworn to uphold the Constitution of the United States, all 50 States have laws or administrative provisions restricting disability discrimination in employment and public access. See App. A. These provisions go beyond what the Constitution requires, they each apply generally to public employees, and they each permit monetary relief See id. Under these circumstances, only the most unusual sequence of events would

38 39

allow a future constitutional violation to go unremedied. Consider the necessary prerequisites of such a development:
(1) The State or Federal lower courts would have to deny relief on equal protection grounds; (2) this Court would have to deny relief on equal protection grounds; (3) the State courts would have to deny equal-protection relief under their own Constitution; (4) the States would have to deny judicial or administrative relief under their comprehensive State disability laws; (5) the State agency would have to deny, or be ineligible for, Federal funding (because otherwise the comparable injunctive and monetary remedies of the Rehabilitation Act would be available); (6) the States would have to decline to waive immunity to ADA claims in State court; (7) the Federal courts would have to deny Ex parte Young relief under the ADA in Federal court; (8) the Federal government would have to choose not to sue the State under the ADA for money damages in Federal court; and (9) the "Constitution['s] presum[ption] that . . . even improvident decisions will eventually be rectified by the democratic process," Vance v. Bradley, 440 U.S. 93 (1979), would have to fail. No doubt, anything can happen. But if it did under this sequence of events, State recalcitrance to the dictates of the Constitution would hardly be the reason.

All things considered, in "enacting the [ADA], Congress identified no pattern of [age discrimination] by the States, let alone a pattern of constitutional violations." Florida Prepaid, 527 U.S. at 640. And as in Kimel, "Congress's failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field." 120 5. Ct. at 650. Whether one looks backward in time or forward, in neither direction is there a congressionally-identified pattern of unconstitutional State action against the disabled. The only real evidence evidence, incidentally, of which Congress was made aware was of States overprotecting the constitutional rights of the disabled, not
undermining them. The legislative record, as in Kimel, Morrison, Florida Prepaid and City of Boerne, "contains no evidence that unremedied [disability discrimination] by States had become a problem of national import." Florida Prepaid, 527 U.S. at 640-41. The predicate of prophylactic section 5 legislation in short is missing, and for this reason alone the ADA's extra-constitutional requirements exceed Congress's Fourteenth Amendment authority.

Nor would such a decision "signal the end of the line for employees who find themselves subject to [disability] discrimination." Kimel, 120 5. Ct. at 650. All 50 States provide some form of remedy for such discrimination, and importantly all go much further by enacting proactive measures that go well beyond protecting the bare minimums of constitutionality. See App. A.

B. The ADA Independently Fails The Proportionality Requirements Of Section 5.

Even if the condition of relevant State misconduct could somehow be established, the ADA would still exceed congressional power. The law is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 521 U.S. at 532.

The ADA's application to the States carries one hallmark after another of unvarnished policy-based legislation, as opposed to calibrated remedial legislation. For starters, the law's substantive provisions apply in equal measure to State and private employers, 42 U.S.C. 12111(2), (5) and (7), 12131, 12132, even though the Fourteenth Amendment covers the former but not the latter. Above and beyond their separate oath to obey the Constitution, public employers accountable to the ballot box operate under different economic and social pressures from private employers accountable to dividend-anxious shareholders. Worse, even though the substantive

40 41

provisions of the ADA apply in equal measure to private employers, the remedial provisions do not. In particular, the Title II public-access provisions permit money-damages claims against the States, 42 U.S.C. 12133, while the Title III public-access provisions applicable to private employers permit only injunctive relief when a private claimant brings the action. 42 U.S.C. 12188(a)(1) and (b)(1)(B), 2(B).

This same differential treatment occurs with respect to public-access claims brought against the States as opposed to those brought against the Federal government. Under Title II, to repeat, Congress imposed money-damages remedies on the States. Yet the ADA does not even cover executive-branch agencies, and section 504 of the Rehabilitation Act, the counterpart to Title II of the ADA, does not do so either. See 29 U.S.C. 794a(a)(2) (applicable only to "Federal providers" of assistance, not to executive-branch agencies generally); Lane v. Pena, 518 U.S. 187 (1996); see also 136 Cong. Rec. H2319 (daily ed. May 15, 1990) (Rep. Douglas) ("The gentleman is right, the Federal Government is the biggest employer in the United States. And guess who is specifically exempt from this law? The Federal Government the U.S. Federal Government."). Surely the ADA cannot be deemed a proportionate response to alleged national discrimination against the disabled when the constitutional standard applies in equal measure to State and Federal employers, see Bolling v. Sharpe, 347 U.S. 497 (1954), but the effort to enforce that standard does not.

The "indiscriminate scope" of the ADA also confirms that it is anything but a proportionate response to an alleged constitutional problem. Kimel, 120 5. Ct. at 650. Title I applies to all State 'job application procedures" as well as "the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. 12112(a). And Title II applies to all "services, programs, or activities" of any State
or State agency. 42 U.S.C. 12132. This exceedingly broad language leaves little if any State practice unaffected. While this coverage of virtually every State policy decision affecting the disabled might be justified in the context of a law that merely imposes remedies for constitutional violations, it hardly represents the kind of carefully-gauged response that this Court has required of the National Legislature when it imposes extra-constitutional requirements on the States. Because the law is so "expansive in scope and is not "limit[ed] ... to cases involving arguable constitutional violations," it cannot satisfy this Court's proportionality requirement. Florida Prepaid, 527 U.S. at 646.

Besides the virtually unlimited State policies and practices that the ADA covers, it also is of "indefinite" duration and is nationwide in application. Florida Prepaid, 527 U.S. at 647. The same defects doomed the ADEA, the Patent Remedy Act and the RFRA. Unlike the voting rights measures previously approved by the Court, moreover, the ADA does not require the legislature to assess in a remedial manner the progress States are making in curing or ending allegedly unconstitutional practices. City of Boerne, 521 U.S. at 532-33. Nor, unlike other voting rights measures, see Katzenbach v. Morgan, 384 U.S. 641, is the law "directed only to the State where the evil found by Congress existed." Morrison, 120 5. Ct. at 1759.

Above all else, however, "it simply cannot be said that many of [the state actions] affected by the congressional enactment have a significant likelihood of being unconstitutional."' Florida Prepaid, 527 U.S. at 647 (quoting City of Boerne, 521 U.S. at 532). The rigorous standard of review applicable to an ADA action has no parallel to the forgiving standard that the Court applies to equal protection claims. What the Court said in Kimel applies with equal conviction here: "The Act, through its broad restriction on the use of [disability] as a discriminating factor, prohibits substantially more state employment decisions and practices

42 43

than would likely be held unconstitutional under the applicable equal protection, rational basis standard." Kimel, 120 5. Ct. at
635.

ADA litigation contrasts with constitutional litigation at every turn:

(1) The ADA requires individualized case-by-case determinations as to whether a disabled employee is qualified for the job, 29 C.F.R. Part 1630, Appendix (Interpretive Guidance); see also Equal Employment Opportunity Commission, A Technical Assistance Manual on the Employment Provisions (Title I,) of the Americans With Disabilities Act, 2.2(c), 3.7, 4.4, 4.5, 8.7, and 9.1, not "generalizations" based on physical and mental capacity, Heller, 509 U.S. at 312;

(2) the ADA places the burden of proof on States to justify their conduct, 42 U S C. 121 12(b)(5)(A), (b)(6), not the claimant, Heller, 509 U.S. at 319;

(3) the ADA presumptively bars consideration of disability in providing public services or in employing civil servants, but the Constitution permits "governmental consideration of those differences in the vast majority of situations," City of Cleburne, 473 U.S. at 444;

(4) the ADA prohibits any rule or practice that has a disparate impact unless the State can prove that it is "job-related" and "consistent with business necessity," 42 U.S.C. 121 12(b)(6), but the Constitution permits such rules that "'in practice
result[] in some inequality"' unless the attacking party can "negative every conceivable basis which might support it," and the courts must "accept a legislature's generalizations even when there is an imperfect fit between means and ends," Heller, 509 U.S. at 320-21 (quotation omitted);

(5) the ADA compels States to provide "reasonable accommodations" for disabled employees unless it "impose[s]
an undue hardship," 42 U.S.C. 121 12(b)(5)(A), while the Constitution permits employment decisions based on disability so long as they are rationally based, City of Cleburne, 473 U.S. at 444;

(6) the ADA compels States to make "reasonable modifications" in their public services to accommodate the disabled unless they would "fundamentally alter" the nature of the program, 42 U.S.C. 12131(2), 12132; 28 C.F.R. 35.130(b)(7), see Olmstead v. L.C., 119 5. Ct. 2176 (1999), while the Constitution contains no such requirement, City of Cleburne, 473 U.S. at 444;

(7) employment standards amount to impermissible conduct if
they "have the effect of discrimination," 42 U.S.C.
121 12(b)(3)(A), or "tend to screen out" disabled individuals,
42 U.S.C. 121 12(b)(6), while the Constitution does not turn
on such effects, City of Cleburne, 473 U.S. at 444;

(8) the ADA requires an objective justification in a court of
law, 42 U.S.C. 12111(10), 12112(b)(5)(A)&(6), 12113(a) and (b); 29 C.F.R. l&3O.2(p) and (r), 1630.9(a), 1630.15, not a "virtually unreviewable" justification (Beach Communications, 508 U.S. at 316) that could "reasonably be conceived to be true," Bradley, 440 U.S. at 111; and

(9) the ADA frequently requires proof that there is no acceptable alternative with less discriminatory impact, see, e.g., 29 C.F.R. Part 1630, Appendix (Interpretive Guidance) Background ("[a]n accommodation must be tailored to match the needs of the disabled individual with the needs of the job's essential functions"); id. at 1630.9 ("Once potential accommodations have been identified, the employer should assess the effectiveness of each potential accommodation in assisting the individual in need of the accommodation in the performance of the essential functions of the position."); EEOC Technical Assistance Manual to Title 1, 4.4 (agility testing), and I (p.1-6) (direct threat); 28 C.F.R. 35.130(b)(1)(ii) &

44 45

(iii); U.S. Department of Justice, Technical Assistance Manual to Title II, 11-3.4400, not the recognition that the Court "'must disregard' the existence of alternative methods of furthering the objective" that might be "'preferred,"' Heller, 509 U.S. at 330 (quoting Schweiker, 450 U.S. at 235).

Far from being calibrated to correct rational-basis violations, the ADA borrows many of the same requirements associated with the heightened scrutiny applicable to discrimination claims based on race or gender. The law, in this respect and many others, represents an impermissibly disproportionate exercise of section 5 authority. As these outeome-dispositive distinctions make clear, Congress ultimately placed disability-based classifications, which are presumptively constitutional, on a par with race-based and gender-based classifications, which presumptively are not. As in Kimel, the ADA simply replaces one level of judicial scrutiny with another, and does so out of all proportion to any real or threatened constitutional wrongs. For this independent reason, the law exceeds Congress's section 5 authority.

IV. THE CONCLUSION THAT THE ADA EXCEEDS
CONGRESSIONAL POWER FITS WELL
WITHIN THE COURT'S SECTION 5
HOLDINGS, AND PRESERVES VITAL
PRINCIPLES OF FEDERALISM.

Not just the language of this Court's section 5 precedents, but the holdings as well, establish that the ADA does not constitute proper enforcement legislation. Even with respect to the central evils addressed by the Civil War Amendments race and voting the Court has always required congressional authority in this area to be linked to actual or empirically-threatened violations of the underlying amendment. Common sense and logic ought to suffice to reject the paradoxical exercise of a prophylactic power in an unprophylactic setting. But if not, precedent does. No holding of the Court supports the use of prophylactic authority under section 5 in the context
of rights that warrant rational-basis review. And at least two decisions have rejected any such authority.

Thirty years ago, in Oregon v. Mitchell, 400 U.S. 112 (1970), the Court confirmed that Congress does not have "a substantive, non-remedial power under the Fourteenth Amendment," City of Boerne, 521 U.S. at 527, and did so in the context of a non-suspect classification regarding voting. A majority of the court concluded that Congress exceeded its section 5 authority in passing legislation designed to lower the voting age from 21 to 18 in State and local elections. See Oregon, 400 U.S. at 125 (Black, J., plurality opinion); id at 154, 209 (Harlan, J., concurring/dissenting opinion); id at 294, 296 (Stewart, J., concurring/dissenting opiniQn joined by Burger, C.J., and Blackmun, J.). In doing so, Oregon emphasized that "[t]he Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection. Nor was the Enforcement Clause of the Fourteenth Amendment intended to permit Congress to prohibit every discrimination between groups of people." Id at 126-27 (citations omitted).

Just last Term, the Court adhered to this view in a case that is virtually identical to this one. In Kimel, the Court indicated that "[alge classifications, unlike governmental conduct based on race or gender, cannot be characterized as 'so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy."' 120 5. Ct. at 645 (quoting City of Cleburne, 473 U.S. at 440). It therefore reiterated that classifications based on age receive rational-basis review, and accordingly that "a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests," and may do so even though this proxy "is probably not true.., in a majority of cases." Id. at 646-47 (quotation omitted). Against this backdrop, the Court concluded that the ADEA's attempted imposition of

46 47

"heightened scrutiny" on State employers could not be sustained. ld at 648. As a matter of logic and sheer common sense, a similar conclusion follows here. Not only do the same explanations for applying rational-basis review to classifications based on age apply to classifications based on disability, but the ADA's extra-constitutional requirements reach as far, if not further, than those imposed by the ADEA. The absence of abrogation authority in the one rational-basis setting applies with equal force in the other.

Even outside the arena of non-suspect classifications, City of Boerne, Florida Prepaid, and College Savings Bank v. florida Prepaid Postsecondary Education Expense Board. 527 U.S. 6~6 (1999), all invalidated legislation that did not respond to a pertinent record of constitutional violations and that was disproportionate to any alleged harm. While the defenders of RFRA, as here and as in Florida Prepaid and College Savings, argued that it was "a reasonable means of protecting the free exercise of religion," and was designed "[t]o avoid the difficulty of proving such violations," City of Boerne, 521 U.S. at 529, the Court nonetheless concluded that the law exceeded congressional power. The decision in the Civil Rights Cases is to the same effect, noting that section 5 "cannot properly cover the whole domain of rights appertaiing to life, liberty and property, defining them and providing for their vindication. That would be. . . to make Congress take the place of the State legislatures and to supersede them." 109 U.S. at 13.

The Court's voting rights decisions all point in the same direction. They each involved patterns and practices of unconstitutional State action, and therefore properly allowed Congress to impose calibrated extra-constitutional require-ments on the States. See, e.g, South Carolina v. Katzenbach, 383 U.S. 301, 309 (law was enacted in response to "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious
defiance of the Constitution" and that prior remedies had been "unsuccessful"); Katzenbach v. Morgan, 384 U.S. at 653-54 (literacy test ban "was merely legislation aimed at the elimination of an invidious discrimination in establishing voter qualifications"); Exparte Virginia, 100 U.S. 339 (permitting civil rights legislation applied to a State trial court judge who excluded jurors on account of race); Oregon, 400 U.S. at 13 1-34 (literacy tests) (Black, J., plurality opinion) (noting "long history" of discriminatory use of literacy tests); id. at 2 16-17 (Harlan, J., concurring) (sufficient evidence of racial discrimination with literacy tests); id. at 282-84 (Stewart, J., concurring, joined by Blackmun, J. and Burger, C.J.) ("nationwide application may be reasonably thought appropriate when Congress acts against an evil such as racial discrimination which in varying degrees manifests itself in every part of the country"); City of Rome v. United States, 446 U.S. 156 (1980) (same).

In contrast, a decision upholding the prophylactic exercise of section 5 power in the context of rational-basis scrutiny, with no widespread practice of relevant constitutional violations to boot, would break new ground and do little "to allay lingering concerns about the extent of the national power." Alden v. Maine, 527 U.S. 706, 713-14 (1999). Such authority simply has no stopping point. Virtually any Federal law that is itself rational could fairly be said to curb the risk of irrational State lawmaking in the area. With respect to the "life, liberty and property" guarded by procedural due process, only self-restraint would stand in the way of the National government legislating a more appropriate "process" for State governments to follow. Civil Rights Cases, 109 U.S. at 13.

As for other rights incorporated through the due process clause, the risks may be even greater. What would prevent Congress from passing legislation regulating all encounters between State law enforcement and the citizenry in the name of protecting Fourth and Fifth Amendment rights? What

48 49

would prevent property rights advocates from expanding this Court's "regulatory takings" case law? See Penn Central Transp. Co. v. New York, 438 U.S. 104 (1978). What would prevent Federal laws nationalizing a system of punishment in the name of protecting Eighth Amendment rights? And what would prevent the federalization of education, marriage and family laws in the name of protecting privacy and other substantive due process guarantees? Many questions linger here, and the answers to all of them counsel against accepting the invitation to start down this precipitous path.
CONCLUSION

For the foregoing reasons, the State of Alabama respectfully urges the Court to hold that the States retain the right to waive their immunity from suit under the ADA and that Congress has not permissibly abrogated it for them.


Respectfully submitted,
BWL PRYOR
Attorney General of Alabama
ALICE ANN BYRNE
MARGARET L. FLEMING
Assistant Attorneys General
State House
11 South Union Street
Montgomery, AL 36130
(334) 242-7300

LISA HUGGINS
Office of Counsel
UMVERSITY OF ALABAMA SYSTEM
AB 820, 1530 Third Ave. South
Birmingham, AL 35294-0 108
(205) 934-3474
JEFFREY S. SUTTON
Counsel of Record
ChAD A. READLER
RONNELL A. JoNES
JONES, DAY, REAVIS & POGIJE
1900 Huntington Center
Columbus, OH 43215
(614) 469-3855

GREGORY G. KATSAS
JoNES, DAY, REAVIS & PoGUE
51 Louisiana Avenue, NW.
Washington, D.C. 20001
(202) 879-3939

Counsel for Petitioners
June 2000

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