US Supreme Court Briefs

No. 99-1240

IN THE
Supreme Court of the United States

THE BOARD OF TRUSTEES OF THE UNIVERSITY
OF ALABAMA AND THE ALABAMA
DEPARTMENT OF YOUTH SERVICES,
Petitioners,
V.

PATRICIA GARRETT AND MILTON ASH,
Respondents.


On Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit


REPLY BRIEF FOR PETITIONERS



JEFFREY S. SUTTON
(Counsel of Record)
CHAD A. READLER
JONES, DAY, REAVIS & POGUE
1900 Huntington Center
Columbus, OH 43215
(614) 469-3855

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

Counsel for Petitioners
BILL PRYOR
Attorney General of
Alabama
MARGARET L.
FLEMING
CHARLES B.
CAMPBELL
Assistant Attorneys
General
11 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





TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES 11
ARGUMENT
CONCLUSION 20


ii

TABLE OF AUTHORITIES
Page

Cases

In re Adoption of Richardson, 59 Cal. Rptr. 323
(Ct. App. 1967) 11
Alden v.Maine, 119 S. Ct. 2240 (1999) 1
Alexander v. Choate, 469 U.S. 287 (1985) 8
Baxter v. City of Belleville, 720 F. Supp. 720
(S.D. Iii. 1989) 9
Bevan v. N. 1'. Teachers' Ret. Sys.,
345 N.Y.S.2d 921 (Albany Cty. 1973) 10
Bd. ofEd v. Rowley, 458 U.S. 176 (1982) 9
Boyd v. Bd of Registrars of Voters, 334 N.E.2d 629
(Mass. 1975) 9
Buck V. Bell, 274U.S. 200(1927) 13
Burns v. City of Phoenix, 875 P.2d 1340
(Ariz. Ct. App. 1993) 9
Burstyn v. City of Miami Beach, 663 F. Supp.
528 (S.D. Fla. 1987) 12
Carney v. Carney, 598 P.2d 36 (Cal. 1979) 9
Carroll v. Cobb, 354 A.2d 355 (N.J. Super.
Ct. 1976) 9
Chalk v. US. Dist. Ct. Cent. Dist. of Cal.,
840 F.2d 701 (9th Cir. 1988) 8
City of Boerne v. Flores, 521 U.S. 507 (1997) passim
City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985) 3, 13, 17
Conn. Inst. for the Blind v. Conn. Comm '17 on
Human Rights & Opportunities, 405 A.2d
618 (Conn. 1978) 9
Doe v. Dolton Elementary Sch. Dist. No. 148,
694 F. Supp. 440 (ND. Ill. 1988) 8
EEOCv. Wyoming, 460 U.S.226 (1983) 1
FCC v. Beach Communications, Inc., 508 U. S. 307
(1993) 3, 5
iii
TABLE OF AUTHORITIES (cont'd)
Page

Fla. Prepaid Postsecondary Educ. Expense Rd.
v. Coil. Say. Bank, 119 S. Ct. 2199 (1999) 5
Fulton Corp. v. Faulker, 516 U.S. 325
(1996) 13
Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985) I
Garrityv. Gallen, 522 F. Supp. 171 (D.N.H.
1981) 9
InreGrady,426A.2d467(N.J. 1981) 13
Gregory v. Ashcroft, 501 U.S. 452 (1991) 18
Gurmankin v. Costanzo, 556 F.2d 184 (3d
Cir.
1977) 10
Halderman v. Pennhurst State Sch. & Hosp.,
446 F. Supp. 1295 (ED. Pa. 1978) 10
Halderman v. Pennhurst State Sch. & Hosp.,
612 F.2d 84 (3d Cir. 1979) 8
Harrelson v. Elmore County, 859 F. Supp. 1465
(M.D. Ala. 1994) 9
Hellerv. Doe, 509U.S. 312(1993) 3
Heumann v. Bd of Educ. of the City of New
York,
320 F. Supp. 623 (S.D.N.Y. 1970) 6
Hutto v. Finney, 437 U.S. 678 (1978) I
J.W v. City of Tacoma, 720 F.2d 1126 (9th
Cir
1983) 12
Kimelv. Fla. Bd of Regents, 120S Ct. 631
(2000) passim
LaFaut v. Smith, 834 F.2d 389 (4th Cir 1987) 9
Lane v. Pena, 518 U.S. 187 (1996) 16
Leach v. Shelby County Sher(ff 891 F.2d 1241
(6th Cir. 1989) 12
Manhattan State Citizens' Group, Inc. v.
Bass,
524 F. Supp. 1270 (S.D.N.Y. 1981) ii
In re Marriage of R.R. and R.R., 575 5
W.2d 766
(Mo. Ct. App. 1978) 9
Mills v. Rd of Educ., 348 F. Supp. 866 (D.D.C
1972) 9




iv

TABLE OF AUTHORITIES (cont'd)
Page

Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S.
274 (1977) 10
NY State Ass 'nfor Retarded Children, Inc.
v. Carey, 466 F. Supp. 487 (E.D.N.Y. 1979) 10
NY State Ass 'nfor Retarded C'hildren,
Inc.
v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y.
1973) 11
O'Connor v. Donaldson, 422 U.S. 563 (1975) 11
Pa. Ass 'nfor Retarded Children v.
Pennsylvania,
343 F. Supp. 279 (E.D. Pa. 1972) 11
Pa. Dep 't of Corrections v. Yeskey,
524 U.S. 206 (1998) 12
Panitch v. Wisconsin, 444 F. Supp. 320 (ED.
Wis. 1977) 11
Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986) 12
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1(1981) 14
Pushkin v. Regents of the Univ. of Cob.,
658 F.2d 1372 (10th Cir. 1981) 6, 7
Ray v. Sch. Dist. of Desoto County, 666
F. Supp. 1524 (M.D. Fla. 1987) 8
Recanzone v. Washoe County Sch. Dist.,
696 F. Supp. 1372 (D. Nev. 1988) 8
Robertson v. Granite City Cmty. Unit Sch. Dist.
No. 9, 684 F. Supp. 1002 (S.D. Iii. 1988) 8
Sch. Bd of Nassau County v. Arline,
480 U.S. 273 (1987) 6
Schweiker v. Wilson, 450 U.S. 221 (1981) 3
Smith v. Fletcher, 393 F. Supp. 1366 (S.D. Tex.
1975), affdas mod~fied, 559 F.2d 1014
(5th Cir. 1977) 9
State ex rel. Beattie v. Bd of Educ. ofAntigo,
172 N.W. 153 (Wis. 1919) 6
Stump v. Sparkman, 435 U.S. 349 (1978) 9
v

TABLE OF AUTHORITIES (cont'd)
Page

Thomas S. v. Flaherty, 699 F. Supp. 1178
(W.D.N.C. 1988) 11
Thomas v. A tascadero Un fled Sch. Dist.,
662 F. Supp. 376 (CD. Cal. 1986) 9
Vance v. Bradley, 440 U.S. 93 (1979) 13
W Air Lines, Inc. v. Criswell, 472 U.S. 400
(1985) 3
Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) ... 11
Ex Parte Young, 209 U.S. 123 (1908) 1
Youngberg v. Romeo, 457 U.S. 307 (1982) 11

Statutes

Civil Rights of Institutionalized Persons Act,
42 U.S.C. 1997 etseq 12
Individuals with Disabilities Education Act,
20 U.S.C. 1400 etseq 12
42 U.S.C. 12101(a)(2) 4,5
42 U.S.C. 12101(a)(7) 5,6
42 U.S.C. 12101(b)(1) & (3) S
42 U.S.C. 12132 23
42 U.S.C. 12202 2
Cal. Prob. Code 1950 14

Legislative History

HR. Rep. No. 485, 10 1st Cong., 2d Sess.,
Pt. 2 (1990) 7, 8
H.R. Rep. No. 485, 101st Cong., 2d Sess.,
Pt. 3 (1990) 7, 8
Senate Comm. on Labor and Human
Resources,
S. Rep. 101-116, 101st Cong., 1st Sess.
(1989) 6, 18
Staff of the House Comm. on Educ. and
Labor,
Legis. Hist. of Pub. L. No. 101-336:
The Americans with Disabilities Act,
101st Cong., 2d Sess. (1990) 6, 7






Page
vi

TABLE OF AUTHORITIES (cont'd)
REPLY BRIEF FOR PETITIONERS


Miscellaneous

ACI.R, Disability Rights Mandates: Federal and State
Compliance with Employment Protections and
Architectural Barrier Removal 80 (April
1989) 7
Hart, Positivism and the Separation of Law and
Morals, 71 Harv. L. Rev. 593 (1958) 13


While there is much to lament about the way society
historically has treated the disabled,
there is nothing to lament about the way
the Constitution permits government to respond to this
complex and enduring social issue.

The Commerce Clause generally permits Congress to
enact national employment and public-access standards
regarding the disabled. And no aspect of the Constitution,
whether the Tenth Amendment, the Eleventh Amendment or
any other, bars Congress from making these national
requirements generally applicable to most government
employees and to most government services, if indeed not to
all of them. See Garcia v. San Antonio Metro.
Transit Auth., 469 U.S. 528 (1985); EEOC v.
Wyoming, 460 U.S. 226, 243 (1983). That means Congress
may make every affirmative-accommodation requirement,
every disparate-impact test, every public-access mandate, and
every other standard established by the ADA applicable to
most if not all state employees. And that means Congress
may authorize federal-court actions against state officials to
enforce these statutory standards, and may require non-
complying States to fi.ind the costs and fees of
bringing such actions. See Ex Parte Young,
209 U.S. 123 (1908); Hutto v. Finney, 437
U.S. 678 (1978).

What the Constitution still prohibits
Congress from doing, however, is using its Commerce
Clause powers freely to abrogate "a fi.indamental" attribute
of "sovereignty""the States' immunity from suit" in money-
damages actions. Alden v. Maine, 119 5. Ct. 2240,
2246 (1999). Before Congress may give one state resident
access to money a State democratically levies from all
residents, the Fourteenth Amendment requires something
moreeither that the State's underlying conduct violates the
Constitution or that the States have brought these extra-
constitutional duties upon themselves by engaging in a
pattern of unconstitutional conduct. City of Boerne
v. Flores, 521 U.S. 507 (1997).





2 3


At stake in this litigation then is not
whether Congress may enact "national legislation
comprehensively prohibiting discrimination on the basis of
disability" in the private and public sectors. U.S. Br. 10. It
may, and it has. That is why petitioners do not challenge
Congress's authority to permit Ms. Garrett or Mr. Ash to file
an action against state officials to obtain their original job back
or to obtain a reasonable accommodation in their current one.
See Pet'r Br. 21. What separates the parties is not compliance
with a national standard, but whether claimants may obtain
retroactive relief from a state treasury above and beyond that
compliance.

Yet not one respondent or amicus curiae has argued that the
absence of a federal money-damages action has ever created,
perpetuated, or otherwise been responsible for, constitutional
violations against the disabled. Every single claim of dis-
crimination that has been identified concerns matters that have
been, or may be, resolved by Ex Parte Young actions against
appropriate state officials for prospective injunctive relief Be
they zoning requirements, hiring practices or barriers to public
services, not one of these potential concerns requires passage of
the ADA's abrogation provision 42 U.S.C. 12202. The
fact is, society's vital quest for equality, integration, and
dignity of the disabled has never been about money damages.
To the extent the disabled have ever asked for anything more
than the government already provides all citizens, it has always
been about the forward-looking objective of removing barriers
to access, not the backward-looking objective of erecting
special private-damages actions. Nor was this distinction lost
on Congress. In contrast to its treatment of the States,
Congress chose not to expose executive-branch agencies of the
federal government or private parties to many of the individual
money-damages actions that it now wishes to impose on the
States.

Once this modest framing of the issue has been accepted,
and no one has contended that it should not be, nothing in the
briefs of respondents or their amici should give the heart or
mind pause in reversing the decision below.

1. Rational-basis review governs claims of unconstitu-
tional discrimination against the disabled. In answering
Alabama's opening brief, respondents do not claim that
City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432 (1985), or any of the
other cases applying rational-basis review to
classifications based on disability, see
Heller v. Doe, 509 U.S. 312
(1993),Schweikerv. Wilson, 450 U.S. 221
(1981), should be overruled. The alleged problem that
the ADA purports to correct then is one defined by
familiar features of constitutional litigation. Not only does a
"strong presumption of validity" accompany such
classifications, Heller, 509 U.S. at 319 (quotation omitted),
see City of Cleburne, 473 U.S. at 446, but to overcome the
presumption, the claimant must "negative every conceivable
basis which might support" the classification, Heller, 509
U.S. at 320, whether the justification turns on something as
pragmatic as "budgetary constraints," Schweiker, 450
U.S. at 238-39, or whether it turns on after-the-fact "rational
speculation unsupported by evidence or empirical data,"
Heller, 509 U.S. at 320 (quotation omitted).

2. Alleged discrimination under the ADA is not
governed by rational-basis review. Given this "virtually
unreviewable" standard of review, FCC v. Beach
Communications, Inc., 508 U.S. 307, 314 (1993), respondents
understandably do not try to justify the ADA on core section S
groundsthat the Act merely asks the states to do what equal
protection already requires. They thus do not counter
Alabama's contention (Pet'r Br. 29) that the ADA "'prohibits
substantially more state.., decisions and practices than would
likely be held unconstitutional under the . . . rational basis
standard."' (Quoting Kimel v. Fla. Bd of Regents,
120 5. Ct. 631, 63S (2000) Cf W Air Lines v. Criswell, 472
U.S. 400,
421-22 (198S) (judicial scrutiny under the ADEA
"is





4 5


inconsistent with" and "significantly different" from "rational
basis" review).

3. Congress did not identify a "widespread and
persisting deprivation of constitutional rights." City of
Boerne, 521 U.S. at 526. That leaves the argument
respondents have madethat the ADA represents a conditional
exercise of Congress's power to command the states to do
more than equal protection requires. In attempting to justify
this assertion of power, one set of claimants argues (Resp't Br.
19) that "Congress made express findings that there was a
pervasive problem of unconstitutional State and local
government conduct," and the other claimant argues (U.S. Br.
8) that Congress found "a pervasive history of
unconstitutional conduct by the States." These are serious
charges, but in the end they do not hold.

The text of the law offers no support for this across-the-
board indictment. While the statements of findings and
purpose to be sure invoke the full "sweep of congressional
authority," that shows only that Congress meant to do
everything the Constitution permits it to do, not that it had
established the necessary predicate for imposing these extra-
constitutional duties on the States. And while the findings
generally identify "discrimination against individuals with
disabilities" as a "serious and pervasive social problem," 42
U.S.C. 12101(a)(2), they do not find, much less establish,
"that the State[s] had engaged in any unconstitutional
[disability] discrimination." Kimel, 120 5. Ct. at 649
(emphasis added). Through nine extensive findings and four
statements of purpose, the legislature never makes this
essential point, never uses the word "unconstitutional," and
never cites a single case or study to this effect. As the
claimants acknowledge (Resp't Br. 18), the findings make "no
distinction between public sector employment and private
sector employment" in their claims of discrimination and
"purposeful unequal
treatment" (42 U.S.C. l2101(a)(7)), even though the
Constitution limits one but not the other.

The Congress that enacted the ADA, like the one that
passed the ADEA, never engaged in the debate that the Court
is being asked to referee nowwhether the States engaged in a
pattern of unconstitutional conduct. As the statement of
purpose attests, Congress responded to a "social problem," not
a constitutional one; it established a "national mandate for the
elimination of discrimination against individuals with dis-
abilities," not for the elimination of unconstitutional conduct;
and it ultimately "enforc[ed] the standards established in this
chapter," not those of the Fourteenth Amendment. 42 U.S.C.
12101(a)(2), (b)(1) & (3). That does not suffice.

4. The legislative record fares no better in establishing
any such pattern. Just as the full Congress could not say
that a form of state action that is "virtually unreviewable"
under rational-basis review, Beach Communications, 508 U.S.
at 3 16, had somehow generated a "widespread and persisting
deprivation of constitutional rights," Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll.
Say. Bank., 119 5. Ct. 2199, 2210 (1999) (quotation
omitted), neither could the committees, their staffs or the
myriad interest groups that participated in the process identify
any such pattern. Making this gap all the more conspicuous is
the comprehensive nature of the legislative record, which as
the federal government notes (U. S. Br. 6, 9) covered "40
years" "of legislative experience in the field, years of hearings
and study, multitudinous submissions and testimonials by
citizens across the Nation, and thoroughgoing congressional
review." Yet, through it all, the record contains not one study
or statement about constitutional violations.

Nor do the smattering of cases cited in the record support
the exuberant claim (U.S. Br. 8) that there was "pervasive . .
unconstitutional conduct by the States." City of Cleburne is
discussed not because it involved a constitutional violation by





6 7


a city government. It is mentioned only to criticize the
standard of review the Court adopted there (and applied earlier
in Schweiker and later in Heller), and then to urge a more
rigorous statutory standard in its place. See Pet'r Br. 37
(criticizing "consign[ment]" of cases "involving disability
discrimination" to the standard that is the "least favorable to
the individual") (citation omitted); see also Staff of the House
Comm. on Educ. and Labor, Legis. Hist. of Pub.
L. No. 101-336: The Americans with
Disabilities Act, 101st Cong., 2d Sess. 963
(1990) ("House Comm. on Educ. and Labor") ("I find that the
fact my two children are not protected under the Constitution
to be unacceptable to me. And it is unacceptable to me that 36
million disabled Americans are not protected under the
Constitution. I think we need this legislation."). And while
School Board of Nassau County v. Arline, 480 U.S. 273
(1987), also is mentioned, that case did not involve a
constitutional claim but a statutory one. See Senate Comm. on
Labor and Human Resources, S. Rep. 101-116, 101st Cong.,
1st Sess. 7 (1989).

The other cases discussed in the legislative record, all lower-
court decisions, do not involve constitutional violations at all.
See Pushkin v. Regents of the Univ. of Cob., 658 F.2d 1372
(10th Cir. 1981) (Rehabilitation Act) (House Comm. on Educ.
and Labor at 1617); Heumann v. Bd of Educ. of the City of
New York, 320 F. Supp. 623 (S.D.N.Y. 1970) (dismissing
constitutional claim as moot because a state administrative
appeal corrected the complaint) (House Comm. on Educ. and
Labor at 1611); State ex rel. Beattie v. Bd of Educ. of the
City of Antigo, 172 N.W. 153 (Wis. 1919)
(state law claim) (House Comm. on Educ. and Labor
at 2242). These cases not only fail to show a
track record of constitutional violations, but one of
them even explains why. See Pushkin, 658 F.2d
at 1384-85 ("mere fact that the University acted in a
rational manner is no defense to an act of discrimination" under
the Rehabilitation Act).
5. Other portions of the legislative record fall well
short of establishing state constitutional violations. Having
failed to identify anything in the text of the ADA or any cases
cited in the legislative record establishing pervasive state
misconduct, respondents fall back on
"cobbl[ing] together" "isolated sentences clipped from floor
debates and legislative reports" that purport to establish this
pattern. Kimel, 120 5. Ct. at 649 (citation omitted). But, in
doing so, they have no more success than the claimants did in
Kimel or City of Boerne.

In some instances, the citation does not involve state action
at all. See, e.g., House Comm. on Educ. and Labor at 936
(U.S. Br. 29) (references to general discrimination by hotel and
restaurant owners excluding persons with disabilities). In some
instances, the problem had already been resolved. H R Rep No.
485, 101st Cong., 2d Sess., Pt. 2 at 40 (1990) (U.S. Br. 31)
(testifying about lack of accessibility to town hall, though
ramp placed there a year earlier) ('HR. Rep. No. 485"); ACIR,
Disability Rights Mandates: Federal and State Compliance
with Employment Protections and Architectural Barrier
Removal 80 (April 1989) (Resp't Br. 33) (noting States have
enacted laws regarding the removal of barriers in public
buildings, and all States have statutes requiring new buildings
to be accessible). In some instances, the citations refer to
societal discrimination, not unconstitutional discrimination.
See, e.g., H.R. Rep. No. 485, Pt. 3 at 25 (U.S. Br. 36)
("These discriminatory policies and practices affect people with
disabilities in every aspect of their lives"); House Comm. on
Educ. and Labor at 1040 (U.S. Br. 15) ("several thousand
documents submitted by citizens and organizations outlining
discrimination and other barriers," involving "millions of
Americans with disabilities" who are still "subject to massive
discrimination"). In some instances, the citations involve
requests for national uniformity and claims that the federal law
will provide more protection than state laws. See, e.g., id. at
1272 (U.S. Br. 40) (ADA will show a national commitment to
the disabled) (Rep. Owens); id at 1506, 1508 (U.S. Br. 39)





8 9


(describing need for uniformity) (C. Brooks); H.R. Rep. No.

485, Pt.2 at 39 (U.S. Br. 39) (ADA will provide more
protection than Massachusetts law); Id at 19 (U.S. Br. 39)
("patchwork quilt" of federal law).

But in all instances, our review confirms, respondents'
citations do not involve a finding of unconstitutional state
conduct. Nor is there any way of knowing on this record
whether such a showing could have been made with respect to
these allegations. Yet such claims are "virtually unreviewable"
and since the claimant must "negative every conceivable basis
which might support" the governmental decision, it would
turn customary rules ofjudicial review on their head to assume
that these extra-judicial statements establish a pattern of
unconstitutional activity. Much like the testimony in the
ADEA record, the legislature here compiled statements of
alleged discrimination that justify making the ADA generally
applicable to state officials under the Commerce Clause, but
did not compile a record that justifies making money-damages
claims applicable to non-consenting States under section 5.

6. Other cases identified by respondents do not establish
a pattern of unconstitutional discrimination by States
against the disabled. Respondents next attempt to
manufacture a legislative record of their own by citing case
law that they (and not Congress) have uncovered. This, too,
fails.

Most of the cases involve statutory, not constitutional,
claims and for that reason alone are unhelpful. The following
cases, for example, all arose under the Rehabilitation Act. See
Alexander v. Choate, 469 U.S. 287 (1985); Chalk v.
US. Dist.
Ct. Cent. Dist. of Cal., 840 F.2d 701 (9th Cir. 1988);
Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84 (3d
Cir. 1979); Recanzone v. Washoe County Sch. Dist., 696 F.
Supp. 1372 (D. Nev. 1988); Doe v. Dolton Elementary Sch.
Dist. No. 148, 694 F. Supp. 440, 442 (ND. 111.1988);
Robertson v. Granite City Cmty. Sch. Dist. No. 9, 684 F.
Supp.
1002, 1006 (S.D. Ill. 1988); Ray v. Sch. Dist. of Desoto
County, 666 F. Supp. 1524, 1536 (M.D. Fla. 1987); Thomas
v. Atascadero UnfledSch. Dist., 662 F. Supp. 376 (C.D. Cal.
1986); Garrity v. Gallen, 522 F. Supp. 171 (D.N.H.
1981). See alsoBd of Ed v. Rowley, 458 U.S. 176
(1982) (Education for all Handicapped Children Act);
Harrelson v. Elmore County, 859 F. Supp. 1465
(M.D. Ala. 1994) (ADA); Baxter v. City of Belleville, 720
F. Supp. 720 (S.D. Ill. 1989) (Fair Housing Act); see also
Stump v. Sparkman, 435 U.S. 349 (1978) (state judge
immunity).

Some cases involve successful claims filed under state law
in state court, which contradicts the suggestion that the ADA
responds to a failure to resolve these issues at the local level.
See, e.g, Burns v. City of Phoenix, 875 P.2d 1340 (Ariz. Ct.
App. 1993) (cancer victim given job as firefighter); Carney v.
Carney, 598 P.2d 36 (Cal. 1979) (child custody to
handicapped parent); Conn. Inst. for the Blind v. Conn.
Comm 'n on Human Rights & Opportunities, 405 A.2d 618
(Conn. 1978) (no per se exclusion of visually handicapped
from state jobs); In re Marriage of R.R. and R.R., 575
S.W.2d 766 (Mo. Ct. App. 1978) (child
custody to handicapped father); Carroll v. Cobb,
354 A.2d 355 (N.J. Super. Ct. 1976) (no per se exclusion of
mentally retarded from right to vote); Boyd v.
Bd of Registrars of Voters, 334 N.E.2d 629, 632 (Mass.
1975) (same).

Other cases involve successful constitutional claims
against the federal government, which are equally unhelpful.
See LaFaut v. Smith, 834 F.2d 389 (4th Cir.
1987) (eighth amendment/federal prison); Smith v.
Fletcher, 393 F. Supp. 1366, 1368 (S.D. Tex.
1975) (fourteenth amendment/NASA employee),
aff'das modfled, 559 F.2d 1014 (5th Cir. 1977);
Mills v. Bd of Educ., 348 F. Supp. 866 (D.D.C.
1972) (due process/education for handicapped children).

While still other cases involve constitutional violations by
state and local governments, they by no
means support respondents' claim (U.S. Br. 8) of
"pervasive unconstitutional conduct by the States."
Only two of these cases, it bears





10 11


emphasis, involve employment. Yet both challenge the actions
of cities (not States), both turn on due process failings that
cannot fairly be said to be remedied by the ADA, and one was
not even necessary to the result. See Gurmankin v. Costanzo,
556 F.2d 184, 187 (3d Cir. 1977) (due process bars
application of rule that blind teacher cannot take entrance
examination because "she had an expectation, based on state
law, of being admitted to the qualifying examination"); Bevan
v. NY Teachers' Ret. Sys., 345 N.Y.S.2d 921 (Albany Cty.
1973) (city violated state law and due process by forcing
retirement of blind teacher without a hearing). The ADA does
not supply due process protections for state rights already in
existence but instead is designed to create new federal rights in
the first instance. And if the Eleventh Amendment does not
extend to cities, Mt. Healthy City Sch. Dist. v. Doyle, 429
U.S. 274, 280 (1977), it remains to be seen how States
can be held responsible for constitutional violations by these
presumptively-separate entities.

The remaining cases, all outside of the employment
context, suffer from these failings and more. Like Bevan, other
cases involve disputes in which the court ruled on
constitutional and statutory grounds, making the
constitutional ruling unnecessary to the result. See NY State
Ass 'nfor Retarded Children, Inc. v. Carey, 466 F. Supp. 487,
497 (E.D.N.Y. 1979) (state law, Rehabilitation Act, Education
of Handicapped Act, consent decree and Fourteenth
Amendment/segregation of hepatitis B children); Halderman
v. Pennhurst State Sch. & Hosp., 446 F. Supp. 1295 (E.D.
Pa. 1978) (eighth amendment and Rehabilitation
Act/minimally adequate habilitation); In re Adoption of
Richardson, 59 Cal. Rptr. 323 (Ct. App. 1967)
(state law and equal protection/adoption
by deaf and mute parents). One case, likewise, just
involves a consent decree, which involves no constitutional
finding at all. See Pa. Ass 'n for Retarded Children v.
Pennsylvania, 343 F. Supp. 279 (ED. Pa. 1972) (state law and
fourteenth amendment/state education of mentally retarded
children).
The other cases involve procedures States must follow
before they may commit an individual to an institution,
concern the basic necessities of institutional care, and in one
instance concem the appropriate education a State must
provide to the disabled. See Youngberg v. Romeo, 457 U.S.
307 (1982) (substantive due process/ right to safe conditions
of confinement and freedom from unreasonable restraints);
O'Connor v. Donaldson, 422 U.S. 563 (1975) (due
process/confinement of non-dangerous mentally-ill patient);
Thomas S. v. Flaherty, 699 F. Supp. 1178
(W.D.N.C. 1988) (due process/habilitation, unreasonable
restraint and safe conditions); Manhattan State Citizens'
Group, Inc. v. Bass, 524 F. Supp. 1270 (S.D.N.Y. 1981)
(state constitution, due process/right to vote of involuntarily
committed patients); Panitch v. Wisconsin, 444 F. Supp. 320,
322 (E.D. Wis. 1977) (equal protection/appropriate education
for handicapped children); N.Y State Ass 'n for Retarded
Children v. Rockefeller, 357 F. Supp. 752
(E.D.N.Y. 1973) (eighth amendment/safe conditions
and medical care at institution for mentally retarded); Wyatt v.
Stickney, 344 F. Supp. 387, 390 (M.D. Ala. 1972)
(substantive due process/habilitation). But these cases, many
of which established new constitutional doctrines at the time,
cannot fairly be said to supply the necessary predicate for the
disparate-impact and affirmative-accommodation provisions of
Title I in employment and Title II in other public services.
Not only is there the most tenuous of connections between
these cases and the ADA (none, indeed, was mentioned in the
legislative record), but two federal laws were already on the
books by 1990 that specifically regulated these areas, the Civil
Rights of Institutionalized Persons Act, 42 U.S.C. 1997
et seq. and the Individuals with Disabilities Education Act, 20
U.S.C. 1400, et seq.

The same is true of the Eighth Amendment violations.
See Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986)
(deliberate indifference to paraplegic prisoner); Leach v. Shelby
County





12 13


Sher?ff 891 F.2d 1241 (6th Cir. 1989) (same). While the ADA
may cover state prisons, see Pa. Dep 't of Corrections
v. Yeskey, 524 U.S. 206 (1998), nothing in it
is designed to remediate Eighth Amendment violations
against the disabled or for that matter any of the other
constitutional violations committed against other prisoners.
The two zoning cases (like most of these citations) again
involve cities, and are of little utility for additional reasons as
well. One applies heightened scrutiny rather than rational-basis
review. See I. W v. City of Tacoma, 720 F.2d 1126, 1129-30
(9th Cir. 1983) (applying "special judicial attention" to permit
request for home for the mentally ill). The other involves
discrimination against the disabled and the elderly, making it
no more useful here than it was in Kimel. See Burstyn v. City
of Miami Beach, 663 F. Supp. 528 (S.D. Fla. 1987)
(application of zoning ordinance to home for elderly or
handicapped violated equal protection).

But even if all of this were not the case, even if respondents
(or Congress) had identified some isolated constitutional
violations by a handful of States, that is "insufficient to
support Congress' [extension of the ADA] to every State of the
Union" and to do so with respect to every term and condition
of state employment as well as every government service and
building. Kimel, 120 5. Ct. at 649. In the final analysis, as
respondents' carefully-worded arguments ultimately attest, they
are claiming not a record of unconstitutional discrimination but
of "discrimination" in general. That contention failed in Kimel,
Florida Prepaid, and City of Boerne. It should fail here.

7. The eugenics movement undermines rather than
advances respondents' claims. Respondents also rely on
dispiriting laws from the early twentieth
century that the gravitational forces of
representative government cured long before
Congress enacted the ADA in 1990. Doubtless, the eugenics
movement, Social Darwinism and other claimed advances of
the past prove the ease with which time can make yesterday's
progressives look like today's reactionaries. And
these episodes may well prove that when Justice Holmes
''erred,'' the ''lucidity of his reasoning'' showed that his
explanation was "'wrong clearly,"' Fulton Corp. v. Faulker,
516 U.S. 325, 345 (1996) (quoting Hart, Positivism and the
Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958)).
See Buck v. Bell, 274 U.S. 200 (1927); cf City of Cleburne,
473 U.S. at 461-62 (Marshall, J., concurring in part and
dissenting in part) (discussing "grotesque" eugenics
movement). Yet in this instance the legislative process
validated the central premise of rational-basis reviewthe
"Constitution['s presumption] that ... even improvident decisions
will eventually be rectified by the democratic process," Vance
v. Bradley, 440 U.S. 93, 97 (1979) (footnote omitted). When
state democracies force compassionless laws into desuetude and
later into repeal, and do so after withstanding judicial review
no less, see Buck v. Bell, only a most paradoxical interpretation
of the Enforcement Clause would allow Congress to come in
after the hard work has already been done in order to correct
what has long since been corrected.

That is not to say that the States have eliminated all
restraints on the mentally disabled. As respondents note, many
laws continue to place competency restrictions on the right to
vote, marry and procreate. But these regulations turn not on
furthering harsh Darwinian objectives, but on recognizing that
a basic level of competency is required before anyone can
meaningfully exercise these rights. Just as those of competent
mind may make these decisions in whatever way they wish, so
a civilized legal system requires that guardians of the
incompetent be permitted occasionally to make some of these
decisions in their place. See, e.g., In re Grady, 426 A.2d 467,
480-8 1 (N.J. 1981) ("Lee Ann Grady has the same
constitutional right of privacy as anyone else to choose whether
or not to undergo sterilization. Unfortunately, she lacks the
ability to make that choice for herself . . [H]aving the choice
made in her behalf produces a more just and compassionate





15
14
result than leaving Lee Ann with no way of exercising a
constitutional right."); Cal. Prob. Code 1950 (same).
While these laws certainly "discriminate" in the sense of
treating the incompetent differently from others, no one can
tenably argue that they violate the Constitution.

Far from identifying a record of incorrigible state activity,
respondents in the end have not identified any pattern of state
constitutional violations involving public employment or
public access. The most they have done is to identify alleged
instances of societal discrimination and controversial state
practices that the "democratic process" long ago eliminated.
Yet that history hardly supplies the necessary predicate for
imposing these extra-constitutional requirements on the
States. Section 5 after all corrects political dysfunction, not
political virtue, and if there is dysfunction here it relates to a
failure to appreciate that "Iclongressional action under the
Enforcement Clause of the Fourteenth Amendment" does have
and should have "very significant consequences." Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 35 (1981)
(White, J., joined by Brennan, Marshall, JJ., dissenting in
part) (citation omitted); see id at 16. Neither States, their
residents nor Congress have anything to gain from
compromising this inquiry. If the core goal of section 5 is to
root out Fourteenth Amendment violations, a casual inquiry
into whether such violations exist will ultimately disserve
rather than advance that essential end. What the Court said
about the ADEA in Kimel remains pertinent in this instance:
"Congress' failure to uncover any significant pattern of
unconstitutional discrimination here confirms that Congress
bad no reason to believe that broad prophylactic legislation
was necessary in this field." 120 5. Ct. at 650.

8. Congress did not identify any risk of future
unconstitutional discrimination. As Alabama showed in its
opening brief (Pet'r Br. 37-3 8), the panoply of state and
federal options available today to remediate or prevent a
constitutional
violation make the possibility of such acts going unremedied
exceedingly remote. Respondents nowhere claim that
Congress felt differently about the matter. In point of fact,
neither the text of the ADA nor the legislative record contains
any such finding.

All respondents have done instead is attack the coverage of
the pertinent state laws. In tandem, the federal government
says (U.S. Br. 32) that Alabama "grossly exaggerates the
coverage of those laws," while the private respondents say
(Resp't Br. 36) the description of the state laws is "grossly
inaccurate." On what basis this harmonized claim rests,
however, remains unclear. No one has rebutted these truths:
Before 1990, all 50 States prevented discrimination against
the disabled under their own laws or administrative
regulations, all 50 States provided some form of monetary
remedy for such discrimination against the sovereign, all 50
States had policies advancing the hiring of persons with
disabilities, and all 50 States had extensive other measures
designed proactively to accommodate the needs of the
disabled. See Pet'r Br. Appendix.

The apparent source of the "grossly inaccurate" claim,
which respondents themselves never explain, appears to be an
amici curiae brief filed by the National Association of
Protection & Advocacy Systems, et al. That brief, however,
makes no effort to rebut this essential point: A 50-State body
of statutory law that goes well beyond what the Constitution
requires, and indeed in 1990 was "so far out in front of the
federal government, it's not funny," Pet'r Br. 4 (quoting Rep.
Moakley), makes implausible the claim that a broad
prophylactic law is needed to deter future constitutional
violations. Rather than address this critical issue, the amici
brief makes the unremarkable observation that the ADA places
more stringent requirements on the States than some state
laws do. That, however, is to be expected when 51 different
sovereigns and 51 different legislative bodies tackle a complex





17
16
social problem. A cognizable risk of constitutional violations
does not arise when some States provide less stringent
statutory protections than a federal statute does.

Neither does such a risk arise simply because some States
offer few monetary remedies or, like Alabama, do so only in
the form of back pay available to some state employees in an
administrative proceeding. The same, it turns out, can be said
of the federal government. When it comes to the types of
public-access requirements covered by Title II, the federal
government provides no money-damages remedy at all. See
Lane v. Pena, 518 U.S. 187 (1996). Surely, if the Constitution
permits "Congress [to] believe[ ] it had greater direct
authority over federal programs, through the use of its
appropriations and oversight power, and thus less need of
additional enforcement through private damages actions," U.S.
Br. 4 n. 1, it permits Alabama to embrace the same policy for
its programs.

All of this is not to say, as respondents and their amici
seem to suggest (e.g., Resp't Br. 36) that the States claim to
have cornered the market on legislative expertise in this area, or
claim that the existence of these state laws precludes the
necessity of enacting a federal standard under the Commerce
Clause or the spending power. Respondents and their amici
know better. Before Congress may place all 50 States in the
section 5 dock, City of Boerne and its progeny require a
problem of national import and of constitutional dimension.
Yet the existence of these state laws, together with the minimal
strictures of rational basis review and the absence of any
pertinent track record of unconstitutional activity, show that the
risk that unconstitutional acts will go unremedied has long
been remote and by 1990 was virtually non-existent. As Kimel
acknowledged, "State employees are protected by state age
discrimination statutes, and may recover money damages from
their state employers, in almost every
State of the Union." 120 S. Ct. at 650 (footnote
omitted). The same is true here.
9. The ADA is not proportional and congruent section
5 legislation. It is difficult to maintain, as the federal
government does (U.S. Br. 43), both that the ADA was
properly "modeled" on Title VII and that it represents a
proportionate exercise of the Enforcement Clause.. Title VII
bars classifications that are presumptively unconstitutional,
while the ADA bars classifications that are presumptively
constitutional. Disability and "[a]ge 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."'
Kimel, 120 5. Ct. at 645 (quoting City of Cleburne, 473 U.S.
at 440). And disability, like age and unlike race or gender,
"does not define a discrete and insular minority because all
persons, if they live out their normal life spans, will experience
it." Id Much as the ADEA improperly "elevated the standard
for analyzing age discrimination to heightened scrutiny," id. at
648, the ADA impermissibly does the same.

It also is difficult to maintain both that the ADA's money-
damages remedies are proportional in nature and that the federal
government need not impose them on itself or on private
parties in the same way. Yet that exactly describes the current
legislative landscape. When the States violate Title II of the
ADA, they expose themselves to retroactive money-damages
actions, sometimes of great magnitude, see Brief Amici Curiae
of Hawaii, et al. at 18-27, while neither the federal government
nor private businesses face any such consequence under the
ADA or any comparable statute. In the aftermath of the United
States' concession of "less need of additional enforcement
through private damages actions" against the federal
government in this context (id.), and in the absence of any
explanation why "private damages actions" have ever been
needed to remedy or deter the allegedly unconstitutional
conduct targeted by this provision, it would seem that this gap
in the legislative record by itself suffices to





18 19


defeat the abrogation provision. While as a matter of policy
Congress may well wish to lead by direction rather than
example, it cannot be the case that a national effort to root out
massive, society-wide discrimination" (U.S. Br. 16 (quoting
S. Rep. No. 101-116, at 8-9 (1989)) may tenably be deemed a
proportionate response when the attempt to remedy that
problem inexplicably commands far more of the States than of
the National Sovereign.

In an understandable effort to distance the ADA from the
ADEA, the United States also claims (U.S. Br. 41) that "the
gap between what the Constitution and this legislation
proscribes is far narrower than it was in Kimel." This point is
never developed, and it remains unclear how it could be. Both
forms of discrimination, contrary to respondents' contention
(Resp't Br. 30-31), deal with precisely the same imperfect
generalizationsthat "physical and mental capacity sometimes
diminish with age," Gregory v. Ashcroft, 501 U.S. 452,
472 (1991), and that handicaps sometimes diminish "physical
and mental capacity" Not only do age and disability
discrimination thus receive the same level of constitutional
scrutiny but the ADA also contains additional disparate-impact
and affirmative-accommodation requirements that the ADEA
does not. Any "gap" between the statutory and constitutional
tests is far broader here than it was in Kimel.

Nor do respondents offer any explanation why the ADA's
disparate-impact and affirmative-accommodation requirements
are proportionate efforts to identify and correct constitutional
violations. Neither test is required under any level of
constitutional review, even heightened scrutiny. And the cases
on which the United States relies (U.S. Br. 43 n.53) to sustain
this type of test all involve race discrimination. No doubt
"[d]ifficult and intractable problems often require powerful
remedies." Kimel, 120 5. Ct. at 636, 648. But that is true of
difficult and intractable "constitutional" problems, such as race
and gender discrimination where the stringent bar against
considering these factors justifies the need to "police" (Resp.
Br. 43) what by definition are likely to be underlying
constitutional violations. That is not true of disability
discrimination, where the Constitution presumptively allows
government to consider the physical and mental acuity of its
citizens and where no "substantial risk of violating the
Constitution" (U.S. Br. 7) accordingly exists. Here, in other
words, the ADA polices government decisions that are
exceedingly likely to be constitutional, making these types of
requirements even less proportional than the more-modest
disparate-treatment requirements in the ADEA.

All of respondents' other explanations for imposing these
different burdens of proof and different standards of liability
on the States operate at such a high level of generality that
they would sweep away any meaningful limit on the section 5
power. Above all else, respondents never explain how the wide
range of practices that the ADA proscribes could not
conceivably be based on some rational policy or budgetary
basis, which is all that the Constitution requires. The Act
plainly bars "substantially more state. . . practices than would
likely be held unconstitutional." Kimel, 120 5. Ct. at 635.

10. The exercise of a prophylactic section 5 power in
the setting of rational-basis review has not been justified
here or in any other comparable setting. The United States
draws no dispute from us when it claims that "Congress's
enforcement power. . . extends to the full spectrum of conduct
that violates the Equal Protection Clause, and not merely to
the class of governmental actions that this Court stands ready
to invalidate under heightened scrutiny." U.S. Br. 39 Plainly,
section 5 empowers Congress to create remedies for all
constitutional violations covered by section 1 of the
Fourteenth Amendment. But that is not what the ADA does.
Instead, it claims to be requiring obedience to a constitutional
guarantee by passing a law that has meaning only as applied to
States that have obeyed the requirement. The statute does not
create a





20

remedy, but a new standard. And an interpretation of the Enforcement Clause that permits prophylaxis in this setting, or is any other involving the
"virtually unreviewable" requirements of rational-basis review, countenances not a power to "enforce a constitutional right," but a power to "changle]
what the right is." City of Boerne, 521 U.S. at 519.

CONCLUSION

The decision below should be reversed.

Respectfully submitted,



JEFFREY S. SUTTON

(Counsel of Record)
CHAD A. READLER

JONES, DAY, REAVIS &
POGUE

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
BILL PRYOR
Attorney General of
Alabama
MARGARET L. FLEMING

CHARLES B. CAMPBELL

Assistant Attorneys General
11 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
September 2000



FindLaw Career Center


      Post a Job  |  View More Jobs

    View More