No. 02-479 
____________ 
IN THE SUPREME COURT OF THE UNITED STATES 
____________ 
MEDICAL BOARD OF CALIFORNIA, 
Petitioner 
v. 
MICHAEL J. HASON, 
Respondent 
____________ 
On Writ of Certiorari to the 
United States Court of Appeals for the Ninth Circuit 
____________ 
BRIEF OF RESPONDENT 
____________ 
Mark D. Rosenbaum Erwin Chemerinsky 
ACLU Foundation of Southern California Counsel of Record 
1616 Beverly Blvd. University of Southern 
Los Angeles, CA 90026 California Law School 
(213) 977-9500 699 Exposition Blvd. 
Los Angeles, CA 90089 
Steven R. Shapiro (213) 740-2539 
American Civil Liberties Union Foundation 
125 Broad Street Paul Hoffman 
New York, New York 10004 Schonbrun, DeSimone, 
(212) 549-2500 Seplow, Harris & Hoffman 
723 Ocean Front Walk 
Paul M. Smith Venice, CA 90291 
Jenner & Block LLC (310) 396-0731 
601 13th Street, N.W. 
Washington, D.C. 20005 
(202) 639-6000 
QUESTION PRESENTED May state governments be sued for violating Title II of the Americans with 
Disabilities Act, which prohibits discrimination against individuals with disabilities 
in government “services, programs, or activities”? More specifically, is Title II of 
the Americans with Disabilities Act a proportionate and congruent means to 
prevent and remedy pervasive violations of the constitutional rights of people with 
disabilities that deny equal access to the basic functions of state governments? 
i 
TABLE OF CONTENTS 
QUESTION PRESENTED 
TABLE OF CONTENTS 
TABLE OF AUTHORITIES 
STATEMENT OF THE CASE 
SUMMARY OF ARGUMENT 
ARGUMENT 
STATE GOVERNMENTS MAY BE SUED FOR VIOLATING TITLE II OF THE AMERICANS 
WITH DISABILITIES ACT BECAUSE THE LAW IS 
PROPORTIONATE AND CONGRUENT TO 
PREVENTING AND REMEDYING CONSTITUTIONAL 
VIOLATIONS BY STATE GOVERNMENTS 
A. The Inquiry: Is Title II a Proportionate and 
Congruent Means to Prevent and Remedy 
Constitutional Violations? 
B. Title II Was Enacted To Prevent and Remedy 
Pervasive Constitutional Violations By State 
Governments 
1. Title II Prevents and Remedies 
Discrimination Against Individuals with 
Disabilities in the Exercise of Fundamental 
Rights 
2. Congress Documented a Pervasive Pattern of 
Historic and Continuing Unconstitutional 
Discrimination Against Individuals With Disabilities 
in Government Services, Programs, and Activities 
ii 
3. Title II is Thus Distinguishable from Other 
Statutes that this Court has Determined to Be 
Outside the Scope of Congress’s Section Five Powers 
C. Title II Is a Proportionate and Congruent Means 
to Prevent and Remedy Constitutional Violations 
1. The Prohibition of Discrimination Against 
Individuals with Disabilities in Government Services, 
Programs, and Activities is Proportionate and 
Congruent to Preventing and Remedying Pervasive 
Constitutional Violations Found by Congress 
2. Title II Is Carefully Tailored in that it 
Applies Just to “Qualified Individuals” Who 
Meet “Essential Requirements” and it Requires Only that the Government Act Reasonably 
3. Damage Remedies Are Needed to Deter and 
Compensate Violations of Constitutional Rights 
CONCLUSION 
iii 
TABLE OF AUTHORITIES 
Page 
CASES 
Alexander v. Choate, 469 U.S. 287 (1985) 
Ashwander v. T.V.A., 297 U.S. 288 (1936) 
Bartlett v. New York State Board of Law Examiners, 
226 F.3d 69 (2d. Cir. 2000) 
Belanger v. Madera Unified School Dist., 963 F.2d 248 
(9th Cir. 1992), cert. denied, 507 U.S. 919 (1993) 
Bivens v. Six Unknown Names Agents of the Federal 
Bureau of Narcotics, 403 U.S. 388 (1971) 
Board of County Commissioners v. Umbehr, 518 U.S. 
668 (1996) 
Board of Regents v. Kimel, 528 U.S. 62 (2000) Board of Trustees of the University of Alabama v. 
Garrett, 531 U.S. 356 (2001) 
Boddie v. Connecticut, 401 U.S. 371 (1971) 
Brown v. Board of Education, 347 U.S. 483 (1954) 
Buck v. Bell, 274 U.S. 200 (1927) 
City of Boerne v. Flores, 521 U.S. 507 (1997) 
City of Cleburne v. Cleburne Living Center, 473 U.S. 
432 (1985) 
iv 
Clark v. Jeter, 486 U.S. 456 (1988) 
Clark v. Va. Bd. of Bar Examiners, 880 F.Supp. 430 
(E.D. Va. 1995) 
Conroy v. Aniskoff, 507 U.S. 511 (1993) 
Dixon v. Attorney General, 325 F.Supp. 966 (M.D.Pa. 1971) 
Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1982) 
Doe v. Rowe, 156 F.Supp.2d 35 (D.Me. 2001) 
Dunn v. Blumstein, 405 U.S. 330 (1972) 
Ex parte Young, 209 U.S. 123 (1908) 
FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) 
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 
Florida Prepaid Postsecondary Ed. Expense Bd. v. College 
Savings Bank, 527 U.S. 627 (1999) 
Garcia v. SUNY Health Sciences Ctr. of Brooklyn, 280 F.3d 98 
(2d Cir. 2001) 
Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa. 1976) 
Katzenbach v. Morgan, 384 U.S. 641 (1966) 
Lewis v. New Mexico Dept of Health, 94 F.Supp.2d 1217 
(D.N.M. 2000) 
Lopez v. Monterey County, 525 U.S. 266 (1999) 
McDonald v. Smith, 472 U.S. 479 (1985) 
v 
McMillian v. Monroe County, 520 U.S. 781 (1997) 
Mills v. Board of Education, 348 F.Supp. 866 (D.D.C. 1972) 
New York v. County of Delaware, 82 F.Supp.2d 12 
(N.D.N.Y. 2000) 
New York v. United States, 505 U.S. 144 (1992) 
O’Connor v. Donaldson, 422 U.S. 563 (1975) 
O’Connor v. Ortega, 480 U.S. 709 (1987) 
Olmstead v. L.C., 527 U.S. 581 (1999) 
Oregon v. Mitchell, 400 U.S. 112 (1970) 
Owen v. City of Independence, 445 U.S. 622 (1980) 
Panitch v. Wisconsin, 444 F.Supp. 320 (E.D. Wis. 1977) 
Parrish v. Jackson, 800 F.2d 600 (6th Cir. 1986) 
Pennhurst State School & Hospital v. Halderman, 
485 U.S. 89 (1984) In re Petition of Frickey, 515 N.W.2d 741 (Minn. 1994) 
In re Petition of Kara B. Rubenstein, 637 A.2d 1131 (Del. 1994) 
Plyler v. Doe, 407 U.S. 202 (1982) 
Printz v. United States, 521 U.S. 898 (1997) 
Pushkin v. Regents of the University of Colorado, 658 F.2d 
1372 (10th Cir. 1981) 
vi 
Reynolds v. Sims, 377 U.S. 533 (1964) 
Rice v. Cayetano, 528 U.S. 495 (2000) 
Romer v. Evans, 517 U.S. 620 (1996) 
Saenz v. Roe, 526 U.S. 489 (1999) 
San Antonio Indep. School Dist. v. Rodriguez 
411 U.S. 1 (1973) 
Shapiro v. Thompson, 394 U.S. 618 (1969) 
Skinner v. Oklahoma, 316 U.S. 535 (1942) 
Spector Motor Service v. McLaughlin, 323 U.S. 101 (1944) 
Stanley v. Illinois, 405 U.S. 645 (1972) 
Stump v. Sparkman, 435 U.S. 349 (1978) 
Turner Broadcasting System, Inc. v. Federal Communication 
Commission, 520 U.S. 180 (1997) 
United States v. Gainey, 380 U.S. 63 (1965) 
United States v. Lopez, 514 U.S. 549 (1995) 
United States v. Morrison, 529 U.S. 598 (2000) 
United States v. Virginia, 518 U.S. 515 (1996) 
Walker v. Snyder, 213 F.3d 344, 346-347 (7th Cir. 2000), 
cert. denied sub nom United States v. Snyder, 531 U.S. 
1190 (2001) 
Wyatt v. Stickney, 344 F.Supp. 387 (M.D. Ala. 1972) 
vii 
Youngberg v. , Romeo, 457 U.S. 307(1982) 
Zablocki v. Redhail, 434 U.S. 374 (1978) 
STATUTES 
20 U.S.C. §1400 
29 U.S.C. §623 
29 U.S.C. §2612(a)(1)(D) 
42 U.S.C. §1971 
42 U.S.C. §2000d 
42 U.S.C. §12101 
42 U.S.C. §12202 
42 U.S.C. §12111 
42 U.S.C. §12131 
42 U.S.C. §12132 
Cal. Gov. Code §12944 LEGISLATIVE HISTORY 
Americans with Disabilities Act of 1989, Hearings on S.933 
Before the Sen. Comm. on Labor and Human Res. And the 
Subcomm. on the Handicapped, 101st Cong., 1st Sess. (1989) 
Equal Access to Voting for Elderly and Disabled Persons, 
Hearings Before the Task Force on Elections of the House 
Comm. on House Admin., 98th Cong., 1st Sess. (1984) 
viii 
H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990) 
S.Rep. No. 116, 101st Cong., 1st Sess. (1989) 
Staff of the House Comm. on Educ. and Labor, 101st Cong., 
2d Sess., Legis. Hist. of Pub. L. No. 101-336: The 
Americans with Disabilities Act, 100th Cong., 2d Sess. 
1220 (1990) 
135 Cong. Rec. S4986 (daily ed. May 8, 1989) 
135 Cong. Rec. S10753 (daily ed. Sept. 7, 1989) 
136 Cong. Rec. H2477 (daily ed. May 17, 1990) 
136 Cong. Rec. H2480 (daily ed. May 17, 1990) 
OTHER 
Emily Bazar, State Agencies Lag Badly in Complying 
with a 1995 Deadline to Provide Full Access, Sacramento 
Bee, June 17, 2001 
California Att’y Gen., Commission on Disability: Final Report 
(Dec. 1989) 
Civil Rights Commission, Accommodating the Spectrum of 
Individual Abilities (1983) Ruth Colker & Adam Milani, The Post-Garrett World: Insufficient 
State Protection Against Disability Discrimination, 53 Ala. L. Rev. 
1075 (2002) 
Federal Election Commission, Polling Place Accessibility in 
the 1988 General Election 7 (1989) 
ix 
General Accounting Office, Voters With Disabilities – 
Access to Polling Places and Alternate Voting Methods (2001) 
National Council on the Handicapped, On the Threshold of 
Independence (1988) 
Laura F. Rothstein, Symposium: The Americans with Disabilities 
Act: A Ten Year Retrospective, 52 Ala. L. Rev. 241 (2000) 
x 
STATEMENT OF THE CASE 
The Medical Board of California denied Dr. Michael J. Hason a medical 
license because of his history of depression.1 A graduate of Yale College and New 
York Medical College, Dr. Hason received a medical license in New York and 
worked successfully as a physician at St. Vincent’s Hospital, Bridgeport, 
Connecticut, 1991-1992, the State University of New York at Stony Brook, 1993- 
1994, and VA Medical Center in Los Angeles, California, 1994-1995. App. to 
1Because the District Court granted the defendants’ motion to dismiss pursuant to 
Federal Rule of Civil Procedure 12(b)(6), the allegations of the plaintiff’s 
complaint must be taken as true. Conley v. Gibson, 355 U.S. 41, 45-6 (1957). 
Petitioner, Medical Board of California, asserts facts in its Statement of the Case 
which have no support in the record of this case and are false. For example, in an 
effort to tarnish Dr. Hason’s qualifications and capabilities as a physician, the 
Medical Board says that he was denied a medical license because of a “history of 
untreated mental illness and multiple drug dependency.” Pet. Br. at 6. However, 
Dr. Hason’s complaint alleges, and it is undisputed, that he was receiving treatment 
for depression at the time he was denied a medical license. Complaint, ¶¶29, 30, 
App. to Cert. Pet. at 47; J.A. at 20. As the Court of Appeals observed: “Dr. 
Hason’s complaint also alleges, however, that by the time of the Medical Board’s 
decision he had received treatment for his disability and was capable of practicing 
medicine.” App. to Cert. Pet. at 11. Moreover, there is nothing in the record of 
this case supporting the claim that Dr. Hason suffered from “multiple drug 
dependency.” No such statements appear in the Administrative Law Judge’s ruling 
denying Dr. Hason a medical license, J.A., at 20, and further the assertions are 
untrue. Cert. Pet. at 46. 
In 1995, Dr. Hason applied for a medical license in California. In 1998, the 
California Medical Board denied Dr. Hason’s application for a medical license 
based on his history of depression. The Administrative Law Judge stated that Dr. 
Hason should continue his therapy and reapply for a license. J.A., at 20. 
Dr. Hason filed a pro se complaint in federal district court on April 21, 1999, 
seeking injunctive relief and monetary damages for violations of his rights under 
the United States Constitution and the Americans with Disabilities Act (“ADA”), 
as well as state tort claims. App. to Cert. Pet. at 37. The District Court accepted a 
Report and Recommendation from a United States Magistrate Judge and granted 
the defendants’ motion to dismiss, concluding that neither state officers nor the 
state government could be sued for injunctive or damage relief because of the 
Eleventh Amendment. App. to Cert. Pet. at 15, 17, 19-23. The District Court also 
held that there was no cause of action under Title II of the ADA for discrimination 
by state governments based on disability in issuing a medical license. Id. 
The United States Court of Appeals for the Ninth Circuit reversed the 
District Court, holding that (1) state officers may be sued for injunctive relief; (2) 
Title II of the ADA represents a permissible exercise of Congress’s power pursuant 
to section five of the Fourteenth Amendment and could be used to sue the state 
government; and (3) discrimination against individuals with disabilities in medical 
licensing constitutes “services, programs, or activities” of the state within the 
meaning of Title II. App. to Cert. Pet. at 1. The Court of Appeals denied the 
Medical Board’s petition for en banc review. App. to Cert. Pet. at 26.2 
2The Medical Board sought certiorari as to the second two issues, whether state 
governments may be sued for violating Title II and whether discrimination in 
licensing is within the scope of Title II. This Court, however, granted certiorari 
limited to the first question. SUMMARY OF ARGUMENT 
Title II of the Americans with Disabilities Act, 42 U.S.C. §12132, is 
different from other statutes that this Court has analyzed as to whether state 
governments may be sued for violation of federal laws. Title II – unlike the Age 
Discrimination in Employment Act, 29 U.S.C. §623, or Title I of the Americans 
with Disabilities Act, 42 U.S.C. §12111, or the Family and Medical Leave Act, 29 
U.S.C. §2612(a)(1)(D) – is directed exclusively at state and local governments 
acting in their sovereign capacities. While these other statutes involve 
employment decisions, the unambiguous purpose of Title II is to protect the rights 
of millions of Americans with disabilities to participate on a non-discriminatory 
basis in the central functions of state and local governments. Title II exists to 
ensure that individuals with disabilities have access to their government in the 
same way as other citizens. As this Court powerfully observed: “Central both to 
the idea of the rule of law and to our own Constitution’s guarantee of equal 
protection is the principle that government and each of its parts remain open on 
impartial terms to all who seek its assistance.” Romer v. Evans, 517 U.S. 620, 633 
(1996). 
The Age Discrimination in Employment Act and Title I of the ADA involve 
discrimination that receives only rational basis review under this Court’s equal 
protection jurisprudence. In sharp contrast, Title II of the ADA involves 
protecting fundamental rights – in areas such as voting, access to the courts, 
freedom from unjustified confinement, and travel – where courts traditionally have 
applied strict scrutiny. 
Moreover, unlike the employment context, an extensive legislative record 
documented a long and sorry history of pervasive state discrimination against 
individuals with disabilities in the areas covered by Title II. Title II is therefore 
most analogous to the Voting Rights Act, 42 U.S.C. §1971, et. seq., which this Court in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 
373-374 (2001), identified as the model of a permissible enactment under section 
five of the Fourteenth Amendment. Title II and the Voting Rights Act share in 
common proscriptions against the denial of fundamental rights by governmental 
bodies upon findings of pervasive discrimination. They are about nothing less than 
protecting the capacity of a historically disadvantaged group to participate in and 
have access to their government. 
This Court has held that “Congress may abrogate the States’ Eleventh 
Amendment immunity when it both unequivocally intends to do so and acts 
pursuant to a valid grant of constitutional authority.” Board of Trustees of the 
University of Alabama v. Garrett, 531 U.S. at 363 (citation omitted). Title II 
satisfies these criteria. There is no dispute that the ADA, 42 U.S.C. §12202, 
expressly authorizes suits against state governments. Id. at 363-364 (noting that 
the ADA unequivocally authorizes suits against state governments). 
In evaluating whether Title II is within the scope of Congress’s section five 
authority, this Court has prescribed three questions: First, what are the 
constitutional rights at issue? Board of Trustees of the University of Alabama v. 
Garrett, 531 U.S. at 365. Second, has Congress identified a “history and pattern of 
unconstitutional” violations of these rights? Id. at 368. Third, is the federal statute 
“congruent and proportional to the targeted violation”? Id. at 374. 
First, Title II is directed at preventing and remedying violations of the 
fundamental constitutional rights of people with disabilities, which are protected 
by the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. In Board of 
Trustees of the University of Alabama v. Garrett and Board of Regents v. Kimel, 
528 U.S. 62 (2000), this Court reviewed the congruence and proportionality of 
congressional legislation in areas that trigger only rational basis review. This case 
arises in a very different context. Title II is directed at deterring and compensating violations of rights that have long been regarded as fundamental. These include 
the right to vote, see, e.g., Dunn v. Blumstein, 405 U.S. 330, 336-37 (1972); the 
right to travel, see, e.g., Saenz v. Roe, 526 U.S. 489, 500 (1999); Shapiro v. 
Thompson, 394 U.S. 618, 638 (1969); the right to be free from unjustified 
confinement, see, e.g., Youngberg v. Romeo, 457 U.S. 307, 384-388 (1982); the 
right to marry, Zablocki v. Redhail, 434 U.S. 374, 384-88 (1978), to procreate, 
Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942), and to have custody of one’s 
children, Stanley v. Illinois, 405 U.S. 645, 651-53 (1972). 
Second, Congress, as a basis for enacting Title II, extensively documented 
pervasive constitutional violations against people with disabilities with regard to 
each of these rights, as well as in many other areas where access to basic 
government services, programs, and activities was unconstitutionally denied. The 
text of Title II expressly states congressional findings that discrimination against 
persons with disabilities “persists in such critical areas as employment, housing, 
public accommodations, education, transportation, communication, recreation, 
institutionalization, health services, voting, and access to public services.” 42 
U.S.C. §12101(a)(3). Congress, within the statute itself, characterized the 
discrimination against individuals with disabilities as “pervasive” throughout the 
nation. 42 U.S.C. §12101(a)(2). In extensive hearings and Commission reports, 
Congress repeatedly detailed and often quantified extensive unconstitutional acts 
against individuals with disabilities with regard to fundamental rights. Congress 
also found arbitrary and irrational discrimination against the disabled in every facet 
of government services, programs, and activities, including licensing, the focus of 
this case. 42 U.S.C. §12101(a)(5) (“exclusionary qualification standards” are a 
continuing form of discrimination against people with disabilities.) 
Finally, Title II is “proportionate” and “congruent” to preventing and 
remedying the constitutional violations that Congress documented. The law “[r]espond[s] to a history of widespread and persisting deprivation of constitutional 
rights.” Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 
527 U.S. 627, 640 (1999). It does so in a carefully calibrated fashion. Title II is 
limited to protecting individuals who are “otherwise qualified,” 42 U.S.C. 
§12132(b)(5)(A)-(B), by virtue of “meet[ing] the essential eligibility requirements 
for . . . the participation in the programs or activities provided by a public entity.” 
42 U.S.C. §12131(2). The statute is narrowly tailored in that it requires only that 
the government act “reasonably.” Title II is explicit that public entities are not 
required to make modifications that are unreasonable. Olmstead v. L.C., 527 U.S. 
581, 603 (1999). Indeed, it is difficult to imagine any narrower statute that 
Congress could have written to address the pervasive constitutional violations that 
it found to exist across the country. ARGUMENT 
STATE GOVERNMENTS MAY BE SUED FOR VIOLATING TITLE 
II OF THE 
AMERICANS WITH 
DISABILITIES ACT 
BECAUSE THE LAW 
IS PROPORTIONATE 
AND CONGRUENT 
TO PREVENTING 
AND REMEDYING 
CONSTITUTIONAL 
VIOLATIONS BY 
STATE 
GOVERNMENTS 
A. The Inquiry: Is Title II a Proportionate and Congruent Means 
to Prevent and Remedy Constitutional Violations? 
This Court has held that “Congress may abrogate the States’ Eleventh 
Amendment immunity when it both unequivocally intends to do so and acts 
pursuant to a valid grant of constitutional authority.” Board of Trustees of the University of Alabama v. Garrett, 531 U.S. at 363 (citation omitted). The 
Americans with Disabilities Act unequivocally authorizes suits against state 
governments. The Act states: “A State shall not be immune under the eleventh 
amendment to the Constitution of the United States from an action in Federal or 
State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. 
§12202. 
The issue in this case therefore is whether this authorization of suits against 
states is constitutional; that is, whether Title II lies within the scope of Congress’s 
power under section five of the Fourteenth Amendment. In a series of recent 
decisions, this Court has held that a statute constitutes an appropriate enactment 
under section five, and thus may be used to sue state governments, where Congress 
has documented a pattern of unconstitutional conduct by the states, and where the 
remedy provided by Congress is congruent and proportionate to the scope and 
nature of the identified constitutional violations. Board of Trustees of the 
University of Alabama v. Garrett, 531 U.S. at 374; Kimel v. Florida Board of 
Regents, 528 U.S. at 81-82; Florida Prepaid Postsecondary Ed. Expense Bd. v. 
College Savings Bank, 527 U.S. at 639-40; City of Boerne v. Flores, 521 U.S. 507, 
520, 525 (1997). 
The State of California seeks to materially change the inquiry so as to ask 
only whether “Congress exceeded its Fourteenth Amendment powers with respect 
to the specific activity at issue – professional and vocational licensing – rather than 
considering Title II of the ADA in toto.” Pet. Br. at 14. In other words, the State 
argues that the question is not whether Title II of the ADA is within the scope of 
Congress’s section five powers, but instead, whether the prohibition of 
discrimination against individuals with disabilities in medical licensing is a lawful 
exercise of Congress’s authority under the Fourteenth Amendment based on the 
legislative history of the ADA. The State’s proposed approach would significantly change the law and impose dramatic and inappropriate new limits on 
congressional authority. 
First, the State’s proposed approach misconceives the question. The issue is 
whether this statute, Title II of the ADA, is within the scope of Congress’s section 
five authority. No decision of this Court – or any court – ever has held that a 
constitutional statute cannot be used for a specific application clearly embraced 
within the law unless Congress made specific findings as to that particular 
application. Indeed, in each of its recent cases concerning whether a federal law 
can be used to sue state governments, this Court always has focused on whether the 
statute, not just a particular application of the law, fits within Congress’s section 
five powers. See, e.g., Board of Trustees of the University of Alabama v. Garrett, 
531 U.S. at 364 (emphasis added) (“Accordingly, the ADA can apply to the States 
only to the extent that the statute is appropriate §5 legislation.”) 
Second, the State’s approach, requiring that each form of discrimination and 
violation of rights prohibited by the law be specifically documented by Congress to 
involve pervasive constitutional violations, would greatly and unduly limit 
Congress’s authority. This Court has emphasized that “[i]t is for Congress in the 
first instance to determine whether and what legislation is needed to secure the 
guarantees of the Fourteenth Amendment, and its conclusions are entitled to much 
deference.” City of Boerne v. Flores, 521 U.S. at 536 (citation omitted). This 
power would be vastly reduced if an otherwise constitutional law could be applied 
only to the specific areas that Congress explicitly identified and proved to be 
subject to pervasive discrimination. 
Under the State’s approach, a law that was otherwise clearly constitutional 
under Congress’s section five powers could not be applied even against 
unquestionably unconstitutional state conduct if Congress had not proven 
pervasive unconstitutional actions as to that precise type of conduct. For example, if Congress found and thoroughly documented widespread race discrimination by 
state governments and enacted a law prohibiting states from discriminating based 
on race in their services, programs, or activities, that law could not be applied 
against race discrimination in medical licensing or any other area without specific 
Congressional findings as to each and every application. New activities of state 
governments, not existing or foreseen at the time a statute was adopted, could not 
be regulated under the law even where the broad subject area was encompassed by 
the law’s proscriptions and was otherwise supported by sufficient congressional 
findings. 
The State’s formulation is irreconcilable with this Court’s repeated holding 
that Congress, when acting under section five, can go further than just what the 
Constitution prohibits. As this Court has stated: “Congress’ power ‘to enforce’ the 
Amendment includes the authority both to remedy and to deter violations of rights 
guaranteed thereunder by prohibiting a somewhat broader swath of conduct, 
including that which is not itself forbidden by the Amendment’s text.” Trustees of 
the University of Alabama v. Garrett, 531 U.S. at 365 (citation omitted); Kimel v. 
Florida Board of Regents, 528 U.S. at 81; City of Boerne v. Flores, 521 U.S. at 
536. This Court has stressed that Congress may act under section five to prevent 
and remedy constitutional violations “even if in the process it prohibits conduct 
which is not itself unconstitutional and intrudes into legislative spheres of 
autonomy previously reserved to the states.” Lopez v. Monterey County, 525 U.S. 
266, 282-83 (1999) (citation omitted). But if the State’s argument were accepted, 
Congress broad remedial powers would be negated and laws would be limited only 
to constitutional violations and only to those proven in the legislative history. 
Finally, the State’s argument would necessarily require the judiciary to make 
an arbitrary choice as to the level of abstraction at which to state the inquiry. 
Under the State’s approach, should the focus be on whether Congress found pervasive discrimination in licensing of doctors; or licensing of all health 
professionals; or licensing of all professionals; or all who receive licenses from the 
State; or all who receive benefits from the State? 
States would always argue for the level of specificity required to avoid being 
covered by congressional findings of prior discrimination. If successful, this 
gambit could preclude statutory liability even in a field – somewhat more broadly 
defined – where the history of state discrimination is glaring and thoroughly 
documented. This is because Congress never makes specific findings of the kind 
demanded by the Petitioner at the level of detail that Petitioner also insists that the 
Constitution requires. For the Court to impose such a requirement on Congress 
would raise serious separation of powers concerns. See, e.g., FCC v. Beach 
Communications, Inc., 508 U.S. 307, 313 (1993) (emphasizing that it is not for the 
courts “to judge the wisdom, fairness or logic of legislative choices.”) At the very 
least, the State’s approach, having this Court focus only on whether discrimination 
against individuals with disabilities in medical licensing is within the scope of 
Congress’s section five powers, would significantly change the law and would be 
the antithesis of the “judicial avoidance” urged by the Medical Licensing Board. 
Pet. Br. at 15, citing Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 
(1944); Ashwander v. T.V.A., 297 U.S. 288, 345-348 (1936) (Brandeis, J, 
concurring). 
The Amicus Brief filed by Commonwealth of Virginia would go even 
further in limiting Congress’s powers. The Amicus Brief contends that the 
“examination of Congressional findings should be limited to the statutory text.” 
Brief of the Commonwealth of Virginia, at 6. The claim is that Congress must put 
findings of pervasive discrimination in the text of the statute itself or forfeit its 
section five authority. Id. at 8. This, too, is an approach lacking support from any 
prior decision of this Court or any other court. In each recent case concerning the scope of Congress’s section five powers, this Court has reviewed the legislative 
history to determine whether Congress documented pervasive discrimination and 
whether the statute was proportionate and congruent as a preventative and remedial 
measure. In Kimel v. Florida Board of Regents, 528 U.S. at 88, this Court 
explained that “[o]ne means by which we have made such a determination in the 
past is by examining the legislative record containing the reasons for Congress’ 
action.” 
Under the ruled urged by Amicus, scarcely any federal law would fall within 
the scope of section five because statutory provisions regulate conduct; text rarely 
comes packed with detailed findings in support of itself. The Amicus brief takes 
general discussions about the role of legislative history in statutory interpretation 
and applies them to a very different context where they have no relevance: whether 
Congress found a sufficiently pervasive pattern of unconstitutional action to justify 
a statute under section five of the Fourteenth Amendment. 
Moreover, the ADA is unusual among federal laws in that Congress did 
include within it explicit findings about widespread discrimination against 
individuals with disabilities by state and local governments in their services, 
programs, and activities. The ADA declares Congress’s finding that “historically, 
society has tended to isolate and segregate individuals with disabilities,” and that 
“such forms of discrimination against individuals with disabilities continue to be a 
serious and pervasive social problem.” 42 U.S.C. §12101(a)(2). The statute itself 
states that discrimination against persons with disabilities “persists in such critical 
areas as employment, housing, public accommodations, education, transportation, 
communication, recreation, institutionalization, health services, voting, and access 
to public services.” 42 U.S.C. §12101(a)(3). The ADA, in its statutory provisions, 
is quite specific as to the forms of unconstitutional discrimination against 
Americans with disabilities: [Persons with disabilities] encounter various forms of discrimination, 
including outright intentional exclusion, the discriminatory effects of 
architectural, transportation, and communication barriers, 
overprotective rules and policies, failure to make modifications to 
existing facilities and practices, exclusionary qualification standards 
and criteria, segregation, and relegation to lesser services, programs, 
activities, benefits, jobs, or other opportunities. 42 U.S.C. 
§12101(a)(5). 
Based on these findings, Congress “invoke[d] the sweep of congressional 
authority, including the power to enforce the Fourteenth Amendment” as the basis 
for enacting the ADA. 42 U.S.C. §12101(b)(4). 
The Virginia Amicus Brief also advances another novel argument to limit 
Congress’s powers: that a federal law preventing and remedying discrimination 
can be applied only to those states that Congress specifically finds have engaged in 
unconstitutional conduct. Virginia Amicus Br. at 11. This would require 
Congress, in acting under section five, to study every state and to make specific 
findings of discrimination as to each and every state. Again, nothing in any 
decision of this Court or any court provides support for such a limit which would 
enormously restrict the ability of Congress to act under section five of the 
Fourteenth Amendment. Quite the contrary, this Court has been clear that if 
Congress finds pervasive constitutional violations, it may adopt a law with national 
application to prevent and remedy the problem so long as the law is proportionate 
and congruent. See Oregon v. Mitchell, 400 U.S. 112, 147 (1970) (Douglas, J., 
concurring); 216 (Harlan, J., concurring); 236 (Brennan, J., concurring); 283-84 
(Stewart, J., concurring) (eight Justices concluded that Congress may enact 
prophylactic legislation that applies nationally under section five even though 
Congress lacks evidence that every state has or is likely to engage in 
unconstitutional behavior). Indeed, the position of the Virginia Amicus would be quite offensive from the perspective of federalism, as Congress, in order to 
legislate, would have to make detailed findings about each state and label each a 
constitutional violator. 
Nor is there any support for the contention of the Virginia Amicus that 
Congress must restrict laws properly enacted under section five of the Fourteenth 
Amendment to a limited period of time. Virginia Amicus Brief, at 12. This Court, 
for example, has upheld Title VII of the 1964 Civil Rights Act as valid legislation 
under section five even without any limit in terms of the law’s duration. 
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); see also Katzenbach v. Morgan, 384 
U.S. 641 (1966) (upholding provisions of the Voting Rights Act as valid under 
section five without any limit in duration). Nor does the State provide any basis 
for implementation of such a requirement. Would Congress have to renew the 
findings every six months or every year or every five years? 
The approach urged by the Medical Licensing Board and its amicus is a 
thinly veiled attempt to prevent Congress from legislating under section five at all. 
Taken together, they would require that the text of a statute detail findings of 
unconstitutional actions for every application and for each state being regulated. 
Such arbitrary limits on Congress’s power have no basis under section five of the 
Fourteenth Amendment, principles of Article III, or the system of separation of 
powers envisioned by the Constitution. 
In Garrett, this Court prescribed the inquiry to be followed in determining 
whether Title II of the ADA is within the scope of Congress’s section five powers: 
“[I]n order to authorize private individuals to recover money damages against the 
States, there must be a pattern of discrimination by the States, which violates the 
Fourteenth Amendment, and the remedy imposed by Congress must be 
proportionate and congruent to the targeted violation.” 531 U.S. at 374. 
Therefore, the key questions in this case are: Is there a pattern of unconstitutional discrimination against individuals with disabilities by state governments in their 
services, programs, or activities? Is Title II of the ADA a proportionate and 
congruent means to prevent and remedy these constitutional violations? 
B. Title II Was Enacted To Prevent and Remedy Pervasive 
Constitutional Violations By State Governments 
1. Title II Prevents and Remedies Discrimination Against 
Individuals with Disabilities in the Exercise of 
Fundamental Rights 
In. Garrett, this Court stated that “[t]he first step in applying these now 
familiar principles is to identify with some precision the scope of the constitutional 
right at issue.” 531 U.S. at 365. Title II of the Americans with Disabilities Act is a 
response to pervasive discrimination against individuals with disabilities in the 
exercise of many constitutional rights that warrant heightened scrutiny under longstanding 
decisions of this Court. As described above, the text of the ADA is clear 
that the law is directed at unconstitutional government conduct in areas implicating 
basic rights “in such critical areas as . . . education, . . . communication, . . . 
institutionalization, ... voting, and access to public services.” 42 U.S.C. 
§12101(a)(3). 
In Kimel, 528 U.S. at 83, and Garrett, 531 U.S. at 366, the Court 
emphasized that it was dealing with types of discrimination, age and disability, that 
receive only rational basis review under equal protection in the context of 
employment decisions by a state. In contrast, discrimination with regard to 
fundamental rights – a central focus of Title II of the ADA – triggers strict 
scrutiny. This Court long has held that “classifications affecting fundamental 
rights are given the most exacting scrutiny.” Clark v. Jeter, 486 U.S. 456, 461 
(1988). 
For example, countless cases hold that discrimination with regard to voting, an express concern of Congress in enacting Title II, warrants strict scrutiny. See, 
e.g., Dunn v. Blumstein, 405 U.S. 330, 334-35 (1972); Reynolds v. Sims, 377 U.S. 
533, 565-68 (1964). Likewise, infringements of the right to travel for individuals 
with disabilities, another explicit area identified by Congress in Title II, receive 
strict scrutiny. See, e.g., Shapiro v. Thompson, 394 U.S. at 638 (since “the 
classification here touches on the fundamental right of interstate movement, its 
constitutionality must be judged by the stricter standard of whether it promotes a 
compelling state interest.”) 
Congress in adopting Title II also sought to prevent and remedy the 
unjustified institutionalization of individuals with disabilities and the violation of 
the fundamental right to be free from unreasonable confinement. See Olmstead v. 
L.C., 527 U.S. 581 (1999); Youngberg v. Romeo, 457 U.S. 307 (1982). As 
described below, Congress found extensive discrimination against people with 
disabilities in the exercise of basic liberties, such as the right to marry, the right to 
procreate, and the right to custody of their children, which also warrant strict 
scrutiny. See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (the right to marry as 
a fundamental right); Stanley v. Illinois, 405 U.S. 645 (1972) (the right to custody 
of one’s children as a fundamental right); Skinner v. Oklahoma, 316 U.S. 535 
(1942) (the right to procreate as a fundamental right). 
Most profoundly, Title II is about ensuring that Americans with disabilities 
have the same access to their government as all other citizens. In many contexts, 
this Court has recognized the fundamental importance of every person having 
access to his or her government. See, e.g., Romer v. Evans, 517 U.S. at 633 
(declaring that it is “[c]entral both to the rule of law and to . . . equal protection” 
that the government be available on an equal basis “to all who seek its assistance”); 
McDonald v. Smith, 472 U.S. 479 (1985) (the right to petition government for 
redress of grievances); Boddie v. Connecticut, 401 U.S. 371 (1971) (right of access to the courts). By prohibiting discrimination against individuals with disabilities in 
“services, programs, or activities,” Title II, above all, is concerned with ensuring 
that individuals with disabilities have full and complete access to their 
governments. 
2. Congress Documented a Pervasive Pattern of Historic 
and Continuing Unconstitutional Discrimination Against 
Individuals with Disabilities in Government Services, 
Programs, and Activities 
In Garrett, this Court stated: “Once we have determined the metes and 
bounds of the constitutional right in question, we examine whether Congress 
identified a history and pattern of unconstitutional employment discrimination.” 
531 U.S. at 368. As Justice Kennedy explained: “The predicate for money 
damages against an unconsenting State in suits brought by private persons must be 
a federal statute enacted upon the documentation of patterns of constitutional 
violations committed by the State in its official capacity.” Id. at 376 (Kennedy, J., 
concurring). 
Title II is fundamentally different from Title I, considered in Garrett, 
because Congress made express findings, supported by extensive documentation, 
of “pervasive” unconstitutional discrimination against individuals with disabilities 
in government services, programs, and activities. 42 U.S.C. §12101(a)(2). Indeed, 
in Garrett, this Court contrasted the lack of a documented history of discrimination 
in employment by the states (the focus of Title I), with the congressional record 
detailing discrimination by the states in providing public services (Title II). 531 
U.S. at 371 n.7 (observing that “the overwhelming majority of these accounts [of 
constitutional violations by the States] pertain to alleged discrimination by the 
States in the provision of public services and accommodations.”) 
In Garrett, this Court emphasized that “had Congress truly understood this information [concerning employment discrimination] as reflecting a pattern of 
unconstitutional behavior by the States, one would expect some mention of the 
conclusion in the Act’s legislative findings. There is none.” Id. at 371. In clear 
contrast, Congress made express findings of persistent discrimination in “public 
services.” 42 U.S.C. §12101(a)(3). Unlike employment, where Congress made a 
finding for private employment, but no analogous finding for public employment, 
531 U.S. at 371, text of Title II includes explicit findings of persisting 
discrimination in “education, . . . institutionalization, . . . voting, and access to 
public services.” 42 U.S.C. §12101(a)(3). 
The legislative history which the Court found lacking for Title I is altogether 
different for Title II, in that it contains extensive documentation of widespread 
state government discrimination against Americans with disabilities with regard to 
government services, programs, and activities. The Court recognized exactly this 
distinction in Garrett. As Justice Breyer observed in his dissent in Garrett, 
“[t]here are roughly 300 examples of discrimination by state governments 
themselves in the legislative record [of the ADA].” 531 U.S. at 379 (Breyer, J., 
dissenting). But the Court’s opinion in Garrett responded that “[t]he 
overwhelming majority of these accounts pertain to alleged discrimination by the 
States in the provision of public services and public accommodations, which areas 
are addressed in Title II and III of the ADA.” 531 U.S. at 370 n.7. In other words, 
the Garrett Court found that the vast majority of Congress’s specific evidence of 
discrimination supported Titles II and III as valid exercises of Congress’s authority 
under section five of the Fourteenth Amendment. 
In enacting Title II, Congress exercised its unique institutional capacity “to 
amass the stuff of actual experience and cull conclusions from it.” United States v. 
Gainey, 380 U.S. 63, 66-67 (1965). The ADA was the result of more than 20 years 
of hearings and investigations into the pervasive discrimination against individuals Cong., 1 
with disabilities. With respect to the ADA alone, Congress held 16 committee 
hearings and 63 field hearings, issued five committee reports, and engaged in 
prolonged floor debate. S.Rep. No. 116, 101st st Sess., 4-5, 8-9 (1989); 
H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. II at 24-28, 31 (1990). After two 
years of fine-tuning in committee and floor deliberations, the ADA was passed a 
vote of 91-6 in the Senate and 377-28 in the House. 
Congress, in enacting the ADA, found that, both historically and now, 
individuals with disabilities are subjected to “widespread and persisting 
deprivation of [their] constitutional rights.” Florida Prepaid Postsecondary Ed. 
Bd. v. College Savings Bank, 527 U.S. at 645; (the “propriety of any §5 legislation 
must be judged with reference to the historical experience . . . it reflects” id. at 
640.) For example, with regard to voting, Congress heard that “in the past years 
people with disabilities have been turned away from the polling places after they 
have been registered to vote because they did not look competent.” 2 Staff of the 
House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legis. Hist. of Pub. L. 
No. 101-336: The Americans with Disabilities Act, 100th Cong., 2d Sess. 1220 
(1990) (hereafter, “Legis. Hist.”) The legislative history documents that many 
persons with disabilities “cannot exercise one of [the] most basic rights as an 
American” because polling places were not accessible to persons with disabilities. 
S.Rep. No. 116 at 12. In fact, a study found that 21% of polling places were 
inaccessible to individuals with disabilities in the 1988 elections and 27% were 
inaccessible in the 1986 elections. Federal Election Commission, Polling Place 
Accessibility in the 1988 General Election 7 (1989). A hearing on discrimination 
with regard to voting is filled with specific examples of individuals with 
disabilities being denied their constitutionally guaranteed right to vote. Equal 
Access to Voting for Elderly and Disabled Persons, Hearings Before the Task 
Force on Elections of the House Comm. on House Admin., 98th Cong., 1st Sess. (1984). 
Overall, the United States Civil Rights Commission, in a report extensively 
relied on by Congress in enacting the ADA, found that people with disabilities are 
“frequently denied . . . the right to vote” and face barriers such as “state laws 
restricting voting rights of mentally handicapped persons,” “the denial of 
opportunity for institution residents to vote,” “architectural barriers at polling 
places,” the “absence of assistance in ballot marking,” the “inequity of absentee 
ballots,” and “restrictions on rights of handicapped persons to hold public office.” 
Civil Rights Commission, Accommodating the Spectrum of Individual Abilities 40 
(1983); see also 135 Cong. Rec. S10753 (daily ed. Sept. 7, 1989) (Sen. Gore) 
(summarizing testimony and concluding “[a]s a practical matter, many Americans 
with disabilities find it impossible to vote.”) 
Similarly, Congress documented that those with disabilities were frequently 
unconstitutionally deprived of their right of access to the courts and to their 
government. The legislative history documents that “[t]he courthouse door is still 
closed to Americans with disabilities – literally.” 2 Legis. Hist. 936 (Sen. Harkin). 
More generally, the legislative history carefully shows that government buildings, 
including courthouses, were inaccessible to individuals with disabilities, thus 
denying their basic right of access to government. The Civil Rights Commission’s 
study found that 76% of State-owned buildings were inaccessible to persons with 
disabilities. Civil Rights Commission, Accommodating the Spectrum of Individual 
Abilities at 39. Congressional committees heard testimony of “innumerable 
complaints regarding lack of access to public service – people unable to meet with 
their elected representatives because their district office buildings were not 
accessible or unable to attend public meetings because they are held in an 
inaccessible building.” Americans with Disabilities Act of 1989, Hearings on S.933 
Before the Sen. Comm. on Labor and Human Res. And the Subcomm. on the Cong., 1 Handicapped, 101st st Sess. (1989) (testimony of Illinois Attorney General 
Neil Hartigan). The legislative history, especially the field hearings, is replete with 
examples of individuals who could not attend court hearings or government 
meetings because entrances were not accessible for individuals with disabilities. 
See, e.g., Alabama submission, at 17; Alaska submission, at 73; Indiana 
submission, at 626; Wisconsin submission, at 1758; Wyoming submission, at 
1786. These are examples of clearly unconstitutional acts of state and local 
governments in denying individuals with disabilities access to their government.3 
A particularly important example of pervasive unconstitutional state 
government actions that motivated the enactment of the ADA is the impermissible 
confinement of individuals with disabilities. The legislative history of the ADA 
3In Garrett, this Court held that examples of employment discrimination by local 
governments were not relevant in assessing whether there was an adequate record 
of discrimination by state governments. 531 U.S. at 368-369. However, in 
assessing discrimination in government services, programs, and activities, this 
Court should consider evidence of constitutional violations by local governments 
because often local governments are acting as arms of the state government in 
providing particular services, programs, and activities. See, e.g., McMillian v. 
Monroe County, 520 U.S. 781, 795 (1997) (Alabama county sheriff is a part of the 
state); Pennhurst State School & Hospital v. Halderman, 485 U.S. 89, 124 (1984) 
(administration of mental hospital by local government is a state government 
function); Belanger v. Madera Unified School Dist., 963 F.2d 248 (9th Cir. 1992), 
cert. denied, 507 U.S. 919 (1993) (California school districts are arms of the state 
and protected by the Eleventh Amendment). Many of the government functions 
covered by Title II devolve to local governments because states delegate these 
tasks. Congress surely would not need to examine the laws of each state to 
determine when the local government was operating as a part of the state. Rather, 
in this area, findings of local government violations of the constitutional rights of 
people with disabilities should be considered in evaluating the overall proof of 
pervasive discrimination. Also, it should be noted that the vast majority of areas 
considered – voting, access to courts and government buildings, impermissible 
confinement, violations of the rights to marry, procreate and custody, and licensing 
– involve state governments. recounts numerous instances of individuals with disabilities being 
unconstitutionally confined and institutionalized. Indeed, the “Findings and 
Purposes” section at the beginning of the ADA, 42 U.S.C. §12101(a)(2)(3), 
mentions persistent unjustified “institutionalization” of people with disabilities. 
The Senate Report on the ADA explains that “[h]istorically, individuals with 
disabilities have been isolated and subjected to discrimination and such isolation 
and discrimination is still pervasive in our society.” S.Rep. No. 116 at 6. Senator 
Harkin, in introducing the ADA, said that one of its key purposes is “getting 
people . . . out of institutions.” 135 Cong. Rec. S4986 (daily ed. May 8, 1989); see 
also 136 Cong. Rec. H2477 (daily ed. May 17, 1990, Congressman Miller, cosponsor 
of the ADA) (“[s]ociety has made [people with disabilities] invisible by 
shutting them away in segregated facilities.”) 
The report of the United States Commission on Civil Rights, quoted 
extensively in the House and Senate Reports, discussed in detail the 
unconstitutional confinement of individuals with disabilities. The Civil Rights 
Commission described how historically individuals with disabilities have been 
needlessly isolated from the rest of society and confined, first at the hands of 
people who collected fees for their care and “locked their charges in the attic to 
starve or freeze to death;” then in unsanitary and overcrowded almshouses that 
generally did not provide care but were “merely custodial”; then in large state 
facilities that came to see their purpose as protecting society from people with 
disabilities as these individuals came to be seen as “sub-standard human creatures” 
and “waste products” during the growth of the eugenics movement. Id. at 17-20. 
The Civil Rights Commission report detailed the continuing unnecessary 
segregation and institutionalization of people with disabilities: “The harshest side 
of institutionalization is the systematic placement of handicapped people in 
substandard residential facilities, where incidents of abuse by staff and other residents, dangerous physical conditions, gross underfunding, overuse of 
medication to control residents, medical experimentation, inadequate and 
unsanitary food, sexual abuses, use of solitary confinement and physical restraints, 
and other serious deficiencies and questionable practices have been reported.” Id. 
at 41. 
Despite repeated calls for deinstitutionalization and integration of people 
with disabilities in society, widespread confinement continued. The Civil Rights 
Commission found: “Despite such initiatives, a great many handicapped persons 
remain in segregative facilities. The Comptroller General has estimated that about 
215,000 persons were residing in public mental hospitals in 1974 and that some 
181,000 persons were in public institutions for mentally retarded people as of 
1971. In 1976, one study estimated that 1,550,120 people were in long term 
residential care facilities.” Id. at 35. This Court, of course, has found that 
individuals with disabilities have a fundamental right to freedom from undue 
restraint. Youngberg v. Romeo, 457 U.S. at 324 (also recognizing a right to 
minimally adequate treatment); see also O’Connor v. Donaldson, 422 U.S. 563 
(1975). The legislative history of Title II describes investigations of State-run 
mental health facilities which found conditions that “were appalling. The extent of 
neglect and abuse uncovered in their facilities was beyond belief.” 132 Cong. Rec. 
S5914 (1986) (Sen. Kerry). 
Congress also intended Title II to prevent and remedy violations of 
fundamental rights to marry, to procreate, and to custody of one’s children. 
Congress was acutely aware of the tragic history of the eugenics movement in 
which states attempted to halt reproduction of people with disabilities and “nearly 
extinguish their race.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 
462 (1985) (Marshall, J., concurring). In fact, almost every state prohibited 
marriage and inflicted forced sterilization on individuals with disabilities. Id. at 463. See Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding compulsory 
sterilization “in order to prevent our being swamped with incompetence” and 
because “three generations of imbeciles is enough.”) 
Nor were such violations of the basic rights to marry and procreate a thing of 
the past. The Civil Rights Commission report relied on by Congress noted that 
fifteen states continued to have compulsory sterilization laws on the books, four of 
which included persons with epilepsy. Commission on Civil Rights, 
Accommodating the Spectrum of Individual Abilities, at 37. Congress was aware 
that such abhorrent practices continued. See Stump v. Sparkman, 435 U.S. 349, 
351 (1978) (Indiana judge ordered the sterilization of a “somewhat retarded” 15 
year-old girl). The Commission also found that “[m]any states restrict the rights of 
physically and mentally handicapped people to marry.” Civil Rights Commission, 
Accommodating the Spectrum of Individual Abilities, at 40. 
The legislative history describes how “[h]istorically, child-custody suits 
almost always have ended with custody being awarded to the non-disabled parent.” 
2 Leg. Hist. 1611 n.10 (Arlene Mayerson). The House Report described 
discriminatory policies against individuals with disabilities in “securing custody of 
their children.” H.R. Rep. No. 485, at 41. The Civil Rights Commission found 
that many parents with disabilities “have had custody of their children challenged 
in proceedings to terminate parental rights and in proceedings growing out of 
divorce.” Civil Rights Commission, Accommodating the Spectrum of Individual 
Abilities at 40. 
Yet another area where Congress found pervasive unconstitutional treatment 
of individuals with disabilities was with regard to police conduct. The legislative 
history of Title II is filled with examples of police violating the rights of people 
with disabilities. The legislative history describes how persons with disabilities, 
such as epilepsy, are “frequently inappropriately arrested and jailed” and “deprived of medications while in jail.” H.R. Rep. No. 485, at 50. Countless examples exist 
of situations such as police in Kentucky learning that an arrestee was HIV-positive 
and “[i]nstead of putting the man in jail, officers locked him inside his car to spend 
the night.” 2 Leg. Hist. 1005 (Brenda Mason). The legislative history documented 
how police “do not provide crime prevention, apprehension, or prosecution 
because they see it as fate that Americans with disabilities will be victims.” Id. at 
1197 (Cindy Miller). To cite but one example, the legislative history describes how 
the police refused to accept a rape complaint from a blind woman because she 
could not provide a visual identification of her assailant. New Mexico submission, 
at 1081. 
Education is one of the most egregious areas of discrimination against 
individuals with disabilities and also is expressly mentioned in the “Findings and 
Purposes” section at the beginning of the ADA, 42 U.S.C. §12101(a)(2)(3). This 
Court has spoken eloquently of how “education is perhaps the most important 
function of state and local governments” because “it is doubtful that any child may 
reasonably be expected to succeed in life if he is denied the opportunity of an 
education.” Brown v. Board of Education, 347 U.S. 483, 493 (1954). While 
inequalities in the financing of education do not necessarily violate equal 
protection, see San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973), 
the complete denial of education is unconstitutional. Id. at 37 (“absolute denial” of 
education different from inequalities in funding); Plyler v. Doe, 407 U.S. 202 
(1982) (absolute denial of education to children of undocumented aliens who could 
not pay tuition unconstitutional). The legislative history of the ADA describes 
many examples of children being totally excluded from school because they had 
AIDS, 136 Cong. Rec. H2480 (daily ed. May 17, 1990) (Rep. McDermott) 
(describing the exclusion of Ryan White from school); or were in a wheelchair, 
California Att’y Gen., Commission on Disability: Final Report 17, 81 (Dec. 1989); or had conditions such as cerebral palsy, Vermont submission, at 1635. 
Indeed, the Civil Rights Commission report found that “a great many 
handicapped children continue to be excluded from the public schools, and others 
are placed in inappropriate programs,” Commission on Civil Rights, 
Accommodating the Spectrum of Individual Abilities, at 29. The Civil Rights 
Commission concluded that this continued despite the enactment of the Education 
for All Handicapped Children Act of 1975, 20 U.S.C. §1400, et. seq., which was 
designed to remedy these concerns. The legislative history documents the 
profound consequences of this discrimination: only 29% of persons with 
disabilities attend college, compared to 48% of the non-disabled population. 
National Council on the Handicapped, On the Threshold of Independence 14 
(1988). 
In addition to finding widespread violations of fundamental rights by state 
governments, Congress also determined that there was pervasive irrational, 
unjustified discrimination against persons with disabilities in every aspect of 
government services, programs, and activities. The legislative history contains 
countless examples, such as a zoo keeper refusing to admit children with Down 
Syndrome “because he feared they would upset the chimpanzees,” S. Rep. No. 
116, supra, at 7, and a paraplegic Vietnam veteran being forbidden to use a public 
pool in New York and being told by a park commissioner, “[I]’s not my fault that 
you went to Vietnam and got crippled.” 3 Leg. Hist. 1872 (Peter Addesso). 
Although, of course, there is not a fundamental right to use a zoo or a park, these 
governments actions are unconstitutional discrimination even under a rational basis 
test. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (holding 
that a city’s zoning ordinance which discriminated against individuals with 
disabilities failed rational basis review and was unconstitutional). 
In fact, contrary to the assertion of the Medical Licensing Board, Pet. Br. at 16, the legislative history of Title II expressly discusses discrimination in licensing, 
and, in fact, the statute itself identifies “exclusionary qualification standards” as a 
continuing form of discrimination against people with disabilities. 42 U.S.C. 
§12101(a)(5); Civil Rights Commission, Accommodating the Spectrum of 
Individual Abilities at 40; 2 Leg. Hist. at 1186 (testimony of Linda Mills.) For 
example, the legislative history discusses individuals such as Judy Heumann who 
was denied a teaching license because of polio. S. Rep. No. 116, supra, at 7. 
Congress undoubtedly was aware of cases concluding that state governments had 
engaged in discrimination against individuals with disabilities in licensing that was 
so unjustified as to be unconstitutional, even assuming that no form of heightened 
scrutiny applies to this state function. See, e.g., Pushkin v. Regents of the 
University of Colorado, 658 F.2d 1372 (10th Cir. 1981) (doctor unconstitutionally 
denied a residency because of multiple sclerosis). 
This brief description of the discussion of unconstitutional government 
action in the legislative history of the ADA only touches the surface of the 
pervasive violations of rights found in 16 congressional committee hearings, 63 
field hearings, five committee reports, numerous reports of government 
commissions, and tens of thousands of pages of testimony. The description, 
however, is sufficient to establish that Congress found overwhelming evidence of 
widespread violations of the constitutional rights of individuals with disabilities, 
including basic rights guaranteed by the First, Fourth, Fifth, Sixth, Eighth, and 
Fourteenth Amendments 
Nor, of course, is this Court limited to just congressional findings in 
concluding that unconstitutional discrimination against Americans with disabilities 
is pervasive in state government services, programs, and activities. Turner 
Broadcasting System, Inc. v. Federal Communication Commission, 520 U.S. 180, 
200, 209, 211-213 (1997) (courts may consider evidence outside the legislative Cir. 1982) (unconstitutional confinement of a person with disabilities); 
Cameron v. Tomes, 990 F.2d 14 (1 
record in evaluating Congress’s exercise of legislative power); Conroy v. Aniskoff, 
507 U.S. 511, 516 n.10 (1993) (courts should presume that Congress is aware of 
relevant legal precedents). Thus, this Court may note, as Congress undoubtedly 
did, the many judicial decisions declaring state violations of the rights of 
individuals with disabilities unconstitutional. See, e.g., Youngberg v. Romeo, 457 
U.S. 307 (1982) (finding unconstitutional conditions of confinement for 
individuals with mental disabilities at a state institution); Parrish v. Jackson, 800 
F.2d 600, 603 (6th Cir. 1986) (prison guard assaulted paraplegic inmate with a 
knife and did not provide minimal sanitation needs); Doe v. Gallinot, 657 F.2d 
1017 (9th 
st Cir. 1993) (unconstitutional denial of 
treatment for a person with disabilities); Panitch v. Wisconsin, 444 F.Supp. 320, 
322 (E.D. Wis. 1977) (unconstitutional discrimination in education); Goldy v. Beal, 
429 F.Supp. 640 (M.D.Pa. 1976) (unconstitutional confinement of individuals with 
disabilities); Mills v. Board of Education, 348 F.Supp. 866, 870 (D.D.C. 1972) 
(unconstitutional discrimination in education); Wyatt v. Stickney, 344 F.Supp. 387, 
391 (M.D. Ala. 1972) (finding conditions for housing individuals with disabilities 
“grossly substantard”); Dixon v. Attorney General, 325 F.Supp. 966 (M.D.Pa. 
1971) (unconstitutional procedures for confining people with disabilities). This 
Court, prior to the enactment of the ADA, spoke of “well-catalogued instances of 
invidious discrimination against the handicapped.” Alexander v. Choate, 469 U.S. 
287, 295 n.12 (1985). 
Unconstitutional discrimination against people with disabilities by state 
governments is not a relic of the past. For instance, unconstitutional violations of 
the right to vote of individuals with disabilities persists. See, e.g., Doe v. Rowe, 
156 F.Supp.2d 35, 38 n.2 (D.Me. 2001) (constitutional violation in denying the 
right to vote to people with disabilities); New York v. County of Delaware, 82 F.Supp.2d 12 (N.D.N.Y. 2000) (polling places in two counties were inaccessible to 
individuals with disabilities). A study in 2000 found that only 27% of 
Philadelphia’s 1,681 polling places were accessible to people with disabilities. 
General Accounting Office, Voters With Disabilities – Access to Polling Places 
and Alternate Voting Methods (2001). The study found that overall, 84% of the 
polling places that it examined had at least one impediment which could hinder 
persons with disabilities from casting their ballot. 
Likewise, courts continue to find that state governments engage in 
impermissible discrimination against Americans with disabilities in professional 
licensing. See, e.g., Bartlett v. New York State Board of Law Examiners, 226 F.3d 
69 (2d. Cir. 2000); Clark v. Va. Bd. of Bar Examiners, 880 F.Supp. 430 (E.D. Va. 
1995); In re Petition of Kara B. Rubenstein, 637 A.2d 1131 (Del. 1994); In re 
Petition of Frickey, 515 N.W.2d 741 (Minn. 1994). See generally, Emily Bazar, 
State Agencies Lag Badly in Complying with a 1995 Deadline to Provide Full 
Access, Sacramento Bee, June 17, 2001, at A1 (“a survey of the state’s 
[California’s] 10 largest departments shows that California government clearly 
violates the 1990 Americans with Disabilities Act and is at least a decade away 
from ensuring that the public has unencumbered access to its programs and 
facilities.”) 
Nor, contrary to the Medical Licensing Board’s assertion, are state laws 
adequate to protect the fundamental rights of Americans with disabilities. In 1990, 
when the ADA was adopted, 26 states failed to provide any statutory protection 
against state discrimination against individuals with disabilities with respect to 
government services and activities. Ruth Colker & Adam Milani, The Post-Garrett 
World: Insufficient State Protection Against Disability Discrimination, 53 Ala. L. 
Rev. 1075, 1092, 1113 (2002). Many state laws which did exist had significant 
limitations. For example, the Medical Board of California boasts that “California’s own statutory prohibition against discrimination in licensure on the basis of 
disability antedated the ADA by eight years.” Pet. Br. at 28 n.9 (citing Cal. Gov. 
Code §12944). However, as originally enacted in 1980, §12944 covered only 
“physical handicap and medical condition” in providing protection for individuals 
with disabilities. It was only in 1992, after the passage of the ADA and prompted 
by it, that §12944 was amended to include mental disability protection, the focus of 
this case. 
In fact, a recent study of laws in all 50 states found that even now, nine 
states have no enforcement mechanism against the state for discrimination against 
individuals with disabilities and only twenty-four states have statutes comparable 
to the protections found in Title II including the availability of monetary relief 
against the government. Colker & Milani, supra, at 1075. 
Thus, by any measure, Congress documented the need for action under 
section five of the Fourteenth Amendment by finding pervasive constitutional 
violations of the rights of individuals with disabilities who often lack any 
meaningful remedy. 
3. Title II is Thus Distinguishable from Other Statutes that 
this Court has Determined to Be Outside the Scope of 
Congress’s Section Five Powers 
Title II of the ADA is very different from Title I and from the Age 
Discrimination in Employment Act (ADEA), which this Court held in Garrett and 
Kimel, respectively, were not within the scope of Congress’s section five powers. 
First, Title II is directed only at the government and at its basic functions as a 
government in providing “services, programs, or activities.” Title I and the ADEA 
regulate employment for both government and private employers. This Court has 
noted the basic difference between the government acting as a sovereign as 
opposed to as an employer. See, e.g., Board of County Commissioners v. Umbehr, 518 U.S. 668, 676 (1996); O’Connor v. Ortega, 480 U.S. 709, 724 (1987). When 
the government acts as the sole judge of fitness to practice medicine it acts in a 
different capacity than when it hires doctors. A doctor rejected by one emergency 
room has other potential employment as a physician; a doctor denied a medical 
license has no recourse and no ability to practice medicine. 
Second, employment discrimination against individuals with disabilities and 
the elderly, the focus of Title I and of the ADEA, receives only rational basis 
review. This was a crucial aspect of this Court’s analysis in both Garrett and 
Kimel and a basis for the conclusion that these laws were not within the scope of 
Congress’s section five powers. In contrast, as discussed above, Title II, in large 
part, is concerned with violations of the fundamental rights which trigger strict 
scrutiny. 
Third, the legislative history for Title II is vastly different from that for Title 
I or for the ADEA. In Garrett, the Court stressed the absence of congressional 
findings of discrimination in employment and that there were only six examples of 
unconstitutional state discrimination in employment in the legislative history. 531 
U.S. at 369. In sharp contrast, as detailed above, Congress, in the text of the ADA 
and in the legislative history, made explicit findings of pervasive unconstitutional 
discrimination in areas such as voting, access to government, and 
institutionalization. The legislative history is filled with countless examples of 
state governments unconstitutionally violating the rights of people with disabilities. 
In all of these ways, Title II is very similar to the Voting Rights Act, which 
the Court in Garrett identified as a model of permissible legislation under section 
five of the Fourteenth Amendment. 531 U.S. at 373. Title II, like the Voting 
Rights Act, was enacted only after “Congress explored with great care the 
problem” of constitutional violations. Id. (citation omitted). In both Title II and 
the Voting Rights Act, “Congress documented a marked pattern of unconstitutional action by the States.” Id. The Court in Garrett emphasized the statistical proof 
before Congress in enacting the Voting Rights Act. Id. As described above, 
Congress had similar statistical evidence of inequalities for Americans with 
disabilities in areas such as voting, access to government buildings, and education. 
Title II, like the Voting Rights Act, is directed only at governments and is a 
response to “a pattern of discrimination by the states which violates the Fourteenth 
Amendment.” Id. at 374. 
C. Title II Is a Proportionate and Congruent Means to Prevent 
and Remedy Constitutional Violations 
1. The Prohibition of Discrimination Against Individuals 
with Disabilities in Government Services, Programs, and 
Activities is Proportionate and Congruent to Preventing 
and Remedying Pervasive Constitutional Violations Found 
by Congress 
Having found widespread unconstitutional state government actions against 
individuals with disabilities with regard to numerous basic rights, it was necessary 
and appropriate for Congress to prohibit discrimination in government “services, 
programs, or activities.” Title II thus meets the requirement that this Court has 
imposed that legislation under section five “be understood as responsive to, or 
designed to prevent, unconstitutional behavior.” City of Boerne v. Flores, 521 U.S. 
at 532. 
Unquestionably, Title II has a broad scope, but that is warranted – 
“proportionate” and “congruent” – to the pervasive constitutional violations 
documented in the legislative history. As this Court expressed, “[t]he 
appropriateness of remedial measures must be considered in light of the evil 
presented. Strong measures appropriate to address one harm may be an 
unwarranted response to another, lesser one.” Id. at 530. Indeed, it is difficult to imagine how Congress could have written a narrower statute to deter and remedy 
the widespread unconstitutional actions found by Congress. As this Court has 
explained, when Congress uncovers “a significant pattern of unconstitutional 
discrimination,” Congress has “reason to believe that broad prophylactic 
legislation is necessary.” Kimel v. Florida Board of Regents, 528 U.S. at 91. 
2. Title II Is Carefully Tailored in that it Applies Just to 
“Qualified Individuals” Who Meet “Essential 
Requirements” and it Requires Only that the Government 
Act Reasonably 
The key question in evaluating “proportionality” and “congruence” is 
whether Title II was “designed to guarantee meaningful enforcement” of 
constitutional rights. Garrett, 531 U.S. at 373. Title II does exactly this. Title II 
prohibits unreasonable discrimination against people with disabilities. The States 
retain their discretion to exclude persons from programs, services or benefits for 
any lawful reason unconnected with their disability. More importantly, Title II is 
limited to protecting individuals who are “otherwise qualified.” 42 U.S.C. 
§12132(2). This is defined as an “individual with a disability who, with or without 
reasonable modifications to rules, policies, or practices . . . meets the essential 
eligibility requirements for the receipt of services or the participation in the 
programs or activities provided by a public entity.” Id. (emphasis added). Thus, 
in the context of medical licensing, a state never would have to issue a license to a 
doctor who cannot meet the state’s standards for competent performance or who, in 
any way, would endanger the public. See Laura F. Rothstein, The Americans with 
Disabilities Act: A Ten Year Retrospective, 52 Ala. L. Rev. 241, 262 (2000) 
(“behavior and performance deficiencies are not excused [by medical licensing 
boards], even if they relate to disability.”) But nor can a state deny a medical 
license to an individual with disabilities who otherwise meets “the essential eligibility requirements,” which is exactly what Dr. Hason alleges here.4 Title II 
carefully balances a state’s legitimate interests against the right of a person with a 
disability to be judged “by his or her own merit and essential qualities.” Rice v. 
Cayetano, 528 U.S. 495, 517 (2000). 
Title II therefore prohibits more than the Constitution only to the extent that 
some disability discrimination may be rational for constitutional purposes, but 
unreasonable under the statute. This difference is surely not enough for a 
conclusion that Title II lacks “proportionality” or “congruence,” especially in light 
of this Court’s repeated statement of the need for deference to Congress in 
determining whether laws are permissible under section five. See Kimel v. Florida 
Board of Regents, 528 U.S. at 81 (Court has accorded Congress “wide latitude” 
under section five); City of Boerne v. Flores, 521 U.S. at 518 (directing courts to 
defer to Congress on congruence and proportionality review). The difference 
between the Constitution and the statute is needed because “[a] proper remedy for 
an unconstitutional exclusion . . . aims to eliminate so far as possible the 
discriminatory effects of the past and to bar like discrimination in the future.” 
United States v. Virginia, 518 U.S. 515, 547 (1996). A statute limited to providing 
a remedy for constitutional violations would not have the needed prophylactic 
effect of deterring government from engaging in conduct that risks infringing the 
rights of individuals with disabilities. 
Nor does Title II’s requirement for reasonable accommodation for 
individuals with disabilities negate it being proportionate and congruent. The 
Constitution itself requires that the government act to accommodate individuals 
4Obviously, if Dr. Hason prevails in this Court, that does not mean that he 
automatically will receive his medical license or damages. All it means is that Dr. 
Hason has a cause of action and his day in court. If the State can prove that Dr. 
Hason was not “qualified” to practice medicine, it will prevail at trial. with disabilities, such as in ensuring that polling places are accessible, translators 
are available in court for the hearing impaired, and that necessary treatment in an 
appropriate setting is provided to those in a state’s care. This, too, is an important 
distinction between Title II and Title I of the ADA. In Garrett, this Court 
emphasized that congruence and proportionality were of particular concern under 
Title I because “the accommodation duty [under Title I] far exceeds what is 
constitutionally required.” Garrett, 531 U.S. at 372. But unlike employment, the 
Constitution mandates affirmative government actions to accommodate individuals 
with disabilities in the exercise of many fundamental rights. 
Moreover, Title II requires only reasonable modifications that would not 
fundamentally alter the nature of the service provided and only when the individual 
seeking modification is otherwise eligible for the service. 42 U.S.C. §12131(2); 
Olmstead v. L.C., 527 U.S. at 603 (explaining that states may take into account 
cost and available resources in determining whether and how to accommodate 
individuals with disabilities under Title II). In fact, Congress expressly found that 
the vast majority of these accommodations entail little or no cost to the 
government. S. Rep. No. 116, supra, at 10-12, 89, 92; H.R. Rep. No. 485, supra, 
pt. 2, at 34. 
Although Title II prohibits somewhat more than just what would violate the 
Constitution, this Court has been clear that it is permissible for a law enacted under 
section five to do so. The Court has stated that Congress’s power under section 
five “is not confined to the enactment of legislation that merely parrots the precise 
wording of the Fourteenth Amendment.” Kimel v. Florida Board of Regents, 528 
U.S. at 81. This Court has stressed that “[l]egislation which deters or remedies 
constitutional violations can fall within the scope of Congress’ enforcement power 
even if in the process it prohibits conduct which is not itself unconstitutional.” 
Lopez v. Monterey County, 525 U.S. at 282-283. 3. Damage Remedies Are Needed to Deter and Compensate 
Violations of Constitutional Rights 
Title II has exactly the goal identified as the central purpose of legislation 
under section five of the Fourteenth Amendment: to prevent and remedy 
constitutional violations of the rights of individuals with disabilities. This Court 
long has recognized that damage remedies are essential to deter constitutional 
infringements and to provide compensation to victims of illegal action. See, e.g., 
Owen v. City of Independence, 445 U.S. 622, 651 (1980) (emphasizing the 
importance of damages for deterrence and risk-spreading in the context of §1983). 
Indeed, in this case, for Dr. Hason, “it is apparent that some form of damages is the 
only possible remedy for someone in [his] alleged position.” Bivens v. Six 
Unknown Names Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 409- 
410 (1971). Dr. Hason’s complaint alleges that he has been illegally and 
unconstitutionally denied a medical license for the last five years. Even if he 
ultimately prevails in his suit for injunctive relief and receives his license, he has 
forever lost five years of income and experience in serving his patients. For these 
five years, “it is damages or nothing.” Id. 
Nor can it be assumed that injunctive relief to enforce Title II will be 
available if this Court holds that Title II is outside the scope of Congress’s section 
five powers. In Garrett, 531 U.S. at 374 n.9, this Court, in rejecting a damage 
remedy against state governments to enforce Title I of the ADA, stressed the 
availability of injunctive relief against individual officers pursuant to Ex parte 
Young, 209 U.S. 123 (1908). But some courts have held that individual officers 
may not be sued to enforce Title II. See Walker v. Snyder, 213 F.3d 344, 346-347 
(7th Cir. 2000), cert. denied sub nom United States v. Snyder, 531 U.S. 1190 
(2001); Lewis v. New Mexico Dept of Health, 94 F.Supp.2d 1217, 1230 (D.N.M. 2000) (Ex parte Young actions cannot be maintained under Title II because 
officials are not “public entities.”) 
In fact, if this Court concludes that Title II is not valid under section five, 
states certainly will argue that, unlike Title I or the Age Discrimination in 
Employment Act which regulate employment in both the private and public 
sectors, Title II does not fit within the scope of Congress’s commerce clause 
power. See, e.g., United States v. Morrison, 529 U.S. 598 (2000); United States v. 
Lopez, 514 U.S. 549 (1995) (narrowing the scope of Congress’s commerce clause 
authority). Even more troubling, if Title II is not valid as legislation under section 
five, then states will argue that applying its mandates to state governments raises 
Tenth Amendment problems. See, e.g., Printz v. United States, 521 U.S. 898 
(1997); New York v. United States, 505 U.S. 144 (1992) (finding laws enacted 
under the commerce power to violate the Tenth Amendment because they required 
states to take legislative or regulatory actions). 
The reality is that state governments are aggressively challenging every 
application of federal civil rights laws. States already are arguing that their 
officers cannot be sued for injunctive relief under Title II and that they cannot be 
sued under other federal statutes protecting individuals with disabilities, such as 
Section 504 of the Rehabilitation Act. 42 U.S.C. §2000d. See, e.g., Garcia v. 
SUNY Health Sciences Ctr. of Brooklyn, 280 F.3d 98 (2d Cir. 2001) (limiting suits 
against states under the Rehabilitation Act). 
Simply put, Title II is an essential federal law to prevent and remedy 
pervasive violations of the constitutional rights of individuals with disabilities 
throughout government services, programs, and activities. If Title II is deemed to 
be outside the scope of Congress’s section five powers, the nation will lose a 
crucial law addressing the country’s “history of unfair and often grotesque 
mistreatment” of persons with disabilities. City of Cleburne v. Cleburne Living Center, 473 U.S. at 454 (Stevens, J., concurring) (citation omitted). 
Conclusion 
For the reasons stated above, the decision of the United States Court of 
Appeals should be affirmed. 
Respectfully submitted, 
Mark D. Rosenbaum Erwin Chemerinsky 
ACLU Foundation of Southern California Counsel of Record 
1616 Beverly Blvd. University of Southern 
Los Angeles, CA 90026 California Law School 
(213) 977-9500 699 Exposition Blvd. 
Los Angeles, CA 90089 
Steven R. Shapiro (213) 740-2539 
American Civil Liberties Union Foundation 
125 Broad Street Paul Hoffman 
New York, New York 10004 Schonbrun, DeSimone, 
(212) 549-2500 Seplow, Harris & Hoffman 
723 Ocean Front Walk 
Paul M. Smith Venice, CA 90291 
Jenner & Block LLC (310) 396-0731 
601 13th Street, N.W. 
Washington, D.C. 20005 
(202) 639-6000 
February 18, 2003