Briefs

Taken together, the briefs on behalf of the respondents provide detailed documentation of states' historical discrimination against people with disabilities and of Congress' familiarity with that history during its enactment of the Americans with Disabilities Act (ADA). Accordingly, the various briefs contend, the ADA reflects the "congruence and proportionality between the injury to be prevented or remedied and the means adopted" that the Supreme Court demanded in Kimel in order to override states' Eleventh Amendment immunity to federal lawsuits. The series of amicus briefs offers the court additional information and argument based on the particular knowledge and perspective of individuals and organizations in the political, disability and civil rights arenas.

Note: Many of these documents are in PDF file format; you will need the free Acrobat Reader to view and print them.

Brief for the Respondents
The main brief for the respondents—Ms. Garrett and Mr. Ash—was developed by their Alabama law firm (Gordon, Silberman, Wiggins & Childs), Michael Gottesman, who last year successfully argued the Olmstead case, the Bazelon Center, the Disability Rights and Education Fund and Laurence Gold. It focuses on Congress' power to enforce the Equal Protection Clause through legislation, as conferred by Section 5 of the Fourteenth Amendment (for more explanation, see the memorandum on legal theories behind the state challenges). In enacting the ADA, the brief contends, unlike other civil rights statutes the Supreme Court has found not applicable to state employers, Congress received voluminous evidence of public-employer prejudice against people with disabilities and expressly found existing state law inadequate to address such a pattern of employment discrimination.

Brief for the United States
The Solicitor General of the United States documents that the ADA was predicated on a "virulent history of official governmental discrimination, isolation and segregation" of people with disabilities in all areas covered by Title II of the ADA and is, accordingly, an appropriate exercise of congressional power. The United States also reasons that the ADA is designed to eradicate unconstitutional discrimination against individuals while, at the same time, preserving states' flexibility in the administration of their programs and services. To this effect, the government argues, the ADA is carefully tailored to prohibit state conduct based on irrational prejudice while not banning conduct that reflects a an actual inability to accommodate individuals with disabilities.

Statement of Former President George H.W. Bush as Amicus Curiae
As the President who pressed for enactment of the ADA and signed the bill into law, Mr. Bush cites the comprehensive nature of the statute as a primary factor that led him to embrace it. Given the pervasive nature of discrimination facing individuals with disabilities, the many barriers they face and the inadequacy of then-existing civil rights laws—"like a patchwork quilt in need of repair," with many gaps in coverage—President Bush believes it was "critical that the legislation be comprehensive and cover both public and private entities."

Brief by Members of Congress
Further emphasizing the historical background for enactment of the ADA is an amicus brief filed by five current members of Congress (Senators Tom Harkin, Orrin Hatch, James Jeffords and Edward Kennedy and Representative Steny Hoyer) and two former members (Senator Robert Dole and Representative Steve Bartlett) who were leaders in drafting and enacting the ADA. During deliberations over the ADA, they note, Congress received testimony indicating "that employers, including state and local governmental managers," were using disability "unconstitutionally as a proxy" to justify exclusion from employment. Congress therefore "prophylactically precluded" that possibility by enacting the ADA's requirements of individualized assessment of a person's qualifications and reasonable accommodation. The members assure the court that a decision that Congress acted within its authority "will not open the floodgates for Congress to enact any law that abrogates States' sovereign immunity" because, in passing the ADA, Congress "correctly took note of likely unconstitutional conduct on the part of the States, and passed a congruent and proportional statute in response."

Brief by 14 States
An amicus brief filed by the Attorney General of Minnesota on behalf of his state and the states of Arizona, Connecticut, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Missouri, New Mexico, New York, North Dakota, Vermont and Washington urges the Supreme Court to hold the ADA's express abrogation of the states' Eleventh Amendment immunity to be a proper exercise of Congress' power to enforce the equal protection clause of the Fourteenth Amendment. In their statement of interest, the attorneys general note that states "more typically advocate the application of Eleventh Amendment immunity." But "this case is different.... Allowing state employees and other citizens to enforce their ADA rights without restrictions furthers the ADA's important equal protection-based purpose." To eliminate disability-based discrimination, the brief asserts, "it is imperative to support the validity of the ADA in its entirety."

Brief of the Paralyzed Veterans of America, National Organization on Disability, National Mental Health Association and National Alliance for the Mentally Ill
The brief filed by national disability advocacy organizations examines the deep-seated psychological and sociological mechanisms that give rise to prejudice against people with disabilities and demonstrates some of the ways it has had tangible and adverse impact on the lives of people with disabilities. It begins with a series of anecdotes to illustrate that"broad prejudices against persons with disabilities survive at the threshold of the new millennium": A little girl divides a photographs of children into three piles, saying "'They're girls, they're boys, and they're handicaps.'"

Brief of Historians and Scholars
Leading historians and scholars—more than 100 in number—submitted a brief to summarize the history of "intentional and irrational state-sponsored discrimination and exclusion from the basic rights of citizenship" against people with disabilities of which "Congress was aware" when it enacted the ADA. The brief documents the history of state employment discrimination and provides data showing that in many states the percentage of state employees with disabilities is well below the percentage of working-age Americans with disabilities, "and in some states things are getting worse." The scholars also document the scope of state-sponsored segregation in institutions, forced sterilization, discrimination in public housing, education and the right to marry and raise children, and exclusion of voters and jurors with disabilities. An appendix contains examples of state constitutions and statutes that have codified such pervasive forms of discrimination.

Brief of the National Employment Lawyers Association, National Federation of the Blind, American Diabetes Association and American Association of University Professors
Employment and civil rights advocacy organizations argue that the states, like society at large, are not immune from prejudice against persons with disabilities. This governmental discrimination, amici believe, results in barriers to employment for individuals with diverse disabilities, such as visual impairment, HIV, epilepsy and diabetes. The brief illustrates, with documented instances of unconstitutional governmental actions, how the experiences of individuals with these disabilities, as different as they are, fall into a pattern of discriminatory treatment that violates the Fourteenth Amendment's equal protection guarantees. View this file in accessible HTML...

Brief of the National Association of Protection and Advocacy Systems and United Cerebral Palsy Associations, Inc.
The brief filed by two national disability advocacy organizations with state memberships counters Alabama's claim that state laws have adequately protected individuals with disabilities from state-sponsored discrimination. In an appendix, the authors list each state's statutes, noting the specific limitations on the nature or scope of the coverage actually afforded. This analysis, the brief contends, confirms that Congress acted well within the limits of its power when it enacted the ADA. The brief also points out that today, ten years later, many states still have not upgraded their laws to provide the same level of protection found in the ADA, and some have already asked courts to overturn the ADA in its entirety. Accordingly, the organizations assert, "the stakes are significant in this case and invalidation of the ADA's damages remedy against the States would have profound adverse consequences for persons with disabilities."

Brief of Alabama Amici
A brief filed by the Southern Poverty Law Center for 27 disability, civil rights, family and consumer organizations in Alabama directly contests the state's "bald claim that it protects the rights of persons with disabilities on a scale that renders federal protections superfluous." It documents the state's "quaint habit of ignoring its responsibilities as a sovereign until faced with a federal court order." The brief contrasts many of the claims made by the state in its brief to the Supreme Court to the reality of specific provisions in current state laws, regulations, policies and practices, and judicial findings. The brief draws a picture of "Alabama without the ADA and without federal oversight-a state's rights Paradise indeed, but falling short of bliss for many of its citizens."

Brief of Seven National Mental Disability Advocacy Organizations
The brief stresses that the historic exclusion of people with disabilities from full citizenship distinguishes discrimination based on disability from discrimination based on race or gender. The seven organizations are: the American Association on Mental Retardation, The ARC of the United States, the Brain Injury Association, the Joseph P. Kennedy, Jr., Foundation, the National Council for Community Behavioral Healthcare, the American Psychiatric Nurses Association and the International Association for Psychosocial Rehabilitation Services. They argue that the states, through practices such as institutional segregation of people with disabilities, their sterilization and their exclusion from the educational system, have played a central role in the history of discrimination against this population, "in sharp contrast to other kinds of discrimination." The congressional response, then, was proportional to the constitutional problem in removing the state-created and -maintained barriers to full community participation while limiting the level of adaptation and expense required of the states. Available by request in PDF format.

Brief of Self-Advocates
Several grassroots advocacy organizations representing Americans with developmental disabilities share the history of state-mandated discrimination they have experienced and their experience with the ADA as "a doorway to freedom, opportunity, and equal protection and citizenship under law." The organizations include Self-Advocates Becoming Empowered, and its affiliate, People First, the Autism National Committee, the Center for Law and Education, and TASH—Disability Advocacy Worldwide. To this effect, the brief filed by the Public Interest Law Center of Philadelphia argues that the ADA is a constitutionally sound, proportional and congruent remedy to this legacy of discrimination. The brief also claims that disability-based classifications deserve the same level of constitutional scrutiny that are applied to distinctions made on the basis of race, gender and national origin. Accordingly, amici contend the Supreme Court should conduct a "searching analysis" and subject disability-based classifications to heightened scrutiny review.

Brief of Law Professors
Twelve constitutional law scholars with extensive experience in study of the Fourteenth Amendment and jurisdiction of the federal courts argue that the framers of the Fourteenth Amendment intended Congress to have the power to remedy state discrimination and that this authority would often be exercised at the expense of "state's rights" or "state sovereignty." The professors note that disability-based discrimination, "although potentially as arbitrary and irrational as other forms of discrimination, requires a different legal approach"—one more appropriate for legislative bodies than for courts. Accordingly, the brief argues, the Supreme Court should defer to Congress' carefully deliberated decision, articulated in the ADA, to remedy State violations of the constitutional rights of persons with disabilities.

Brief of the National Council on Disability
The National Council on Disability is an independent federal agency charged with both reviewing federal laws and programs and making recommendations to the President, Congress and other federal entities regarding individuals with disabilities and their integration into society. The NCD brief provides an extensive list of authorities documenting 25 years of congressional study of disability-based discrimination and the "careful, step-by-step consideration, unrivaled in civil rights law, that Congress afforded the issue of disability discrimination" when considering the ADA. The brief also argues that disability-based discrimination goes beyond mere indifference to the existence of people with disabilities and amounts to a form of intentionality that violates the Fourteenth Amendment.

Brief of 21 Health and Disability Organizations
Twenty-one health and disability advocacy organizations with an institutional interest in the constitutionality of the ADA challenge the assertion that the ADA's prohibitions go far beyond those of the Constitution. The groups contend that apparently neutral employment practices can violate the equal protection clause of the Fourteenth Amendment. They argue that, in addition to banning "intentional discrimination," the equal protection clause bars governmental actions that disadvantage people with disabilities when the actions are not rationally related to a legitimate governmental purpose or when they reflect "deliberate or selective indifference" to discrimination. The organizations include the American Association of People with Disabilities, AARP, ADAPT, the American Council of the Blind, the American Foundation for the Blind, the American Network of Community Options and Resources, the Arthritis Foundation, Easter Seals, Inc., the Epilepsy Foundation, the Learning Disabilities Association of America, the National Association of the Deaf, the National Association of People with AIDS, the National Association for Rights Protection and Advocacy, the National Council on Independent Living, the National Mental Health Consumers' Self-Help Clearinghouse, the National Multiple Sclerosis Society, the National Organization on Disability, the National Parent Network on Disabilities, the National Senior Citizens Law Center, the Polio Society, and Volunteers of America, Inc.

Brief of 20 Civil Rights and Advocacy Organizations
This brief describes the long history of state discrimination against people with disabilities, as acknowledged by Congress when it passed the ADA, and points out that no legitimate state interest justifies such disparate treatment. The ADA is "unlike other civil rights statutes," the brief argues, because the nature of the discrimination it addresses is unique. In addition to the fear and stereotypes at the root of most discrimination, people with disabilities confront both physical and attitudinal barriers. Addressing one type of barrier but not the other will not end the unconstitutional segregation of and prejudice against people with disabilities, the groups assert: "The ADA's requirement of reasonable accommodations and modifications is essential to allow the integration of people with disabilities into the mainstream of society—the first step to ending discrimination." The organizations include the Lambda Legal Defense and Education Fund, the American Civil Liberties Union, the Anti-Defamation League, the California Women's Law Center, the Center for Women Policy Studies, the Friends Committee on National Legislation, Gay and Lesbian Advocates and Defenders, the Human Rights Campaign, the National Asian Pacific American Legal Consortium, the National Council of Jewish Women, the National Gay and Lesbian Task Force, the National Partnership for Women and Families, the National Urban League, the National Women's Law Center, the National Youth Advocacy Coalition, the Northwest Women's Law Center, the NOW Legal Defense and Education Fund, People for the American Way Foundation, Women Employed, and the Women's Law Project. Available by request in HTML format.

Brief of the American Cancer Society
The American Cancer Society cites the evidence of pervasive and irrational state-sponsored employment discrimination against individuals with and survivors of cancer that Congress considered when enacting the ADA. The brief also contends that the statutory language of the ADA demonstrates that Congress intended to abrogate the states' Eleventh Amendment immunity.

Brief of the American Bar Association
Written by New York Lawyers for the Public Interest and Stroock & Stroock & Levan from the perspective of the ABA's long-standing commitment to the principles of the Americans with Disabilities Act, demonstrated by the activities of its Commission on Mental and Physical Disability, the brief argues that the ADA's language and mandates are well within constitutional bounds. While the states' role in providing care for people with disabilities has supported the court's rulings in other cases sustaining constitutional protections, "this history should not be mistaken for an absence of state discrimination." Indeed, the "invidious and irrational" discrimination by states "has operated on similar foundations as discrimination on the basis of race, ethnicity and gender" and the ADA, accordingly, is a proper response.

Brief of Voice of the Retarded
VOR, an organization advocating for services in appropriate settings for individuals with mental retardation, argues that protection for people with disabilities is explicitly included in the Fourteenth Amendment. Further, the brief contends, Congress "clearly intended" repeal of state sovereign immunity "to the extent necessary for the effectiveness of the Fourteenth Amendment."