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 FORMER SENATOR DOLE, 
SENATORS KENNEDY AND HARKIN, 
AND REPRESENTATIVE HOYER 
AS AMICI CURIAE IN SUPPORT OF RESPONDENT 
------------------------ 
*ARLENE B. MAYERSON, ESQUIRE 
SILVIA YEE, ESQUIRE 
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND 
2212 SIXTH STREET 
BERKELEY, CA 94710 
TELEPHONE: (510) 644-2555 
*COUNSEL OF RECORD 
CLAUDIA CENTER, ESQUIRE 
THE LEGAL AID SOCIETY - EMPLOYMENT LAW CENTER 
600 HARRISON STREET, SUITE 120 
SAN FRANCISCO, CA 94107 
TELEPHONE: (415) 864-8848 TABLE OF CONTENTS 
TABLE OF AUTHORITIES..................................................ii 
INTEREST OF AMICI CURIAE............................................ 1 
INTRODUCTION.................................................................. 1 
I. TITLE II OF THE ADA IS BEGINNING TO 
REVERSE HISTORIC EXCLUSION AND 
SEGREGATION BY INTEGRATING 
PERSONS WITH DISABILITIES INTO THE 
FUNDAMENTAL ACTIVITIES OF PUBLIC 
LIFE.................................................................................. 3 
A. Voting Accessibility ...................................................4 
B. Community Integration ..............................................7 
C. Accessibility of the Justice System ............................ 9 
D. Public Transportation ...............................................13 
E. Higher Education......................................................16 
F. Licensing ..................................................................18 
II. THE CONTRIBUTIONS OF THE ADA ARE 
THREATENED BY SOME STATES’ 
ONGOING AND BROAD-BASED 
CONSTITUTIONAL CHALLENGES TO ITS 
VALIDITY..................................................................... 22 
CONCLUSION.................................................................... 26 
Appendix - BIOGRAPHIES OF AMICI CURIAE............... 1a TABLE OF AUTHORITIES 
Page(s) 
Alexander v. Sandoval, 
532 U.S. 275 (2001) .................................................... 23 
Alkire v. Irvin, 
305 F.3d 456 (6th Cir. 2002)......................................... 3 
Amos v. Maryland Dept. of Public Safety 
& Corr. Servs., 178 F.3d 212 (4th Cir. 1999), 
vacated for rehearing en banc, subsequently 
dismissed pursuant to settlement, 205 F.3d 
687 (4th Cir. 2000) ....................................................... 24 
Applicants v. State Board Of Law Exam'rs, 
1994 U.S.Dist. LEXIS 21290 
(W.D. Tex. Oct. 11, 1994)........................................... 22 
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001), 
cert. denied, 123 S.Ct. 72 (2002) ................................ 13 
Barthelemy v. Louisiana Dept. of Health & Hosps., 
Case No. 00-1083, 2001 U.S. Dist. LEXIS 
17231 (E.D. La. Oct 18, 2001) ...................................... 9 
Board Of Trustees v. Garrett, 
531 U.S. 356 (2001) ...............................................22-24 
Chisolm v. McManimon, 
275 F.3d 315 (3d Cir. 2001) .......................................... 3 
City of Boerne v. Flores, 
521 U.S. 507 (1997) .................................................... 23 
Clark v. Virginia Board of Bar Exam'rs, 
880 F.Supp. 430 (E.D. Va. 1995)...........................20-21 
Coleman v. Zatechka, 
824 F. Supp. 1360 (D. Neb. 1993) .............................. 18 
Doe v. Judicial Nominating Comm’n, 
906 F.Supp. 1534 (S.D. Fla. 1995).............................. 22 
Doe v. Roe, 
156 F. Supp.2d 35 (D. Me. 2001).................................. 4 
Douglas v. California Dep’t of Youth Auth., 
271 F.3d 812 (9th Cir. 2001), 
rehearing en banc denied, 
285 F.3d 1226 (9th Cir. 2002)...................................... 25 
Ellen S. v. Florida Board of Bar Exam’rs, 
859 F.Supp. 1489 (S.D. Fla. 1994).........................21-22 
Feary v. Regional Transit Auth., 
685 F. Supp. 137 (E.D. La. 1988) ................................. 3 
Fiesel v. Board of Education 
of the City of New York, 
490 F. Supp. 363 (E.D. N.Y. 1980)............................. 19 
Galloway v. Superior Court, 
816 F.Supp. 12 (D.D.C. 1993) .................................... 10 
Garcia v. SUNY Health Sciences Ctr. 
of Brooklyn, 280 F.3d 98 (2d Cir. 2001) ..................... 25 
Gurmankin v. Costanzo, 
411 F.Supp. 982 (E.D. Penn. 1976), 
aff'd., 556 F.2d 184 (3d Cir. 1977).............................. 19 
Hicks v. Armstrong, 
116 F.Supp.2d 287 (D. Conn. 1999) ........................... 24 
Jim C. v. United States, 235 F.3d 1079 (8th Cir. 
2000), cert. denied sub nom. Arkansas Dep't 
of Education v. Jim C, 533 U.S. 949 (2001). .........25-26 
Kimel v. Florida Board Of Regents, 
528 U.S. 62 (2000) ...................................................... 23 
King-Smith v. Aaron, 
455 F.2d 378 (3d Cir. 1972) ........................................ 19 
Koslow v. Pennsylvania Department of Corrections, 
302 F.3d 161 (3d Cir. 2002) ........................................ 25 
Lane v. Tennessee, No. 98-6730, 
2003 U.S. App. LEXIS 303 
(6th Cir. Jan. 10, 2003)................................................. 13 
Layton v. Elder, 143 F.3d 469 (8th Cir. 1998) ................... 13 
Litman v. George Mason University, 
186 F.3d 544 (4th Cir. 1999)........................................ 25 
Lovell v. Chandler, 
303 F.3d 1039 (9th Cir. 2002), 
cert. denied, 2003 WL 95557 (Jan. 13, 2003)............. 25 
Matthews v. Jefferson, 
29 F. Supp. 2d 525 (W.D. Ark. 1998) ......................... 13 
Medical Society of New Jersey v. Jacobs, 
Case No. 93-3670, 1993 U.S.Dist. LEXIS 
14294 (D. N.J. Oct. 5, 1993) ....................................... 22 
Morris v. Washington Metro. Area Transit Auth., 
781 F.2d 218 (D.C. Cir. 1986) ...................................... 3 
Nihiser v. Ohio Environmental Protection Agency, 
269 F.3d 626 (6th Cir. 2001)........................................ 25 Olmstead v. L.C. ex rel. Zimring, 
527 U.S. 581 (1999) ...................................................... 7 
Pederson v. Louisiana State University, 
213 F.3d 858 (5th Cir. 2000)........................................ 25 
Pierce v. King, 
918 F. Supp. 932 (E.D. N.C. 1996) ............................. 24 
Popovich v. Cuyahoga County Court 
of Common Pleas, 276 F.3d 808 (6th Cir. 
2002), cert. denied, 123 S. Ct. 72 (2002) ................ 3, 13 
Robinson v. Kansas, 
295 F.3d 1183 (10th Cir. 2002).................................... 25 
Rolland v. Cellucci, 
198 F. Supp.2d 25 (D. Mass. 2002)............................... 9 
Rolland v. Cellucci, 
191 F.R.D 3 (D. Mass. 2000) ........................................ 9 
Sandoval v. Hagan, 
197 F.3d 484 (11th Cir. 1999), 
rev'd on other grounds by Alexander 
v. Sandoval, 532 U.S. 275 (2001)................................ 25 
Saunders v. Horn, 
959 F.Supp. 689 (E.D. Penn. 1996)............................. 24 
South Dakota v. Dole, 
483 U.S. 203 (1987) .................................................... 26 
Stanley v. Litscher, 
213 F.3d 340 (7th Cir. 2000)........................................ 25 
Staples v. Virginia Department of Corrections, 
904 F.Supp. 487 (E.D. Va. 1995), 
cert. denied, 116 S. Ct. 772 (1996) ............................. 24 
Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), 
cert denied., 116 S. Ct. 772 (1996) ............................. 24 
United States v. Lopez, 514 U.S. 549 (1995) .................... 24 
Williams v. Wasserman, 
164 F. Supp.2d 591 (D. Md. 2001) ............................. 24 
STATE CASES 
In re Applications of Underwood and Plano, 
1993 Me. LEXIS 267 
(Me. Sup. Ct. Dec. 8, 1993) ........................................ 22 
Chavich v. Board of Examiners of the Board of 
Education of the City of New York, 
252 N.Y.S.2d 718 (N.Y. Spec. Term 1964) ................ 19 
Hill v. New York State Board of Elections, 
503 N.Y.S.2d 958 (N.Y. Spec. Term 1986) .................. 4 
People v. Caldwell, 603 N.Y.S.2d 713 
(N.Y. Crim Ct. 1993) .................................................. 10 
FEDERAL STATUTES 
42 U.S.C. § 12101 ............................................................. 26 
42 U.S.C. §§ 12131-12134.................................................. 9 
42 U.S.C. § 12134 ............................................................... 9 
42 U.S.C. § 12141 ............................................................. 14 
42 U.S.C. § 12142(a)-(c)................................................... 14 
42 U.S.C. § 12182(b)(2).................................................... 14 
42 U.S.C. § 41705 ............................................................. 14 
REGULATIONS 
28 C.F.R. § 35.105(a)........................................................ 10 
28 C.F.R. § 35.130 ........................................................ 9, 18 
28 C.F.R. § 35.164 ............................................................ 19 
LEGISLATIVE MATERIALS 
135 Cong.Rec. S10753 (1989) ............................................ 5 
Senate Comm. On Labor and Human Resources, 
S. Rep. No. 116, 101st Cong. 1st 
Sess. (1989) ............................................................. 5, 19 
STATE STATUTES AND RULES 
Cal. Civ. Proc. Code § 901................................................ 11 
Cal. Gov. Code § 12926 .................................................... 18 
Cal. Gov. Code § 12940 .................................................... 18 
Cal. R. Ct. 989.3 ...........................................................11-12 
Cal. R. Ct. 1001 ................................................................. 11 
Cal. Stats. 1992 ch. 913..................................................... 18 
PLEADINGS 
Brief for Petitioners in Board of Trustees v. 
Garrett (June 22, 2000), 
1999 U.S. Briefs 1240 (LEXIS) .................................. 25 
Defendant's Motion to Dismiss in McCarthy v. 
Gilbert, Civil Action No. 02-CV-600 
(E.D. Tex., Beaumont Division).................................. 24 
Brief of Appellees in Meyers v. State of Texas, 
Case No. 02-50452 (5th Cir.) ...................................... 24 
Petitioner’s Brief in Pennsylvania v. Yeskey, 
1997 U.S. Briefs 634 (LEXIS) 
(March 4, 1998)........................................................... 24 
Szarlan v. Conn. Bar Examining Committee, 
No. 3:94 CV-160 (D. Conn., complaint 
filed Feb. 1, 1994) ....................................................... 22 
SECONDARY SOURCES 
Access for Persons with Disabilities Subcommittee, 
California Judicial Council’s Advisory Comm. 
on Access and Fairness in the Courts, Summary 
of Survey and Public Hearing Reports of the 
Access for Persons with Disabilities 
Subcommittee of the California Judicial 
Council’s Access and Fairness Advisory 
Committee (1997) ........................................................ 11 
American Association of People with Disabilities, 
New GAO Report Shows Disabled are Denied 
Voting Access (2001)..................................................... 6 
American Bar Association & the National 
Judicial College, Court-Related Needs of the 
Elderly and Persons with Disabilities, 
Recommendations of the February 1991 
Conference (1991)......................................................... 9 
American Bar Association Commission on Mental 
and Physical Disability Law (James Carr, Chair), 
Disability Law and Policy: A Collective 
Vision 50 (Chicago: American Bar Association, 
1999)............................................................................ 11 
American Psychiatric Association, “Position 
Statement on Confidentiality of Medical 
Records,” Am. J. Psychiatry vol. 141 (1984) .............. 21 
Jon Bauer, “The Character of the Questions 
and the Fitness of the Process: Mental 
Health, Bar Admissions and The Americans 
with Disabilities Act,” 49 U.C.L.A. Law 
Rev. 93 (2001) ....................................................... 20, 21 
Claudia Center, et al., “Confronting Depression 
and Suicide in Physicians: A Consensus 
Statement” (American Foundation for Suicide 
Prevention, 2003) ........................................................21 
The Center for an Accessible Society, 8 out of 10 
Polling Sites have Access Barriers, Says 
GAO Report (2001).......................................................5 
Coalition for Accessible Political Elections 
(CAPE), Report of the National Voter 
Independence Project.................................................... 4 
Phyllis Coleman and Ronald A. Shellow, “Ask 
About Conduct, Not Mental Illness: 
A Proposal for Bar Examiners and Medical 
Boards to Comply with the ADA and 
Constitution,” 20 J. Legis. 147 (1994) ........................ 20 
Sharon Davis, A Status Report to the Nation on 
People with Mental Retardation Waiting for 
Community Services (1997)........................................... 8 
Jeanne Dooley & Erica Wood, Opening the 
Courthouse Door: The Americans with 
Disabilities Act’s Impact on the Courts, 
76 Judicature 39 (1992)................................................. 9 
Wendy Fox-Grage et al., The States’ Response 
to the Olmstead Decision: A Work in 
Progress (2002)............................................................. 8 
Keri K. Gould, And Equal Participation for 
All . . . The Americans with Disabilities 
Act in the Courtroom, 8 J.L. & Health 123 
(1994) ...................................................................... 9, 10 
Thomas E. Hansen, M.D., et al., “Changes in 
Questions About Psychiatric Illness Asked 
on Medical Licensure Applications Between 
1993 and 1996,” Psychiatric Services, 
vol. 49, no. 2 (Feb. 1998) ...................................... 20, 22 
James C. Harrington, “Pencils Within Reach and A 
Walkman or Two: Making the Secret Ballot 
Available to Voters Who are Blind or Have 
Other Physical Disabilities,” 4 Tex. F. on 
C.L. & C.R. 87 (1999) ................................................... 6 
Stanley S. Herr, “Questioning the Questionnaires: 
Bar Admissions and Candidates with 
Disabilities,” 42 Vill. L. Rev. 635 (1997) .................... 20 
Home and Community-Based Services and 
Consumer-Directed Care Commission, 
Working Plan of the Home and Community- 
Based Services and Consumer-Directed Care 
Commission ................................................................... 8 
Thomas W. Johnson et al., Ohio Access for 
People with Disabilities, Final Report to 
Governor Taft (2001) ................................................... 8 
Maryann Jones, And Access For All: Accommodating 
Individuals with Disabilities in the California 
Courts, 32 U.S.F. L. Rev. 75 (1997) ........................... 11 
Dr. I. King Jordan, “Colleges Can Do Even 
More for People With Disabilities,” The 
Chronicle of Higher Education, Section 2 
(June 15, 2001) .......................................................16-17 
Department of Justice, Press Release, “Justice 
Department to Meet with Summers County 
Officials As Part of Initiative to Ensure Civic 
Access for People with Disabilities” 
(July 24, 2002)........................................................12-13 
Department of Justice, “Settlement Agreement 
Between the U.S. and the Santa Clara County 
Superior Court” ...........................................................10 
Department of Justice, “Summers County, 
West Virginia”.............................................................12 
Steven H. Miles, M.D., A Challenge to Licensing 
Boards: The Stigma of Mental Illness,” 
JAMA, vol. 280, no. 10 (Sept. 9, 1998) ................. 20, 22 
National Council on Disability, Inclusive Federal 
Election Reform (March 15, 2001)................................ 4 
David Pfeiffer & Joan Finn, Survey Shows State, 
Territorial, Local Public Officials Implementing 
ADA, 19 Mental & Physical Disability L.Rep. 
537-539 (1995) ............................................................ 10 
Randy A. Sansone, M.D., et al., “Physician 
Mental Health and Substance Abuse: What 
Are State Medical Licensure Applications 
Asking?,” Arch. Fam. Med., vol. 8 
(Sept./Oct. 1999) ......................................................... 21 
Kay Schriner et al., Democratic Dilemmas: 
Notes on the ADA and Voting Rights of People 
with Cognitive and Emotional Impairments, 
21 Berkeley J. Emp. & Lab. L. 437 (2000) ................... 4 
Rosalyn M. Simon, “Status of Transportation 
Accessibility in the United States: Impact of 
the Americans with Disabilities Act,” in 
Proceedings of Seminar L Held at the 
Planning and Transportation Research 
and Computation European Transport 
Forum, Brunel University, England § 1.2 
(Sept. 2-6, 1996).................................................... 14, 15 
Gary A. Smith, Status Report: Litigation 
Concerning Medical Services for Persons with 
Developmental Disabilities (2002)................................ 9 
Alexandra Stewart et al., Implementing Community 
Integration: A review of State Olmstead 
Plans (2002) .................................................................. 8 
Nancy Weaver Teichert, State Urged to Provide 
Home Care for Disabled, Sacramento Bee, 
June 22, 2002, at A1...................................................... 8 
Lowell P. Weicker, Jr., Historical Background of 
the Americans with Disabilities Act, 64 Temp. 
L. Rev. 387 (1991) ......................................................... 2 
Letter from Timothy M. Westmoreland, Director 
of Center for Medicaid and State Operations at 
the Health Care Financing Administration & 
Thomas Perez, Director of the Office for Civil 
Rights at the Department of Health and Human 
Services to State Medicaid Directors 
(January 14, 2000)......................................................... 7 
John M. Williams, Making Access to the Ballot 
Box a Snap for Disabled Voters (1999)......................... 6 
INTEREST OF AMICI CURIAE* 
Amici, Senators Robert Dole, Tom Harkin and 
Edward Kennedy, and Representative Steny Hoyer, are 
current and former Members of Congress who played 
leadership roles in the development and passage of the 
Americans with Disabilities Act (ADA) from 1988 to 1990. 
Relevant biographical information regarding each of the 
amici is provided in the Appendix. As key authors of the 
ADA, amici have an interest in the continuing vitality of the 
ADA as a vehicle to bring long-excluded citizens with 
disabilities into the mainstream of American life. 
INTRODUCTION 
The Americans with Disabilities Act has begun the 
process of transforming the American landscape and 
prevalent negative stereotypes about people with disabilities 
by promoting the integration of persons with disabilities into 
all aspects of public life. By directly addressing the State and 
local levels at which Americans commonly interact with their 
government, Title II of the ADA sought to redress 
exclusionary policies identified by Congress that were all the 
more invidious for their apparent self-justification: the less 
people with disabilities were seen, the more they could be 
assumed to be both unable and unwilling to fully participate 
in society. 
The falseness of this twin burden of inability and 
disinterest cast upon people with disabilities has become selfevident 
in the years since the ADA has come into effect. The 
* The parties have consented to the filing of this brief. Counsel for a 
party did not author this brief in whole or in part. No person or entity, 
other than the Amici Curiae, or their counsel, made a monetary 
contribution to the preparation and submission of this brief. law’s successes in increasing the accessibility of public 
transportation, courtrooms, city halls, voting, higher 
education and professional licensing policies has begun to 
remedy years of state-sponsored segregation and exclusion. 
By allowing people with disabilities to be seen and accepted 
as participating members of our society, the Act has dispelled 
prevailing myths, fears and prejudices concerning people 
with disabilities. The extensive study and the careful 
balancing of interests engaged in by Congress to develop a 
proportionate remedy to combat this historic discrimination 
is demonstrated by the implementation of the Act since its 
passage. While change is often gradual and there is still 
much left to be done, persons with disabilities are, for the 
first time, beginning to enjoy their rights as citizens. 
The hard-fought gains recently achieved by the 
passage and enforcement of the ADA, and the promise of 
greater equality and opportunity in the years to come, are 
threatened by the States’ ongoing and broad-based challenges 
to the constitutional validity of the Act. While this case 
questions Congress’ authority to enact the ADA under 
Section 5 of the Fourteenth Amendment, other statesponsored 
cases challenge the Commerce Clause and the 
Spending Clause as authority for federal disability rights 
legislation. The ADA is the culmination of over twenty 
years of fact finding, study, and incremental legislation to 
address the wide-spread exclusion and segregation of 
Americans with disabilities.1 If the Court does not take this 
opportunity to uphold Title II of the ADA under Section 5, 
federal disability laws that are just beginning to enable 
disabled persons to participate in critical facets of American 
life will be undermined before the goal of full integration has 
been achieved. 
1 Lowell P. Weicker, Jr., Historical Background of the Americans with 
Disabilities Act, 64 Temp. L. Rev. 387, 387-391 (1991). I. TITLE II OF THE ADA IS BEGINNING TO 
REVERSE HISTORIC EXCLUSION AND 
SEGREGATION BY INTEGRATING PERSONS 
WITH DISABILITIES INTO THE FUNDAMENTAL 
ACTIVITIES OF PUBLIC LIFE. 
Title II is critical to people with disabilities 
attempting to exercise such fundamental rights of citizenship 
as access to the courts, service with their peers on juries, the 
right to vote, the ability to enter and communicate in the halls 
of city council, and the ability to receive state services in the 
community, free of institutional segregation.2 
While the ADA has been an invaluable stimulus for 
state self-examination, voluntary compliance and 
collaboration with the disability community, individuals with 
disabilities must have the right to file complaints and bring 
lawsuits seeking injunctive relief and damages. As with all 
civil rights laws, those protected by the law are the front-line 
agents to ensure implementation. Without the right to 
2 While the bar of the Eleventh Amendment does not apply to local 
government agencies, there is no bright line test to determine whether a 
public entity will be considered an “arm of the state” for immunity 
purposes. Rather, courts must undergo a fact-specific, multi-factor 
inquiry based in large part on state law, funding, and structure. For 
example, county courts may or may not be immune under the Eleventh 
Amendment. Compare Chisolm v. McManimon, 275 F.3d 315, 323 (3d 
Cir. 2001) (county court is not an arm of the state) with Alkire v. Irving 
305 F.3d 456, 467 (6th Cir. 2002) (county court is arm of state) and 
Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 
811 (6th Cir. 2002) (court assumes state immunity would apply), cert. 
denied 123 St. Ct. 72 (2002). Likewise, transit authorities have and have 
not been considered arms of the state for Eleventh Amendment purposes. 
Compare Morris v. Washington Metro. Area Transit Auth., 781 F.2d 218, 
224-25 (D.C. Cir. 1986) (transit authority entitled to Eleventh 
Amendment immunity) with Feary v. Regional Transit Auth., 685 F. 
Supp. 137, 142 (E.D. La. 1988) (transit authority not arm of state). damages, people with disabilities will have little incentive to 
bear the financial and personal burdens of initiating change 
when they are already subject to higher rates of 
unemployment, poverty and social stigma. 
A. Voting Accessibility 
The ability to vote is something most Americans take 
for granted and associate with membership in a democratic 
society. The fact that this basic right is still inaccessible to 
many individuals with disabilities demonstrates the extreme 
degree to which the needs of disabled citizens have been 
ignored by state election officials.3 During the 1998 
Congressional elections, approximately 20,000 polling places 
were inaccessible to wheelchair users.4 Of those voters with 
disabilities who could reach the polling area, fifty-two 
percent found that the area lacked a designated, appropriately 
sized voting booth for them to cast their vote.5 Seventy-three 
percent of the polling places in the major urban center of 
Philadelphia were physically inaccessible to voters with 
disabilities.6 Eighty-one percent of voters who are blind or 
3 In addition to accessibility issues discussed, infra, forty-two states 
totally disenfranchise citizens with mental disabilities in a variety of 
contexts. See Kay Schriner, et al., Democratic Dilemmas: Notes on the 
ADA and Voting Rights of People with Cognitive and Emotional 
Impairments, 21 Berkeley J. Emp. & Lab. L. 437, 456 tbl. 2 (2000); Doe 
v. Rowe, 156 F. Supp.2d 35 (D. Me. 2001). 
4 National Council on Disability, Inclusive Federal Election Reform 
(March 15, 2001), at 
http://www.ncd.gov/newsroom/publications/pdf/electionreform.pdf; 
Coalition for Accessible Political Elections (CAPE), Report of the 
National Voter Independence Project (last visited Feb. 16, 2003), at 
http://www.protectionandadvocacy.com/nationv.htm. 
5 Report of the National Voter Independence Project, supra, note 4. 
6 Inclusive Federal Election Reform, supra, note 4. visually impaired had to rely on others to mark their ballots 
for them.7 Perhaps most disturbing, more than ten years after 
the ADA was enacted, accessibility is often not even 
considered a factor in choosing polling sites.8 
As with other areas where exclusion and segregation 
of people with disabilities has resulted in inaccessible public 
services, Title II provides an important vehicle to promote 
access and awareness.9 Cases brought under the ADA are 
challenging inaccessible polling places, and are resulting in 
greater awareness by state and local voting officials. For 
example, the disability community in Texas filed lawsuits 
which resulted in cooperative efforts with election officials. 
Counsel for plaintiffs, James Harrington, writes that “[t]o 
their credit, each County showed great willingness to 
participate in significant negotiations. Local officials were 
keen on making their voting systems usable by people who 
are blind. This spirit of negotiation produced great 
7 Id. 
8 The Center for an Accessible Society, 8 out of 10 Polling Sites have 
Access Barriers, Says GAO Report (2001), at 
http://www.accessiblesociety.org/topics/voting/gaovoterept1101.htm. 
9 Voting was plainly one of the concerns addressed in the Senate Report 
accompanying the Act and debated on the floor. See Senate Comm. On 
Labor and Human Resources, S. Rep. No. 101-116, 101st Cong. 1st Sess. 
(1989) at 12 (1989) (quoting Attorney General of Illinois, who stated that 
“[y]ou cannot exercise one of your most basic rights as an American if 
the polling places are not accessible.”). See also 135 Cong. Rec. S10753 
(1989) (remarks of Sen. Gore: “As a practical matter, many Americans 
with disabilities find it impossible to vote. Obviously, such a situation is 
completely unacceptable and unconscionable. We must take strong 
action to end the tradition of blatant and subtle discrimination that has 
made people with disability second-class citizens.”). creativity.”10 And, eventually, awareness of the needs of 
voters with disabilities became a statewide concern. As 
reported by Harrington, “successive Secretaries of State . . . 
now facilitate and actively encourage access to the secret 
ballot for people with disabilities.” 11 
These types of lawsuits have shown that solutions are 
possible, and have been used by other groups to bring suits 
under the ADA.12 Because of the ADA, there have also been 
innovations in technology which foresee a future where the 
gross inequality in voting access will be a thing of the past. 13 
10 James C. Harrington, “Pencils Within Reach and A Walkman or Two: 
Making the Secret Ballot Available to Voters Who are Blind or Have 
Other Physical Disabilities,” 4 Tex. F. on C.L. & C.R. 87, 94-95 (1999). 
11 Id. at 105. 
12 For example, a coalition of groups including the Eastern Paralyzed 
Veterans Association and the Blinded Veterans of America began classaction 
lawsuits against the cities of Washington, D.C. and Philadelphia, 
Pennsylvania, using examples like Harris County, Texas, the nation's 
third largest county, which has put accessible voting systems in place. 
American Association of People with Disabilities, New GAO Report 
Shows Disabled are Denied Voting Access (2001), at 
http://www.aapd.com/docs/Gao101601.html. 
13 The Federal Election Commission estimates that 20,000 of the 
country’s 27,000 polling sites do not meet ADA requirements. New 
technology is being developed and tested to achieve compliance. For 
example, emerging technology allows a visually impaired voter to have 
the ballot read to him or her, and a hearing impaired voter to utilize a 
hearing aid compatible headset. John M. Williams, Making Access to the 
Ballot Box a Snap for Disabled Voters (1999), at 
http://www.businessweek.com/bwdaily/dnflash/sep1999/nf90915c.htm. B. Community Integration 
Perhaps the most basic, yet profound impact of the 
ADA is the gradual reversal of a shameful history of 
unnecessary segregation of people with disabilities in large, 
state-operated institutions. This Court’s decision in 
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), has 
spawned a national examination of the extreme harm caused 
by institutionalization. As this Court stated in Olmstead, 527 
U.S. at 601, “[C]onfinement in an institution severely 
diminishes the everyday life activities of individuals, 
including family relations, social contacts, work options, 
economic independence, educational advancement and 
cultural enrichment.” Accordingly, the court found that 
under Title II of the ADA, states are required to provide 
community-based services when it is professionally advisable 
to do so and when the disabled individual so chooses. Id. at 
607. 
In response to Olmstead the Health Care Financing 
Administration (HCFA)14 and the Department of Health and 
Human Services’ Office of Civil Rights issued a set of 
recommendations to state Medicaid directors, outlining 
principles for states to consider when developing their 
Olmstead plans.15 While change has been slow, states are 
beginning to explore community-based options for service. 
14 HCFA was the federal agency responsible for administering 
Medicaid. It is now known as the Centers for Medicare and Medicaid 
Services. 
15 Letter from Timothy M. Westmoreland, Director of Center for 
Medicaid and State Operations at the Health Care Financing 
Administration & Thomas Perez, Director of the Office for Civil Rights 
at the Department of Health and Human Services to State Medicaid 
Directors (January 14, 2000), at 
http://www.cms.hhs.gov/states/letters/smd1140a.asp. It is critical to the essential 
goals of the ADA that the states continue their efforts, and 
doubtful that they would do so without a federal mandate.20 
As of December 2001, 40 states, along with the District of 
Columbia, had commissions or task forces working to 
improve their state’s management of long-term care.16 
However, as of May 2002, only 14 states had developed 
Olmstead plans.17 Significantly, California has failed to do 
so.18 Unfortunately, the need for the federal mandate is as 
urgent today as it was in 1990.19 
16 Wendy Fox-Grage et al., The States’ Response to the Olmstead 
Decision: A Work in Progress (2002), at 
http://www.ncsl.org/programs/health/forum/olmsreport.htm. 
17 Alexandra Stewart et al., Implementing Community Integration: A 
review of State Olmstead Plans 4 (2002), at 
http://www.chcs.org/publications/consumer.html. 
18 Nancy Weaver Teichert, State Urged to Provide Home Care for 
Disabled, Sacramento Bee, June 22, 2002, at A1. 
19 In 1997 there were still thousands of people nationwide who had been 
recommended for community placement but were waiting in institutions 
because of the lack of community options. Sharon Davis, A Status 
Report to the Nation on People with Mental Retardation Waiting for 
Community Services (1997), at 
http://www.thearc.org/misc/WaitPage.html. 
20 For example, as the Ohio plan states, “[s]tate policy makers must 
continue to be responsive to the Health Care Financing Administration 
and the federal Office of Civil Rights to assure Ohio’s compliance with 
the mandates of the Americans with Disabilities Act[.]” Thomas W. 
Johnson et al., Ohio Access for People with Disabilities, Final Report to 
Governor Taft 3 (2001), at http://www.state.oh.us/age/ohioaccessrpt.pdf. 
The Introduction to the Missouri plan states that its Home and 
Community-Based Services and Consumer-Directed Care Commission 
was established “[t]o address the implications of the Olmstead decision” 
and that “[t]he objective of the Commission was to develop a 
‘comprehensive, effectively, working plan’ as recommended by the U.S. 
Supreme Court Olmstead decision.” Home and Community-Based Services and Consumer-Directed Care Commission, Working Plan of the 
Home and Community-Based Services and Consumer-Directed Care 
Commission, at 
http://www.dolir.state.mo.us/gcd/olmstead/olmreport/coverpage.htm. 
Similarly, “Olmstead” lawsuits have also resulted in the increased 
availability of community options. See e.g. Barthelemy v. Louisiana 
Dept. of Health & Hosp., 2001 U.S. Dist. LEXIS 17231 (E.D. La. 2001); 
Rolland v. Cellucci, 191 F.R.D. 3 (D.Mass. 2000); Rolland v. Cellucci, 
198 F. Supp. 2d 25 (D.Mass. 2002); Gary A. Smith, Status Report: 
Litigation Concerning Medical Services for Persons with Developmental 
Disabilities 15-18 (2002), at 
http://www.qualitymall.org/download/litigation..pdf. 
C. Accessibility of the Justice System 
Equal participation in the justice system, whether as a 
party, witness, juror or advocate, is integral to the American 
way of life. Yet disability discrimination has been present in 
all aspects of the court system, from jury selection 
procedures that eliminate people with disabilities to the lack 
of sign and other interpreters for parties and witnesses to the 
outright lack of physical access.21 State, territorial and 
municipal court systems are encompassed within the nondiscrimination 
provisions of Title II, and are therefore 
required to make all court proceedings, programs and 
activities accessible to people with disabilities by removing 
architectural, communication and transportation barriers.22 
21 American Bar Association & the National Judicial College, Court- 
Related Needs of the Elderly and Persons with Disabilities, 
Recommendations of the February 1991 Conference (1991). See also 
Jeanne Dooley & Erica Wood, Opening the Courthouse Door: The 
Americans with Disabilities Act’s Impact on the Courts, 76 Judicature 39 
(1992); Keri K. Gould, And Equal Participation for All . . . The 
Americans with Disabilities Act in the Courtroom, 8 J.L. & Health 123 
(1994). 
22 42 U.S.C. §§ 12131-12134; see also 28 C.F.R. § 35.130. The actual accommodations required in any given 
case can be as simple as moving a juror with visual 
impairments closer to the witness box, providing enlarged 
print versions of tape transcripts used at trial, and reading 
documents into the record.23 People with disabilities often 
are refused access to the courts not because they need 
complicated or expensive accommodations, but because they 
encounter exclusionary policies and attitudes that have never 
been critically examined.24 The ADA requires that critical 
self-examination take place.25 
The ADA’s initiation of self-examination is an 
important part of its effectiveness in starting necessary 
systemic change in state judicial systems. For example, in 
23 People v. Caldwell, 603 N.Y.S.2d 713, 714 (N.Y. Crim. Ct. 1993). 
24 For example, the District of Columbia Superior Court categorically 
excluded blind persons from jury service. Galloway v. Superior Court, 
816 F.Supp. 12 (D.D.C. 1993). Santa Clara County Superior Court 
refused to provide auxiliary aids and services for persons with hearing 
impairments. DOJ, “Settlement Agreement Between the U.S. and the 
Santa Clara County Superior Court” at 
http://www.usdoj.gov/crt/ada/santacl.htm (last visited Feb. 16, 2003). 
25 Courts subject to the ADA were required to perform, within one year 
of the law’s effective date, a self-assessment of all current services, 
policies and practices, and their effects. 28 C.F.R. § 35.105(a) (1993). 
See also Gould, supra note 21 at 148-150. According to a 1994 study 
conducted by David Pfeiffer and Joan Finn, based on questionnaires sent 
to local governments around the country as well as state and territorial 
governments, 85 percent of state and territorial government had 
conducted accessibility surveys of their court houses, and 93 percent of 
municipal courthouses had conducted accessibility surveys. Pfeiffer and 
Finn posit that “it is not possible to say that these finding are due solely to 
the ADA, but certainly the ADA would appear to be a significant factor: 
David Pfeiffer & Joan Finn, Survey Shows State, Territorial, Local Public 
Officials Implementing ADA, 19 Mental & Physical Disability L.Rep. 
537-539 (1995). 1995, the California Judicial Council’s26 Subcommittee on 
Access for People with Disabilities27 began “implementing 
the Act [ADA] in California’s courts by sponsoring 
comprehensive research projects and adopting a series of 
recommendations to increase court accessibility to persons 
with disabilities.”28 The results of one of these surveys on 
“the attitudes and opinions of court personnel and people 
with disabilities who use the California courts indicated that 
numerous problems persist. A majority of the respondents 
(52 percent) said that they had not received requested 
accommodations, and nearly half (42 percent) concluded that 
courts do not meet ADA standards.”29 These results clearly 
indicate that much work remains to be done, but just as 
important is the fact that findings were made and published, 
and ultimately led to the Judicial Council’s adoption of Rule 
of Court 989.3, which is meant to “assure that qualified 
26 The California Judicial Council is a body that “under the leadership of 
the Chief Justice, is responsible for improving the quality and advancing 
the consistent, independent, impartial, and accessible administration of 
justice.” Cal. R. Ct. 1001(2); see also Cal. Civ. Proc. Code § 901 (West 
1986). 
27 The Subcommittee on Access for People with Disabilities, which 
consists of judges, attorneys and members of the public with specific 
expertise or interest in this field, was created to advise the Judicial 
Council on implementation of the ADA in the California court system. 
Access for Persons with Disabilities Subcommittee, California Judicial 
Council’s Advisory Comm. on Access and Fairness in the Courts, 
Summary of Survey and Public Hearing Reports of the Access for 
Persons with Disabilities Subcommittee of the California Judicial 
Council’s Access and Fairness Advisory Committee 1 (1997). 
28 Maryann Jones, And Access For All: Accommodating Individuals with 
Disabilities in the California Courts, 32 U.S.F. L. Rev. 75, 75 (1997). 
29 American Bar Association Commission on Mental and Physical 
Disability Law (James Carr, Chair), Disability Law and Policy: A 
Collective Vision 50 (Chicago: American Bar Association, 1999). individuals with disabilities have equal and full access to the 
judicial system.”30 The ADA’s accessibility requirements 
were the explicit impetus for bringing California’s court 
system that much closer to accessibility. 
Self-examination is only one vehicle for increasing 
awareness and making necessary modifications to allow 
access. Recommendations need to be implemented and Title 
II empowers individuals with disabilities with the legal right 
to enforce change. For example, almost a decade after the 
enactment of the ADA, a county in West Virginia had done 
little to ameliorate numerous physical barriers in its 
courthouse. The result for Joseph Bragg, a Korean War 
veteran and wheelchair user, is typical, when there is not 
access. In his words: 
I had to go to court over some property I 
owned, and the courtroom is on the second 
floor. A deputy and another man had to carry 
me up two flights of stairs because the old 
courthouse has no elevator. I didn’t even ask 
to be carried down at lunch. Afterwards, I 
really needed to get to the restroom. Once I 
was carried back down to the first floor, my 
son rushed me down the hall to the men’s 
room, but I couldn’t even get my wheelchair 
through the door. I was so mad that I filed my 
complaint with the Department of Justice.31 
30 Cal.Ct.R. 989.3(a). 
31 “Summers County, West Virginia” at 
http://www.usdoj.gov/crt/ada/sumstor.htm (last update July 31, 2002). 
See also DOJ Press Release, “Justice Department to Meet with Summers 
County Officials As Part of Initiative to Ensure Civic Access for People 
with Disabilities” (July 24, 2002) at http://www.usdoj.gov/crt/ada/sumstr.htm; See also, Matthews v. 
Jefferson, 29 F. Supp. 2d 525 (W.D.Ark. 1998) (Court scheduled three 
hearings in inaccessible courtroom for paraplegic who had to be carried 
and had no access to bathroom); Layton v. Elder, 143 F.3d 469 (8th Cir. 
1998). 
The failure of courts to provide needed 
accommodations deprives parties with disabilities of basic 
due process. For example, individuals who are deaf are often 
denied appropriate aids that would allow them to understand 
and participate in judicial and administrative proceedings.32 
Fundamental principals of equal protection are 
affronted when citizens are forced to crawl or be carried up 
court house stairs, attend all day hearings with no 
opportunity to go to the bathroom,33 or participate in 
proceedings without being able to hear what is being said.34 
The ADA rightly serves as a national statement that 
Americans with disabilities deserve better. 
D. Public Transportation 
People with disabilities have historically been denied 
access to public life by the failure to make public 
transportation accessible. The accessibility of buildings as 
well as employment and education opportunities are 
meaningless when people with disabilities have no way to 
reliably and inexpensively reach their destinations. It is not 
32 See, e.g., Popovich v. Cuyahoga County Court of Common Pleas, 276 
F.3d 808 (6th Cir. 2002), cert. denied, 123 S.Ct. 72 (2002); Armstrong v. 
Davis, 275 F.3d 849 (9th Cir. 2001), cert. denied, 123 S.Ct. 72 (2002). 
33 See Lane v. Tennessee, No. 98-6730, 2003 U.S. App. LEXIS 303 (6th 
Cir. Tenn. Jan. 10, 2003), at *6; Matthews v. Jefferson, 29 F. Supp. 2d at 
528. 
34 Popovich, 276 F.3d at 815-16. possible to overstate the differences that Title II has made for 
people with disabilities who need to use public 
transportation. The comprehensiveness of the ADA mandate 
– cutting across all modes of transportation (from fixed-route 
buses35 to light rail transit to cross-country trains36) – is 
critical to the law’s success in actually changing how public 
transportation is provided across the nation. Prior to the 
ADA’s enactment, “the provision of accessible transportation 
in the United States was always varied and uneven. Uniform 
accessible transportation did not exist until it was required by 
the passage of the Americans with Disabilities Act of 
1990.”37 
The ADA’s directive to public transit authorities, that 
vehicles leased or purchased after specified dates be “readily 
accessible to and usable by individuals with disabilities,”38 
35 “Fixed route buses” refer to vehicles that travel pre-arranged routes 
according to a set schedule and pick up/drop off members of the general 
public at marked stops. This can be contrasted with “paratransit,” which 
generally refers to separate transit services that are intended specifically 
for use by people with disabilities, and provide origin-to-destination 
services (usually through prior reservation). 
36 See 42 U.S.C. § 12141 (definition of “designated public 
transportation”); 42 U.S.C. § 12182(b)(2) (defining discrimination with 
regard to particular types of transportation). The ADA does not address 
modes of transportation that are covered under other laws (e.g., the Air 
Carrier Access Act of 1986, 49 U.S.C. § 41705, prohibits discrimination 
in air travel). 
37 Rosalyn M. Simon, “Status of Transportation Accessibility in the 
United States: Impact of the Americans with Disabilities Act,” in 
Proceedings of Seminar L Held at the Planning and Transportation 
Research and Computation European Transport Forum, Brunel 
University, England § 1.2 (Sept. 2-6, 1996). 
38 42 U.S.C. § 12142(a)-(c) (collectively encompassing new, used and 
remanufactured vehicles). initiated significant measurable changes in national 
transportation accessibility. As Rosalyn M. Simon notes: 
In 1989, one-third (36%) of the national bus 
fleet was accessible. Post-ADA fixed route 
bus accessibility increased to 39 percent in 
1990, 46 percent in 1991, and 52 percent in 
1992. Using data reported in transit system 
1994 ADA plans, the federal government 
reported the national bus fleet as 55 percent 
accessible with 29,000 lift/ramp-equipped 
buses in 1994 and 60 percent accessible with 
32,000 lift-ramp-equipped buses in 1995. 
Their projections indicate that by 2002, the 
national bus fleet will be 100 percent 
lift/ramp-equipped. In addition, by 2005, all 
fixed route buses will also be equipped with 
ADA-compliant communication systems . . . 
More than 100 public transit systems are now 
providing 100 percent accessible fixed route 
bus service during peak hours.39 
These dramatic improvements in accessibility are 
directly attributable to Congress’ establishment of broad 
national standards for public transportation accessibility. 
Without the ADA, the interstate mobility of people with 
disabilities would always be subject to substantive and 
technical differences in state accessibility requirements. The 
ADA transportation provisions represent many years of 
negotiation with transit authorities. The provisions are 
reasonable and gradual, based on the turnover of vehicles, a 
natural consequence of normal wear and tear and technical 
obsolescence; if turnover is no longer subject to accessibility 
requirements, public transportation fleets could return to their 
39 Supra note 37, at § 3.1. previous inaccessible state as quickly as they became 
accessible. 
E. Higher Education 
The 1990 Americans with Disabilities Act has 
spurred increased enrollment of students with disabilities in 
institutions of higher education. The law’s mandate that 
colleges and universities remove campus architectural 
barriers and provide accommodations such as readers for 
students with vision impairments and sign language 
interpreters for deaf students have enabled tens of thousands 
of people with disabilities to attain a post-secondary 
education and enter the nation’s workforce. 
As reported by Dr. I. King Jordan, the first deaf 
president of Gallaudet University: 
Certainly, life before the A.D.A. was rampant 
with physical and social barriers that 
prevented disabled people from making even 
rudimentary decisions. Many were trained in 
sheltered workshops, or warehoused by 
families and educational systems embarrassed 
by their very existence, and convinced they 
had little potential for success. 
Being deaf, I at least had the opportunity for a 
fine, accessible undergraduate education at 
Gallaudet and the chance to go on for graduate 
degrees. However, when I entered the 
University of Tennessee's graduate program in 
psychology in 1969, I did so realizing that it 
would be a rough ride. I neither expected nor 
received any special accommodation. As a 
consequence, day after day I sat through 
classes understanding little if anything my professors said. I depended on the good will 
of my classmates to share their notes with me, 
and I spent long nights in the library in order 
to keep up with my classes. It was both a 
grueling and lonely period, and most deaf 
students had similar experiences at the time. 
Had I been blind or a wheelchair user, it 
would have been considerably more of a 
challenge, as most campuses were not 
accessible to individuals with mobility 
disabilities. . . . 
[I]t is now commonplace to find deaf and 
hard-of-hearing students – accompanied by 
sign-language interpreters or having access to 
real-time captioning – taking classes in 
universities throughout the country. 
Similarly, students in wheelchairs zipping 
across our campuses, or blind students reading 
Brailled texts and using specially equipped 
computers, have become familiar. They may 
continue to spend time in the library or 
compare notes with classmates, but it is not 
for the same reason that I did. Thanks to the 
A.D.A., many communications and other 
barriers have been removed, and disabled 
students are guaranteed the right to equal 
educational opportunity.40 
40 Dr. I. King Jordan, “Colleges Can Do Even More for People With 
Disabilities,” The Chronicle of Higher Education, Section 2 (June 15, 
2001), at http://president.gallaudet.edu/chron.html. The ADA has not eliminated discrimination in the 
hallways of higher education.41 Aspiring students with 
disabilities still face physical, attitudinal and procedural 
barriers every day, but there can be no doubt that the ADA 
has brought in a new era in higher education, resulting in 
changed attitudes about and increased opportunities for 
people with disabilities. 
F. Licensing 
State governments regulate countless areas of 
employment through licensing programs.42 Accordingly, it 
is unsurprising that the Department of Justice regulations on 
Title II expressly provide that a public entity “may not 
administer a licensing or certification program in a manner 
that subjects qualified individuals with disabilities to 
discrimination on the basis of disability.” 28 C.F.R. § 
35.130(b)(6); see also § 35.130(b)(1) (“A public entity, in 
providing any aid, benefit, or service, may not, directly or 
41 See, e.g., Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993) 
(University refused to assign roommate to student who used a wheelchair 
and the services of a personal attendant). 
42 In California, for example, the state licenses virtually every profession 
and vocation. It should be noted that contrary to Petitioner's assertion 
that “California's own statutory prohibition against discrimination in 
licensure on the basis of disability antedated the ADA by eight years,” 
see Petitioner’s Brief, pp. 24-26, n.9, prior to the ADA California 
prohibited discrimination only on the basis of “physical handicap” and 
“medical condition,” which was defined as having a prior cancer 
diagnosis. Persons with mental disabilities were not covered. It was only 
in 1992, after the passage of the ADA and prompted by it, that state law 
was amended to protect persons with mental as well as physical 
disabilities from discrimination. See Cal. Stats. 1992 ch. 913 (Assembly 
Bill 1077). Compare Cal. Gov. Code §§ 12926 & 12940 (1992) 
(available in LEXIS’s 1991 legislative archive for California) with Cal. 
Gov. Code §§ 12926 & 12940 (1993) (available in LEXIS’s 1992 
legislative archive for California). through . . . licensing, or other arrangements, on the basis of 
disability – . . . [d]eny a qualified individual with a disability 
the opportunity to participate . . .”.) The ADA structure 
promotes fairness and safety by focusing upon qualifications: 
an unqualified or unsafe applicant need not be licensed. Id.43 
Further, a public entity cannot be compelled to make any 
fundamental alterations in its program. 28 C.F.R. § 35.164. 
Historically, certification and licensing programs 
have functioned to unfairly exclude some individuals with 
disabilities from certain activities. For example, as Congress 
learned during the ADA hearings, teachers have been 
excluded from required certification on the basis of 
disability.44 Many of these outright exclusions from 
licensing and certification have been remedied through the 
application of the Rehabilitation Act of 1973 and the 
43 In this case, on remand, Dr. Hason will be required to demonstrate 
such qualifications and abilities; if he cannot, his suit is subject to 
dismissal on the merits. 
44 One witness recounted a series of discriminatory encounters by public 
entities, including the denial of a teaching credential because she was 
paralyzed as a result of childhood polio. Senate Comm. On Labor and 
Human Resources, S. Rep. No. 116, 101st Cong. 1st Sess., 7. In 
Philadelphia, prospective teachers with “chronic or acute physical 
defects,” including blindness, were barred from taking the required 
examination. Gurmankin v. Costanzo, 411 F. Supp. 982 (E.D. Penn. 
1976), aff’d, 556 F.2d 184 (3d Cir. 1977); see also King-Smith v. Aaron, 
455 F.2d 378 (3d Cir. 1972) (blind applicant to teach in Pittsburgh public 
school system rejected from placement on eligibility list based on vision). 
In New York, a woman with spina bifida was denied her teaching license 
on the basis that she was physically “not fit.” Fiesel v. Board of 
Education of the City of New York, 490 F. Supp. 363 (E.D. N.Y. 1980). 
Also in New York, a blind applicant was denied certification to teach 
junior high vocal music, as he was “not fit” due to “defective vision.”. 
Chavich v. Board of Examiners of the Board of Education of the City of 
New York, 252 N.Y.S.2d 718 (N.Y. Spec. Term 1964). Americans with Disabilities Act of 1990, permitting far 
greater opportunity for persons with disabilities. 
Even where outright exclusions have not existed, 
discrimination has occurred through onerous and intrusive 
licensing procedures. In deciding whether an applicant or 
licensee is fit to practice, professional licensing boards 
frequently make extremely broad inquiries into the 
individual’s psychiatric history, treatment, and diagnoses.45 
As many commentators have noted, these investigations are 
not always tailored to the central relevant question: whether 
the individual is able to safely and competently practice their 
chosen profession.46 Frequently, those who have responded 
affirmatively to these questions have been forced to disclose 
additional, highly intimate psychiatric information and 
records, have endured additional procedural steps, including 
oral questioning before licensing boards, and have 
experienced significant delay in obtaining or renewing their 
45 Thomas E. Hansen, M.D., et al., “Changes in Questions About 
Psychiatric Illness Asked on Medical Licensure Applications Between 
1993 and 1996,” Psychiatric Services, vol. 49, no. 2 (Feb. 1998) (in 1993 
and 1996, 75 and 80 percent of medical boards, respectively, used forms 
which contained inquiries about mental illness); Clark v. Virginia Bd. of 
Bar Exam'rs, 880 F. Supp. 430, 433 (E.D. Va. 1995) (as of 1995, 32 state 
had broad mental health inquiries for bar applicants, ten states and the 
District of Columbia asked about hospitalizations, and seven states 
included no mental health inquiries). 
46 See, e.g., Jon Bauer, “The Character of the Questions and the Fitness 
of the Process: Mental Health, Bar Admissions and The Americans with 
Disabilities Act,” 49 U.C.L.A. Law Rev. 93 (2001); Stanley S. Herr, 
“Questioning the Questionnaires: Bar Admissions and Candidates with 
Disabilities,” 42 Vill. L. Rev. 635 (1997); Phyllis Coleman and Ronald A. 
Shellow, “Ask About Conduct, Not Mental Illness: A Proposal for Bar 
Examiners and Medical Boards to Comply with the ADA and 
Constitution,” 20 J. Legis. 147 (1994). According to the American 
Psychiatric Association, the psychiatric history of an applicant is not an 
accurate predictor of fitness. Clark, 880 F. Supp. at 435. license.47 The public health implications are considerable: 
many students and professionals have been deterred from 
appropriate and preventive mental health treatment.48 Again, 
the ADA has been instrumental in remedying these practices, 
by focusing upon actual qualifications and abilities, rather 
than generalizations and stereotypes about mental 
conditions.49 
47 Steven H. Miles, M.D., A Challenge to Licensing Boards: The 
Stigma of Mental Illness,” JAMA, vol. 280, no. 10 (Sept. 9, 1998) 
(detailing demands of medical board for ongoing release of all psychiatric 
records after author with no record of incompetence disclosed bipolar 
diagnosis); Randy A. Sansone, M.D., et al., “Physician Mental Health 
and Substance Abuse: What Are State Medical Licensure Applications 
Asking?,” Arch. Fam. Med., vol. 8 (Sept./Oct. 1999), pp. 448-49 (noting 
procedural hurdles and privacy concerns triggered by affirmative 
responses); Jon Bauer, supra at 101-125 (recounting negative and 
protracted experiences of several Connecticut applicants); Claudia 
Center, et al., “Confronting Depression and Suicide in Physicians: A 
Consensus Statement” (American Foundation for Suicide Prevention, 
2003), submitted to JAMA for publication (reviewing discrimination in 
medical licensing, hospital privileges, and insurance faced by physicians 
with psychiatric disorders). 
48 Clark, 880 F. Supp. at 445-46 (citing plaintiff’s “considerable 
evidence of the stigmatizing and inhibiting effect of broad mental health 
question[ ]” which “both amplifies the stigmatization of disabled persons 
and, at the same time, deters the counseling and treatment from which 
such persons could benefit,” in issuing injunction); Steven H. Miles, 
M.D., supra (describing physicians who have avoided treatment); 
Sansone, M.D., supra at 449 (citing “realistic concern” that inquiries may 
cause physicians to avoid or postpone treatment); American Psychiatric 
Association, “Position Statement on Confidentiality of Medical Records,” 
Am. J. Psychiatry vol. 141 (1984), pp. 331-32 (expressing concern that 
licensing board questions focusing on diagnosis or treatment deters 
physicians from seeking help). 
49 Clark, 880 F. Supp. at 437 (unnecessary mental health question on a 
bar application violates the ADA's prohibition against discriminatory 
eligibility criteria); Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489, 1494 (S.D. Fla. 1994) (Florida's mental health questions 
“discriminate against Plaintiffs by subjecting them to additional burdens 
based on their disability.”); Medical Society of New Jersey v. Jacobs, 
1993 U.S. Dist. LEXIS 14294 (D. N.J. Oct. 5, 1993) (mental health 
questions imposed extra burdens on qualified persons with disabilities in 
violation of ADA); In re Applications of Underwood and Plano, 1993 
Me. LEXIS 267, 3 Am. Disabilities Cas. (BNA) 573 (Me. Sup. Ct. Dec. 
8, 1993) (requirement that applicants answer mental health questions 
discriminates on the basis of disability and imposes eligibility criteria that 
unnecessarily screen out individuals with disabilities); Szarlan v. Conn. 
Bar Examining Comm., No. 3:94 CV-160 (D. Conn., complaint filed Feb. 
1, 1994) (after complaint filed and several hearings, Connecticut bar 
voted to eliminate its broad question about outpatient treatment, and 
replace it with tailored question regarding impaired ability to practice 
law); Steven H. Miles, M.D., supra (after discrimination complaints were 
filed, the board agreed to make the relicensing questionnaire focused 
upon whether the physician is impaired in his or her ability to practice, 
and to narrow access to medical records); Hansen, M.D., supra (noting 
increased focus of application questions on impaired professional abilities 
rather than psychiatric condition alone, and concluding that the 
enforcement of the ADA appears to be encouraging revised 
questionnaires); see also Doe v. Judicial Nominating Comm'n, 906 F. 
Supp. 1534 (S.D. Fla. 1995); but see Applicants v. State Bd. Of Law 
Exam’rs, 1994 U.S. Dist. LEXIS 21290, 4 Am. Disabilities Cas. (BNA) 
165 (W.D. Tex. Oct. 11, 1994). 
II. THE CONTRIBUTIONS OF THE ADA ARE 
THREATENED BY SOME STATES’ ONGOING 
AND BROAD-BASED CONSTITUTIONAL 
CHALLENGES TO ITS VALIDITY. 
The question now before this Court is whether 
Congress had the authority under Section 5 of the Fourteenth 
Amendment to enact Title II of the Americans with 
Disabilities Act, which permits individuals to seek money 
damages from the State to remedy disability discrimination. 
As this Court reviewed in Garrett, “Section 5 of the 
Fourteenth Amendment grants Congress the power to enforce 
the substantive guarantees contained in § 1 by enacting ‘appropriate legislation.’” Bd. Of Trustees v. Garrett, 531 
U.S. 356, 365 (2001). This power “includes the authority 
both to remedy and to deter violation of rights guaranteed 
thereunder by prohibiting a somewhat broader swath of 
conduct, including that which is not itself forbidden by the 
Amendment's text.” Kimel v. Florida Bd. Of Regents, 528 
U.S. 62, 81 (2000); City of Boerne v. Flores, 521 U.S. 507, 
536 (1997). 
As this Court has reiterated, however, legislation 
which reaches beyond the scope of Section 1's actual 
guarantees must exhibit “congruence and proportionality 
between the injury to be prevented or remedied and the 
means adopted to that end.” Garrett, 531 U.S. at 365 (citing 
City of Boerne, 521 U.S. at 520). Accordingly, in this case, 
the Respondent and his amici have demonstrated a long 
history and pattern of unconstitutional conduct in the 
administration of those very activities regulated by Title II – 
the “services, programs, [and] activities” of the State. As set 
forth in the briefs submitted, state conduct excluded and, too 
often, continues to exclude, disabled persons from public 
education, public transportation, voting, community services, 
and, quite literally, city hall. Congress took care to document 
the shameful legacy of state-sponsored discrimination in the 
voluminous legislative history of the ADA, and to craft the 
congruent and proportional response found in Title II of the 
Act. 
While this case is limited to one relatively 
circumscribed, albeit critical, aspect of federal disability 
discrimination law – the availability of damages under Title 
II – this challenge to Congress’ Section 5 authority is but one 
part of an ongoing challenge by some States to Title II. States are also challenging Congress' power to enact all50 or 
portions of Title II51 under the Commerce Clause. 
States attempt to minimize the effect of invalidating 
Title II under Section 5 by referring to parallel protections in 
50 Challenges to injunctive relief under Ex Parte Young continue despite 
the fact that this Court has already resolved the question. Garrett, 531 
U.S. at 32 n.9. See, e.g., Defendant's Motion to Dismiss in McCarthy v. 
Gilbert, Civil Action No. 02-CV-600 (E.D. Tex., Beaumont Division) 
(arguing that Ex Parte Young cannot be used to enforce Title II of the 
ADA or its regulations because Title II exceeds the scope of Congress' 
power under Section 5 and the Commerce Clause); Brief of Appellees in 
Meyers v. State of Texas, Case No. 02-50452 (5th Cir.) (on appeal from 
the U. S. Dist. Ct, W.D. Tex., Austin Div.) (“Because it offends 
fundamental notions of federalism to permit Young suits based on statutes 
Congress lacked authority to enact under Section 5, the Court should hold 
that there is no Eleventh Amendment exception permitting prospective 
enforcement of federal laws – like Title II – under which Congress did 
not abrogate Eleventh Amendment and sovereign immunity.”); Williams 
v. Wasserman, 164 F. Supp.2d 591, 598 n.10 (D. Md. 2001). 
51 Several states, including Connecticut, Pennsylvania, North Carolina, 
Maryland, and Virginia, have argued that Congress lacked Commerce 
Clause authority to regulate prisons under the ADA. See Petitioner’s 
Brief in Pennsylvania v. Yeskey, 1997 U.S. Briefs 634 (LEXIS) (March 4, 
1998) (“[n]either the Commerce Clause nor the Fourteenth Amendment 
gives Congress the power to regulate the management of state 
prisoners”); Saunders v. Horn, 959 F. Supp. 689 (E.D. Penn. 1997); 
Pierce v. King, 918 F. Supp. 932, 938 (E.D.N.C. 1996) (Congress lacked 
Commerce Clause authority, as prison labor does not substantially affect 
interstate commerce, citing United States v. Lopez, 514 U.S. 549 (1995)); 
Staples v. Virginia Dept. of Corrections, 904 F. Supp. 487, 490 (E.D. Va. 
1995) (citing Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. 
denied, 116 S. Ct. 772 (1996); Amos v. Maryland Dep't of Safety, 178 
F.2d 212 (4th Cir. 1999), vacated for rehearing en banc, subsequently 
dismissed pursuant to settlement, 205 F.3d 687 (4th Cir. 2000); Hicks v. 
Armstrong, 116 F. Supp.2d 287 (D. Conn. 1999). 504.52 However, states continue to challenge applications of 
the Rehabilitation Act of 1973 as unauthorized by the 
Spending Clause. The states argue that they have not waived 
their sovereign immunity by accepting federal funds, an 
argument which has been correctly rejected by most federal 
appellate courts.53 More significantly, the states continue to 
argue that the requirements of the Rehabilitation Act are not 
“reasonably related” to the purposes of the federal funds 
disbursed, and that so conditioning the funds is 
unconstitutionally coercive, an argument that has also been 
rejected.54 
52 See, e.g. Brief for Petitioners in Garrett (June 22, 2000), 1999 U.S. 
Briefs 1240 (LEXIS) at * 38 (noting availability of “comparable 
injunctive and monetary remedies of the Rehabilitation Act”). 
53 See, e.g., Koslow v. Pennsylvania Dep’t of Corrections, 302 F.3d 161 
(3d Cir. 2002); Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002) 
(Section 504 and Title VI); Douglas v. California Dep’t of Youth Auth., 
271 F.3d 812 (9th Cir. 2002), rehearing en banc denied, 285 F.3d 1226 
(9th Cir. 2002); Nihiser v. Ohio Environmental Protection Agency, 269 
F.3d 626 (6th Cir. 2001); Jim C. v. United States, 235 F.3d 1079 (8th Cir. 
2000) (en banc), cert. denied sub nom. Arkansas Dep’t of Educ. v. Jim C., 
121 S.Ct. 2591 (2001); Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000); 
Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), rev’d on other 
grounds, Alexander v. Sandoval, 532 U.S. 275 (2001). Cf. Pederson v. 
Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000); Litman v. George 
Mason Univ., 186 F.3d 544 (4th Cir. 1999) (both Title IX cases). But see 
Garcia v. SUNY Health Sciences Ctr. of Brooklyn, 280 F.3d 98 (2d Cir. 
2001). 
54 See, e.g., Lovell v. Chandler, 303 F.3d 1039, 1051 (9th Cir. 2002), 
cert. denied, 2003 WL 95557 (Jan. 13, 2003); Koslow v. Pennsylvania 
Dep’t of Corrections, 302 F.3d 161, 175-76 (3d Cir. 2002); Jim C. v. 
United States, 235 F.3d 1079, 1081-82 (8th Cir. 2000) (en banc) (rejecting 
state’s argument that Rehabilitation Act requirements upon federal 
funding were unduly coercive), cert. denied sub nom. Arkansas Dep’t of 
Educ. v. Jim C., 121 S.Ct. 2591 (2001). However, in Jim C., the 
dissenting four judges used the test enunciated by this Court in South Dakota v. Dole, 483 U.S. 203 (1987) as the basis for opining that 
Congress lacked authority under the Spending Clause to enact Section 
504. 235 F.3d at 1082-85 (8th Cir. 2000) (en banc). 
CONCLUSION 
Continued challenges by some States to the newly 
established rights of disabled Americans disregard the 
pervasive history of discrimination faced by people with 
disabilities and the studied, gradual and reasonable approach 
taken by Congress in fashioning an appropriate remedy. 
These long awaited rights are well within Congress’ authority 
to enforce the Fourteenth Amendment as set forth by this 
Court in Garrett. 
In enacting the ADA, Congress invoked “the sweep 
of congressional authority, including the power to enforce the 
fourteenth amendment and to regulate commerce, in order to 
address the major areas of discrimination faced day-to-day by 
people with disabilities.” 42 U.S.C. § 12101(b)(4). As 
demonstrated in the briefs filed by respondent and his amici, 
Congress developed a record of pervasive state-sponsored 
discrimination and designed a proportionate response based 
on principles of reasonableness and qualifications. 
The promise of the ADA is just beginning to be 
realized. States are making the basic vestiges of citizenship 
available to persons with disabilities for the first time in 
history. This progress is in keeping with the most 
fundamental principles of equality embodied in the 
Fourteenth Amendment. There can be no doubt that the 
invalidation of Congress’ long and deliberative process in 
recognizing and remedying “the continuing existence of 
unfair and unnecessary discrimination and prejudice”55 
toward people with disabilities will impede continuing 
55 42 USC § 12101 (9). progress toward a nation where people with disabilities can 
participate fully in civic life. 
When President George H.W. Bush signed the 
Americans with Disability Act he stated: 
And today, America welcomes into the 
mainstream of life all of our fellow citizens 
with disabilities. We embrace you for your 
abilities and for your disabilities, for our 
similarities and indeed for our differences, for 
your past courage and your future dreams. 
Last year, we celebrated a victory of 
international freedom. Even the strongest 
person couldn't scale the Berlin Wall to gain 
the elusive promise of independence that lay 
just beyond. And so, together we rejoiced 
when that barrier fell. 
And now I sign legislation which takes a 
sledgehammer to another wall, one which has 
for too many generations separated Americans 
with disabilities from the freedom they could 
glimpse, but not grasp. Once again, we 
rejoice as this barrier falls for claiming 
together we will not accept, we will not 
excuse, we will not tolerate discrimination in 
America. 
While progress has been great, the ADA is still an 
indispensable tool to put equal citizenship firmly within the 
grasp of Americans with disabilities. Respectfully submitted, 
*ARLENE B. MAYERSON, Esquire 
SILVIA YEE, Esquire 
Disability Rights Education and Defense Fund 
2212 Sixth Street 
Berkeley, CA 94710 
Telephone: (510) 644-2555 
*Counsel of Record 
CLAUDIA CENTER, Esquire 
The Legal Aid Society - 
Employment Law Center 
600 Harrison Street, Suite 120 
San Francisco, CA 94107 
Telephone: (415) 864-8848 
APPENDIX 
BIOGRAPHIES OF AMICI CURIAE 
Former Senator Robert Dole served as the Republican 
Senator from Kansas from 1969 to 1996. During that time, 
he served as the Majority and Minority Leader in the Senate 
and was an original co-sponsor of the ADA. Senate Dole 
was a leader in the negotiations that led to the passage of the 
ADA. 
Senator Tom Harkin is the Democratic Senator from 
Iowa, and has served in the Senate since 1985. Senator 
Harkin was the chief sponsor of the ADA in the Senate, and 
chair of the former Disability Policy Subcommittee of the 
Senate Labor and Human Resources Committee. In these 
roles, Senator Harkin was a leader in the negotiations that 
resulted in the ADA's passage. 
Senator Edward Kennedy is the senior Democratic 
Senator from Massachusetts and has served in the Senate 
since 1963. From 1987 to 1994, Senator Kennedy chaired 
the Senate Labor and Human Resources Committee. In 
1989, Senator Kennedy, together with Senator Tom Harkin 
and 32 other Senators introduced the second version of the 
ADA. Senator Kennedy played a key role in the negotiations 
and compromises that resulted in passage of the ADA. 
Congressman Steny Hoyer is the Democratic 
Representative from the 5th district of Maryland. 
Congressman Hoyer was chairman of the House Democratic 
Caucus from 1989 to 1994. From 1989 to 1990, 
Congressman Hoyer led the negotiations of the ADA on 
behalf of the Democratic House leadership as the bill passed 
through four House committees.