Pages 1--208 Dept. of Justice Brief

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES
THEODORE B. OLSON Solicitor General
Counsel of Record
R. ALEXANDER ACOSTA Assistant Attorney General

PAUL D. CLEMENT Deputy Solicitor General
PATRICIA A. MILLETT Assistant to the Solicitor General
JESSICA DUNSAY SILVER SARAH E. HARRINGTON
KEVIN RUSSELL Attorneys

Department of Justice Washington, D. C. 20530-0001
(202) 514-2217 1
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QUESTION PRESENTED
Whether Title II of the Americans with Disabilities Act of
1990, 42 U. S. C. 12131 to 12165, exceeds Congress's authority under
Section 5 of the Fourteenth Amendment.

(I) 2
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1
OPINIONS BELOW
The court of appeals' amended opinion on rehearing (Pet. App.
1-5) is reported at 315 F. 3d 680. The original opinion of the
court of appeals (Pet. App. 10-11) and the order of the district
court (Pet. App. 6-7) are unreported.
JURISDICTION
The court of appeals entered its original judgment on July 16,
2002, and its amended opinion on rehearing on January 10, 2003. On
March 4, 2003, Justice Stevens extended the time within which to
file a petition for a writ of certiorari to May 12, 2003, and the
petition was filed on that date. The petition was granted, limited
to Question 1, on June 23, 2003. This Court has jurisdiction
pursuant to 28 U. S. C. 1254( 1).
STATEMENT
1. The Americans with Disabilities Act of 1990 (Disabilities
Act), 42 U. S. C. 12101 et seq., established a "comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities." 42 U. S. C. 12101( b)( 1). Congress
found that "historically, society has tended to isolate and
segregate individuals with disabilities," and that "such forms of
discrimination * * * continue to be a serious and pervasive social
problem." 42 U. S. C. 12101( a)( 2). Congress specifically found that
discrimination against persons with disabilities "persists in such
critical areas as employment, housing, public accommodations,
education, transportation, communication, recreation, 3
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institutionalization, health services, voting, and access to public
services." 42 U. S. C. 12101( a)( 3). In addition, Congress found
that persons with disabilities
continually 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). Congress concluded that persons with
disabilities
have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment,
and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the
control of such individuals and resulting from stereotypic assumptions not truly indicative of the
individual ability of such individuals to participate in, and contribute to, society.

42 U. S. C. 12101( a)( 7). Based on those findings, Congress
"invoke[ d] the sweep of congressional authority, including the
power to enforce the fourteenth amendment" to enact the
Disabilities Act. 42 U. S. C. 12101( b)( 4).
The Disabilities Act targets three particular areas of
discrimination against persons with disabilities. Title I, 42
U. S. C. 12111-12117, addresses discrimination by employers affecting
interstate commerce; Title II, 42 U. S. C. 12131-12165, addresses
discrimination by governmental entities in the operation of public
services, programs, and activities, including transportation; and 4
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1 Congress instructed the Attorney General to issue regulations to
implement Title II, based on regulations previously promulgated under Section 504 of the Rehabilitation Act of 1973, 29 U. S. C. 794.

See 42 U. S. C. 12134.

Title III, 42 U. S. C. 12181-12189, addresses discrimination in
public accommodations operated by private entities. This case
arises under Title II of the Disabilities Act, which provides that
"no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity." 42
U. S. C. 12132. A "public entity" is defined to include "any State
or local government" and its components. 42 U. S. C. 12131( 1)( A) and
(B). Title II may be enforced through private suits against public
entities. 42 U. S. C. 12133. Congress expressly abrogated the
States' Eleventh Amendment immunity to private suits in federal
court. 42 U. S. C. 12202.
Title II prohibits governments from, among other things,
denying a benefit to a qualified individual with a disability
because of his disability, providing him with a lesser benefit than
is given to others, or limiting his enjoyment of the rights and
benefits provided to the public at large. See 28 C. F. R.
35.130( b)( 1)( i), (iii), (vii). 1 In addition, a public entity must
make reasonable modifications in its policies, practices, or
procedures if necessary to avoid the exclusion of individuals with
disabilities, unless the accommodation would impose an undue 5
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financial or administrative burden on the government, or would
fundamentally alter the nature of the service. See 28 C. F. R.
35.130( b)( 7). The Disabilities Act does not normally require a
public entity to make its existing physical facilities accessible.
28 C. F. R. 35.150( a)( 1). Public entities need only ensure that
"each service, program or activity, * * * when viewed in its
entirety, is readily accessible to and usable by individuals with
disabilities." 28 C. F. R. 35.150( a). However, building
construction or alterations undertaken after Title II's effective
date must be designed to provide accessibility. 28 C. F. R. 35.151.
2. Respondents George Lane and Beverly Jones have paraplegia
and use wheelchairs to ambulate. Pet. App. 13. In 1996,
petitioner charged Lane with two misdemeanor offenses and summoned
him to appear in the Polk County Courthouse to answer the charges.
Id. at 15-16. All court proceedings in that courthouse take place
on the second floor of a building that, at that time, had no
elevator. At his first appearance, Lane crawled up two flights of
stairs to get to the courtroom. On his second visit, he was
arrested after he "sent word to the court that he would not crawl
to the courtroom again" and further declined to be carried by
officers. Id. at 15. The court conducted subsequent proceedings
with Lane waiting on the ground floor while his attorney shuttled
back and forth between Lane and the second-floor courtroom. Id. at
15-16. The trial court later held the criminal case in abeyance
while an elevator was constructed. Id. at 17. 6
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Respondent Jones is a certified court reporter who must attend
court proceedings to perform her job. Because many courtrooms in
Tennessee are inaccessible to people in wheelchairs, she has been
unable to complete a number of assignments, has not been able "to
participate in the judicial process," and has otherwise been denied
"access[]" to "the services of the judiciary." Pet. App. 19-20.
Respondents filed suit against petitioner and 25 Tennessee
counties alleging past and ongoing violations of Title II based on
the physical inaccessibility of courthouses within the State. Pet.
App. 12-28. Respondents also seek to represent a class of persons
who, because of their physical disabilities, cannot climb stairs or
ascend steep inclines in Tennessee courthouses. Id. at 26.
Respondents seek injunctive relief and damages. Id. at 27-28.
Petitioner filed a motion to dismiss on the ground of Eleventh
Amendment immunity, which the district court denied. Id. at 11.
3. Petitioner filed an interlocutory appeal, see Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U. S. 139
(1993), and the United States intervened to defend the
constitutionality of Congress's abrogation of Eleventh Amendment
immunity, see 28 U. S. C. 2403.
While the appeal was pending, the Sixth Circuit issued its en
banc opinion in Popovich v. Cuyahoga County Court of Common Pleas,
276 F. 3d 808, cert. denied, 537 U. S. 812 (2002), which held that
the Disabilities Act's abrogation of Eleventh Amendment immunity is
valid for claims based on due process principles, but not for 7
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claims based on equal protection principles. The court then
affirmed the denial of petitioner's motion to dismiss on the ground
that respondents' claims are based on due process principles. Pet.
App. 10-11. On rehearing, the panel issued an amended opinion (id.
at 1-5) explaining that plaintiffs' claims are based on due process
principles because "physical barriers in government buildings,
including courthouses and in the courtrooms themselves, have had
the effect of denying disabled people the opportunity to access
vital services and to exercise fundamental rights." Id. at 4.
SUMMARY OF ARGUMENT
Application of Title II of the Americans with Disabilities Act
to States and their subdivisions falls squarely within Congress's
comprehensive legislative power under Section 5 of the Fourteenth
Amendment to prohibit, remedy, and prevent violations of the rights
secured by that Amendment. In enacting Title II, Congress focused
its legislative attention on the specific problem of discriminatory
access to state and local government services; it did not simply
extend a policy focused on the private sector to the government.
After decades of study, Congress determined that persons with
disabilities had suffered from a virulent history of official
governmental discrimination, isolation, and segregation. Congress
found, moreover, that such discrimination and segregation, like
race and gender discrimination, have repercussions that have
persisted over the years and that continue to be manifested in
decisionmaking by state and local officials across the span of 8
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governmental operations. That official discrimination results not
just in the denial of the equal protection of the laws and equal
access to governmental benefits, but also in the deprivation of
fundamental rights, such as the rights of access the courts, to
vote, to substantive and procedural due process, to petition
government officials, and to other protections of the First,
Fourth, Fifth, Sixth, and Eighth Amendments.
In Title II, Congress formulated a statute that, much like
federal laws combating racial and gender discrimination, is
carefully designed to root out present instances of
unconstitutional discrimination, to undo the effects of past
discrimination, and to prevent future unconstitutional treatment by
prohibiting discrimination and promoting integration where
reasonable. At the same time, the Disabilities Act preserves the
latitude and flexibility that States legitimately require in the
administration of their programs and services. The Disabilities
Act accomplishes those objectives by requiring States to afford
persons with disabilities genuinely equal access to services and
programs, while at the same time confining the statute's
protections to qualified individuals who, by definition, meet all
of the States' legitimate and essential eligibility requirements.
The Act only requires reasonable modifications for individuals with
disabilities that do not impose an undue burden and do not
fundamentally alter the nature or character of the governmental
program. The statute is thus carefully tailored to prohibit state 9
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conduct that presents a substantial risk of violating the
Constitution or that unreasonably perpetuates the exclusionary
effects of prior unconstitutional treatment and exclusion.
ARGUMENT
BECAUSE IT BOTH REMEDIES THE CONTINUING EFFECTS OF PAST CONSTITUTIONAL VIOLATIONS AND COMBATS AN ENDURING PROBLEM
OF UNCONSTITUTIONAL MISTREATMENT OF INDIVIDUALS WITH DISABILITIES, TITLE II OF THE AMERICANS WITH DISABILITIES
ACT OF 1990 IS VALID SECTION 5 LEGISLATION
Section 5 of the Fourteenth Amendment is an affirmative grant
of legislative power, see Kimel v. Florida Bd. of Regents, 528 U. S.
62, 80 (2000), that gives Congress the "authority both to remedy
and to deter violation of [Fourteenth Amendment] rights * * * by
prohibiting a somewhat broader swath of conduct, including that
which is not itself forbidden by the Amendment's text," Nevada
Dep't of Human Res. v. Hibbs, 123 S. Ct. 1972, 1977 (2003) (quoting
Board of Trs. of the Univ. of Ala. v. Garrett, 531 U. S. 356, 365
(2001)). Section 5 thus "gives Congress broad power indeed," Saenz
v. Roe, 526 U. S. 489, 508 (1999), including the power to remedy
past violations of constitutional rights, to enact "prophylactic
legislation that proscribes facially constitutional conduct, in
order to prevent and deter unconstitutional conduct," and to
abrogate the States' Eleventh Amendment immunity, Hibbs, 123 S. Ct.
at 1977. Such legislation, however, must demonstrate a "congruence
and proportionality between the injury to be prevented or remedied
and the means adopted to that end." City of Boerne v. Flores, 521
U. S. 507, 520 (1997). Title II of the Disabilities Act is 10
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appropriate Section 5 legislation because it is reasonably designed
to remedy a history of pervasive discrimination and deprivation of
constitutional rights by States, to prevent continuing denials of
constitutional rights, and to eradicate enduring false stereotypes
that would otherwise freeze into place the effects of past
unconstitutional treatment.
A. Title II Of The Disabilities Act Targets Distinctly Governmental Activities That Often
Burden The Exercise Of Fundamental Rights
In Garrett, supra, this Court held that Title I of the
Disabilities Act, 42 U. S. C. 12111 to 12117, which prohibits public
and private employers from discriminating in employment, was not
valid Section 5 legislation. 531 U. S. at 365-374. Title II,
however, is fundamentally different from Title I in four
constitutionally determinative respects.
First, in enacting Title I, Congress addressed issues that
affect all employers --private or public sector --and simply
included States within a general ban on employment discrimination,
without considering sufficiently whether there was a distinctive
problem of unconstitutional employment discrimination by the
States. Garrett, 531 U. S. at 369-371. While Title I regulates
States qua employers, Title II, by contrast, was enacted
specifically and deliberately to regulate state and local
governments qua governments. Congress thus legislated with both an
appreciation for the unique status of state and local governments
and a singular focus on the historic and enduring problem of 11
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2 In a number of other cases, Congress likewise invoked its
Section 5 power simply to "place States on the same footing as private parties." Kimel, 528 U. S. at 82; see Florida Prepaid

Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U. S. 627, 631-632 (1999); College Sav. Bank v. Florida Prepaid Postsecondary
Educ. Expense Bd., 527 U. S. 666 (1999). While congressional efforts to regulate States qua employers could have been understood
by Members of Congress (prior to this Court's decision in Seminole Tribe v. Florida, 517 U. S. 44 (1996)) to depend critically on
Congress's ability to abrogate States' immunity under the Commerce Clause, Congress's regulation in Title II of the States' provision
of public services perforce accounted for the States' governmental character and thus necessarily implicated the Section 5 power.

official discrimination and unconstitutional treatment on the basis
of disability by "any State or local government," 42 U. S. C.
12131( 1)( A) and (B). 2
For that reason, as Garrett acknowledged, Title II is
predicated on a more substantial legislative record pertaining to
"discrimination by the States in the provision of public services."
531 U. S. at 371 n. 7; see Section B( 2), infra. That legislative
record, in turn, led Congress to make specific findings about the
historic and enduring problem of discrimination by States and their
subdivisions. In particular, Congress found that "discrimination
against individuals with disabilities persists in such critical
areas as * * * education, transportation, * * *
institutionalization, * * * voting, and access to public services."
42 U. S. C. 12101( a)( 3). Those are areas for which States and their
subdivisions are either exclusively or predominantly responsible.
Contrast Garrett, 531 U. S. at 371 (no findings about state
employment discrimination). In addition, the same committee 12
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reports that the Court in Garrett found lacking with regard to
public employment, 531 U. S. at 371-372, are directly on point here,
declaring that "there exists a compelling need to establish a clear
and comprehensive Federal prohibition of discrimination on the
basis of disability in the area[] of * * * public services." H. R.
Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 28 (1990); see also
S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989) (" Discrimination
still persists in such critical areas as * * * public services.").
Congress thus specifically concluded, on the basis of a weighty
legislative record, that States were contributors to the "history
of purposeful unequal treatment" and participants in "the
continuing existence of unfair and unnecessary discrimination and
prejudice" against individuals with disabilities, 42 U. S. C.
12101( a)( 7) and (9) --and those "conclusions are entitled to much
deference." Kimel, 528 U. S. at 81.
Second, because Title I pertains to employment, decisions made
by state employers concerning individuals with disabilities
implicate only the Equal Protection Clause's guarantee against
irrational employment decisions. Garrett, 531 U. S. at 366-368.
Like Kimel, 528 U. S. at 83, Title I thus addressed state conduct in
an area where the States, as sovereigns, are given an
extraordinarily wide berth and constitutional violations are
infrequently found. See, e. g., Hibbs, 123 S. Ct. at 1981-1982;
Board of County Comm'rs v. Umbehr, 518 U. S. 668, 676 (1996). 13
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Title II, by contrast, enforces not only the Equal Protection
Clause, but also a wide array of fundamental constitutional rights
--the right to petition the government, the right of access to the
courts, the right to vote, Fourth and Eighth Amendment protections,
and procedural and substantive due process. Indeed, Title I dealt
only with the States' denial of an opportunity --employment --
that individuals equally could pursue in the private sector. Title
II, by contrast, regulates state and local governments when they
intervene in and regulate the activities of private citizens, or
deprive them of their liberty, property, or parental rights, often
in contexts in which there is no private-sector alternative and the
citizen has no ability to opt out. Title II also regulates a
State's ability to deny a class of citizens access to government
services upon which all citizens must rely for basic opportunities
(and sometimes the necessities) of modern life. The private sector
cannot provide for binding judicial process, or the ability to cast
a ballot, serve as a juror, adopt children, secure the protection
of the police, or seek the enactment of legislation. Title II thus
legislates in an area where the States' conduct often "triggers a
heightened level of scrutiny," Hibbs, 123 S. Ct. at 1982, and where
its ability to infringe those rights generally, let alone to deny
them disparately to one particular segment of the population, is
constitutionally curtailed. For that reason, it "was easier for
Congress" to identify and "to show a pattern of state
constitutional violations" in enacting Title II. Ibid. 14
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3 See Thompson v. Colorado, 278 F. 3d 1020, 1025 n. 2 (10th Cir.
2001), cert. denied, 535 U. S. 1077 (2002); State Dep't of Highway Safety v. Rendon, 832 So. 2d 141, 146 n. 5 (Fla. Dist. Ct. App.

2002), review denied, 851 So. 2d 729 (Fla. 2003), petition for cert. pending, No. 03-559 (filed Oct. 13, 2003) ; Meyers v. Texas, No.
02-50452 (5th Cir. argued Mar. 12, 2003) (pending); McCarthy v. Hale, No. 03-50608 (5th Cir.); Doe v. Regier, No. 03-2794 (Fla.
Dist. Ct. App.) (pending).

Third, unlike Kimel and Garrett, this case implicates concerns
beyond abrogation and the ability of individuals to sue the States
for money damages. Because both Kimel and Garrett targeted
employment discrimination, those decisions only invalidated the
statutes' abrogation provisions; the substantive prohibitions of
those laws remain applicable to the States pursuant to Congress's
undoubted power to regulate employment under its Commerce Clause
authority, and they can be enforced against state officials under
Ex parte Young, 209 U. S. 123 (1908). See Garrett, 531 U. S. at 374
n. 9; EEOC v. Wyoming, 460 U. S. 226, 235-243 (1983). While
petitioner concedes (Br. 16) that Title II's substantive provisions
are valid Commerce Clause legislation, its state amici (Br. 22, 25)
and a number of other States pointedly do not. 3 Accordingly,
unless Title II is appropriate Commerce Clause legislation, the
issue presented here draws into question the power of Congress to
require both States and local governments, whether through private
damages actions, private injunctive actions, or suits by the United
States itself, to make their buildings, programs, and public life
accessible to a historically marginalized population. 15
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4 See Atkin v. Kansas, 191 U. S. 207, 220-221 (1903); Lawrence
County v. Lead-Deadwood Sch. Dist., 469 U. S. 256, 270-271 (1985) (Rehnquist, J., dissenting).

Fourth, for all of the foregoing reasons, and especially
because this case may implicate the constitutional authority for
enactment of Title II's substantive prohibitions as applied to all
levels of government, this Court is not constrained, as it was in
Garrett, to consider only the legislative evidence of
unconstitutional conduct directly by the States. When Congress
specifically focuses the substantive provisions of Section 5
legislation jointly on the operations of state and local
governments qua governments, its enforcement powers under Section
5, like the substantive protections of Section 1, can charge the
States with some responsibility for the unconstitutional conduct of
the subdivisions of government that the States themselves create
and empower to act. 4
That is, in part, because the line between state and local
government is much harder to discern in the context of public
services than it is in employment. While employment decisions can
be made independently, the operations of state and local
governments in the provision of government services, such as
voting, education, welfare benefits, zoning, licensing, and the
administration of justice are often closely intertwined. Indeed,
in this case, the State uses county courthouses for the conduct of
its own judicial business. Pet. App. 14-15; see generally Anderson 16
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County Quarterly Court v. Judges of the 28th Judicial Circuit, 579
S. W. 2d 875 (Tenn. Ct. App. 1978). Likewise, with respect to
education, States play a substantial role in directing,
supervising, and limiting the discretion of local agencies, either
by administrative supervision or by statutory direction. The
complexity of the relationship between state and local governments
in the administration of public services often raises difficult,
state-by-state questions regarding whether a particular entity is
operating as an "arm of the state." The record of historic and
pervasive discrimination and unconstitutional treatment by all
levels of government further blurs the line between state and local
governmental action, because the conduct of local officials often
may be traceable, at least in part, to the rules of state-mandated
discrimination and segregation under which they operated for years.
Indeed, under similar circumstances, this Court has recognized
the relevance of local governmental conduct in assessing the
validity of Section 5 legislation as applied to the States. In
both Garrett and Hibbs, the Court cited the substantive provisions
of the Voting Rights Act of 1965, 42 U. S. C. 1973, which were upheld
in South Carolina v. Katzenbach, 383 U. S. 301 (1966), as
"appropriate" Section 5 legislation because that Act is predicated
upon a documented "problem of racial discrimination in voting."
Garrett, 531 U. S. at 373; see Hibbs, 123 S. Ct. at 1982. Much of
the evidence of unconstitutional conduct described on the
referenced pages of South Carolina (383 U. S. at 308-313), however, 17
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5 See South Carolina, 383 U. S. at 312 n. 12 (discrimination by
Montgomery County Registrar); id. at 312 n. 13 (Panola County and Forrest County registrars); id. at 313 n. 14 (Dallas County Board of

Registrars); id. at 313 n. 15 (Walker County registrar); id. at 314 (" certain local officials have defied and evaded court orders or
have simply closed their registration offices to freeze the voting rolls"); id. at 314-315 (Selma, Alabama, and Dallas County).

6 See, e. g., Voting Rights: Hearings Before Subcomm. No. 5 of the
House Comm. on the Judiciary, 89th Cong., 1st Sess. 5-8 (1965) (voting discrimination by local officials in Selma, Alabama, and

Dallas County); id. at 8 (abuses by local sheriff and deputy sheriff in Mississippi); id. at 36 (21 of 22 voting discrimination
lawsuits filed by the Department of Justice in Mississippi were against counties); Voting Rights: Hearings Before the Senate Comm.
on the Judiciary, 89th Cong., 1st Sess. 12 (1965) (discrimination in Clarke County, Mississippi, and Wilcox County, Alabama); H. R.
Rep. No. 439, 89th Cong., 1st Sess. 16 (1965) (parish registrars); S. Rep. No. 162, 89th Cong., 1st Sess. Pt. 3, at 7-9 (1965)
(discrimination and litigation in Dallas County, Alabama); id. at 12 (counties' discriminatory use of "good moral character" test);
id. at 33 (county officials' discriminatory use of poll tax).

involved the conduct of county and city officials. 5 In fact,
almost all of the evidence of specific instances of discrimination
underlying the Voting Rights Act of 1965 concerned local officials
rather than state officials; the rest of the evidence was either
statistical evidence or lists of state laws. 6 See also Flores, 521
U. S. at 530-531 (in analyzing Section 5 as a source of power for
the substantive provisions of a law, the Court did not distinguish
between evidence of state and local governmental conduct). Thus,
while Congress compiled ample evidence of unconstitutional conduct
by the States themselves in enacting Title II, the constitutional
question presented here, unlike Garrett, compels consideration of
the evidence of local government discrimination as well. 18
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B. Title II Responds To A Long History And A Continuing Problem Of Unconstitutional
Treatment Of Individuals With Disabilities
1. Congress Exhaustively Investigated Disability Discrimination

In City of Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432 (1985), this Court acknowledged the superior expertise of
legislatures in addressing the "difficult" problem of
discrimination against and mistreatment of individuals with
disabilities. Id. at 443. "In identifying past evils," for which
Section 5 legislation is appropriate, moreover, "Congress obviously
may avail itself of information from any probative source," South
Carolina, 383 U. S. at 330, including
the information and expertise that Congress acquires in the consideration and enactment of earlier legislation.
After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may
reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area.

Fullilove v. Klutznick, 448 U. S. 448, 503 (1980) (Powell, J.,
concurring).
The Congress that enacted Title II of the Disabilities Act
brought to that legislative process more than forty years of
experience studying the scope and nature of discrimination against
persons with disabilities and testing incremental legislative steps
to combat that discrimination. See Garrett, 531 U. S. at 390-391
(Breyer, J., dissenting) (listing prior legislation). Building on
that expertise, Congress commissioned two reports from the National
Council on the Handicapped to report on the adequacy of existing 19
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7 See Rehabilitation Amendments of 1984, Pub. L. No. 98-221, Title
I, § 141( a), 98 Stat. 26; Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Title V, § 502( b), 100 Stat. 1829.

8 Twenty percent of persons with disabilities --more than twice
the percentage for the general population --lived below the poverty line, and 15% of disabled persons had incomes of $15,000 or

less. Threshold 13-14. Forty percent of persons with disabilities --triple the rate for the general population --did not finish
high school. Only 29% of persons with disabilities had some college education, compared with 48% for the general population.
Id. at 14. Two-thirds of all working-age persons with disabilities were unemployed; only one in four worked full-time. Ibid. Two-thirds
of persons with disabilities had not attended a movie or sporting event in the past year; three-fourths had not seen live
theater or music performances; persons with disabilities were three times more likely not to eat in restaurants; and 13% of persons
with disabilities never went to grocery stores. Id. at 16-17.

federal laws and programs addressing discrimination against persons
with disabilities. 7 Those studies revealed that "the most
pervasive and recurrent problem faced by disabled persons appeared
to be unfair and unnecessary discrimination." National Council on
the Handicapped, On the Threshold of Independence 2 (1988)
(Threshold); see National Council on the Handicapped, Toward
Independence: An Assessment of Federal Laws and Programs Affecting
Persons with Disabilities (1986). Persons with disabilities
reported "denials of educational opportunities, lack of access to
public buildings and public bathrooms, [and] the absence of
accessible transportation." Threshold 20-21, 41. Congress also
learned of an "alarming rate of poverty," a dramatic educational
gap, and a life of social "isolat[ ion]" for persons with
disabilities. Id. at 14. 8 20
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9 See also Task Force Report 16. Those "several thousand
documents" evidencing "massive discrimination and segregation in all aspects of life," 2 Leg. Hist. 1324-1325, are part of the

official legislative history of the Disabilities Act, id. at 1336, 1389. Those submissions were lodged with the Court in Garrett, see
531 U. S. at 391-424 (Breyer, J., dissenting). Those submissions are cited herein by reference to the State and Bates stamp number,
which is how they were lodged in Garrett.

Congress itself engaged in extensive study and fact-finding
concerning the problem of unconstitutional treatment of individuals
with disabilities, holding 13 hearings devoted specifically to
consideration of the Disabilities Act. See Garrett, 531 U. S. at
389-390 (Breyer, J., dissenting) (listing hearings). In addition,
a congressionally designated Task Force held 63 public forums
across the country that were attended by more than 30,000
individuals. Task Force on the Rights and Empowerment of Americans
with Disabilities, From ADA to Empowerment 16 (1990) (Task Force
Report). The Task Force also presented to Congress evidence
submitted by nearly 5,000 individuals documenting the problems with
discrimination and invidious stereotypes that persons with
disabilities faced daily --often at the hands of state and local
governments. See 2 Staff of the House Comm. on Educ. and Labor,
101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336:
The Americans with Disabilities Act 1040 (Comm. Print 1990) (Leg.
Hist.). 9 Congress also considered several reports and surveys. 21
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20
10 Those included the United States Civil Rights Commission,
Accommodating the Spectrum of Individual Abilities (1983); two polls conducted by Louis Harris & Associates, The ICD Survey of

Disabled Americans: Bringing Disabled Americans into the Mainstream (1986), and The ICD Survey II: Employing Disabled
Americans (1987); a report by the Presidential Commission on the Human Immunodeficiency Virus Epidemic (1988); and eleven interim
reports submitted by the Task Force.

See S. Rep. No. 116, supra, at 6; H. R. Rep. No. 485, supra, Pt. 2,
at 28; Task Force Report 16. 10
2. Congress Amassed Voluminous Evidence Of Historic And Enduring Discrimination And
Deprivation Of Fundamental Rights By States
a. Historic Discrimination: The "propriety of any § 5
legislation 'must be judged with reference to the historical
experience . . . it reflects. '" Florida Prepaid Postsecondary
Educ. Expense Bd. v. College Sav. Bank, 527 U. S. 627, 640 (1999)
(quoting Flores, 521 U. S. at 525). While petitioner and its seven
amici States ignore it, Congress and this Court have long
acknowledged the Nation's "history of unfair and often grotesque
mistreatment'" of persons with disabilities. Cleburne, 473 U. S. at
454 (Stevens, J., concurring); see also Olmstead v. L. C., 527 U. S.
581, 608 (1999) (Kennedy, J., concurring) ("[ O] f course, persons
with mental disabilities have been subject to historic
mistreatment, indifference, and hostility."); Cleburne, 473 U. S. at
446 (" Doubtless, there have been and there will continue to be
instances of discrimination against the retarded that are in fact
invidious."); Alexander v. Choate, 469 U. S. 287, 295 n. 12 (1985) 22
22 Page 23 24
21
11 See People First Amicus Br., App. A, Alsbrook v. City of
Maumelle, No. 99-423 (Compendium of State Laws); see also Note, Mental Disability and the Right to Vote, 88 Yale L. J. 1644 (1979).

12 Spectrum 20, 33-34; Compendium of State Laws A5, A21-A22, A25,
A28-A29, A40, A44, A46-A49, A50-A51, A56, A61-A63, A65-A66, A71, A74-A75.

(" well-cataloged instances of invidious discrimination against the
handicapped do exist").
"[ T] orture, imprisonment, and execution of handicapped people
throughout history are not uncommon." United States Civil Rights
Comm'n, Accommodating the Spectrum of Individual Abilities 18 n. 5
(1983) (Spectrum). More often, "societal practices of isolation
and segregation have been the rule." Ibid. From the 1920s to the
1960s, the eugenics movement labeled persons with mental and
physical disabilities as "sub-human creatures" and "waste products"
responsible for poverty and crime. Id. at 20. Every single State,
by law, provided for the segregation of persons with mental
disabilities and, frequently, epilepsy, and excluded them from
public schools and other state services and privileges of
citizenship. 11 States also fueled the fear and isolation of persons
with disabilities by requiring public officials and parents to
report and segregate into institutions the "feebleminded." 12
Almost every State accompanied forced segregation with
compulsory sterilization and prohibitions on marriage. See Buck v.
Bell, 274 U. S. 200, 207 (1927) (" It is better for all the world, if
* * * society can prevent those who are manifestly unfit from 23
23 Page 24 25
22
13 See also State v. Board of Educ., 172 N. W. 153, 153 (Wis. 1919)
(approving exclusion of a boy with cerebral palsy from public school because he "produces a depressing and nauseating effect upon

the teachers and school children") (noted at 2 Leg. Hist. 2243); see generally T. Cook, The Americans with Disabilities Act: The
Move to Integration, 64 Temple L. Rev. 393, 399-407 (1991).

continuing their kind. * * * Three generations of imbeciles are
enough."); 3 Leg. Hist. 2242; M. Burgdorf & R. Burgdorf, A History
of Unequal Treatment (Unequal Treatment), 15 Santa Clara Lawyer
855, 887-888 (1975). Children with mental disabilities "were
excluded completely from any form of public education." Board of
Educ. v. Rowley, 458 U. S. 176, 191 (1982). Numerous States also
restricted the rights of the physically disabled to enter into
contracts, Spectrum 40, while a number of large cities enacted
"ugly laws," which prohibited the physically disabled from
appearing in public. Chicago's law provided:
No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting
object or improper person to be allowed in or on the public ways or other public places in this city, shall
therein or thereon expose himself to public view, under a penalty of not less than one dollar nor more than fifty
dollars for each offense.
Unequal Treatment 863 (quoting ordinance). Such laws were enforced
as recently as 1974. Id. at 864. 13
b. Enduring Unconstitutional Treatment: "Prejudice, once
let loose, is not easily cabined." Cleburne, 473 U. S. at 464
(Marshall, J., concurring); see Hibbs, 123 S. Ct. at 1979 (noting
the "persistence" of gender discrimination and the "firmly rooted"
stereotypes that accompany it). Indeed, Congress found that "our 24
24 Page 25 26
23
society is still infected by the ancient, now almost subconscious
assumption that people with disabilities are less than fully human
and therefore are not fully eligible for the opportunities,
services, and support systems which are available to other people
as a matter of right," and "[ t] he result is massive, society-wide
discrimination." S. Rep. No. 116, supra, at 8-9.
That is because a concerted process of changing discriminatory
laws, policies, practices, and stereotypical conceptions and
prejudices did not even begin until the 1970s and 1980s. Cf.
Hibbs, 123 S. Ct. at 1978. Even then, "out-dated statutes [were]
still on the books, and irrational fears or ignorance, traceable to
the prolonged social and cultural isolation" of those with
disabilities "continue to stymie recognition of the[ ir] dignity and
individuality." Cleburne, 473 U. S. at 467 (Marshall, J.,
concurring) (emphasis added). The involuntary sterilization of the
disabled is not distant history; it continued into the 1970s, and
occasionally even into the 1980s --well within the lifetime of
many current governmental decisionmakers. P. Reilly, The Surgical
Solution 2, 148 (1991); Look Back at Oregon's History of
Sterilizing Residents of State Institutions (National Pub. Radio
broadcast Dec. 2, 2002). As recently as 1983, fifteen States
continued to have compulsory sterilization laws on the books.
Spectrum 37; see Stump v. Sparkman, 435 U. S. 349, 351 (1978) (state
judge ordered the sterilization of a "somewhat retarded" 15-year-old
girl); Reilly, supra, at 148-160; contrast Skinner v. Oklahoma, 25
25 Page 26 27
24
316 U. S. 535, 541 (1942) (strict scrutiny governs sterilization
classifications). Until the late 1970s, "peonage was a common
practice in [Oregon] institutions." Gov. J. Kitzhaber,
Proclamation of Human Rights Day, and apology for Oregon's forced
sterilization of institutionalized persons (Dec. 2, 2002). As of
1979, "most States still categorically disqualified 'idiots' from
voting, without regard to individual capacity and with discretion
to exclude left in the hands of low-level election officials."
Cleburne, 473 U. S. at 464 (Marshall, J., concurring).
Based on the evidence it amassed, Congress found, as a matter
of present reality and historical fact, that persons with
disabilities have confronted "widespread and persisting deprivation
of [their] constitutional rights" with respect to a broad array of
public services. Florida Prepaid, 527 U. S. at 645; see 42 U. S. C.
12101( a)( 2) and (3).
(i) Access to the courts: "Few places are a more real
expression of the constitutional authority of the government than
a courtroom, where the law itself unfolds." Edmonson v. Leesville
Concrete Co., 500 U. S. 614, 628 (1991). The Fourteenth Amendment
protects the rights of civil litigants, criminal defendants, and
members of the public to have access to the courts. E. g., Richmond
Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980). For individuals
charged with crimes, like respondent Lane, the Due Process Clause
and the Sixth Amendment afford the accused "a right to be present
at all stages of the trial where his absence might frustrate the 26
26 Page 27 28
25
14 Advisory Comm'n on Intergovernmental Relations, Disability
Rights Mandates: Federal and State Compliance with Employment Protections and Architectural Barrier Removal 87 (Apr. 1989). See

also Texas Civil Rights Project, Courts Closed to Justice: A

fairness of the proceedings," Faretta v. California, 422 U. S. 806,
819 & n. 15 (1975), a right that criminal proceedings generally be
open to the public, Waller v. Georgia, 467 U. S. 39, 47 (1984), and
a right to be tried by a jury of their peers, U. S. Const. Amend.
VI. Yet Congress learned --as the present case well illustrates
--that "[ t] he courthouse door is still closed to Americans with
disabilities" --literally. 2 Leg. Hist. 936 (Sen. Harkin).
I went to the courtroom one day and * * * I could not get into the building because there were about 500 steps to
get in there. Then I called for the security guard to help me, who * * * told me there was an entrance at the
back door for the handicapped people. * * * I went to the back door and there were three more stairs for me to
get over to be able to ring a bell to announce my arrival so that somebody would come and open the door and maybe
let me in.* * * This is the court system that is supposed to give me a fair hearing. It took me 2 hours
to get in. * * * And when [the judge] finally saw me in the courtroom, he could not look at me because of my
wheelchair. * * * The employees of the courtroom came back to me and told me, "You are not the norm. You are
not the normal person we see every day."
Id. at 1071 (Emeka Nwojke).
That was not an isolated incident. A report before Congress
showed that 76% of state-owned buildings offering services and
programs for the general public were inaccessible and unusable for
persons with disabilities. Spectrum 39. State officials
themselves "pointed to negative attitudes and misconceptions as
potent impediments to [their own] barrier removal policies." 14 In 27
27 Page 28 29
26
Survey of Courthouse Accessibility in Texas for People with Disabilities 10 (Nov. 1996) (Texas Supreme Court, Court of Criminal
Appeals, Austin Court of Appeals, Office of the Attorney General, and state law library remained inaccessible until suit filed under
Title II); AL 15 (" A man, called to testify in court, had to get out of his wheelchair and physically pull himself up three flights
of stairs to reach the courtroom."); WV 1745 (witness in court case had to be carried up two flights of stairs because the sheriff
would not let him use the elevator); WY 1786 (individual unable to get a marriage license because the courthouse was not accessible);
MA 812; CA 254; CO 273; ID 528; PA 1394; WA 1690; MS 990, 998; SD 1475; NC 1161-1164; AL 5; DE 345; GA 374; HI 455; Garrett, 531 U. S.
at 391-424 (Breyer, J., dissenting).

15 See, e. g., Enforcing the ADA: A Status Report from the Dep't
of Justice (ADA Report), Oct.-Dec. 2002, at 7 (criminal defendant with hearing disability had difficultly obtaining interpreter);

id., Apr.-June, 2002, at 7-8 (inaccessible jury boxes); id., Apr. -June, 2001, at 7 (inaccessible hearing rooms); id., Apr.-Sept.,
2000, at 8; id., Apr.-June, 1999, at 8 (inaccessible courtroom entrance, seating areas, witness stand, jury box, jury room, and
jury rest room); id., Apr.-June, 1998, at 10; id., Apr.-June, 1997, at 6. Appendix B to this brief contains a Table summarizing the
Justice Department's enforcement efforts in this area.

addition, the Department of Justice's quarterly reports on its
enforcement efforts under the Disabilities Act document numerous
investigations into jurisdictions (including in Tennessee), whose
courthouses and courtroom facilities are totally inaccessible to
persons who use wheelchairs, have inaccessible jury boxes, witness
stands, attorneys' areas, or spectator seats, do not provide sign
language interpreters or other assistive listening devices to
litigants, spectators, or other courtroom participants, or do not
contain any accessible bathroom facilities. 15 Such findings
properly inform the Court's evaluation of the propriety of Section
5 legislation. See South Carolina, 383 U. S. at 312. Further, that 28
28 Page 29 30
27
pattern of inaccessibility, marginalization, and constructive
exclusion of defendants and civil litigants with disabilities
denies those individuals "' the feeling of just treatment by the
government'" that the Due Process Clause guarantees. Carey v.
Piphus, 435 U. S. 247, 261 (1978). It is "[ c] entral both to the
idea of the rule of law and to our own Constitution's guarantee of
equal protection * * * 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).
(ii) Participation in the judicial process: "Equal
opportunity to participate in the fair administration of justice is
fundamental to our democratic system." J. E. B. v. Alabama, 511 U. S.
127, 145 (1994). But differential treatment of individuals with
disabilities affects their ability to be heard, to observe, and to
participate meaningfully in judicial proceedings. See, e. g., ID
506 (adult victims of abuse with developmental disabilities denied
equal rights to testify in court). Furthermore, "excluding
identifiable segments playing major roles in the community" from
jury service "cannot be squared with the constitutional concept of
jury service." Taylor v. Louisiana, 419 U. S. 522, 530 (1975).
Yet, to this day, petitioner continues to prohibit the "physically
disabled" from serving as jurors. Tenn. Code Ann. § 22-2-304( c)
and( d)( 3) (1994); see Mich. Comp. Laws Ann. § 729.204 (West 2002)
(board compiling jury list "shall select only the names of persons
who are * * * not infirm or decrepit"); id. §§ 730.254, 730.404. 29
29 Page 30 31
28
16 See Ark. Code. Ann., Title 16, ch. 31 note (Michie 1999) (until
1994, state law prohibited "any person whose sense of hearing or seeing is substantially impaired" from serving as a juror); La.

Rev. Stat. Ann. § 3041 (Hist. & Stat. Notes) (1996 amendment removed provision permitting judges to "hold prospective jurors
incompetent because of physical infirmities"); Appendix B; State v. Spivey, 700 S. W. 2d 812, 814-815 (Mo. 1985) (upholding the exclusion
of deaf persons from the jury wheel); ADA Report, Jan.-Mar., 1997, at 5 (two jurisdictions disqualify prospective jurors because of
deafness); Fla. Stat. Ann. § 40.01 (2003), Hist. & Stat. Notes (until 1979, the "physically or mentally infirm" were ineligible
for jury service); Guthrie v. State, 194 P. 2d 895, 902 (Okla. Crim. App. 1948) (Oklahoma law "pertaining to the qualifications of a
juror prevents a person serving on the jury who is afflicted with a bodily infirmity amounting to a disability").

Arkansas and Louisiana similarly prohibited the physically disabled
from serving as jurors at the time of Title II's enactment. 16 When
States categorically exclude individuals from jury service because
of their disability, without regard to their ability to perform as
jurors, the Constitution's "promise of equality dims, and the
integrity of our judicial system is jeopardized." J. E. B., 511 U. S.
at 146; see Edmonson, 500 U. S. at 628.
(iii) Education: "[ E] ducation 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
Educ., 347 U. S. 483, 493 (1954). Indeed, "classifications
involving the complete denial of education are in a sense unique,
for they strike at the heart of equal protection values by
involving the State in the creation of permanent class
distinctions." Plyler v. Doe, 457 U. S. 202, 234 (1982) (Blackmun, 30
30 Page 31 32
29
17 See also Cal. Att'y Gen., Commission on Disability: Final
Report 17, 81 (Dec. 1989) (Cal. Report) (" A bright child with cerebral palsy is assigned to a class with mentally retarded and

other developmentally disabled children solely because of her physical disability"; in one town, all children with disabilities
are grouped into a single classroom regardless of individual ability.); 136 Cong. Rec. 10,913 (1990) (Rep. McDermott) (school
board excluded Ryan White, who had AIDS, not because the board "thought Ryan would infect the others" but because "some parents
were afraid he would"); NY 1123 (three elementary schools locked

J., concurring). Accordingly, where the State provides a public
education, that right "must be made available to all on equal
terms." Brown, 347 U. S. at 493.
But Congress learned that irrational prejudices, fears, and
animus still operate to deny persons with disabilities an equal
opportunity for public education. As recently as 1975,
approximately 1 million disabled students were "excluded entirely
from the public school system." 42 U. S. C. 1400( c)( 2)( C). A
quadriplegic woman with cerebral palsy and a high intellect was
branded "retarded" by educators, denied placement in a regular
school setting, and placed with emotionally disturbed children,
where she was told she was "not college material." VT 1635. Other
school districts also simply labeled as mentally retarded a blind
child and a child with cerebral palsy. NB 1031; AK 38 (child with
cerebral palsy subsequently obtained a Masters Degree). "When I
was 5," another witness testified, "my mother proudly pushed my
wheelchair to our local public school, where I was promptly refused
admission because the principal ruled that I was a fire hazard."
S. Rep. No. 116, supra, at 7. 17 31
31 Page 32 33
30
mentally disabled children in a box for punishment); Education for All Handicapped Children, 1973-1974: Hearings Before the Subcomm.
on the Handicapped of the Senate Comm. on Labor & Pub. Welfare, 93d Cong., 1st Sess., Pt. 2, at 793 (1973) (Christine Griffith) (first-grade
student "was spanked every day" because her deafness prevented her from following instructions); id., Pt. 1, at 400
(Mrs. R. Walbridge) (student with spina bifida barred from the school library "because her braces and crutches made too much
noise"); id. at 384; 2 Leg. Hist. 989; Spectrum 28, 29; UT 1556; PA 1432; NM 1090; OR 1375; AL 32; SD 1481; MO 1014; NC 1144; Garrett,
531 U. S. at 391-424 (Breyer, J., dissenting).
18 See also 2 Leg. Hist. 1224 (Denise Karuth) (state university
forced blind student to drop music class because "you can't see"); id. at 1225 (state commission refused to sponsor legally blind

student for masters degree in rehabilitation counseling because

State institutions of higher education acted on the same
stereotypes and prejudices. Indeed, the "higher one goes on the
education scale, the lower the proportion of handicapped people one
finds." Spectrum 28; see Threshold 14. A person with epilepsy was
asked to leave a state college because her seizures were
"disrupt[ ive]" and, officials said, created a risk of liability. 2
Leg. Hist. 1162 (Barbara Waters). A doctor with multiple sclerosis
was denied admission to a psychiatric residency program because the
state admissions committee "feared the negative reactions of
patients to his disability." Id. at 1617 (Arlene Mayerson).
Another witness explained that, "when I was first injured, my
college refused to readmit me" because "it would be 'disgusting' to
my roommates to have to live with a woman with a disability." WA
1733. Similarly, a student was denied a teaching assignment
because administrators thought the students would react badly to
her appearance. OR 1384. 18 32
32 Page 33 34
31
"the State would not hire blind rehabilitation counselors, '[ s] ince, ' and this is a quote: 'they could not drive to see their
clients'"); J. Shapiro, No Pity 45 (1993) (Dean of the University of California at Berkeley told a prospective student that "[ w] e've
tried cripples before and it didn't work"); SD 1476; LA 999; MO 1010; WIS 1757; CO 283; Garrett, 531 U. S. at 391-424 (Breyer, J.,
dissenting); Cal. Report 138; Appendix A, infra.

For both good and ill, "the law can be a teacher." Garrett,
531 U. S. at 375 (Kennedy, J., concurring). As with race
discrimination, few governmental messages more profoundly affect
individuals and their communities than segregation in education:
Segregation in education impacts on segregation throughout the community. Generations of citizens attend
school with no opportunity to be a friend with persons with disabilities, to grow together, to develop an
awareness of capabilities * * *[.] Awareness deficits in our young people who become our community leaders and
employers perpetuate the discrimination fostered in the segregated educational system.

MO 1007 (Pat Jones).
(iv) Voting: Because "the right to exercise the franchise in
a free and unimpaired manner is preservative of other basic civil
and political rights, any alleged infringement of the right of
citizens to vote must be carefully and meticulously scrutinized."
Reynolds v. Sims, 377 U. S. 533, 561-562 (1964). Congress found,
however, that persons with disabilities have been "relegated to a
position of political powerlessness," 42 U. S. C. 12101( a)( 7), and
continue to be subjected to discrimination in voting, 42 U. S. C.
12101( a)( 3). Congress made that finding after hearing that "people
with disabilities have been turned away from the polling places
after they have been registered to vote because they did not look 33
33 Page 34 35
32
19 One voter was "told to go home once when I came to the poll and
found the voting machines down a flight of stairs with no paper ballots available"; on another occasion that voter "had to shout my

choice of candidates over the noise of a crowd to a precinct judge who pushed the levers of the machine for me, feeling all the while
as if I had to offer an explanation for my decisions." Equal Voting Hearings 45; AL 16; Help America Vote Act of 2001: Hearing
Before the House Comm. on the Judiciary, 107th Cong., 1st Sess. 15 (2001) (" Twice in Massachusetts and once in California, while
relying on a poll worker to cast my ballot, the poll worker attempted to change my mind about whom I was voting for. * * *
[T] o this day I really do not know if they cast my ballot according to my wishes."); id. at 13; Garrett, 531 U. S. at 391-424 (Breyer,
J., dissenting).

competent." 2 Leg. Hist. 1220 (Nancy Husted-Jensen) (emphasis
added). A deaf voter was told that "you still have to be able to
use your voice" 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. 94 (1984)
(Equal Voting Hearings). 19
The legislative record also documented that many persons with
disabilities "cannot exercise one of your most basic rights as an
American" because polling places or voting machines are
inaccessible. S. Rep. No. 116, supra, at 12. As a consequence,
persons with disabilities "were forced to vote by absentee ballot
before key debates by the candidates were held." Ibid.; see also
Americans with Disabilities Act of 1989: Hearings on S. 933 Before
the Senate Comm. on Labor and Human Res. and the Subcomm. on the
Handicapped, 101st Cong., 1st Sess. 76 (1989) (May 1989 Hearings)
(Ill. Att'y Gen. Hartigan). Voting by absentee ballot also
"deprives the disabled voter of an option available to other 34
34 Page 35 36
33
20 See Equal Voting Hearings 17, 461; 2 Leg. Hist. 1767; WS 1756;
MT 1024, 1026-1027; MI 922; ND 1185; DE 307; AL 16; Garrett, 531 U. S. at 395-424 (Breyer, J., dissenting); FEC, Polling Place

Accessibility in the 1988 General Election 7 (1989) (21% of polling places inaccessible; 27% were inaccessible in 1986).

absentee voters, the right to change their vote by appearing
personally at the polls on election day." 2 Leg. Hist. 1745
(Nanette Bowling). "How can disabled people have clout with our
elected officials when they are aware that many of us are prevented
from voting?" ARK 155. 20
(v) Access to government officials and proceedings: "The very
idea of a government, republican in form, implies a right on the
part of its citizens to * * * petition for a redress of
grievances," United States v. Cruikshank, 92 U. S. 542, 552-554
(1875), and that right cannot be denied to an entire class of
citizens without compelling justification, NAACP v. Claiborne
Hardware Co., 458 U. S. 886 (1982). State governments must "act as
neutral entities, ready to take instruction and to enact laws when
their citizens so demand." Garrett, 531 U. S. at 375 (Kennedy, J.,
concurring). But government cannot take instruction from those
whom it cannot see or hear. The Illinois Attorney General
testified that he "had innumerable complaints regarding lack of
access to public services --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." May 1989 Hearings 488, 35
35 Page 36 37
34
21 See also H. R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 2, at 40
(1990) (town hall and public schools inaccessible); May 1989 Hearings 663 (Dr. Mary Lynn Fletcher) (to attend town meetings, "I

(or anyone with a severe mobility impairment) must crawl up three flights of circular stairs to the * * * room [where] all public
business is conducted by the county government"); id. at 76; AK 73 (in response to complaints about lack of access to city and State
buildings, City Manager responded that "[ H] e runs this town * * * and no one is going to tell him what to do."); ADA Report, Oct. -Dec.
2001, at 9 (candidate for city council unable to access a city council platform to address constituents); id., July-Sept. 1997, at
7-9 (State general assembly inaccessible); id., Oct.-Dec. 1994, at 4-6 (access to town hall and polling places); Dep't of Justice,
Enforcing the ADA: Looking Back on a Decade of Progress 4-8 (July 2000) (lack of access to public meetings, offices, and court
proceedings); AL 17; IN 651; WS 1758; NY 1119; Cal. Report 70; Garrett, 531 U. S. at 391-424 (Breyer, J., dissenting).

491. Another individual, "who has been in a wheelchair for 12
years, tried three times last year to testify before state
legislative committees. And three times, he was thwarted by a
narrow set of Statehouse stairs, the only route to the small
hearing room." IN 626. The Constitution prohibits laws "declaring
that in general it shall be more difficult for one group of
citizens than for all others to seek aid from the government,"
Romer, 517 U. S. at 633; governmental actions that have that same
practical effect are equally pernicious. 21
(vi) Law Enforcement: Persons with disabilities have also
been victimized in their dealings with law enforcement, in
violation of their Fourteenth Amendment rights to due process and
protection from unreasonable searches and seizures. When police in
Kentucky learned that a man they arrested had AIDS, "[ i] nstead of
putting the man in jail, the officers locked him inside his car to 36
36 Page 37 38
35
22 See Cal. Report 103 (parole agent "sent a man who uses a
wheelchair back to prison since he did not show up for his appointments even though * * * he could not make the appointments

because he was unable to get accessible transportation"); 2 Leg. Hist. 1115 (Paul Zapun) (sheriff threatens persons with
disabilities who stop in town); id. at 1197 (police officer taunted witness by putting a gun to her head and pulling the trigger on an
empty barrel, "because he thought it would be 'funny' since I have quadraparesis and couldn't flee or fight"); Task Force Report 21
(six wheelchair users arrested for failing to leave restaurant after manager complained that "they took up too much space"); ADA
Report, Apr.-June 1997, at 5-7 (unreasonable treatment during traffic stop of deaf motorist); AL 6, DE 345, KS 673, WV 1746, IL
572 (all: lack of interpreter for deaf arrestee); 2 Leg. Hist. 1196; IL 569-570, 583; TX 1541; LA 748; Cal. Report 101-104;
Garrett, 531 U. S. at 391-424 (Breyer, J., dissenting).

spend the night." 2 Leg. Hist. 1005 (Belinda Mason). Police
refused to accept a rape complaint from a blind woman because she
could not make a visual identification. NM 1081. A person in a
wheelchair was given a ticket and six-months' probation for
obstructing traffic on the street, even though the person could not
use the sidewalk because it lacked curb cuts. VA 1684. Persons
with hearing impairments "have been arrested and held in jail over
night without ever knowing their rights nor what they are being
held for." 2 Leg. Hist. 1331 (Justin Dart). In addition, persons
with disabilities like epilepsy are "frequently inappropriately
arrested and jailed" and "deprived of medications while in jail."
H. R. Rep. No. 485, supra, Pt. 3, at 50. 22
(vii) Child Custody: The Constitution protects and respects
the sanctity of the parent-child relationship, e. g., Troxel v.
Granville, 530 U. S. 57 (2000); Stanley v. Illinois, 405 U. S. 645
(1972), and the Due Process Clause requires States to afford 37
37 Page 38 39
36
23 See H. R. Rep. No. 485, supra, Pt. 3, at 25; id., Pt. 2, at 41
("[ B] eing paralyzed has meant far more than being unable to walk --it has meant being * * * deemed an 'unfit parent'" in custody

proceedings.); 2 Leg. Hist. 1611 n. 10 (Arlene Mayerson) (" Historically, child-custody suits almost always have ended with
custody being awarded to the non-disabled parent."); Spectrum 40; Garrett, 531 U. S. at 391-424 (Breyer, J., dissenting); No Pity,
supra, at 26 (woman with cerebral palsy denied custody of her two sons); In re Marriage of Carney, 598 P. 2d 36, 42 (Cal. 1979) (lower
court "stereotype[ d] William as a person deemed forever unable to be a good parent simply because he is physically handicapped");
Appendix A, infra.

individuals with disabilities fair child custody proceedings,
including the opportunity to be heard "at a meaningful time and in
a meaningful manner," Goldberg v. Kelly, 397 U. S. 254, 267 (1970).
But Congress heard that "clients whose children have been taken
away from them a[ re] told to get parent information, but have no
place to go because the services are not accessible. What chance
do they ever have to get their children back?" 2 Leg. Hist. 1331
(Justin Dart). Another government agency refused to authorize a
couple's adoption of a child solely because the woman had muscular
dystrophy. MA 829. 23
(viii) Institutionalization: The Constitution protects
individuals with disabilities from unjustified institutionalization
and from unduly severe treatment while institutionalized.
Youngberg v. Romeo, 457 U. S. 307, 315, 322 (1982); O'Connor v.
Donaldson, 422 U. S. 563 (1975); Jackson v. Indiana, 406 U. S. 715,
738 (1972). Yet unconstitutional denials of appropriate treatment
and unreasonable institutionalization of persons in state mental
hospitals were commonplace. See 2 Leg. Hist. 1203 (Lelia Batten) 38
38 Page 39 40
37
24 See Oregon Gov. Kitzhaber, supra (admitting the use of "inhumane
devices to restrain and control patients" until "the mid 1980's"); Cal. Report 114; 132 Cong. Rec. 10,589 (1986) (Sen. Kerry)

(" appalling" findings in investigation of State-run mental health facilities; "The extent of neglect and abuse uncovered in their
facilities was beyond belief."); Civil Rights of Instit. Persons: Hearings on S. 1393 Before the Subcomm. on the Const. of the Sen.
Comm. on the Judiciary, 95th Cong., 1st Sess. 127 (1977) (Michael D. McGuire, M. D.) (" the personnel regarded patients as animals,
* * * [and] group kicking and beatings were part of the program"); id. at 191-192; Civil Rights for Instit. Persons: Hearings on H. R.
2439 and H. R. 5791 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, of the House Comm. on the Judiciary,
95th Cong., 1st Sess. 239 (1977) (Stanley C. Van Ness) (describing "pattern and practice of physical assaults and mental abuse of
patients, and of unhealthy, unsanitary, and anti-therapeutic living conditions" in New Jersey institutions); Civil Rights of Instit.
Persons: Hearings on H. R. 10 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the
Judiciary, 96th Cong., 1st Sess. 34 (1979) (Paul Friedman) ("[ A] number of the residents were literally kept in cages"; patients
"had regressed because of these shockingly inhumane conditions of confinement"); Garrett, 531 U. S. at 391-424 (Breyer, J.,
dissenting).

(state hospitals are "notorious for using medication for
controlling the behavior of clients and not for treatment alone.
Seclusion rooms and restraints are used to punish clients."); id.
at 1262-1263 (Eleanor C. Blake) (detailing the "minimal, custodial,
neglectful, abusive" care received at state mental hospital, and
willful indifference resulting in rape); Spectrum 34-35. 24
Indeed, in the years immediately preceding the enactment of
Title II, the Department of Justice found unconstitutional
treatment in state institutions for the mentally retarded or
mentally ill in more than half of the States. One facility
punished mentally retarded residents by forcing them to inhale
ammonia fumes. See Department of Justice, Notice of Findings 39
39 Page 40 41
38
25 See also 2 Leg. Hist. 1230 (Larry Urban); People First Amicus
Br. 20 n. 94; AL 2, 31; CO 283; Garrett, 531 U. S. at 391-424 (Breyer, J., dissenting); Appendix A, infra.

Regarding Los Lunas Hosp. & Training Sch. 2 (1988). Residents in
other facilities lacked adequate food, clothing, and sanitation.
Many state facilities failed to provide basic safety to
individuals, resulting in serious physical injuries, sexual
assaults, and deaths. See Appendix C, infra.
(ix) Zoning: Congress knew that Cleburne, where this Court
found unconstitutional disability discrimination in a zoning
decision, was not an isolated incident. In Wyoming, a zoning board
refused to authorize a group home because of "local residents'
unfounded fears that the residents would be a danger to the
children in a nearby school." WY 1781. In New Jersey, a group
home for those who had suffered head injuries was barred because
the public perceived such persons as "totally incompetent, sexual
deviants, and that they needed 'room to roam. ' * * * Officially,
the application was turned down due to lack of parking spaces, even
though it was early established that the residents would not have
automobiles." NJ 1068. 25
(x) Licensing: Licensing decisions by state and local
officials evidenced yet another form of discriminatory treatment.
The House Report discussed a woman who was denied a teaching
credential, not because of her substantive teaching skills, but
because of her paralysis. H. R. Rep. No. 485, supra, Pt. 2, at 29; 40
40 Page 41 42
39
26 See TX 1549 (state licensing requirements for teaching deaf
students require the ability to hear); CA 261; HI 479; TX 1528, 1542-1543; Garrett, 531 U. S. at 391-424 (Breyer, J., dissenting).

see 2 Leg Hist. 1611 n. 9 (Arlene Mayerson) (teaching license denied
"on the grounds that being confined to a wheelchair as a result of
polio, she was physically and medically unsuited for teaching"). 26
(xi) Public Transportation: Individuals reported
discriminatory treatment on public transportation that lacked any
rational basis and that "made no sense in light of how the
[government] treated other groups similarly situated in relevant
respects." Garrett, 531 U. S. at 366 n. 4. One student testified:
Some of the drivers are very rude and get mad if I want to take the bus. Can you believe that? I work and part
of my taxes pay for public buses and then they get mad just because I am using a wheelchair.* * * It is hard
for people to feel good about themselves if they have to crawl up the stairs of a bus, or if the driver passes by
without stopping.
2 Leg. Hist. 993 (Jade Calegory); MA 831 (" Blacks wanted to ride in
the front of the bus. Disabled people just want[] on."). A high-level
Connecticut transportation official responded to requests for
accessibility by asking "Why can't all the handicapped people live
in one place and work in one place? It would make it easier for
us." 2 Leg. Hist. 1085; see also id. at 1097, 1190; WA 1716;
Garrett, 531 U. S. at 391-424 (Breyer, J., dissenting).
(xii) Prison conditions: The Eighth Amendment protects
inmates with disabilities against treatment that is deliberately
indifferent to their serious medical needs and safety or imposes 41
41 Page 42 43
40
27 See Spectrum 168; NM 1091 (prisoners with developmental
disabilities subjected to longer prison terms); ADA Report, Apr. -June 1998, at 8-10 (longer pre-trial detention for detainees with

disabilities; medical treatment and communications with family denied); Appendices A & C, infra. Individuals awaiting placement
in State mental institutions in Mississippi were held in a county jail and routinely left for days shackled in a "drunk tank" without
any mental health treatment or supervision. Dep't of Justice, Notice of Findings Regarding Hinds County Detention Ctr. 3 (1986).

28 A paraplegic Vietnam veteran was forbidden to use a public pool;
the park commissioner explained that "[ i] t's not my fault you went to Vietnam and got crippled." 3 Leg. Hist. 1872 (Peter Addesso);

wanton suffering. Farmer v. Brennan, 511 U. S. 825 (1994); Rhodes
v. Chapman, 452 U. S. 337, 347 (1981). But Congress heard that
"jailers rational[ ize] taking away their wheelchairs as a form of
punishment as if that is different than punishing prisoners by
breaking their legs." 2 Leg. Hist. 1190 (Cindy Miller). Another
prison guard repeatedly assaulted paraplegic inmates with a knife,
forced them to sit in their own feces, and taunted them with
remarks like "crippled bastard" and "[ you] should be dead."
Parrish v. Johnson, 800 F. 2d 600, 603, 605 (6th Cir. 1986). 27
(xiii) Other Public Services: The scope of the testimony
offered to Congress regarding unconstitutional treatment touched
virtually every aspect of individuals' encounters with their
government, sweeping so broadly as to defy isolation into select
categories of state action. Services and programs as varied as the
operation of public libraries, public swimming pools and park
programs, homeless shelters, and benefit programs exposed the
discriminatory attitudes of officials. 28 42
42 Page 43 44
41
see also id. at 1995 (Rev. Scott Allen) (woman with AIDS and her children denied entry to a public swimming pool); 2 Leg. Hist.
1100, 1078, 1116; WIS 1752 (deaf child denied swimming lessons); NC 1156 (mentally retarded child not allowed in pool); CA 166; MS 855;
May 1989 Hearings 76 (Ill. Att'y Gen. Hartigan) (visually impaired children with guide dogs "cannot participate in park district
programs when the park has a 'no dogs' rule"); NC 1155; PA 1391 (limiting library cards for "those having physical as well as
mental disabilities"); CA 216 (wheelchair users not allowed in homeless shelter); CA 223 (same); DE 322 (same for mentally ill);
KS 713 (discrimination in state job training program); IL 533 (female disability workshop participants advised to get
sterilized); IA 664; AK 72, 145; OH 1218; AZ 116; AZ 127; HI 456; ID 541; see generally Spectrum App. A (identifying 20 broad
categories of state-provided or supported services and programs in which discrimination against persons with disabilities arises).

3. Other Evidence Confirms the Problem
In Garrett, Justice Kennedy suggested that, if a widespread
problem of disability discrimination existed, "one would have
expected to find * * * extensive litigation and discussion of the
constitutional violations." 531 U. S. at 968. Appendix A to this
brief provides a non-exhaustive list of cases in which courts have
found discrimination and the deprivation of fundamental rights on
the basis of disability. Many of the cases specifically found
constitutional violations. In others, the facts support that
conclusion, but the existence of statutory relief allowed the court
to avoid the constitutional question. Federal efforts to enforce
the rights of individuals with disabilities offer still more
evidence. See Appendix B. The Department of Justice has found
unconstitutional treatment of individuals with disabilities in
institutions or prisons in more than 30 States. See Appendix C. 43
43 Page 44 45
42
4. The Constitutional Significance of Unfair Treatment in Government Services

The foregoing record of extensive state and local
discrimination in the provision of government services provides the
necessary predicate for exercise of Congress's Section 5
enforcement power, for three reasons.
First, much of the identified state conduct interferes with or
threatens the fundamental rights of individuals with disabilities,
or occurs where the right to equal protection intersects with other
constitutional rights, see Employment Div. v. Smith, 494 U. S. 872,
881 (1990). A particular class of individuals cannot be excluded
from voting, participating in court proceedings, accessing public
meetings and services, or raising their children based on nothing
more than administrative convenience. Such infringements are
unconstitutional "unless shown to be necessary to promote a
compelling governmental interest." Saenz, 526 U. S. at 499; see
Troxel, 530 U. S. at 65. State laws, like petitioner's, that
exclude individuals with disabilities from jury service, see pages
28-29, supra, plainly fail such scrutiny and evidence the kind of
lingering unconstitutional state action and "state-sanctioned
stereotype[ s]" that provide a valid predicate for Section 5
legislation. Hibbs, 123 S. Ct. at 1983.
Second, much of the identified conduct fails even rational
basis scrutiny. Even that low constitutional threshold cannot
justify beating a deaf student for failure to follow spoken 44
44 Page 45 46
43
instructions, refusing to let the disabled on buses, excluding a
paralyzed veteran from a public swimming pool, or denying a
disabled student a college education either because "it would be
'disgusting' to [her] roommates to have to live with a woman with
a disability," or because of groundless stereotypes that
individuals with disabilities cannot teach, provide competent
rehabilitation counseling, or succeed in a music course. See pages
30-31, 39-41 & nn. 17-18, 26, 28, supra. "[ M] ere negative
attitudes, or fear" alone cannot justify disparate treatment of
those with disabilities, Garrett, 531 U. S. at 367.
Moreover, a purported rational basis for treatment of the
disabled will fail if the State does not accord the same treatment
to other groups similarly situated, Garrett, 531 U. S. at 366 n. 4;
Cleburne, 473 U. S. at 447-450, if it is based on "animosity"
towards the disabled, Romer, 517 U. S. at 634, or if it gives effect
to private biases, Palmore v. Sidoti, 466 U. S. 429, 433 (1984). It
accordingly is not enough that the State can offer a rational basis
--such as finances --for failing to offer benefit information or
services in handicap-accessible formats if the State is already
accommodating the special communication needs of other (e. g., non-English
speaking) constituents. Police may not refuse to take
complaints from blind individuals (see page 35, supra), while
taking them from victims who were blindfolded or unconscious.
Moreover, many of the instances of discriminatory treatment
reported to Congress arose in contexts, like education, 45
45 Page 46 47
44
institutionalization, and zoning, where state actors already make
accommodations for other groups, but are selectively resistant to
doing so for those with disabilities.
Third, and most importantly, the aggregate effect of
consistently excluding individuals with disabilities from a broad
range of important government services causes a constitutional
problem that is greater than the sum of its parts. The persistent
"imposition of inequalities," on a single class, Romer, 517 U. S. at
633, and the chronic distribution of benefits and services, whether
through legislation or executive action, in a way that "impos[ es]
special disabilities upon groups disfavored by virtue of
circumstances beyond their control suggests the kind of 'class or
caste' treatment that the Fourteenth Amendment was designed to
abolish," Plyler, 457 U. S. at 217 n. 14; see also Lawrence v. Texas,
123 S. Ct 2472, 2487 (2003) (O'Connor, J., concurring). Indeed,
the combined effect of such governmental decisionmaking has denied
individuals with disabilities the Constitution's most basic
guarantees. An individual denied the ability to file a criminal
complaint with the police, see page 35, supra, to participate at
trial as a witness or juror, to petition the legislature or
agencies to lift or modify exclusions, and to vote into office more
responsive governmental officials, see pages 25-29, 32-35, supra,
is denied those core rights that form the essence of democratic
government, rights that others often take for granted. Thus
Congress, in Title II, targeted not isolated and unrelated 46
46 Page 47 48
45
instances of unfair treatment, but an "across the board" pattern of
governmental decisionmaking that time and again has left
individuals with disabilities "exclu[ ded] from an almost limitless
number of transactions and endeavors that constitute ordinary civic
life in a free society." Romer, 517 U. S. at 631, 633; see Yick Wo
v. Hopkins, 118 U. S. 356, 373-374 (1886).
5. Title II Is Constitutional In Its Entirety
Petitioner's State amici argue (Br. 7-11) that this Court
should focus not on Title II's overall propriety as Section 5
legislation, but instead should independently analyze whether
Congress's regulation of access to public buildings in Title II was
appropriate. The legislative record provides an ample predicate
for Congress's inclusion of public-access requirements in Title II.
See Sections B( 2)( b)( i), (iv), (v), and (xiii); Appendix B. Beyond
that, amici's piecemeal mode of analyzing Congress's exercise of
its Section 5 power is fundamentally flawed.
First, amici's context-specific approach is not the model this
Court has applied. In the past, this Court has analyzed whether
Congress has the authority to apply to the States a statute as a
whole, Flores, supra, a specific Title of a statute, Garrett,
supra, or a specific Section of a statute, South Carolina, supra.
But in no case has this Court required Congress to justify the
application of an intentionally comprehensive statutory provision
to every potential factual setting. In fact, the Court took a
different tack in City of Rome v. United States, 446 U. S. 156 47
47 Page 48 49
46
(1980), in upholding the application of voting preclearance
requirements to cities where no discriminatory purpose underlay
their adoption of an electoral system. Id. at 172; see also Gaston
County v. United States, 395 U. S. 285 (1969). Likewise, this Court
rejected in Hibbs the dissent's emphasis on Nevada's specific leave
policies. Instead, the Court focused on the broader "backdrop of
limited state leave policies," and found that "Congress was
justified in enacting the [Family and Medical Leave Act] as
remedial legislation," "no matter how generous" Nevada's own
policies might have been. 123 S. Ct. at 1981.
Second, amici's approach is at odds with this Court's
congruence and proportionality test for evaluating Section 5
legislation. Congruence and proportionality analysis necessarily
entails looking at a statutory provision's overall operation and
coverage, and measuring it against the predicate for congressional
action as a whole. Where the necessary predicate for Section 5
legislation lies, Congress "must have wide latitude in determining"
the proper means of enforcing the right. Flores, 521 U. S. at 519-
520; see generally Hibbs, supra; South Carolina, supra. Congress
thus may legislate based on commonsense conclusions about the scope
of a problem and may enact prophylactic legislation designed to
remedy the continuing effects of past discrimination, to root out 48
48 Page 49 50
47
29 See City of Richmond v. J. A. Croson Co., 488 U. S. 469, 490
(1989) (opinion of O'Connor, J.) (Congress's Section 5 power "include[ s] the power to define situations which Congress

determines threaten principles of equality and to adopt prophylactic rules to deal with those situations"); Oregon v.
Mitchell, 400 U. S. 112 (1970) (upholding a nationwide ban on literacy tests and residency requirements despite the
geographically limited evidence of abuse).
30 Prior to the Court's adoption of the congruence and
proportionality test in Flores, supra, the Court did rely upon an as-applied analysis to sustain the constitutionality of legislation

enacted under Section 2 of the Fifteenth Amendment. See United States v. Raines, 362 U. S. 17, 21-26 (1960); cf. Griffin v.

difficult-to-detect discrimination and stereotyping, and to prevent
the expansion of unconstitutional treatment into new areas. 29
Thus, contrary to amici's argument, the congruence and
proportionality test is not a license for judicial micromanagement
of every potential application of a law. Title VII, 42 U. S. C.
2000e et seq., for example, prohibits sex and race discrimination
in the administration of any and all employment terms, conditions,
and benefits; yet, this Court has never insisted that Congress
justify its prohibitions application-by-application with a lengthy,
documented record of particularized state discrimination. That is
for the commonsense reason that discrimination, by its nature, does
not operate in isolated compartments. The same mindset that has
presumed that persons with disabilities cannot be educated, should
not be parents, need not vote, and are too much trouble to
transport, has also traditionally excluded individuals with
disabilities from its conception of the community served by public
programs and benefits. See Hibbs, 123 S. Ct. at 1980 n. 5. 30 49
49 Page 50 51
48
Breckenridge, 403 U. S. 88, 104-106 (1971) (sustaining the constitutionality of a law enacted under Section 2 of the
Thirteenth Amendment both facially and as applied).

In that regard, amici's balkanized approach to Title II
fundamentally misapprehends the nature and scope of the
constitutional problem addressed by Congress. The legislative
record before Congress revealed an interconnected pattern in the
distribution of government services through which State actors
continue to exclude and isolate individuals with disabilities,
perpetuate false stereotypes, and persistently deny the disabled
the same types of reasonable accommodations and adjustments that
are routinely afforded other members of the public. Congress
enacted a comprehensive and unitary remedy because it confronted a
comprehensive and unitary problem. See Hibbs, 123 S. Ct. at 1981
(" Congress did not create a particular leave policy for its own
sake," but rather addressed leave policy as part of a broader
effort to "dismantle persisting gender-based barriers to the
hiring, retention, and promotion of women in the workplace").
6. State Laws Provide Insufficient Protection
Petitioner and its amici argue (Pet. Br. 21-22; Ala. Br. 22-
25) that the existence of state laws prohibiting some forms of
disability discrimination made congressional action unnecessary.
But, as the facts of this case well illustrate, that argument
confuses the existence of laws with their effectiveness, and Hibbs
made clear that effectiveness is what matters. 123 S. Ct. at 1980- 50
50 Page 51 52
49
31 See 136 Cong. Rec. 11,455 (1990) (Rep. Wolpe), id. at 11,461
(Rep. Levine); 134 Cong. Rec. 9384-9385 (1988) (Sen. Simon); 2 Leg. Hist. 963, 967, 1642-1643; 3 Leg. Hist. 2245; AL 24; AK 52.

32 See Dep't of Health & Human Servs., Visions of: Independence,
Productivity, Integration for People with Developmental Disabilities 29 (1990) (19 States strongly recommended passage of

the Disabilities Act); 2 Leg. Hist. 1050 (Mass. Rehab. Comm'n); id. at 1455-1456 (Treas., Harris Co., Tex.); id. at 1473-1474 (Chair,
Metro. Transit Auth. of Harris Co., Tex.); id. at 1506 (Texas State Sen. Brooks); id. at 1508; May 1989 Hearings 778 (Ohio Governor).

1981 (addressing "important shortcomings" of laws cited by the
dissenters). Congress specifically found that state laws were
"inadequate to address the pervasive problems of discrimination
that people with disabilities are facing." S. Rep. No. 116, supra,
at 18; see also ibid. (section of report entitled "CURRENT FEDERAL
AND STATE LAWS ARE INADEQUATE"); H. R. Rep. No. 485, supra, Pt. 2,
at 47 (same). 31 State officials themselves broadly agreed with that
assessment. The 50 State Governors' Committees "report[ ed] that
existing State laws do not adequately counter * * *
discrimination." S. Rep. No. 116, supra, at 18; H. R. Rep. No. 485,
supra, Pt. 2, at 47; Cal. Report 22-23 (noting "contradictions" and
"gaps" in state law). The Illinois Attorney General testified that
"[ p] eople with disabilities should not have to win these rights on
a State-by-State basis," and that "[ i] t is long past time * * *
[for] a national policy that puts persons with disabilities on
equal footing with other Americans." May 1989 Hearings 77. 32
In addition, petitioner exaggerates the coverage of state
laws. See generally J. Flaccus, Handicap Discrimination 51
51 Page 52 53
50
33 See May 1989 Hearings 386-394; 3 Leg. Hist. 2245; Employment
Discrim. Against Cancer Victims and the Handicapped: Hearing Before the Subcomm. on Employment Opp. of the House Comm. on Educ.

& Labor, 99th Cong., 1st Sess. 62 (1985) (Rep. Moakley) ("[ O] ne-fourth of the states have no protection for the handicapped.
Additionally, even those states with laws differ greatly in their regulations.") (ten-state survey showing gaps in coverage of laws).

Legislation: With Such Inadequate Coverage at the Federal Level,
Can State Legislation Be of any Help?, 40 Ark. L. Rev. 261 (1986)
(detailing gaps in coverage of state laws). Prior to 1990, nearly
half of the States did not protect persons with mental illness
and/ or mental disabilities. See id. at 278-280. New Hampshire
excluded disabilities caused by illness, N. H. Rev. Stat. Ann.
§ 354-A: 3( XIII) (1984), while Arizona excluded disabilities which
were first manifested after the age of 18, Ariz. Rev. Stat. § 36-
551( 11)( b) (1986). Flaccus, supra, at 285. Few States protected
against discrimination based on either a perceived disability or a
history of illness such as cancer. See B. Hoffman, Employment
Discrimination Based on Cancer History, 1986 Temple L. Q. 1 (1986).
Many States failed to provide for private rights of action and
compensatory damages, effectively leaving victims of discrimination
without enforceable remedies. Id. at App. B; Flaccus, supra, at
300-310, 317-321. 33 Even today, less than half of the States
provide statutory protection comparable to Title II. R. Colker &
A. Milani, The Post-Garrett World: Insufficient State Protection
Against Disability Discrimination, 53 Ala. L. Rev. 1075, 1076, 1083
(Summer 2002). In fact, petitioner's and amicus Wyoming's public 52
52 Page 53 54
51
accommodation laws do not cover discrimination in the provision of
governmental services based on disability at all, and the laws of
petitioner and four of its amici lack any enforcement mechanism
against the State. Id. at 1093, 1102. Thus, just as state laws
against gender discrimination have neither eradicated the problem
nor undermined the basis for subjecting States to federal
prohibitions, see Hibbs, 123 S. Ct. at 1978-1982, Congress was
equally justified in concluding that state laws against disability
discrimination had generally been ineffective in combating the
lingering effects of prior official discrimination and exclusionary
laws and policies and, more importantly, in changing the behavior
of individual state actors.
C. The Americans With Disabilities Act Of 1990 Is Reasonably Tailored To Remedying And
Preventing Constitutional Violations
While Congress "must tailor its legislative scheme to
remedying or preventing" the unconstitutional conduct it has
identified, Florida Prepaid, 527 U. S. at 639, "the line between
measures that remedy or prevent unconstitutional actions and
measures that make a substantive change in the governing law is not
easy to discern, and Congress must have wide latitude in
determining where it lies," Flores, 521 U. S. at 519-520. Thus, the
relevant inquiry is not whether Title II "prohibit[ s] a somewhat
broader swath of conduct," Garrett, 531 U. S. at 365, than would the
courts. "Congress is not limited to mere legislative repetition of
this Court's constitutional jurisprudence." Ibid. The question is 53
53 Page 54 55
52
whether, in light of the scope of the problem identified by
Congress, the enactment "is so out of proportion to the supposed
remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior."
Kimel, 528 U. S. at 86. Title II is not.
1. Title II's Terms are Tailored To The Constitutional Problems It Remedies

Title II targets exclusively governmental action that is
itself directly limited by the Constitution, rather than targeting
public and private employment policies as a single,
undifferentiated whole. Title II also focuses on discrimination
that threatens fundamental rights or that is unreasonable. For
those reasons, much of Title II's operation targets conduct
outlawed by the Constitution itself. As applied to discrimination
in voting, child custody proceedings, criminal cases,
institutionalization, conditions of confinement, interactions with
law enforcement, judicial proceedings, access to public officials
and offices, and other areas implicating fundamental rights, Title
II tracks the Fourteenth Amendment when it prevents the disparate
deprivation of those rights for invidious or insubstantial reasons.
Furthermore, Title II targets discrimination that is
unreasonable and, in so doing, ensures (as this Court did in
Cleburne, 473 U. S. at 447-450), that the government's articulated
rationale for differential treatment does not mask impermissible
animus and does not result in the differential treatment of 54
54 Page 55 56
53
similarly situated groups. The States retain their discretion to
exclude persons from programs, services, or benefits for any lawful
reason unconnected with their disability or for no reason at all.
The Disabilities Act does not require preferences and permits the
denial of benefits or services if a person cannot "meet[] the
essential eligibility requirements" of the governmental program or
service, 42 U. S. C. 12131( 2). But once an individual proves that he
can meet all the essential eligibility requirements of a program or
service, especially those programs and services that implicate
fundamental rights, the government's interest in excluding that
qualified individual solely "by reason of such disability," 42
U. S. C. 12132, is both minimal and, in light of history,
constitutionally circumscribed. At the same time, permitting the
States to retain and enforce their essential eligibility
requirements protects their legitimate interests in structuring
governmental activities. The Disabilities Act thus balances a
State's legitimate operational 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, 496 (2000).
As petitioner notes (Br. 31), the Disabilities Act requires
"reasonable modifications" in public services, 42 U. S. C. 12131( 2).
But, as Hibbs makes clear, once Congress identifies a predicate of
unconstitutional conduct that it seeks to remedy, Congress has
flexibility in fashioning the remedy. See Hibbs, 123 S. Ct. at
1981 n. 10, 1982-1984. The requirement of reasonable modifications, 55
55 Page 56 57
54
moreover, is precisely tailored to the unique features of
disability discrimination in two ways.
First, given the history of segregation and isolation and the
resulting entrenched stereotypes, fear, prejudices, and ignorance
about persons with disabilities, Congress reasonably determined
that a simple ban on overt discrimination would be insufficient.
It would do little to combat the "stereotypes [that have] created
a self-fulfilling cycle of discrimination" against individuals with
disabilities, and which, in turn, lead "to subtle discrimination
that may be difficult to detect on a case-by-case basis." Hibbs,
123 S. Ct. at 1982. Given the record of discrimination against and
unconstitutional treatment of the disabled, government's failure to
make reasonable accommodations to the rigid enforcement of
seemingly neutral criteria can often mask just such invidious, but
difficult to prove, discrimination. Congress' Section 5 power
includes the ability to ensure that constitutional violations are
not left unremedied because of difficulties of proof. See, e. g.,
Hibbs, 123 S. Ct. at 1982; South Carolina, 383 U. S. at 314-315.
In addition, a simple ban on discrimination would freeze in
place the effects of States' prior official exclusion and isolation
of individuals with disabilities, which had the effect of rendering
the disabled invisible to government planners, thereby creating a
self-perpetuating spiral of segregation, stigma, and neglect. See
Gaston County, supra (constitutionally administered literacy test
banned because it perpetuates the effects of past discrimination). 56
56 Page 57 58
55
34 See, e. g., M. L. B. v. S. L. J., 519 U. S. 102, 121-122 (1996);
Stanley, 405 U. S. at 651-658.
35 See, e. g., Little v. Streater, 452 U. S. 1, 13-17 (1981);
Memorial Hosp. v. Maricopa County, 415 U. S. 250, 263 (1974); Carrington v. Rash, 380 U. S. 89, 95 (1965).

By reducing stereotypes and misconceptions, integration reduces the
likelihood that constitutional violations will recur. Cf.
Olmstead, 527 U. S. at 600 (segregation "perpetuates unwarranted
assumptions that persons so isolated are incapable or unworthy of
participating in community life").
Second, the Constitution itself already requires
individualized consideration and modification of practices or
programs, when necessary to avoid infringing on fundamental
rights. 34 Beyond that, States may not justify infringement on
fundamental rights by pointing to the administrative convenience or
cost savings achieved by maintaining barriers to the enjoyment of
those rights. 35 Title II, moreover, requires modifications only
where "reasonable," 42 U. S. C. 12131( 2). Governments need not make
modifications that "impose an undue hardship" or require
"fundamental alterations in the nature of a service, program, or
activity," in light of their nature or cost, agency resources, and
the operational practices and structure of the program. 42 U. S. C.
12111( 10), 12112( b)( 5)( A); 28 C. F. R. 35.130( b)( 7), 35.150( a)( 3),
35.164; Olmstead, 527 U. S. at 606 n. 16 (plurality opinion).
Furthermore, based on the consistent testimony of witnesses and
expert studies, Congress determined that the vast majority of 57
57 Page 58 59
56
36 See also S. Rep. No. 116, supra, at 10-12, 89, 92; H. R. Rep. No.
485, supra, Pt. 2, at 34; 2 Leg. Hist. 1552, 1077, 1388-1389, 1456-1457, 1560; 3 Leg. Hist. 2190-2191; Task Force Report 27; Spectrum

2, 30, 70; GAO, Briefing Report on Costs of Accommodations, Americans with Disabilities Act: Hearing Before the House Comm. on
Small Business, 101st Cong., 2d Sess. 190 (1990).

modifications entail little or no cost. One local government
official stressed that "[ t] his bill will not impose great hardships
on our county governments" because "the majority of accommodations
for employees with disabilities are less than $50" and "[ t] he cost
of making new or renovated structures accessible is less than 1
percent of the total cost of construction." 2 Leg. Hist. 1443
(Treasurer, Harris Co., Tex.). 36
Title II thus goes further than the Constitution itself only
to the extent that some disability discrimination in the realm of
public services may have no impact on fundamental rights and may be
rational for constitutional purposes, but still be unreasonable
under the standards of the Disabilities Act. But that margin of
statutory protection does not exceed Congress' authority. Like
Title VII on which it was modeled, that level of statutory
protection is necessary both to reach unconstitutional conduct that
would otherwise escape detection in court and to deter future
constitutional violations.
Furthermore, "[ 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 58
58 Page 59 60
57
37 Likewise, child-size and adult-size water fountains routinely
appear in buildings; requiring accessible fountains just expands that routine design process. 2 Leg. Hist. 993-994 (Jade Calegory)

(" Black people had to use separate drinking fountains and those of us using wheelchairs cannot even reach some drinking fountains. We
get thirsty, too.").

(1996). Section 5 thus empowers Congress to do more than simply
prohibit the creation of new barriers to equality; it can require
States to tear down the walls they erected during decades of
discrimination and exclusion. See id. at 550 n. 19 (Equal
Protection Clause itself can require modification of facilities and
programs to ensure equal access); see also Hibbs, 123 S. Ct. at
1981 n. 10. Title II's accommodation requirements eliminate the
effects of past discrimination by ensuring that persons previously
invisible to program and building designers are now considered part
of the government's service constituency. "Just as it is
unthinkable to design a building with a bathroom only for use by
men, it ought to be just as unacceptable to design a building that
can only be used by able-bodied persons." 3 Leg. Hist. 1987 n. 4
(Laura Cooper). That is because "[ i] t is exclusive designs, and
not any inevitable consequence of a disability that results in the
isolation and segregation of persons with disabilities in our
society." Ibid. In short, Title II is appropriate legislation
because the remedy for segregation is integration, not inertia. 37
2. Title II Is As Broad As Necessary
Lastly, petitioner objects (Br. 29-31) to the scope of Title
II's coverage. But the operative question is not whether Title II 59
59 Page 60 61
58
is broad, but whether it is broader than necessary. It is not.
Congress found that the history of unconstitutional treatment and
the risk of future discrimination found by Congress pertain to all
aspects of governmental operations. It determined that only a
comprehensive effort to integrate persons with disabilities would
end the cycle of isolation, segregation, and second-class
citizenship, and deter further discrimination. Integration in
education alone, for example, would not suffice if there were not
going to be jobs and professional licenses for those who received
the education. Integration in employment and licensing would not
suffice if persons with disabilities lacked transportation.
Integration in transportation is insufficient unless persons with
disabilities can get into the facilities to which they are
traveling. Ending unnecessary institutionalization is of little
gain if neither government services nor the social activities of
public life (libraries, museums, parks, and recreational services)
are accessible to bring persons with disabilities into the life of
the community. And none of those efforts would suffice if persons
with disabilities continued to lack equivalent access to government
officials, courthouses, and polling places.
In short, Congress chose a comprehensive remedy because it
confronted an all-encompassing, inter-connected problem. To do
less would be as ineffectual as "throwing an 11-foot rope to a
drowning man 20 feet offshore and then proclaiming you are going
more than halfway," S. Rep. No. 116, supra, at 13. 60
60 Page 61 62
59
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
THEODORE B. OLSON Solicitor General

R. ALEXANDER ACOSTA Assistant Attorney General
PAUL D. CLEMENT Deputy Solicitor General
PATRICIA A. MILLETT Assistant to the Solicitor General
JESSICA DUNSAY SILVER SARAH E. HARRINGTON
KEVIN RUSSELL Attorneys

NOVEMBER 2003 61
61 Page 62 63
(1c)
APPENDIX C
Findings of Investigations Under the Civil Rights Of Institutionalized Persons Act
42 U. S. C. 1997 et seq.
Between 1980 and the enactment of Title II of the Americans
with Disabilities Act in 1990, Department of Justice investigations
under the Civil Rights of Institutionalized Persons Act, 42 U. S. C.
1997 et seq., found unconstitutional treatment of individuals with
disabilities in institutions in more than twenty-five States. From
1980 until the present, unconstitutional conditions have been found
in more than 200 institutions in more than thirty States throughout
the Country. The Tables below describe some of the findings issued
by the Department of Justice pursuant to 42 U. S. C. 1997b( a)( 1).
Copies of the complete findings letters will be provided to the
Court upon request, and have been served upon counsel for the
petitioner and the private respondents. 62
62 Page 63 64
2c
I. Investigations Prior to Enactment of the Americans with Disabilities Act

Name of Facility State Year Categories of Constitutional
Violations
Details

Rosewood Center MD 1982 Failure to provide
reasonable supervision
and safety

Many residents sustained injuries
during "low staffing periods" (p. 4).

One resident left the facility
unobserved and died of exposure.
A profoundly retarded resident
drowned when staff left him unattended
in a bathtub. Another died after
being pushed down a flight of stairs
(pp. 4-5).
On another occasion, "six severely
handicapped female residents * * * were
allegedly raped by an outside intruder.
There was only one staff person on duty
to supervise the 32 residents * * * and
only one security officer on duty to
cover the entire Rosewood facility.
While the inability of the residents to
communicate apparently prevented
state officials from confirming the rapes
* * * several of the 63
63 Page 64 65
3c
Name of Facility State Year Categories of Constitutional
Violations
Details

residents had positive tests for
gonorrhea of the throat right after
the incident" (p. 4).

Several male patients "show[ ed]
the presence of venereal disease"
and "nonconsensual sexual contact
occurred between one resident and at
least one and possibly three
residents" (p. 4).
Abuse of residents An employee sexually abused a resident

(p. 4).
Unsanitary conditions Facilities are deteriorating; the

"stench of urine is prevalent in a
number of buildings." Plumbing
problems left overflowing toilets
unrepaired for days; heating problems
subjected patients to "sub-freezing
temperature in the buildings
themselves" at times (p. 5).

Inadequate training "Over 900 of the 1125 residents
receive less than 50% of the services 64
64 Page 65 66
4c
Name of Facility State Year Categories of Constitutional
Violations
Details

called for in their program plans" (p.
2).

East Louisiana
State Hospital
LA 1982 Inadequate medical and
mental health care
pp. 2-4

Enid & Paul's Valley State
Schools
OK 1983 Inadequate medical and
mental health care
"Insufficient licensed physician
coverage has resulted in serious
harms to residents," contributing to
patient deaths (p. 2-3).

Inadequate training Lack of training "contributes to and
manifests itself in residents'
aggressive and stereotypic
behaviors * * * [such as] incessant
disordered physical movements,
headbanging, biting, hyperactivity, and
assaultive behavior" (p. 5).

Failure to provide
reasonable supervision
and safety

"For example, a group of 21 naked
residents were observed being led
to a shower area, where two staff
sprayed the residents down with
a large garden type hose" (p. 5). 65
65 Page 66 67
5c
Name of Facility State Year Categories of Constitutional
Violations
Details

Unreasonable use of
physical and chemical
restraints

p. 5

Abuse of residents Staff found "slapping, kicking,
hitting, or spanking residents" while
records also "reflect many
instances of unexplained resident
injuries" (p. 6).
Unsanitary conditions Lack of sanitation practices

contributed to parasitic and
bacterial infections requiring quarantine
of entire living areas (p. 6).

Wheat Ridge Regional
Center
CO 1984 Failure to provide
reasonable supervision
and safety

"Due to lack of staff, residents
suffer neglect and numerous accidents
and injuries. * * * [N] umerous residents
have sustained injuries where the
cause remains unknown. Resident
on resident assaults are common; resi-dents
engaging in self-abusive behav-iors
are frequently unsupervised and
unattended. Residents have been 66
66 Page 67 68
6c
Name of Facility State Year Categories of Constitutional
Violations
Details

found with unexplained broken
bones and burns to the body. For
example, one resident was found
with a femur segment protruding through
the skin" (p. 2).
During tour, staff came upon
"approximately 20 adult women being
cared for by one person amid great
disorder and confusion. Many of
these women were partially undressed,
one was urinating on the floor of the
living area and several were
engaging in self-abusive behavior"
(p. 2).
Inadequate medical and

mental health care
"A large number of Wheat Ridge
residents suffer from severe contrac-tures
of their limbs and other body
deformities due to the absence of
necessary physical and occupational
therapy" (p. 3). "One troublesome
secondary effect of these immobilizing
contractures due to lack of physical 67
67 Page 68 69
7c
Name of Facility State Year Categories of Constitutional
Violations
Details

therapy is the dysfunctioning of
the digestive system," which has
apparently caused an "abnormally high
percentage of Wheat Ridge residents to
require pureed diets or gastroatomies for
tube feeding" (p. 4).

Logansport State
Hospital
IN 1984 Inadequate medical and
mental health care
pp. 1-2

Failure to provide
reasonable supervision
and safety

"Patients are not being adequately
monitored and supervised to
prevent suicidal behavior or patient-on-
patient violence, to notice and
correctly diagnose symptoms of serious,
physical or psychiatric
dysfunctions, to monitor treatment
responses and drug reactions, or to
determine appropriate and
reasonably safe modes of treatment
for each patient" (pp. 2-3). 68
68 Page 69 70
8c
Name of Facility State Year Categories of Constitutional
Violations
Details

Manteno and Eglin Mental
Health Centers
IL 1984 Inadequate medical and
mental health care;
Inadequate training;
Unreasonable use of
physical restraints

Lack of professional staff lead to
"inappropriate uses of drugs and serious
treatment errors which have resulted
in physical danger to, or unnecessary
physical or chemical restraint of, the
involved patients" (p. 3). Patients
are further "endangered by
inadequate medical care relating to
serious and sometimes
debilitating or life-threatening
drug side-effects" (p. 4).

Failure to provide
reasonable supervision
and safety

"Units in the facilities are
overcrowded to a point that makes it
virtually impossible for staff to
maintain control without regular and
extensive use of physical and
chemical restraints" (p. 4).

Unsanitary conditions "Sanitation and maintenance in
portions of the facilities are so
inadequate as to present serious
risks to patients of poisoning, 69
69 Page 70 71
9c
Name of Facility State Year Categories of Constitutional
Violations
Details

infection, or disease" (pp. 4-5).
Northville Regional
Psychiatric Hospital
MI 1984 Failure to provide
reasonable supervision
and safety; Abuse of
residents

Large number of patient deaths under
unusual circumstances, some
associated with restraint practices
(p. 3).
A patient died after "a stranglehold was
applied to him while he was being
subdued. He reportedly lay on
the seclusion room floor from 15-20
minutes before efforts were made to
resuscitate him" (pp. 2-3).

"Another patient also died due to
strangulation, and his body showed
signs of a beating" (p. 3).

"A third patient allegedly died from
injuries suffered in a beating. Still
another patient, who had expressed her
fear for her safety to her psychologist
on a Friday, died over the weekend.
Her body allegedly was bruised and
battered" (p. 3). 70
70 Page 71 72
10c
Name of Facility State Year Categories of Constitutional
Violations
Details

Police found that another patient who
had died in a seclusion cell "had
contusions on his face and the back of
his head" (p. 3).
There have also been "numerous incidents
of rape, assault and threat of assault,
broken bones and bruises" (p. 3).

A staff member was found to have had
"sexual relations with three different
patients in one night." Other
patients were beaten by staff, "including
one who was stripped, placed in
seclusion and severely beaten by
several attendants" (p. 3).

Inadequate medical and
mental health care
Inadequate medical care contributed to
several deaths and preventable suicides
(pp. 3-4).
Fairview Training

Center
OR 1985 Inadequate training Training "is virtually non-existent"
and "results in a
serious level of self-injurious and
aggressive behaviors" (p. 3). 71
71 Page 72 73
11c
Name of Facility State Year Categories of Constitutional
Violations
Details

Unreasonable use of
physical and chemical
restraints

"[ R] estraints are used at Fairview in
lieu of training and for the convenience
of staff," and were employed more than
2,000 times per month (p. 4).

Failure to provide
reasonable supervision
and safety

Records showed "an alarmingly high
number of injuries," such as 197
incidents of injuries in one
month resulting from self-abuse or
aggression. In one two-month period,
there were 27 incidents of sexual
abuse (p. 3 n. 1).
"[ W] e observed numerous residents
with open wounds, gashes, abrasions,
contusions, and fresh bite marks.
Many other residents had deep scars and
scabs from a long history of self-abuse
or victimization" (p.
3).
Due to inadequate supervision of
residents with pica behavior (ingesting
inedible objects), "[ r] esidents have
had to undergo 72
72 Page 73 74
12c
Name of Facility State Year Categories of Constitutional
Violations
Details

surgery, sometimes on a repeated basis,
to remove foreign objects or to
relieve bowel and other obstructions
caused by pica. Physicians at
Fairview have indicated that some
residents have had surgery so
frequently that any more operations
resulting from pica would jeopardize
their lives" (p. 8).

Inadequate medical and
mental health care
Dangerous psychotropic
medication practices (p. 7-8).

"Seventy percent of residents
institution-wide have gum disease"
(p. 8).
Unsanitary conditions "Many of the cottages we toured

smelled of urine and waste. Sewage
backup in cottage basements, up to
three feet high on the walls, is
permitted to remain for days. * * * [A] n
August 1983 random sample of Fairview
residents revealed 73
73 Page 74 75
13c
Name of Facility State Year Categories of Constitutional
Violations
Details

that 35% had pinworm infection, a
parasite which is spread by fecal and
oral routes in unclean environ-ments"
(p. 9).
Fort Stanton Hospital &

Training School
NM 1985 Inadequate medical and
mental health care
Facilities' sole physician wrote
institution-wide prescriptions for
prescription medications and
powerful psychotropic
medications, authorizing their
use when nursing staff believes it
necessary, in contravention of
professional standards and
creating substantial risk to patients
(p. 2).
Unreasonable use of

chemical restraints
Psychotropic drugs being used to
restrain patients without any
physician assessment for the need for
such measures (p. 2.)

Inadequate mental health
care
"Many residents are subjected to
potentially dangerous"
prescriptions of multiple
psychotropic drugs 74
74 Page 75 76
14c
Name of Facility State Year Categories of Constitutional
Violations
Details

"without any medical justification"
(p. 2)

Southbury Training
School
CT 1985 Failure to provide
reasonable supervision
and safety

Low staffing levels lead to inadequate
supervision, which permitted one
resident to leave the facility and die
of exposure; another was able to remove
and hide a large knife (p. 10).

In one cottage, staff compensate for
low staffing level by placing "at least
one resident in restraints for up to
12 hours a day due to the staff's
inability to monitor his activities" (p.
10).
Inadequate medical and

mental health care
Investigation found "dangerous
medication interactions and
errors, and found that acute medical
problems, such as fractures and
infections, frequently do not
receive critically necessary follow-up
treatment" (p. 3). 75
75 Page 76 77
15c
Name of Facility State Year Categories of Constitutional
Violations
Details

Use of psychotropic medications
substantially departed from
professional standards, creating
substantial health risks for patients
(pp. 3-6).
Inadequate training;

Unreasonable use of
physical and chemical
restraints

Facility's failure to provide adequate
training program resulted in "a
dangerous reliance on the use of both
physical and chemical restraint"
(p. 6).
Hinds County Detention

Center
MS 1986 Inadequate medical and
mental health care
County Jail was being used to house
mentally ill persons awaiting civil
commitment hearings or placement in a
mental hospital for up to eleven days.
At time of investigation, jail
held 42 mentally-ill detainees (pp. 1-2).

No mental health treatment was
provided during period of
confinement (p. 3).
"Male mentally-ill detainees were
confined * * * in a small cell designed
to serve as the 76
76 Page 77 78
16c
Name of Facility State Year Categories of Constitutional
Violations
Details

'drunk tank. ' Some of the detainees
were placed in hand and leg irons" (p.
3).
Westboro State

Hospital
MA 1986 Unsanitary conditions "The smell and sight of urine and feces
pervade not only the toilet areas, but
ward floors and walls as well" (p.
3).
"Bathrooms and showers were filthy.
Living areas are infested with
vermin. There are consistent shortages
of clean bed sheets, face cloths, towels
and underwear. Open commodes with human
waste in them were often found in rooms
to which many patients in unclean
geri-chairs are confined all day,
including meal times" (p. 3).

"[ N] on-sterile techniques are used
when changing patients' dressings
and feeding tubes" (p. 3).

Inadequate medical and
mental health care
Patients' physical illnesses are often
misdiagnosed as psychological 77
77 Page 78 79
17c
Name of Facility State Year Categories of Constitutional
Violations
Details

problems, resulting in "increased
dosages of potentially
dangerous antipsychotic drugs"
(p. 5).
"Acutely life threatening
illnesses * * * are also not detected
appropriately or on a timely basis.* * *

[I] nappropriate and inadequate medical
care preceded many of the[] deaths"
reviewed during the investigation
(p. 5).
"Patients also frequently do not
receive prescribed medications because
the ward or pharmacy lacks adequate
supplies" (p. 4).
Unreasonable use of

physical and chemical
restraints

Facility used sedating drugs on
elderly patients for no medically
justifiable reason, but instead to
control residents' behavior "subjecting
vulnerable geriatric patients to the
dangerous effects of 78
78 Page 79 80
18c
Name of Facility State Year Categories of Constitutional
Violations
Details

inappropriate drug usage and over-medication"
(p. 7).
Failure to provide

reasonable supervision
and safety; Inadequate
training

pp. 7-8

Kalamazoo Regional
Psychiatric Hospital
MI 1986 Inadequate training;
Unreasonable use of
physical restraints

Inadequate staffing prevents the
facility from providing treatment
that could "reduce or eliminate
unreasonable risks to [patients']
personal safety and the undue use of
bodily restraint" (p. 2).

Inadequate medical and
mental health care
Facility fails to adequately monitor
efficacy and side effects of
potentially dangerous drugs,
creating unjustifiable risk
of "deleterious side effects, tardive
dyskinesia, involuntary,
abnormal muscle movements,
akathisia, and parkinsonism"
(p. 3). 79
79 Page 80 81
19c
Name of Facility State Year Categories of Constitutional
Violations
Details

Napa State Hospital CA 1986 Failure to provide
reasonable supervision
and safety; Unreasonable
use of physical and
chemical restraints

Severe staffing shortages "result in
patient management, in lieu of
treatment, through the inappropriate
use of seclusion, chemical restraint,
and physical restraint" (p. 2).

Restraint practices "pose significant
hazards to the personal safety of
NSH patients" (p. 4).

Inadequate medical and
mental health care;
Inadequate training

Certain medication practices at
facility "violated all known standards
of medical practice" resulting in great
danger to patient safety (p. 2).

There was no monitoring of drug
side effects and several patients
exhibited an "antipsychotic drug-induced
side effect, potentially
irreversible, that may result in
permanent physiological
damage" (p. 3). 80
80 Page 81 82
20c
Name of Facility State Year Categories of Constitutional
Violations
Details

Facility failed to provide training
programs adequate to protect patient
safety and avoid need for restraint
and seclusion (p. 5).

Metropolitan Developmental
Center
LA 1986 Inadequate medical and
mental health care
"MDC employs antipsychotic
medication primarily as a means of
controlling behavior without proper
[medical] justification." As a
result, "[ n] umerous residents
demonstrated serious neurological side
effects from sustained exposure
to high doses of antipsychotic drugs"
(p. 2). Facility had no program to
monitor for serious, potentially
irreversible side effects of these
medications (pp. 2-3).

Other residents "have been exposed
to an extreme risk of drug-induced
toxic poisoning by the absence of
preliminary and periodic drug-level
testing" (p. 3). 81
81 Page 82 83
21c
Name of Facility State Year Categories of Constitutional
Violations
Details

Belle Chasse State School LA 1986 Inadequate medical and
mental health care
Administration of psychotropic drugs
substantially departed from
professional standards. There
was no program to detect "Tardive
Dyskinesia" which is "an antipsychotic
drug induced side effect, potentially
irreversible, that may result in
permanent physiological
damage" (p. 2).
Broadview, Cleveland &

Warrensville Developmental
Centers

OH 1987 Inadequate training;
Unreasonable use of
chemical restraints

In the absence of adequate training
programs, "staff overuse psychotropic
medication to control the behavior
of residents" (p. 1).

Inadequate mental health
care
p. 2

Montgomery Developmental
Center
OH 1987 Inadequate medical and
mental health care; Failure
to provide reasonable
supervision and safety

pp. 2-3 82
82 Page 83 84
22c
Name of Facility State Year Categories of Constitutional
Violations
Details

Los Lunas Hospital and
Training School
NM 1988 Inadequate training;
Unreasonable use of
chemical restraints

"[ S] traightjackets and ammonia
inhalants are used as a consequence for
antisocial behavior. Restrained
individuals are in some cases isolated
in a room with a closed door out of
sight of staff. This practice,
absent adequate surveillance, places
severely handicapped residents at great
risk of injury and is not
professionally justifiable" (p. 2).

"Los Lunas staff are using physical
restraints, isolation and
punishment * * * to control the behavior
of residents in lieu of necessary
training programs" (p. 2).

Failure to provide
reasonable supervision
and safety

Due to lack of supervision, a woman
was raped, developed peritonitis, and
died (p. 3).
Inadequate medical and

mental health care
Facility provides almost no physical
therapy to the large number of patients
with body deformities who need 83
83 Page 84 85
23c
Name of Facility State Year Categories of Constitutional
Violations
Details

therapy "to prevent muscular or skeletal
breakdown" (p. 3).
W. A. Howe Developmental

Center
IL 1989 Inadequate training;
Unreasonable use of
physical and chemical
restraints

"To control resident behavior, in lieu of
professionally designed training
programs, staff resort to chemical
and physical restraints" (p. 3).

Inadequate medical and
mental health care
"Due to the lack of adequate medical
supervision of patients, early
signs of illness and disease go
undetected and/ or untreated" (p. 5).

Failure to provide
reasonable supervision
and safety

Patient was dead on the floor of her
room for some time before staff
discovered her, after staff failed
to perform scheduled room checks.

A patient strangled to death while left
unsupervised in improperly-applied
restraints.
A resident who was left unsupervised
ran out the front door and into
traffic, where she was killed (pp. 6-
7). 84
84 Page 85 86
24c
Name of Facility State Year Categories of Constitutional
Violations
Details

Great Oaks Center MD 1990 Failure to provide
reasonable supervision
and safety; Inadequate
training

Investigation found that inadequate
supervision contributed to "an
alarmingly high frequency of
resident injuries" (p. 5).

Inadequate training program "fails to
reduce self-abusive, aggressive, and
other maladaptive and inappropriate
behaviors." "As a result of these
problems, rocking, pacing, and
aimlessly wandering residents were seen
throughout the institution.
Instances of self-abuse were not an
uncommon sight; observed attempts to
intervene appropriately were
rare. Many residents were
observed to have cuts, bruises and
scrapes. Clearly, many of the injuries
may have been preventable with
more effective programming and if
more trained staff were available" (p.
3). 85
85 Page 86 87
25c
Name of Facility State Year Categories of Constitutional
Violations
Details

Unreasonable use of
physical and chemical
restraints

"Staff resort to chemical and
physical restraints to control
residents' behavior, in lieu of
professionally designed training
programs" (p. 3).
Inadequate mental health

care
p. 4

Abuse of residents A number of staff had been disciplined
or criminally charged for abusing
patients (p. 5 n. 1).
Hawaii State Hospital HI 1990 Inadequate food, clothing

and shelter
Staff at facility confirmed that there
was often insufficient food;
"Staff reported that patients are often
wrapped in blankets and sheets due to
the absence of adequate clothing";
inadequate items for basic personal
hygiene (p. 2).
Unsanitary conditions "[ S] anitation is grossly inadequate.

During a tour of [one unit] our
consultants had to walk around numerous
puddles of urine. * * * * Kitchen
facilities exhibited signs of serious
cockroach 86
86 Page 87 88
26c
Name of Facility State Year Categories of Constitutional
Violations
Details

infestation and other unsanitary
practices" (p. 3).

Inadequate medical and
mental health care
"[ D] rug practices at HSH are seriously
deficient and represent
significant departures from
generally accepted medical standards"
(p. 3).
Unreasonable use of

physical and chemical
restraints; Inadequate
training

"In view of serious, chronic and
facility-wide staffing shortages,
HSH staff employ bodily restraints –-physical
restraints, seclusion, and
chemical restraints –-at an
unjustifiably high level solely for
their own convenience or in
lieu of professionally
designed treatment programs" (p. 5). 87
87 Page 88 89
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Name of Facility State Year Categories of Constitutional
Violations
Details

Arlington Developmental
Center
VA 1991 Failure to provide
reasonable supervision
and safety; unsanitary
conditions

"In many units, there was a
pervasive smell of urine. Residents in
diapers were wet; often their clothes
were soaked through with urine" (p. 3).

Inadequate medical care "[ W] e observed young children, some as
young as two, whose limbs were severely
contracted" from lack of physical
therapy. "Many residents were left
unattended in cribs, with no efforts
being made to move their limbs,
position them, or to provide any real
physical therapy services" (p. 3).

"The penis of another resident, a
paraplegic with an in-dwelling Foley
catheter, was eroded throughout its
entire length due to inadequate care and
monitoring" (p. 3). 88
88 Page 89 90
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Violations
Details

Inadequate medical care contributed to
deaths of five residents in past
six months (p. 4).
Abuse of residents pp. 3-4

Inadequate training pp. 8-9
Northern Virginia
Training Center
VA 1991 Inadequate training;
Unreasonable use of
physical and chemical
restraints

In part because of inadequate training
programs, use of restraints was
pervasive: "restraint is used
so frequently that it appears to be the
treatment of choice rather than a
technique of last resort" (p. 4).

Inadequate medical and
mental health care
"Serious medical conditions and
marked functional deterioration are
not comprehensively evaluated or
effectively treated" due to inadequate
medical system (p. 5). 89
89 Page 90 91
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Violations
Details

Boswell Retardation
Center
MS 1991 Inadequate training;
Unreasonable use of
physical and chemical
restraints

"Boswell's staff are using restraints,
isolation and punishment to
control the behavior of residents in lieu
of necessary training programs"
(p. 2).
Inadequate mental health

care
pp. 3-4

Unsanitary conditions p. 5
Embreeville Center PA 1991 Inadequate medical and
mental health care
Delays in emergency medical care
contributed to patient death (p.
2).
Abuse of residents Undercover agent observed repeated

instances of abuse over nine-week
period (p. 3).
Inadequate training

programs
p. 2

Agnews Developmental
Center
CA 1991 Unsanitary conditions "Clients and residents smelled of
urine and feces" (p. 2).

Unreasonable use of
physical and chemical
restraints

Bodily restraint and medication used in
lieu of training programs or adequate
staff supervision (pp. 4-5). 90
90 Page 91 92
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Violations
Details

Inadequate medical care Investigation found "resident after
resident whose legs had lost all muscle
tone and whose hip, knee and ankle
joints had become permanently fixed or
cemented in place in a deformed frog-leg
or windswept position due to
months and even years of inactivity"
(p. 2).
"[ I] nordinate delays in diagnosing and
responding to serious resident
illness" placed large population of
medically fragile patients at
substantial risk (pp. 5-6)

Abuse of residents Administrators "confirmed to us
that staff abuse of residents is a
serious problem" (p. 2). 91
91 Page 92 93
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Violations
Details

Memphis Mental Health
Institute
TN 1992 Inadequate medical and
mental health care
Deficiencies in the facility's medical
care system contributed to two
recent deaths (pp. 5-6). Lack of
psychiatrists leads to serious errors in
diagnosis and medication
prescription (pp. 7-8).

Unreasonable use of
physical and chemical
restraints

"Patients at MMHI are subjected to
both an undue amount of bodily restraint
and dangerous restraint practices"
(p. 9).
"[ S] taff members are placing patients
inappropriately in physical restraints
simply because they are confused or
disoriented." Patients are also
restrained while sedated, "a
substantial departure from
accepted standards of psychiatric care"
(pp. 9-10).
Fircrest Residential

Habilitation Center
WA 1992 Failure to provide
reasonable supervision
and safety

"[ R] esidents suffer needless serious
injuries" due to lack of supervision,
including an average of "410 incidents
per month for some 92
92 Page 93 94
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Name of Facility State Year Categories of Constitutional
Violations
Details

440 residents" (p. 1).
"Numerous residents were seen with fresh
wounds and lacerations,
including shaved spots on heads
revealing stitches and healing
injuries; red marks and significant
bruises; multiple scabs and scars, and
large bandages or casts" (pp. 1-2).

"Our consultants observed residents
engaged in self-injurious behavior,
having seizures, masturbating in open
view -– all without staff intervention
of any kind" (p. 2).
"[ O] ne resident was found dead in the
day room of a living unit; the resident
had been dead for up to three hours
before her body was discovered by staff"
(p. 2).
Dangerous positioning and
feeding practices put residents' lives
at risk (p. 2). 93
93 Page 94 95
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Details

Inadequate training "Due to a lack of human interaction
and care, residents have developed
significant stereotypic,
maladaptive or anti-social behaviors"
including "headbanging, eating
foreign objects and pulling hair, to
waving arms, flicking fingers and
other self-stimulatory
activities" (p. 1).
"Much of the anti-social, maladaptive
behavior, injuries and use of
restraints is attributable, in
significant part, to the lack of * * *
training programs" (p. 5).

Unreasonable use of
physical and chemical
restraints

Physical restraints, including "staff
incapacitating residents by holding
them down involun-tarily on the floor
or elsewhere for a period of 'enforced
relaxation'" were pervasively "used as
punishment, for the convenience of staff
and in lieu of training programs"
(p. 4-5). 94
94 Page 95 96
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Details

Forrest County Jail MS 1993 Inadequate mental health
care
"There are no mental health services
available at the jail and the holding
cells into which disturbed or
mentally-ill * * * prisoners are placed
pose a direct threat to their health and
safety" (p. 2).
"During the course of our tour of the
jail, our consultants observed
a severely mentally ill inmate, clad
only in an undershirt, housed
in the general population" where he
had been waiting for several weeks for a
transfer to a mental health facility.
"He had allegedly eaten some glass and
was prone to defecate on the
floor of the cell" (pp. 2-3).

Arizona State Hospital AZ 1993 Unreasonable use of
physical and chemical
restraints

Patients "are routinely put into
five-point restraints (a
practice where a patient is
restrained on a bed and bound by the
ankles, by the wrists with the arms
to the side, and by 95
95 Page 96 97
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Name of Facility State Year Categories of Constitutional
Violations
Details

a strap across the abdomen) and placed
into a locked seclusion room" for
convenience of staff. Leaving a
restrained patient unsupervised creates
"great risk of harm from choking and
asphyxiation" (p. 2).

Jones County Jail MS 1993 Inadequate medical and
mental health care
Mentally ill inmates, and
mentally ill persons detained pending
civil commitment proceedings, housed
in five-by-six foot steel cage,
sometimes for months (p. 4).

Chicago-Read Mental Health
Center
IL 1993 Inadequate mental health
care; Inadequate
training

pp. 1-2

Unreasonable use of
physical restraints
p. 2-3

Sonoma Developmental
Center
CA 1994 Failure to provide
reasonable supervision
and safety

"As a result of inadequate
supervision, residents have been
subjected to numerous, serious,
unnecessary injuries" (p. 2). 96
96 Page 97 98
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Details

In one incident, a resident drowned in
a bathtub while unattended (p. 2).

In another, one resident was
attacked by another with a knife (p. 2).

Inadequate training Training programs are inadequate and
lead to harm from unaddressed
behaviors and to the unnecessary and
unreasonable use of physical and
chemical restraints (pp. 4-6).

Inadequate medical care Improper feeding practices for
severely disabled residents "subject
them to severe risk of choking,
aspiration and aspiration
pneumonia" (p. 3).

"The lack of physical therapists
and physical therapy services has led to
the development of undue contractures,
muscle atrophy, inappropriate body
growth, and physical degeneration" (p.
3). 97
97 Page 98 99
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Name of Facility State Year Categories of Constitutional
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Details

"The failure of staff to properly
maintain [tracheostomy] tubes
subjects residents to the risk of death
from suffocation and presents other
significant health risks, including
infection" (p. 3).
Southern & Central

Wisconsin Developmental
Centers

WI 1994 Failure to provide
reasonable supervision
and safety

Inadequate supervision has led
to serious resident injuries. For
example, one elderly resident with a
condition that creates a great risk
of falling was taken to the hospital for
an injury caused by a fall, whereupon
hospital staff noted that she had fallen
62 times that day (p. 10).

Inadequate medical and
mental health care
While facility has over 300 residents
with seizure disorders,
management practices are dangerously
deficient; some patients kept on
medications with strong and dangerous
side effects for years after they are
no longer necessary; some are kept on
potentially 98
98 Page 99 100
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Name of Facility State Year Categories of Constitutional
Violations
Details

dangerous drugs even though they are not
helping. For example, one patient
who had been seizure free for six years,
was kept on medication even
though lab results showed that dosage
was too low to be having any effect
and even though patient appeared to
be suffering from dementia as a side
effect of the drug (p. 3-4).

Facility's use of psychotropic
medications substantially
departs from professional
standards, exposing patients to
unnecessary risks of dangerous side
effects (pp. 7-9).
Inadequate training;

Unreasonable use of
physical restraints

pp. 10-13 99
99 Page 100 101
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Details

Eastern State Hospital and
Hancock Geriatric
Center

VA 1994 Inadequate mental health
care; Inadequate
training; Unreasonable
use of physical and
chemical restraints

pp. 1-6

Clover Bottom Developmental
Center
TN 1995 Failure to provide
reasonable supervision
and safety

Many injuries linked to lack of
supervision; "in one seven month period,
a resident received injuries on twenty-six
occasions," half of which required
stitches (pp. 3-4).
Inadequate training

programs
pp. 5-8

Inadequate medical and
mental health care
"Residents languish in carts and ill-fitting
wheelchairs, which exacerbate or
allow physical deformities to
progress –-in some cases to a point
that the deformity may preclude a
person from sitting upright in a
wheelchair" (p. 12). 100
100 Page 101 102
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Details

Nat T. Winston
Developmental Center
TN 1995 Inadequate training;
Unreasonable use of
physical and chemical
restraints

"NTWDC, because of the ineffectiveness
of its behavioral programs, relies on
physical and chemical restraints
to control residents' behavior"
(p. 3).
Lack of training programs and
supervision contribute to high
incidence of injuries, including
"multiple bites, lacerations, broken
bones, bruises and abrasions. One
individual was injured 25 times
* * * in an eight-month period. * * *
Several residents were found
attempting to cut themselves with
knives or razorblades" (p. 4).

Inadequate medical and
mental health care
pp. 4-5

Unsanitary conditions "Sanitary conditions were very poor at
the food facility"; "Mold and mildew
were prevalent throughout the
refrigerators and 101
101 Page 102 103
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Violations
Details

coolers" because of plumbing leaks (pp.
5-6).
Greene Valley Developmental

Center
TN 1995 Inadequate medical and
mental health care
"Due to an inadequate medical
care delivery system * * * residents are
subjected to needless fractures,
recurrent aspiration,
preventable weight loss, recurring
seizures, avoidable injuries, and other
direct threats to their health" (p.
2).
Psychiatrists prescribing
dangerous combinations of
drugs "absent any rational
justification in violation of medical
standards" (p. 3).
Failure to provide

reasonable supervision
and safety

Due to lack of supervision,
residents "are repeatedly 'found
with blood' on them from injuries that
occur outside of staff supervision.
On other occasions, residents' severe
injuries are discovered only
during bathing or at bedtime" (p. 5). 102
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Details

"[ O] ne eleven year old boy apparently
lost the sight in one eye from
repeated headslapping which
resulted in a detached retina.
Other residents were noted with swollen,
disfigured features resulting from years
of self-injury. Still others had
permanent scars from continual self-mutilation
of their faces and arms" (p.
6).
Inadequate training Many residents' "destructive

behaviors remain unaddressed" by
training programs. "For example, one
resident had large scratches on her
face that had been self-inflicted; our
consultant psychologist was
informed that there was no program to
modify or eliminate this unsafe
behavior." The same was true for a
patient who repeatedly reopened
a face wound and one who had a history of
pica for almost 20 years (p. 7). 103
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Details

Northern Virginia
Mental Health Institute
VA 1995 Inadequate medical and
mental health care
"[ P] sychiatric care is grossly
inadequate" and "poses direct
threats to the health and safety of
patients" (p. 3).
"A county hospital is located only a
few hundred yards [away], yet there
have been a number of well-publicized
deaths which are linked to
substantial delays in providing
adequate medical care" (p. 4).

"[ O] ne patient died partly because of a
toxic buildup of antidepressants in
her body. Another patient died from
meningitis after a psychiatrist
requested that she be seen by an
internist who failed to appear to assess
her life-threatening condition" (p. 4).

Unreasonable use of
physical and chemical
restraints

"Due to inadequate staffing, NVMHI is
unable to provide one-on-one
monitoring for many residents who are
suicidal or are in restraints or 104
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Details

seclusion and require such close
supervision. Patients have been
injured while being restrained and are
then left unattended by medical
personnel" (p. 5).
Failure to provide

reasonable supervision
and safety

"[ T] he lack of supervision and care
is so grave that patients have been
subjected to severe harm, including
death" (p. 5).
Landmark Learning

Center
FL 1996 Failure to provide
reasonable supervision
and safety

pp. 3-4

Inadequate training and
mental health care
pp. 4-10

Harold Jordan Habilitation
Center
TN 1996 Inadequate training and
mental health care
pp. 3-4 105
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Details

Northern Virginia
Mental Health Institute
VA 1996 Failure to provide
reasonable supervision
and safety

Problems with supervision persist:
in the past year, there were 70
incidents of patients escaping
from the facility, and an average of 27
incidents of patient self-injury and
another 17 incidents of patient-on-patient
violence each month (p. 7).

Patients repeatedly injured themselves
even when "supposedly under
careful supervision." "One
patient committed approximately 12
such acts of self-injury while on
'special observation'
status."
"One patient somehow managed to obtain a
knife while in the seclusion room" (p.
7).
Inadequate training "[ S] taff have resorted to calling

the police and having patients
arrested rather than addressing the
underlying psychological
issues" (p. 8). 106
106 Page 107 108
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Details

Central State Hospital VA 1997 Failure to provide
reasonable supervision
and safety

Lack of staffing and failure to supervise
patients leads to repeated incidents
of preventable injury and suicide
attempts (pp. 3-5).
One patient supposedly under 24-
hour surveillance was found with 42
bruises over his body from
unwitnessed incidents (p. 4).

Inadequate medical and
mental health care
pp. 5-7, 9-11

Unreasonable use of
physical and chemical
restraints

Facility's use of restraints
substantially departs from
professional standards (pp. 7-9).

Patient died after being left in five-point
restraint on bed as punishment;
her psychiatrist had warned facility
staff not to restrain her because
of seizure risk. Nonetheless, the
"patient had spent over 300 hours of
the last two months of her life in
restraints" (p. 8). 107
107 Page 108 109
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Los Angeles County Jail CA 1997 Inadequate mental health
care
Jail system housing approximately 1,700
mentally ill inmates provides virtually
no treatment to most inmates other than
medication (p. 8).
Jail exacerbates many inmates'
illness by placing them in solitary
confinement for 23 hours or more per
day (p. 12).
Failure to provide

reasonable supervision
and safety

Jail places many mentally ill inmates
in general population, but
requires them to wear uniforms that
designate them as mentally ill. As a
result, many inmates suffered
from beatings and sexual assaults (pp.
14, 17).
Centro de Reeducacion

para Adultos
PR 1997 Unsanitary conditions/
inadequate shelter
"Many of the buildings are
dilapidated, decaying, and lack
adequate plumbing and lighting." At
one facility, "the showers do not work,
the faucets do not work, and the
toilets do not flush properly. In order
to bathe the clients, staff dump 108
108 Page 109 110
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Violations
Details

water from water tanks into large
movable garbage cans from which the staff
manually extract water using smaller
buckets to pour it on the residents."
Lack of water means that staff cannot
wash hands after changing some
patients' diapers (p. 3).

Inadequate training and
mental health care; Failure
to provide reasonable
supervision and safety

Investigators found patient "sitting on
the floor * * * moaning to himself.
We noticed a stream of blood trickling
down his helmet. * * * * When the
nurse removed his helmet, we
discovered that [the patient's] head had
been severely damaged due to years
of self-abuse and head banging. [He]
had butted and rammed his head into
walls and post corners so often
that he had pushed back completely his
hair and skin on the front half of his
head." Nonetheless, "the Commonwealth
has failed to provide [the
patient] with 109
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Details

professional psychological or
behavioral services."

Investigation found many other such
individuals not receiving adequate
care (p. 6).

Unreasonable use of
physical and chemical
restraints

"Restraints are prevalent at many of
the institutions * * * and are
related lack of behavioral program-ming,
training, and professional mental
health intervention. * * * * [S] taff use
a bed sheet to tie [a client's] waist
and torso to a bench and to one of the
iron bars at the facility to keep her
from walking around the building and
engaging in aggressive,
maladaptive behaviors such as
biting and hitting other clients.
Staff tie [another client] up in four-point
restraints to her bed for the
entire time she is menstruating" (p. 7) 110
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Center for Integral
Services
PR 1997 Failure to provide
reasonable supervision
and safety

"On our tour of CIS, we generally found a
dangerous environment for the
clients. We noticed many CIS residents
with fresh injuries, including
lacerations and bruises, as well as
historical remnants of past injuries
suffered at CIS, such as disfiguring
scars. Many clients had suffered facial
injuries or severe injuries on the back
of their heads with resulting deep scars
and hair loss" (p. 3).

Parents of clients showed pictures of
"son with a very swollen, bulbous,
purple and black eye. The father
told us that his son has suffered a host
of other injuries at CIS including a
broken nose, a severe knee injury
* * * and various head injuries, some
requiring sutures." Another picture
showed a client with a black eye, "a
bloody left eye socket, bloody
swollen lips, and a 111
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Violations
Details

face marked with fresh lacerations.
The mother reported that her son has
also suffered a fractured arm,
numerous lacerations, bites,
broken teeth" and "is now limited in
the use of his hands to one index finger
and thumb on each hand" (p. 4).

Inadequate food, shelter
and sanitation
"[ T] he facility runs out of food monthly"
and "is in a state of disrepair."
"Residents have to sleep on beds with
old, worn mattresses that are dirty and
often wet." Toilets do not flush. As a
result, "virtually all of the toilets
on the men's side had urine and/ or
feces in them, producing a health
hazard and an unpleasant,
malodorous environment" (pp. 5-
6).
"Staff admitted to us that they
routinely bathe the male clients by
lining them up naked and hosing them down 112
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Details

in groups * * * with a garden hose" (pp.
6-7).
Abuse of residents Facility administrator

acknowledged problems with
protecting clients from staff abuse and
stated that "one CIS staff member had
recently been convicted for
sodomizing a client" (p. 3).

Unreasonable use of
physical and chemical
restraints

"CIS frequently uses restraints as a
substitute for meaningful activity
during the day or for appropriate
programs to address maladaptive
behaviors * * * to control residents
they routinely use mechanical
restraints, such as leather cuff belts
(which are tied to the heavy metal beds
around the limbs of the clients),
restraint vests and straight jackets,
and restraint nets" (p. 8). 113
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Inadequate medical and
mental health care
Facility "routinely runs out of certain
critical drugs" such as anti-convulsant
medications for epileptic patients,
who suffered repeated untreated
seizures as a result (pp. 5, 10).

"Most of the residents are put on
psychotropic medication simply to
control their behaviors without
appropriate psychiatric
assessments, diagnoses, treatment
and monitoring" (p. 9).

Inadequate training
programs
pp. 7-9

Hammond Developmental
Center and Pinecrest
Developmental Center

LA 1997 Failure to provide
reasonable supervision
and safety

Client went for weeks with an
undetected fractured shoulder, even
though obviously in pain and bruised (p.
6).
Abuse of residents Four staff members recently indicted

for abusing residents, many
other incidents of abuse documented by
facility (pp. 4-5, 15-16). 114
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Details

Unreasonable use of
physical and chemical
restraints

"A staff member left a client in full
mechanical restraints
unattended for hours in a room with a
known aggressor" while staff watched
television (p. 5).
Failure to provide adequate training
programs leads to some patients being
in restraints virtually non-stop
(p. 12).
Failure to monitor clients in
restraints led to injuries (p. 12-13).

Inadequate training As a result of insufficient
training programs, "residents' aberrant
behaviors continue unabated, often get
worse, and lead frequently to other
destructive behaviors" (p. 10).

Staff in one unit withheld food from
clients if they misbehaved (p. 10).

Inadequate medical and
mental health care
pp. 13-15 115
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Holly Center MD 1998 Failure to provide
reasonable supervision
and safety; Inadequate
medical care

Improper feeding techniques for
severely disabled residents
contributed to a constant rate of
hospitalization and several deaths from
choking and severe respiratory problems
(pp. 3-5).
Systemic inadequacies in
medical care contributed to the
recent death of a severely handicapped
and retarded resident (pp. 7-8).

Inadequate training pp. 8-13
Davies County Detention
Center
KY 1998 Inadequate mental health
care
No mental health services provided.
"During our tour, we observed several
acutely mentally ill individuals at the
main jail, obviously in need of
psychiatric evaluation and
treatment, being left for days at a
time in 'observation' –-i.
e., in a cell by themselves. One
inmate was observed singing for hours on
end, and eating his own feces" (p. 11). 116
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As a result of inadequate mental
health and suicide prevention system, a
15-year-old boy killed himself (p.
12).
New Castle Developmental

Center
IN 1998 Failure to provide
reasonable supervision
and safety; Inadequate
training

"Injuries are pervasive throughout
the campus. With a census of 164
individuals, New Castle averaged over
1,000 resident injuries/ incidents
on a monthly basis"; over a four-month
period, "88 percent of New Castle
residents sustained injuries; 82 percent
of the residents were injured more
than one time during this period" (pp. 2-
3).

In a single month, one resident was
assaulted 20 times and another was
assaulted 19 times (p. 3).

"Other injuries are unwitnessed by
staff, including bone fractures,
bloodied noses and body bruises"
(p. 3). 117
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"[ W] e witnessed instances in which
residents engaged in aggressive and self-injurious
behaviors (including head
slapping, hand biting, eye gouging
and table banging) without appropriate
and timely staff intervention (p. 4).

Inadequate medical and
mental health care
While half of residents have
epilepsy, facility's seizure management
practices dangerously depart
from accepted medical practices,
increasing risk of liver and permanent
brain damage (pp. 5-6). Insufficient
levels of nursing staff lead to
failures to identify and treat serious
medical problems (pp. 6-7).

Georgia Juvenile
Facilities
GA 1998 Inadequate mental health
care
Inadequate mental health care provided
throughout State's juvenile detention
facilities and training schools
(pp. 9-11, 19-22).
Many mentally ill youth "end up locked
in security units where they spend 118
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Details

large portions of their days isolated
in small rooms with few activities. In
these units, and elsewhere, they are
often restrained, hit, shackled, put
in restraint chairs for hours, and
sprayed with [pepper spray] by staff who
lack the training and resources to
respond appropriately to the
manifestations of mental illness" (p.
20).
Western State Hospital VA 1999 Inadequate medical and

mental health care
Facility fails to identify and address
mental health needs, leading to
inadequate treatment and risk of harm.
In one case, patient identified as
suicidal was given no treatment to
address suicidal urges and
subsequently hanged himself in his room
(pp. 3-4).
Physicians are not permitted to
prescribe some medically-indicated
drugs for budget reasons (pp. 5-6). 119
119 Page 120 121
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Name of Facility State Year Categories of Constitutional
Violations
Details

Inadequate medical care contributed to
several recent deaths (p. 8).

Unreasonable use of
physical and chemical
restraints

Facility uses excessive and
dangerous restraint techniques (p. 7).

Failure to provide
reasonable supervision
and safety; Inadequate
training

Combination of inadequate staffing
and training for patients results in
high level of violence and
injuries. Within one 90-day period,
the facility of 370 patients "recorded
169 altercations, 81 instances of self-injurious
behavior, and 128 falls" as
well as 8 suicide attempts and 13
escapes. In the recent past, one
patient committed suicide and was dead
for an hour before being discovered (p.
9).
Rainier School &

Frances Haddon Morgan
Center

WA 1999 Unreasonable use of
physical and chemical
restraints

"In 1998, Rainier logged many
thousands of hours of restraint use,
without demonstrating that
less restrictive interventions were
tried or that 120
120 Page 121 122
60c
Name of Facility State Year Categories of Constitutional
Violations
Details

underlying behavioral support
plans and services were adequate." For
example, the facility's response
to patients attempting to eat
inedible objects (pica) or digging at
their eyes or rectums was to place
patients in nearly constant restraints:
one patient with pica behavior spent
2,000 hours in a restraint suit over
a six-month period; another averaged 600
hours per month for pica and rectal
digging; another averaged 22 hours
per day in the suit for rectal digging
(pp. 2-3).
Failure to provide

reasonable supervision
and safety; Inadequate
training; Inadequate
medical and mental health
care

"Without the necessary
specialized treatment, * * *
residents have suffered serious
harm. Residents * * * have blinded
themselves from chronic behaviors,
such as eye poking and head banging,
that the facilities have not addressed
in accordance with 121
121 Page 122 123
61c
Name of Facility State Year Categories of Constitutional
Violations
Details

accepted professional
standards" (p. 7).
Numerous incidents of unaddressed,
dangerous behaviors, such as pica, head-banging,
and eye-poking (pp. 7-8).

In one facility, "approximately 20
percent of all Morgan residents
were admitted to the emergency room or
hospital, some on more than one
occasion, for treatment of
injuries" in a one-year period; during
same year residents in another facility
"suffered approximately 77
lacerations requiring sutures
(32 involving the head), 37 bone
fractures, 8 dislocated
shoulders, and 2 incidents of finger
amputation" (p. 10).
Clark County Detention

Center
NV 1999 Inadequate mental health
care
Jail failed adequately to
identify mentally ill inmates and
provide appropriate 122
122 Page 123 124
62c
Name of Facility State Year Categories of Constitutional
Violations
Details

treatment, resulting in serious harm and
suicides (pp. 5-6).
Mercer County Geriatric

Center
NJ 2002 Failure to provide
reasonable supervision
and safety

Staff fail to supervise geriatric
patients. In one case "a family
member used to visit at odd hours, only
to find her unattended relative
lying in urine, with parts of her naked
body exposed" and with "unexplained
skin bruises" (p. 3).

More than a third of patients need
assistance with eating and drinking,
but poor nutrition and hydration
practices result in substantial weight
losses, hospitalization for
dehydration, and even death. In one
case, a resident with "an improperly
positioned feeding tube" "slowly
starved without adequate MCGC staff
intervention." In another case, "staff
fed a resident so quickly, she
aspirated and died" (p. 6). 123
123 Page 124 125
63c
Name of Facility State Year Categories of Constitutional
Violations
Details

Inadequate medical and
mental health care
Staff "fail to assess and treat
residents properly for potentially
serious medical and mental health
problems," including failure to prevent
and treat "residents with deep, bleeding
bedsores, infections, and
other potentially life-threatening
conditions" (p. 4).
Unreasonable use of

physical and chemical
restraints

"Staff routinely restrain residents
while the staff engage in various
tasks" (p. 5).
Banks-Jackson-Commerce

Medical Center and
Nursing Home

GA 2002 Failure to provide
reasonable supervision
and safety, and
unreasonable use of
physical and chemical
restraints

Staff failed to take adequate measures to
prevent serious falls, other than to
restrain patients to chairs and beds
(p. 3). Other patients are injured
by staff when transferred to and
from bed, due to inadequate staff
available or improper staff
training (p. 4). Recently, one
unsupervised resident wandered
out of the facility in a wheelchair
"crashed into a sidewalk curb, 124
124 Page 125 126
64c
Name of Facility State Year Categories of Constitutional
Violations
Details

overturned" and was seriously injured
(p. 4).
Inadequate medical and

mental health care
Facility fails to provide physical
therapy that could "prevent
contractures (i. e., permanent muscular
contraction)" due to lack of adequate
staff to implement physical therapy
orders (p. 6).
Failure to move and reposition patients
led to development of pressure sores,
some of which became infected and require
hospitalization (pp. 6-7).

"[ T] here is insufficient
psychiatric consultation and
oversight of medication use" at
the facility; a psychiatrist visits
the facility only 4 times per year. As
a result, many patients have been
on inappropriate doses or types of
powerful psychiatric medications for
years (pp. 9-10). 125
125 Page 126 127
65c
Name of Facility State Year Categories of Constitutional
Violations
Details

"Approximately 60 residents at BJC
have a diagnosis of depression, yet the
facility fails to provide group or
individual counseling, or other
activities designed to treat depression"
(p. 10).
Inadequate food, clothing

and shelter
While facility provided ample food
and drink, it frequently failed to
assist patients who needed feeding and
drinking assistance. As a result,
"numerous residents were hospitalized
for conditions related to lack of
adequate hydration" (p. 9).

Oakwood Developmental
Center
KY 2002 Abuse of residents Numerous incidents of staff abuse,
leading to arrests of staff, including
one incident in which "an Oakwood
staff member stomped on a resident's head
and rendered the resident
unconscious" (p. 3). 126
126 Page 127 128
66c
Name of Facility State Year Categories of Constitutional
Violations
Details

Failure to provide
reasonable supervision
and safety

Very high incidence of harm to residents
at facility. During one 3 month period,
one patient "had 30 reported incidents
of harm" (p. 4).
Even though treating professionals
ordered close supervision of
resident with pica, lax supervision
permitted resident to engage in "at
least 70 more attempted and/ or
actual incidents of pica behavior
involving paper, trash, toilet paper,
shoestrings, a washcloth, an ink
pen, a sock, and fecal material." In
another case, failure to supervise
resulted in surgery to remove five
plastic gloves staff had not observed the
resident eating (p. 5).

Unreasonable use of
physical and chemical
restraints

Lack of adequate behavior management
leads to "increased use of physical and
chemical restraints even though all of
the Oakwood psychologists
interviewed stated 127
127 Page 128 129
67c
Name of Facility State Year Categories of Constitutional
Violations
Details

that restraints and other aversive or
restrictive procedures such as
helmets and mittens are unnecessary and
unwarranted" (p. 7).
Inadequate medical and

mental health care
More than half of the psychiatric
diagnoses for patients are
incorrect (p. 9).
Many residents receive powerful
psychotropic medications with
potentially serious side effects "in
place of adequate behavioral treatment
plans" (p. 9).
Facility does not adequately monitor
those on psychotropic
medications for serious, potentially
irreversible side effects (p. 10).

Although facility has more than 200
residents with seizure disorders,
it provided neurology
consultations for only 10-15 residents
per month. As a result, many
residents are simply 128
128 Page 129 130
68c
Name of Facility State Year Categories of Constitutional
Violations
Details

put on powerful anti-convulsant
medications that might not be
necessary, if treated properly,
and which have serious side
effects. One patient had been on
such medications daily for 25 years,
even though he had not had a seizure
since 1976 and there was no indication
that he had been seen by a
neurologist until 2001 (p. 14).

Failure to provide adequate medical
monitoring and care had contributed to
preventable resident deaths (p. 11).

On numerous occasions, nurses
gave medication to wrong patient, and
pills are found lying on floors of
living areas (p. 16).

Alexander Youth
Services Center
AK 2002 Inadequate medical and
mental health care
Inadequate mental health care systems
contributed to preventable suicides
(pp. 4-6). 129
129 Page 130 131
69c
Name of Facility State Year Categories of Constitutional
Violations
Details

Facility provided no professional
individualized treatment, other
than medication, to seriously mentally
ill residents (p. 7).

Nevada Youth Training
Center
NV 2002 Inadequate medical and
mental health care
When mentally ill youth are receiving
psychotropic medications at the
time of entry into the facility, those
"medications are automatically and
permanently discontinued upon
the youths' arrival" without
individualized review by a medical
professional (p. 9).
Santa Fe County Adult

Detention Center
NM 2003 Inadequate medical and
mental health care
Facility provides no qualified medical
staff to treat inmates with serious
mental illness, permitting
counselors to make medical decisions
about psychotropic medications (pp. 16-
17).

Nim Henson Geriatric
Center
NM 2003 Inadequate medical and
mental health care
Facility medication practices
substantially depart from professional 130
130 Page 131 132
70c
Name of Facility State Year Categories of Constitutional
Violations
Details

standards, placing patients at risk
(pp. 3-6)
Numerous patients put on feeding tubes
unnecessarily, apparently for the
convenience of staff (p. 11).

Mentally ill patients "either are
untreated or treated incorrectly" (p.
15).
Unreasonable use of

physical and chemical
restraints

Facility sedates elderly patients for
convenience of staff (pp. 8-9).

New Lisbon Developmental
Center
NJ 2003 Failure to protect from
physical harm
Residents subjected to frequent physical
harm by other residents as well as
by facility's staff (pp. 3-6).

Inadequate medical and
mental health care
Inadequate medical care provided to
residents with bowel obstructions and
seizure disorders, placing residents at
risk of serious complications (pp.
17-18).
Program to deal with behavioral problems
does not comport with generally 131
131 Page 132 133
71c
Name of Facility State Year Categories of Constitutional
Violations
Details

accepted practice and staff are
inadequately trained (pp. 7-9).

Unreasonable use of
physical and chemical
restraints

Unnecessary use of mechanical
restraints (pp. 9-10).

Use of psychotropic drugs to control
residents' behavior does not comport
with generally accepted practices
(pp. 10-11).
Los Angeles County

Juvenile Halls
CA 2003 Inadequate medical and
mental health care
Failure to treat an estimated 75% of
juveniles in need of mental health care
(p. 7).
Failure to comport with professional
standards regarding psychological
counseling (pp. 12-14).

Failure to administer
psychotropic medications safely
and effectively (pp. 14-16).

Failure to effectively treat
youths on suicide watch (pp. 17-18). 132
132 Page 133 134
72c
Name of Facility State Year Categories of Constitutional
Violations
Details

Excessive use of force Unjustified use of Oleoresin Capsicum
spray, including against juveniles
with respiratory problems (pp. 20-
22).
Failure to protect from

physical harm
Juveniles frequently subjected to
violence from other juveniles, resulting
in "significant injury" (pp. 22-23).

Garfield County Jail &
Garfield County Work
Center

OK 2003 Inadequate medical and
mental health care
Provision of medical services to inmates
"is seriously deficient and places
inmates at risk of harm" (p. 10).

Provision of mental health care
inadequate, particularly in
regard to suicide prevention (pp. 14-
15).
Metropolitan State

Hospital
CA 2003 Inadequate mental health
care
Psychiatric services "substantially
depart from generally accepted
professional standards of care
and expose the children and
adolescents [in the facility] to a
significant risk of harm and to actual
harm" (p. 3). 133
133 Page 134 135
73c
Name of Facility State Year Categories of Constitutional
Violations
Details

Inappropriate use of psychotropic
medications (pp. 9-11).

Unreasonable use of
physical and chemical
restraints

Use of physical and chemical restraints
"substantially departs" from
standards of care and exposes children
to "excessive and unnecessary
restrictive interventions" (p.
25).
Reginald P. White Nursing

Facility
MS 2003 Inadequate mental health
care
"[ I] nappropriate use of multiple
medications" and "excessive reliance
on psychotropic medications
(chemical restraints)" (p. 8).

Claudette Box Nursing Home AL 2003 Inadequate medical and
mental health care
Facility administers "excessive or
unnecessary doses of psychotropics" (p.
3).
Oakley & Columbia

Training Schools
MS 2003 Unreasonable use of
physical restraints
Use of physical restraints such as
"[ h] og-tying and [p] ole-shackling"
despite lack of "penological
justification or therapeutic or
rehabilitative benefit" of such
disciplinary methods (pp. 5-9). 134
134 Page 135 136
74c
Name of Facility State Year Categories of Constitutional
Violations
Details

Excessive use of force Facility staff "use excessive force with
impunity" (pp. 9-11).

Inadequate mental health
care
"Many youth on psychiatric
medications are not allowed to continue
to receive those medications when
they are admitted" (p. 15).

Facilities "fail to employ adequate
suicide prevention measures" (p. 16). 135
135 Page 136 137
No. 02-1667
In the Supreme Court of the United States

TENNESSEE, PETITIONER
v.
GEORGE LANE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

APPENDIX TO THE BRIEF FOR THE UNITED STATES

THEODORE B. OLSON Solicitor General
R. ALEXANDER ACOSTA Assistant Attorney General
PAUL D. CLEMENT Deputy Solicitor General
PATRICIA A. MILLETT Assistant to the Solicitor
General
JESSICA DUNSAY SILVER SARAH E. HARRINGTON

KEVIN RUSSELL Attorneys

Department of Justice Washington, D. C. 20530-0001
(202) 514-2217 136
136 Page 137 138
(I)
TABLE OF CONTENTS
Page
Appendix A (Cases Evidencing Unconstitutional
Treatment of Individuals with Disabilities) ............ 1a
Appendix B (Disabilities Act Enforcement
Reports) ......................................................................... 1b
Appendix C (Findings of Investigations Under
the Civil Rights of Institutionalized Persons
Act) ................................................................................. 1c
Appendix D (Relevant Constitutional and
Statutory Provisions) .................................................. 1d 137
137 Page 138 139
(1)
APPENDIX A
Cases Evidencing Unconstitutional Treatment of
Individuals with Disabilities:

Foucha v. Louisiana, 504 U. S. 71 (1992) (Louisiana
statute allowing continued confinement of the mentally ill,
who were acquitted of crimes by reason of insanity, resulted
in unconstitutional confinement, in violation of the Due
Process Clause, where the hospital review committee had
reported no evidence of mental illness and recommended
conditional discharge); City of Cleburne v. Cleburne Living
Ctr., 473 U. S. 432 (1985) (unconstitutional zoning discrimina-tion);
Youngberg v. Romeo, 457 U. S. 307, 315, 322 (1982)
(institutionalized persons have due process "right to ade-quate
food, shelter, clothing, and medical care," "safe condi-tions,"
and freedom from unreasonable physical restraint, as
well as to "such training as may be reasonable in light of [the
resident's] liberty interests in safety and freedom from
unreasonable restraints"); O'Connor v. Donaldson, 422 U. S.
563 (1975) (unconstitutional confinement); Delano-Pyle v.
Victoria County, 302 F. 3d 567, 575-576 (5th Cir. 2002) (af-firming
a jury verdict that included evidence of a police
officer giving a sobriety test and Miranda warnings to a deaf
plaintiff who could not understand him, and then arresting
the plaintiff), cert. denied, No. 02-1223, 2003 WL 545392 (Oct.
6, 2003); Kiman v. New Hampshire Dep't of Corrs., 301 F. 3d
13, 15-16 (1st Cir. 2002) (disabled inmate stated Eighth
Amendment claims for denial of accommodations needed to
protect his health and safety due to his degenerative nerve
disease), aff 'd by an equally divided court, 332 F. 3d 29 (2003)
(en banc); MX Group, Inc. v. City of Covington, 293 F. 3d
326, 345 (6th Cir. 2002) (" blanket prohibition of all metha- 138
138 Page 139 140
2a
done clinics from the entire city is discriminatory on its
face"); Popovich v. Cuyahoga County Ct. of Common Pleas,
276 F. 3d 808 (6th Cir.) (en banc) (deaf parent denied com-munication
assistance in child custody proceeding), cert.
denied, 537 U. S. 812 (2002); Armstrong v. Davis, 275 F. 3d
849 (9th Cir. 2001) (failure to conduct parole and parole
revocation proceedings in a manner that disabled inmates
can understand and in which they can participate), cert.
denied, 537 U. S. 812 (2002); Baird v. Rose, 192 F. 3d 462 (4th
Cir. 1999) (seventh-grader suffering from clinical depression
prohibited from singing in school choir); Key v. Grayson, 179
F. 3d 996 (6th Cir. 1999) (deaf inmate denied access to sex
offender program required as precondition for parole), cert.
denied, 528 U. S. 1120 (2000); Bradley v. Puckett, 157 F. 3d
1022, 1025-1026 (5th Cir. 1998) (failure for several months to
provide means for amputee inmate to bathe led to infection);
Gorman v. Easley, 257 F. 3d 738, 742 (8th Cir. 2001)
(paraplegic arrested for trespass improperly restrained in
non-wheelchair-accessible police van, causing his urine bag
to burst, "soaking him with his own urine" and resulting in
serious medical problems), judgment rev'd in part on
grounds not relevant, 536 U. S. 181 (2002); Layton v. Elder,
143 F. 3d 469, 470-472 (8th Cir. 1998) (mobility-impaired
veterans' exclusion from a session of county quorum court
and from courtroom due to their inability to access the
second floor of the county courthouse); Innovative Health
Sys., Inc. v. City of White Plains, 117 F. 3d 37, 49 (2d Cir.
1997) (building permit denied for drug and alcohol treatment
center "based on stereotypes and unsupported fears"); Love
v. Westville Corr. Ctr., 103 F. 3d 558, 558, 560-561 (7th Cir.
1996) (quadriplegic inmate "was unable to participate in sub-stance
abuse, education, church, work, or transition pro- 139
139 Page 140 141
3a
grams available to members of the general inmate popula-tion"
due to "intentional discrimination"); Koehl v. Dalsheim,
85 F. 3d 86 (2d Cir. 1996) (Eighth Amendment violated when
inmate with serious vision problem denied glasses and
treatment); Weeks v. Chaboudy, 984 F. 2d 185, 187 (6th Cir.
1993) (" squalor in which [prisoner] was forced to live as a
result of being denied a wheelchair" violated the Eighth
Amendment); Thomas S. v. Flaherty, 902 F. 2d 250 (4th Cir.)
(unconstitutional confinement when appropriate community
placement available), cert. denied, 498 U. S. 951 (1990); Leach
v. Shelby County Sheriff, 891 F. 2d 1241, 1243-1244 (6th Cir.
1989) (finding a policy or custom of deliberate indifference to
serious medical needs of paraplegic inmates; evidence
showed that, "[ d] espite his medical need for cleanliness, [an
inmate] was not bathed for several days," "was forced to
remain for long periods of time in his own urine due to
inadequate catheter supplies and was given inadequate aid
for his bowel training needs despite his repeated requests
for help"), cert. denied, 495 U. S. 932 (1990); Chalk v. United
States Dist. Ct. Cent. Dist. of Cal., 840 F. 2d 701 (9th Cir.
1988) (certified teacher barred from teaching after diagnosis
of AIDS); LaFaut v. Smith, 834 F. 2d 389 (4th Cir. 1987)
(Powell, J.) (failure to provide paraplegic inmate with an
accessible toilet is cruel and unusual punishment); Parrish v.
Johnson, 800 F. 2d 600, 603, 605 (6th Cir. 1986) (prison guard
repeatedly assaulted paraplegic inmates with a knife, forced
them to sit in their own feces, and taunted them with
remarks like "crippled bastard" and "[ you] should be dead");
Clark v. Cohen, 794 F. 2d 79 (3d Cir.) (unconstitutional con-finement),
cert. denied, 479 U. S. 962 (1986); Miranda v.
Munoz, 770 F. 2d 255, 259 (1st Cir. 1985) (failure to provide
medications for epilepsy, which caused prisoner's death, 140
140 Page 141 142
4a
violated Eighth Amendment); Lynch v. Baxley, 744 F. 2d
1452 (11th Cir. 1984) (State subjected individuals awaiting
civil commitment proceedings to unconstitutional conditions
of confinement in county jails); Pomerantz v. Los Angeles
County, 674 F. 2d 1288, 1289 (9th Cir. 1982) (" undisputed
facts show that the Los Angeles County Jury Commissioner,
and other employees directly involved in the jury selection
process for the Superior Court for the County of Los
Angeles had, prior to January 1, 1978, excluded all blind
persons from jury service solely because they were blind");
Pushkin v. Regents of Univ. of Colo., 658 F. 2d 1372 (10th
Cir. 1981) (doctor with multiple sclerosis unconstitutionally
denied residency out of concern about patients' reactions);
Ferrell v. Estelle, 568 F. 2d 1128, 1133 (5th Cir.) (deaf habeas
petitioner's "rights were reduced below the constitutional
minimum" because he could not understand his trial), with-drawn
due to death of petitioner, 573 F. 2d 867 (1978);
Gurmankin v. Costanzo, 556 F. 2d 184 (3d Cir. 1977) (holding
unconstitutional an irrebuttable presumption that blind
teacher cannot instruct sighted students); Wyatt v. Aderholt,
503 F. 2d 1305 (5th Cir. 1974) (unconstitutional conditions of
confinement for the mentally ill); Pathways Psychosocial v.
Town of Leonardtown, 133 F. Supp. 2d 772, 791-792 (D. Md.
2001) (denying summary judgment for defendants on claim
that town officials violated Equal Protection Clause through
zoning decisions that excluded a home for individuals with
mental retardation), after judgment, 223 F. Supp. 2d 699,
704-705 (2002) (jury found constitutional violation, and mo-tion
for new trial was denied); McCray v. City of Dothan,
169 F. Supp. 2d 1260, 1279-1280 (M. D. Ala. 2001) (police offi-cer
had "not articulated any specific facts upon which suspi-cion
reasonably could be founded" other than "the com- 141
141 Page 142 143
5a
munication gap between a deaf man and herself "), aff 'd in
part & rev'd in part, No. 01-15756, 2003 WL 21067092 (11th
Cir. Apr. 24, 2003) (Table); M. H. v. Bristol Bd. of Educ., 169
F. Supp. 2d 21, 24-25 (D. Conn. 2001) (possible substantive
due process violation where school employees spat water in
disabled student's face and restrained him so forcibly as to
result in bruising); Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me.
2001) (unconstitutional restriction on voting by those with
mental disabilities); Project Life, Inc. v. Glendening, 139 F.
Supp. 2d 703, 705 (D. Md. 2001) (unlawful rejection of permit
for drug treatment facility based on "community preju-dices"),
aff 'd, No. 01-1754, 2002 WL 2012545 (4th Cir. Sept. 4,
2002); Salcido ex rel. Gilliland v. Woodbury County, 119 F.
Supp. 2d 900, 931 (N. D. Iowa 2000) (granting summary judg-ment
for mentally ill plaintiff on claim that he was denied
due process by State's denial of an appropriate institutional
placement without notice or hearing); New York v. County of
Schoharie, 82 F. Supp. 2d 19 (N. D. N. Y. 2000) (inaccessible
polling places); New York v. County of Delaware, 82 F. Supp.
2d 12 (N. D. N. Y. 2000) (inaccessible polling places); Schmidt
v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999) (amputee forced
to crawl around jail, resulting in injury and infection, in
violation of Eighth Amendment); Matthews v. Jefferson, 29
F. Supp. 2d 525 (W. D. Ark. 1998) (paraplegic litigant had to
be carried up stairs to court room for all-day hearing at
which he could not leave to get food or use the restroom to
empty catheter, resulting in infection; eventually had to
crawl down steps to get out after everyone left the court-house
without him); Hanson v. Sangamon County Sheriff 's
Dep't, 991 F. Supp. 1059, 1061-1062 (C. D. Ill. 1998) (possible
constitutional violation where deaf arrestee was denied the
opportunity to post bond and make a telephone call because 142
142 Page 143 144
6a
the police department failed to provide, despite his requests,
alternatives to the conventional telephone, and that denial
resulted in much longer detention than other, similarly
situated arrestees); Lewis v. Truitt, 960 F. Supp. 175 (S. D.
Ind. 1997) (Fourth Amendment prohibits use of force against
an individual, whom officers know to be deaf, for not comply-ing
with officers' spoken commands); Carty v. Farrelly, 957
F. Supp. 727, 739 (D. V. I. 1997) (" The abominable treatment
of the mentally ill inmates shows overwhelmingly that defen-dants
subject inmates to dehumanizing conditions punishable
under the Eighth Amendment."); Kaufman v. Carter, 952 F.
Supp. 520 (W. D. Mich. 1996) (amputee hospitalized after fall
in inaccessible jail shower); Bullock v. Gomez, 929 F. Supp.
1299, 1301, 1307 (C. D. Cal. 1996) (possible constitutional
violation where California Department of Corrections' family
visiting program precluded HIV-positive inmates from
having the same overnight visits with spouses afforded other
inmates, even where spouse was also HIV positive and
incapable of bearing children); Clarkson v. Coughlin, 898 F.
Supp. 1019, 1049 (S. D. N. Y. 1995) (holding, inter alia, that
state prison officials' failure to provide interpreters or other
assistive services to deaf and hearing impaired inmates
during medical treatment violated the Eighth Amendment,
as at least two such inmates experienced improper and
possibly harmful treatment through provision of medical
treatment in absence of qualified interpreters); Stillwell v.
Kansas City, Mo. Bd. of Police Comm'rs, 872 F. Supp. 682,
688 (W. D. Mo. 1995) (holding that the Board of Police Com-missioners'
licensing scheme violates the Due Process Clause
of the Fourteenth Amendment because it irrebuttably pre-sumes
that an individual with only one hand is unqualified
for the position of armed security guard); Harrelson v. 143
143 Page 144 145
7a
Elmore County, 859 F. Supp. 1465, 1466 (M. D. Ala. 1994)
(paraplegic prisoner denied use of a wheelchair and forced to
crawl around his cell); Eric L. v. Bird, 848 F. Supp. 303, 306,
308 (D. N. H. 1994) (possible constitutional violation where
children with disabilities in foster care alleged that the State
failed "to take the required measures to maintain the integ-rity
of plaintiffs' families where possible, to reunite removed
children with their families as soon as possible, or to place
them in secure, permanent homes within an appropriate time
and in an appropriate manner," as well as failed "to provide
services necessary to protect children in the class from
harm"); T. E. P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993)
(statute prohibiting and voiding marriages between indivi-duals
with AIDS); Noland v. Wheatley, 835 F. Supp. 476,
480-482 (N. D. Ind. 1993) (possible constitutional violation
where semi-quadriplegic inmate confined to a wheelchair
was confined to secluded padded cell for months, denied
sufficient water to maintain kidney functioning or to permit
sanitary handling of colostomy and urostomy bag, forcing
him to "eat many meals with the human waste still on his
hands," and was unable to sleep in bed because his wheel-chair
could not fit through the doorway, all resulting in
adverse medical conditions); Casey v. Lewis, 834 F. Supp.
1569, 1582-1583 (D. Ariz. 1993) (holding that prison's failure
to provide accessible bathrooms, showers, and cells to
mobility-impaired inmates, as well as a consistent pattern of
delays in prisoner receipt of hearing aids, violated the
Eighth Amendment); Galloway v. Superior Court, 816 F.
Supp. 12 (D. D. C. 1993) (blind individuals categorically ex-cluded
from jury service); United States v. Borough of
Audubon, 797 F. Supp. 353, 360 (D. N. J. 1991) (predominant
motivation underlying city's efforts to exclude group home 144
144 Page 145 146
8a
for the handicapped "was discriminatory animus"), aff 'd, 968
F. 2d 14 (3d Cir. 1992) (Table); Nolley v. County of Erie, 776
F. Supp. 715 (W. D. N. Y. 1991) (Constitution violated where
inmate with HIV was housed in the part of a prison reserved
for inmates who are mentally disturbed, suicidal, or a danger
to themselves, and was denied access to prison library and
religious services); Kroll v. St. Charles County, 766 F. Supp.
744, 744-751 (E. D. Mo. 1991) (courthouse and government
buildings broadly inaccessible to individuals with mobility
impairments); Bonner v. Arizona Dep't of Corrs., 714 F.
Supp. 420 (D. Az. 1989) (deaf, mute, and vision-impaired in-mate
denied communication assistance, including during dis-ciplinary
proceedings, counseling sessions, and medical
treatment); DeLong v. Brumbaugh, 703 F. Supp. 399, 405
(W. D. Pa. 1989) (decision to exclude deaf individual from
jury was "unreasonable, discriminatory and violative of Sec-tion
504 of the Rehabilitation Act"); Doe v. Dolton Elem.
Sch. Dist., 694 F. Supp. 440 (N. D. Ill. 1988) (elementary
student with AIDS excluded from attending regular classes
or extracurricular activities); Robertson v. Granite City
Comm. Unit Sch. Dist., 684 F. Supp. 1002 (S. D. Ill. 1988)
(seven-year old student with AIDS confined to a modular
classroom where he was the only student); Thomas v.
Atascadero Unified Sch. Dist., 662 F. Supp. 376 (C. D. Cal.
1986) (kindergarten student with AIDS excluded from class
and forced to take home tutoring); Thompson v. City of
Portland, 620 F. Supp. 482, 485-487 (D. Me. 1985) (police
violated the constitutional rights of a blind diabetic who was
in insulin shock by arresting him, transporting him on floor
of police cruiser, jailing him, and ignoring his explanation
that he was in insulin shock, despite fact that he wore a
Medic-Alert necklace and carried a white cane); Ass'n for 145
145 Page 146 147
9a
Retarded Citizens of N. D. v. Olson, 561 F. Supp. 473, 491-492
(D. N. D. 1982) (finding violations of mentally retarded
residents' constitutional rights to privacy, private property,
and free association, as (1) many of the mentally retarded
residents "are left fully naked in front of each other and
assistants and such residents are not provided places where
they can be in private" and "are denied the opportunity to
decide for themselves how to dress"; (2) the State did not
"adequately provide for an accounting of [each] resident's
personal property and for a safe place of storage"; and (3) the
State did not "provide residents who are capable of com-municating,
reasonable opportunities to communicate with
others both inside and outside the institution where they
reside"), aff 'd, 713 F. 2d 1384 (8th Cir. 1983); Garrity v.
Gallen, 522 F. Supp. 171, 214 (D. N. H. 1981) (" blanket discri-mination
against the handicapped * * * is unfortunately
firmly rooted in the history of our country"); New York State
Ass'n for Retarded Children, Inc. v. Carey, 466 F. Supp. 487
(E. D. N. Y. 1979) (mentally retarded students excluded from
public school system); Hairston v. Drosnick, 423 F. Supp.
180 (S. D. W. Va. 1976) (school refused to admit child with
spina bifida without the daily presence of her mother, even
though student was of normal mental competence and capa-ble
of performing easily in a classroom situation); Smith v.
Fletcher, 393 F. Supp. 1366, 1368 (S. D. Tex. 1975) (gov-ernment
assigned paraplegic, who had a Master's degree in
physiology, to menial clerical tasks based on "arbitrary and
unfounded decision as to her physical capabilities"), aff 'd as
modified, 559 F. 2d 1014 (5th Cir. 1977); Mills v. Board of
Educ., 348 F. Supp. 866 (D. D. C. 1972) (mentally retarded
students excluded from public school system); Pennsylvania
Ass'n for Retarded Children v. Commonwealth, 334 F. Supp. 146
146 Page 147 148
10a
1257 (E. D. Pa. 1971) (mentally retarded students excluded
from public school system); Daly v. DelPonte, 624 A. 2d 876,
880, 885 (Conn. 1993) (holding that the commissioner's exer-cise
of his "statutory authority to condition a motor vehicle
operator's license on the licensee's reporting his or her
medical status" violated the state constitution's equal protec-tion
provision because the record "contained no evidence
that th[ e] reporting requirement was narrowly tailored
either to the plaintiff 's condition at the time of its issuance or
to his probable future condition for the designated time
period"); State v. Schaim, 600 N. E. 2d 661, 672 (Ohio 1992)
(under the Confrontation Clause, "[ a] defendant who cannot
hear is analogous to a defendant who cannot understand
English, and a severely hearing-impaired defendant cannot
be tried without adopting reasonable measures to accommo-date
his or her disability"); Moye v. Moye, 627 P. 2d 799, 801
(Idaho 1981) (holding that, while a parent's physical condi-tion
is a valid consideration in the "best interests" approach
to determining the issue of a child's custody, the trial court's
overemphasis on the mother's epilepsy rendered the custody
award to the father an abuse of discretion); State v. Staples,
437 A. 2d 266, 268 (N. H. 1981) (ineffective assistance of
counsel in failing to secure assistance for hearing-impaired
defendant whose disability made him "unable to assist effec-tively
in the preparation of his defense"); In re Marriage of
Carney, 598 P. 2d 36, 42 (Cal. 1979) (lower court "stereo-type[
d] William as a person deemed forever unable to be a
good parent simply because he is physically handicapped");
Connecticut Inst. for the Blind v. Connecticut Comm'n on
Human Rights & Opps., 405 A. 2d 618, 621 (Conn. 1978)
(blanket exclusion from state jobs of persons with visual
impairments); State v. Board of Educ., 172 N. W. 153, 153 147
147 Page 148 149
11a
(Wis. 1919) (excluding a boy with cerebral palsy from public
school because he "produces a depressing and nauseating
effect upon the teachers and school children"); State v.
Barber, 617 So. 2d 974, 976 (La. Ct. App. 1993) ("[ T] he Con-stitution
requires that a defendant sufficiently understand
the proceedings against him to be able to assist in his own
defense. Clearly, a defendant who has a severe hearing
impairment, without an interpreter, cannot understand the
testimony of witnesses against him so as to be able to assist
in his own defense."); People v. Green, 561 N. Y. S. 2d 130, 133
(County Ct. 1990) (holding that prosecutor's peremptorily
striking a juror solely because she was hearing impaired, and
not because of any doubt of the juror's ability to communi-cate,
violated the juror's right to equal protection); Stewart
v. Stewart, 521 N. E. 2d 956, 965-966 (Ind. Ct. App. 1988)
(holding that father's visitation rights were improperly ter-minated
because of evidence that he was infected with the
AIDS virus); Peeler v. State, 750 S. W. 2d 687, 690-691 (Mo.
Ct. App. 1988) (constitutionally ineffective assistance of
counsel in failure to request an interpreter, where the
hearing-impaired defendant was "probably unable to
understand what was being said at trial"); District 27 Comm.
Sch. Bd. v. Board of Educ., 502 N. Y. S. 2d 325 (Sup. Ct. 1986)
(two school boards sought to prevent attendance of any
student with AIDS in any school in the city, unless all of the
students at that school had AIDS); Bednarski v. Bednarski,
366 N. W. 2d 69, 73 (Mich. Ct. App. 1985) (holding that a
mother's deafness was inappropriately weighed against her
in a custody dispute over her two minor children); People v.
Rivera, 480 N. Y. S. 2d 426, 434 (Sup. Ct. 1984) (conviction was
unconstitutionally obtained because the deaf defendant had
no interpreter and did not understand his trial); In re 148
148 Page 149 150
12a
Marriage of Paula R., 102 Cal. App. 3d 981, 988-989 (Ct.
App. 1980) (reversing the trial court's award of permanent
custody of child to father because mother was confined to a
wheelchair, as the trial court did not use the proper standard
in determining who should receive custody: "whether the
handicapped parent's condition will in fact have a substantial
and lasting adverse effect on the best interests of the child");
Bevan v. New York State Teachers' Retirement Sys., 345
N. Y. S. 2d 921 (Sup. Ct. 1973) (statute allowing forced retire-ment
of teacher who became blind), modified, 355 N. Y. S. 2d
185 (App. Div. 1974); In re Adoption of Richardson, 251 Cal.
App. 2d 222, 239 (1967) (trial court "stated, in effect, he will
systematically strike any and all deaf-mute petitioners from
any list of prospective adopting parents"); Commonwealth v.
Smith, 119 A. 2d 620, 622 (Pa. Super. Ct. 1956) (holding that
the fact that a father suing for custody of his son suffers
from epilepsy is a factor that should be considered in deter-mining
whether to award custody). 149
149 Page 150 151
(1b)
APPENDIX B
The Justice Department publishes quarterly status
reports, which include information from a sampling of the
Department's Disabilities Act enforcement efforts under 42
U. S. C. 12133. The status reports can be found at http://
www. ada. gov/ enforce. htm. The 34 reports published to date
list 110 matters concerning courthouse accessibility or effec-tive
access to judicial proceedings. The following is a list of
those matters. One case (against the State of Massachusetts
alleging problems with physical accessibility) resulted in a
lawsuit (that remains pending), which was reported in the
January 2003 status report. The Table includes the juris-diction
in which the courthouses are located, the type of
problem reported by persons with disabilities, and the date
of the status report in which the matter appears. There are
50 cases that resulted in formal settlement agreements, 51
cases that resulted in informal settlement agreements, and 8
cases that resulted in formal mediation. In cases resulting in
informal settlements or mediation, the Justice Department
does not identify the covered jurisdiction by name:

Complaints Resulting In Formal Settlement Agree-ments:

Jurisdiction Type of Problem Status Report
Lucas County, OH physical access Jan. -Mar. 2003
Guernsey County, OH physical access Oct. -Dec. 2002
Essex County, NJ physical access Oct. -Dec. 2002
Windsor County, VT lack of sign lan-guage
interpreter
Oct. -Dec. 2002

Warren, OH physical access Apr. -June 2002
Ben Hill County, GA physical access Apr. -June 2001
Gulfport, MS lack of sign lan-guage
interpreter
Apr. -June 2000 150
150 Page 151 152
2b
Shelby County, TN lack of assistive
listening devices
Apr. -June 2000

Adair County, OK physical access Jan. -Mar. 2000
Houston, TX lack of assistive
listening devices
Jan. -Mar. 2000

Toledo, OH physical access and
lack of communica-tion
assistance

July -Sep. 1999

Lake County, IL lack of sign lan-guage
interpreter
July -Sep. 1999

Oklahoma County, OK physical access and
lack of communi-cation
assistance

Apr. -June 1999

Georgiana, AL physical access Apr. -June 1999
State of Hawaii lack of sign lan-guage
interpreter
and assistive lis-tening
devices

Oct. -Dec. 1998

McDowell County, WV physical access July -Sep. 1998
Mendocino County, CA physical access July -Sep. 1998
Johnson County, TN physical access July -Sep. 1998
Citrus County, FL physical access Apr. -June 1998
Chico County, AR physical access Jan. -Mar. 1998
Dickinson, ND physical access Jan. -Mar. 1998
Wetzel County, WV physical access Jan. -Mar. 1998
Twin Falls, ID lack of sign lan-guage
interpreter
and communi-cation
assistance

Oct. -Dec. 1997

Philadelphia, PA lack of procedures
for jurors to re-quest
accommoda-tions

Oct. -Dec. 1997 151
151 Page 152 153
3b
Boone County, IN lack of assistive
listening devices
July -Sep. 1997

Grand Rapids, MI lack of assistive
listening devices
July -Sep. 1997

Outagamie County, WI physical access and
lack of assistive
listening devices

Apr. -June 1997

Rome, NY physical access Jan. -Mar. 1997
Hancock County, MS assistive listening
(deaf individual ex-cluded
from jury
service)

Jan. -Mar. 1997

Harrison County, MS assistive listening
(deaf individual ex-cluded
from jury
service)

Jan. -Mar. 1997

Roswell, NM lack of assistive
listening devices
Jan. -Mar. 1997

Santa Clara
County, CA
lack of assistive
listening devices
Oct. -Dec. 1996

Jones County, CA physical access Oct. -Dec. 1996
Town of Lloyd, NY lack of communi-cation
assistance
July -Sep. 1996

Tallahassee, FL lack of communi-cation
assistance
Apr. -June 1996

Pickens County, SC lack of assistive
listening devices
Oct. -Dec. 1994

Fulton, MO lack of communi-cation
assistance
Apr. -June 1994

Wadsworth, OH physical access Apr. -June 1994 152
152 Page 153 154
4b
Alexandria, LA lack of communica-tion
assistance and
sign language in-terpreter

Apr. -June 1994

Genesee County, MI physical access Apr. -June 1994
Hickman County, KY physical access April 1994
Van Buren County, AR physical access April 1994
Harris County, TX physical access and
lack of communi-cation
assistance

April 1994

Scott County, AR physical access April 1994
Madison County, FL physical access April 1994
Pinellas County, FL lack of communi-cation
assistance
April 1994

Salt Lake City, UT lack of communi-cation
assistance
(deaf individual
excluded from
jury)

April 1994

Paulding County, OH physical access April 1994
Complaints Resulting In Informal Settlement Agree-ments:

Jurisdiction Type of Problem Status Report
county in Ohio lack of sign lan-guage
interpreter
Jan. -Mar. 2003

unnamed jurisdiction lack of assistive
listening devices
Jan. -Mar. 2003

county in Mississippi lack of sign lan-guage
interpreter
Jan. -Mar. 2003

county in Illinois lack of sign lan-guage
interpreter
Oct. -Dec. 2002

county in Louisiana lack of sign lan-guage
interpreter
July -Sep. 2002 153
153 Page 154 155
5b
county in Pennsylvania lack of accessible
parking
Apr. -June 2002

county in Arizona physical access Apr. -June 2002
county in Nebraska physical access Jan. -Mar. 2002
New England state
court system
lack of sign lan-guage
interpreter
and assistive
listening devices

Jan. -Mar. 2002

county in Arizona lack of assistive
listening devices
Oct. -Dec. 2001

county in Texas lack of sign lan-guage
interpreter
July -Sep. 2001

county in California physical access July -Sep. 2001
Iowa court lack of sign lan-guage
interpreter
July -Sep. 2001

county in Texas physical access Oct. -Dec. 1999
county in Oklahoma physical access Oct. -Dec. 1999
county in Pennsylvania physical access Oct. -Dec. 1999
county in Texas lack of assistive
listening devices
July -Sep. 1999

county in Colorado lack of accessible
parking
July -Sep. 1999

Michigan court lack of communica-tion
assistance
July -Sep. 1999

city in Pennsylvania physical access July -Sep. 1999
town in Ohio physical access Oct. -Dec. 1998
county in Michigan physical access Oct. -Dec. 1998
Louisiana parish physical access Apr. -June 1998
county in Michigan physical access Apr. -June 1998
county in Illinois lack of communica-tion
assistance
Jan. -Mar. 1998

county in Michigan lack of assistive lis-tening
devices
Oct. -Dec. 1997 154
154 Page 155 156
6b
county in Arizona lack of communica-tion
aids
Oct. -Dec. 1997

county in Florida physical access July -Sep. 1997
Tennessee circuit court lack of communica-tion
aids
July -Sep. 1997

county in California lack of assistive lis-tening
devices
Apr. -June 1997

county in Michigan lack of auxiliary
aids
Jan. -Mar. 1997

supreme court of a
"southern state"
lack of auxiliary
aids
Jan. -Mar. 1997

Colorado judicial
district
lack of auxiliary
aids
Jan. -Mar. 1997

county in Wyoming physical access Jan. -Mar. 1997
county in Michigan physical access Oct. -Dec. 1996
county in Virginia lack of auxiliary
aids
Oct. -Dec. 1996

city in California lack of auxiliary
aids
July -Sep. 1996

county in West
Virginia
physical access July -Sep. 1996

county in Washington lack of visual com-munication
assis-tance
Apr. -June 1996

county in California lack of accessible
parking
Apr. -June 1996

county in Pennsylvania physical access Jan. -Mar. 1995
"western state court" lack of assistive lis-tening
devices
Oct. -Dec. 1994

Ohio court lack of communica-tion
assistance
Oct. -Dec. 1994

county in Kentucky physical access July -Sep. 1994
county in Colorado physical access July -Sep. 1994
county in Colorado physical access Apr. -June 1994 155
155 Page 156 157
7b
county in Missouri physical access April 1994
"various cities and
towns in East and Mid-west"
physical access April 1994

county in Washington physical access April 1994
Michigan court lack of assistive lis-tening
devices
April 1994

Pennsylvania county
court
lack of accommoda-tion
for person
with learning dis-ability

April 1994

Complaints Resulting In Mediation:
Jurisdiction Type of Problem Status Report
county in Illinois physical access Oct. -Dec. 2002
county in Arkansas physical access Oct. -Dec. 2001
town in New York physical access Oct. -Dec. 2001
county in South
Carolina
lack of sign lan-guage
interpreter
July -Sep. 2001

county in California physical access Apr. -June 2001
county in Tennessee physical access Jan. -Mar. 2000
county in Nebraska physical access Jan. -Mar. 2000
Michigan court lack of sign lan-guage
interpreter
July -Sep. 1997 156
156 Page 157 158
8b
In addition to the settlement agreements reported in the
published status reports, there are several additional formal
settlement agreements entered into between the Justice
Department and various jurisdictions in cases dealing with
courthouses. Although they are not reported in the status
reports, they are available on the website: http:// www.
ada. gov

Jurisdiction Problem Date of
Agreement
Summers County, WV physical access and
lack of assistive lis-tening
devices

5/ 11/ 00

Craig County, VA physical access 1/ 30/ 02
Allendale County, SC physical access 8/ 13/ 01
Butte County, SD physical access 7/ 31/ 01
Boulder County, CO physical access 10/ 2/ 00
Warren County, IL physical access 9/ 6/ 01
Perry County, KY physical access 9/ 25/ 01
City of Cambridge,
OH
physical access 11/ 1/ 01

City of San Antonio,
TX
physical access 1/ 30/ 02

City of Savannah, GA physical access 1/ 30/ 02
City of Bismarck, ND physical access 10/ 16/ 02
Columbia County, NY physical access 5/ 19/ 03
Loudon County, TN physical access and
lack of assistive lis-tening
devices

7/ 25/ 03

Madison County, MS physical access 7/ 25/ 03
Worcester County,
MD
physical access 7/ 28/ 03 157
157 Page 158 159
(1d)
APPENDIX D
CONSTITUTION OF THE UNITED STATES
AMENDMENT XI
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
State.

AMENDMENT XIV
SECTION 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.

* * * * *
SECTION 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article. 158
158 Page 159 160
2d
SELECTED PROVISIONS OF THE AMERICANS WITH
DISABILITIES ACT OF 1990, 42 U. S. C. 12101 et seq.

§ 12101. Findings and purpose
(a) Findings
The Congress finds thatÑ
(1) some 43,000,000 Americans have one or more
physical or mental disabilities, and this number is increasing
as the population as a whole is growing older;

(2) historically, society has tended to isolate and
segregate individuals with disabilities, and, despite some
improvements, such forms of discrimination against indi-viduals
with disabilities continue to be a serious and per-vasive
social problem;

(3) discrimination against individuals 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;

(4) unlike individuals who have experienced discrimina-tion
on the basis of race, color, sex, national origin, religion,
or age, individuals who have experienced discrimination on
the basis of disability have often had no legal recourse to
redress such discrimination;

(5) individuals with disabilities continually encounter
various forms of discrimination, including outright inten-tional
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 159
159 Page 160 161
3d
and criteria, segregation, and relegation to lesser services,
programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have
documented that people with disabilities, as a group, occupy
an inferior status in our society, and are severely disadvan-taged
socially, vocationally, economically, and educationally;

(7) individuals with disabilities are a discrete and
insular minority who have been faced with restrictions and
limitations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political power-lessness
in our society, based on characteristics that are
beyond the control of such individuals and resulting from
stereotypic assumptions not truly indicative of the individual
ability of such individuals to participate in, and contribute to,
society;

(8) the Nation's proper goals regarding individuals with
disabilities are to assure equality of opportunity, full partici-pation,
independent living, and economic self-sufficiency for
such individuals; and

(9) the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with disabilities
the opportunity to compete on an equal basis and to pursue
those opportunities for which our free society is justifiably
famous, and costs the United States billions of dollars in
unnecessary expenses resulting from dependency and
nonproductivity.

(b) Purpose
It is the purpose of this chapterÑ
(1) to provide a clear and comprehensive national man-date
for the elimination of discrimination against individuals
with disabilities; 160
160 Page 161 162
4d
(2) to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals with
disabilities;

(3) to ensure that the Federal Government plays a
central role in enforcing the standards established in this
chapter on behalf of individuals with disabilities; and

(4) to invoke 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. 161
161 Page 162 163
5d
Title II, Part A, of The Americans With Disabilities Act
§ 12131. Definitions
As used in this subchapter:
(1) Public entity

The term "public entity" meansÑ
(A) any State or local government;
(B) any department, agency, special purpose dis-trict,
or other instrumentality of a State or States or local
government; and

(C) the National Railroad Passenger Corporation,
and any commuter authority (as defined in section 2410( 4)
of title 49).

(2) Qualified individual with a disability
The term "qualified individual with a disability" means an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or
the provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt of services
or the participation in programs or activities provided by a
public entity.

§ 12132. Discrimination
Subject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity. 162
162 Page 163 164
6d
§ 12133. Enforcement
The remedies, procedures, and rights set forth in section
794a of title 29 shall be the remedies, procedures, and rights
this subchapter provides to any person alleging discrimina-tion
on the basis of disability in violation of section 12132 of
this title.

§ 12134. Regulations
(a) In general
Not later than 1 year after July 26, 1990, the Attorney
General shall promulgate regulations in an accessible format
that implement this part. Such regulations shall not include
any matter within the scope of the authority of the Secretary
of Transportation under section 12143, 12149, or 12164 of this
title.

(b) Relationship to other regulations
Except for "program accessibility, existing facilities", and
"communications", regulations under subsection (a) of this
section shall be consistent with this chapter and with the
coordination regulations under part 41 of title 28, Code of
Federal Regulations (as promulgated by the Department of
Health, Education, and Welfare on January 13, 1978), ap-plicable
to recipients of Federal financial assistance under
section 794 of title 29. With respect to "program accessibil-ity,
existing facilities", and "communications", such regula-tions
shall be consistent with regulations and analysis as in
part 39 of title 28 of the Code of Federal Regulations, ap-plicable
to federally conducted activities under such section
794 of title 29. 163
163 Page 164 165
7d
(c) Standards
Regulations under subsection (a) of this section shall
include standards applicable to facilities and vehicles covered
by this part, other than facilities, stations, rail passenger
cars, and vehicles covered by part B of this subchapter.
Such standards shall be consistent with the minimum
guidelines and requirements issued by the Architectural and
Transportation Barriers Compliance Board in accordance
with section 12204( a) of this title.

* * * * * 164
164 Page 165 166
8d
Title II, Part B, of The Americans With Disabilities Act
§ 12141. Definitions
As used in this subpart:
(1) Demand responsive system
The term "demand responsive system" means any sys-tem
of providing designated public transportation which
is not a fixed route system.

(2) Designated public transportation
The term "designated public transportation" means
transportation (other than public school transportation)
by bus, rail, or any other conveyance (other than trans-portation
by aircraft or intercity or commuter rail trans-portation
(as defined in section 12161 of this title)) that
provides the general public with general or special serv-ice
(including charter service) on a regular and continu-ing
basis.

(3) Fixed route system
The term "fixed route system" means a system of pro-viding
designated public transportation on which a vehi-cle
is operated along a prescribed route according to a
fixed schedule.

(4) Operates
The term "operates", as used with respect to a fixed
route system or demand responsive system, includes op-eration
of such system by a person under a contractual or
other arrangement or relationship with a public entity.

(5) Public school transportation
The term "public school transportation" means trans-portation
by schoolbus vehicles of schoolchildren, per- 165
165 Page 166 167
9d
sonnel, and equipment to and from a public elementary
or secondary school and school-related activities.

(6) Secretary
The term "Secretary" means the Secretary of Trans-portation.

§ 12142. Public entities operating fixed route systems
(a) Purchase and lease of new vehicles
It shall be considered discrimination for purposes of sec-tion
12132 of this title and section 794 of Title 29 for a public
entity which operates a fixed route system to purchase or
lease a new bus, a new rapid rail vehicle, a new light rail ve-hicle,
or any other new vehicle to be used on such system, if
the solicitation for such purchase or lease is made after the
30th day following July 26, 1990, and if such bus, rail vehicle,
or other vehicle is not readily accessible to and usable by in-dividuals
with disabilities, including individuals who use
wheelchairs.

(b) Purchase and lease of used vehicles
Subject to subsection (c)( 1) of this section, it shall be con-sidered
discrimination for purposes of section 12132 of this
title and section 794 of Title 29 for a public entity which op-erates
a fixed route system to purchase or lease, after the
30th day following July 26, 1990, a used vehicle for use on
such system unless such entity makes demonstrated good
faith efforts to purchase or lease a used vehicle for use on
such system that is readily accessible to and usable by indi-viduals
with disabilities, including individuals who use
wheelchairs. 166
166 Page 167 168
10d
(c) Remanufactured vehicles
(1) General rule
Except as provided in paragraph (2), it shall be con-sidered
discrimination for purposes of section 12132 of
this title and section 794 of Title 29 for a public entity
which operates a fixed route systemÑ

(A) to remanufacture a vehicle for use on such
system so as to extend its usable life for 5 years or
more, which remanufacture begins (or for which the
solicitation is made) after the 30th day following July
26, 1990; or

(B) to purchase or lease for use on such system a
remanufactured vehicle which has been
remanufactured so as to extend its usable life for 5
years or more, which purchase or lease occurs after
such 30th day and during the period in which the us-able
life is extended;

unless, after remanufacture, the vehicle is, to the maxi-mum
extent feasible, readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs.

(2) Exception for historic vehicles
(A) General rule
If a public entity operates a fixed route system
any segment of which is included on the National
Register of Historic Places and if making a vehicle of
historic character to be used solely on such segment
readily accessible to and usable by individuals with
disabilities would significantly alter the historic char-acter
of such vehicle, the public entity only has to
make (or to purchase or lease a remanufactured vehi-cle
with) those modifications which are necessary to 167
167 Page 168 169
11d
meet the requirements of paragraph (1) and which do
not significantly alter the historic character of such
vehicle.

(B) Vehicles of historic character defined by regula-tions

For purposes of this paragraph and section
12148( b) of this title, a vehicle of historic character
shall be defined by the regulations issued by the Sec-retary
to carry out this subsection.

§ 12143. Paratransit as a complement to fixed route
service

(a) General rule
It shall be considered discrimination for purposes of sec-tion
12132 of this title and section 794 of Title 29 for a public
entity which operates a fixed route system (other than a sys-tem
which provides solely commuter bus service) to fail to
provide with respect to the operations of its fixed route sys-tem,
in accordance with this section, paratransit and other
special transportation services to individuals with disabili-ties,
including individuals who use wheelchairs, that are suf-ficient
to provide to such individuals a level of service (1)
which is comparable to the level of designated public trans-portation
services provided to individuals without disabili-ties
using such system; or (2) in the case of response time,
which is comparable, to the extent practicable, to the level of
designated public transportation services provided to indi-viduals
without disabilities using such system.

(b) Issuance of regulations
Not later than 1 year after July 26, 1990, the Secretary
shall issue final regulations to carry out this section. 168
168 Page 169 170
12d
(c) Required contents of regulations
(1) Eligible recipients of service
The regulations issued under this section shall require
each public entity which operates a fixed route system to
provide the paratransit and other special transportation
services required under this sectionÑ

(A)( i) to any individual with a disability who is
unable, as a result of a physical or mental impairment
(including a vision impairment) and without the assis-tance
of another individual (except an operator of a
wheelchair lift or other boarding assistance device), to
board, ride, or disembark from any vehicle on the sys-tem
which is readily accessible to and usable by indi-viduals
with disabilities;

(ii) to any individual with a disability who needs
the assistance of a wheelchair lift or other boarding as-sistance
device (and is able with such assistance) to
board, ride, and disembark from any vehicle which is
readily accessible to and usable by individuals with dis-abilities
if the individual wants to travel on a route on
the system during the hours of operation of the system
at a time (or within a reasonable period of such time)
when such a vehicle is not being used to provide desig-nated
public transportation on the route; and

(iii) to any individual with a disability who has a
specific impairment-related condition which prevents
such individual from traveling to a boarding location or
from a disembarking location on such system;

(B) to one other individual accompanying the
individual with the disability; and

(C) to other individuals, in addition to the one
individual described in subparagraph (B), accompanying 169
169 Page 170 171
13d
the individual with a disability provided that space for
these additional individuals is available on the
paratransit vehicle carrying the individual with a dis-ability
and that the transportation of such additional
individuals will not result in a denial of service to indi-viduals
with disabilities.

For purposes of clauses (i) and (ii) of subparagraph (A),
boarding or disembarking from a vehicle does not include
travel to the boarding location or from the disembarking
location.

(2) Service area
The regulations issued under this section shall require
the provision of paratransit and special transportation
services required under this section in the service area of
each public entity which operates a fixed route system,
other than any portion of the service area in which the
public entity solely provides commuter bus service.

(3) Service criteria
Subject to paragraphs (1) and (2), the regulations is-sued
under this section shall establish minimum service
criteria for determining the level of services to be re-quired
under this section.

(4) Undue financial burden limitation
The regulations issued under this section shall provide
that, if the public entity is able to demonstrate to the
satisfaction of the Secretary that the provision of
paratransit and other special transportation services
otherwise required under this section would impose an
undue financial burden on the public entity, the public en-tity,
notwithstanding any other provision of this section
(other than paragraph (5)), shall only be required to pro- 170
170 Page 171 172
14d
vide such services to the extent that providing such serv-ices
would not impose such a burden.

(5) Additional services
The regulations issued under this section shall estab-lish
circumstances under which the Secretary may require
a public entity to provide, notwithstanding paragraph (4),
paratransit and other special transportation services un-der
this section beyond the level of paratransit and other
special transportation services which would otherwise be
required under paragraph (4).

(6) Public participation
The regulations issued under this section shall require
that each public entity which operates a fixed route sys-tem
hold a public hearing, provide an opportunity for
public comment, and consult with individuals with dis-abilities
in preparing its plan under paragraph (7).

(7) Plans
The regulations issued under this section shall require
that each public entity which operates a fixed route sys-temÑ

(A) within 18 months after July 26, 1990, submit
to the Secretary, and commence implementation of, a
plan for providing paratransit and other special trans-portation
services which meets the requirements of
this section; and

(B) on an annual basis thereafter, submit to the
Secretary, and commence implementation of, a plan for
providing such services.

(8) Provision of services by others
The regulations issued under this section shallÑ 171
171 Page 172 173
15d
(A) require that a public entity submitting a plan
to the Secretary under this section identify in the plan
any person or other public entity which is providing a
paratransit or other special transportation service for
individuals with disabilities in the service area to which
the plan applies; and

(B) provide that the public entity submitting the
plan does not have to provide under the plan such serv-ice
for individuals with disabilities.

(9) Other provisions
The regulations issued under this section shall include
such other provisions and requirements as the Secretary
determines are necessary to carry out the objectives of
this section.

(d) Review of plan
(1) General rule
The Secretary shall review a plan submitted under
this section for the purpose of determining whether or not
such plan meets the requirements of this section, includ-ing
the regulations issued under this section.

(2) Disapproval
If the Secretary determines that a plan reviewed un-der
this subsection fails to meet the requirements of this
section, the Secretary shall disapprove the plan and notify
the public entity which submitted the plan of such disap-proval
and the reasons therefor.

(3) Modification of disapproved plan
Not later than 90 days after the date of disapproval of
a plan under this subsection, the public entity which
submitted the plan shall modify the plan to meet the re-quirements
of this section and shall submit to the Secre- 172
172 Page 173 174
16d
tary, and commence implementation of, such modified
plan.

(e) "Discrimination" defined
As used in subsection (a) of this section, the term "dis-crimination"
includesÑ

(1) a failure of a public entity to which the regula-tions
issued under this section apply to submit, or com-mence
implementation of, a plan in accordance with sub-sections
(c)( 6) and (c)( 7) of this section;

(2) a failure of such entity to submit, or commence
implementation of, a modified plan in accordance with
subsection (d)( 3) of this section;

(3) submission to the Secretary of a modified plan
under subsection (d)( 3) of this section which does not meet
the requirements of this section; or

(4) a failure of such entity to provide paratransit or
other special transportation services in accordance with
the plan or modified plan the public entity submitted to
the Secretary under this section.

(f) Statutory construction
Nothing in this section shall be construed as preventing a
public entityÑ

(1) from providing paratransit or other special trans-portation
services at a level which is greater than the
level of such services which are required by this section,

(2) from providing paratransit or other special trans-portation
services in addition to those paratransit and
special transportation services required by this section, or

(3) from providing such services to individuals in ad-dition
to those individuals to whom such services are re-quired
to be provided by this section. 173
173 Page 174 175
17d
§ 12144. Public entity operating a demand responsive
system

If a public entity operates a demand responsive system, it
shall be considered discrimination, for purposes of section
12132 of this title and section 794 of Title 29, for such entity
to purchase or lease a new vehicle for use on such system, for
which a solicitation is made after the 30th day following July
26, 1990, that is not readily accessible to and usable by indi-viduals
with disabilities, including individuals who use
wheelchairs, unless such system, when viewed in its en-tirety,
provides a level of service to such individuals
equivalent to the level of service such system provides to
individuals without disabilities.

§ 12145. Temporary relief where lifts are unavailable
(a) Granting
With respect to the purchase of new buses, a public entity
may apply for, and the Secretary may temporarily relieve
such public entity from the obligation under section 12142( a)
or 12144 of this title to purchase new buses that are readily
accessible to and usable by individuals with disabilities if
such public entity demonstrates to the satisfaction of the
SecretaryÑ

(1) that the initial solicitation for new buses made by
the public entity specified that all new buses were to be
lift-equipped and were to be otherwise accessible to and
usable by individuals with disabilities;

(2) the unavailability from any qualified manufac-turer
of hydraulic, electromechanical, or other lifts for
such new buses;

(3) that the public entity seeking temporary relief
has made good faith efforts to locate a qualified manufac- 174
174 Page 175 176
18d
turer to supply the lifts to the manufacturer of such buses
in sufficient time to comply with such solicitation; and

(4) that any further delay in purchasing new buses
necessary to obtain such lifts would significantly impair
transportation services in the community served by the
public entity.

(b) Duration and notice to Congress
Any relief granted under subsection (a) of this section
shall be limited in duration by a specified date, and the ap-propriate
committees of Congress shall be notified of any
such relief granted.

(c) Fraudulent application
If, at any time, the Secretary has reasonable cause to be-lieve
that any relief granted under subsection (a) of this sec-tion
was fraudulently applied for, the Secretary shallÑ

(1) cancel such relief if such relief is still in effect; and
(2) take such other action as the Secretary considers
appropriate.

§ 12146. New facilities
For purposes of section 12132 of this title and section 794
of Title 29, it shall be considered discrimination for a public
entity to construct a new facility to be used in the provision
of designated public transportation services unless such fa-cility
is readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.

§ 12147. Alterations of existing facilities
(a) General rule
With respect to alterations of an existing facility or part
thereof used in the provision of designated public transpor-tation
services that affect or could affect the usability of the 175
175 Page 176 177
19d
facility or part thereof, it shall be considered discrimination,
for purposes of section 12132 of this title and section 794 of
Title 29, for a public entity to fail to make such alterations
(or to ensure that the alterations are made) in such a manner
that, to the maximum extent feasible, the altered portions of
the facility are readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs,
upon the completion of such alterations. Where the public
entity is undertaking an alteration that affects or could affect
usability of or access to an area of the facility containing a
primary function, the entity shall also make the alterations
in such a manner that, to the maximum extent feasible, the
path of travel to the altered area and the bathrooms,
telephones, and drinking fountains serving the altered area,
are readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs, upon
completion of such alterations, where such alterations to the
path of travel or the bathrooms, telephones, and drinking
fountains serving the altered area are not disproportionate
to the overall alterations in terms of cost and scope (as
determined under criteria established by the Attorney
General).

(b) Special rule for stations
(1) General rule
For purposes of section 12132 of this title and section
794 of Title 29, it shall be considered discrimination for a
public entity that provides designated public transporta-tion
to fail, in accordance with the provisions of this sub-section,
to make key stations (as determined under criteria
established by the Secretary by regulation) in rapid rail
and light rail systems readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs. 176
176 Page 177 178
20d
(2) Rapid rail and light rail key stations
(A) Accessibility
Except as otherwise provided in this paragraph, all
key stations (as determined under criteria established
by the Secretary by regulation) in rapid rail and light
rail systems shall be made readily accessible to and
usable by individuals with disabilities, including indi-viduals
who use wheelchairs, as soon as practicable but
in no event later than the last day of the 3-year period
beginning on July 26, 1990.

(B) Extension for extraordinarily expensive struc-tural
changes

The Secretary may extend the 3-year period under
subparagraph (A) up to a 30-year period for key sta-tions
in a rapid rail or light rail system which stations
need extraordinarily expensive structural changes to,
or replacement of, existing facilities; except that by the
last day of the 20th year following July 26, 1990, at
least 2/ 3 of such key stations must be readily accessible
to and usable by individuals with disabilities.

(3) Plans and milestones
The Secretary shall require the appropriate public en-tity
to develop and submit to the Secretary a plan for
compliance with this subsectionÑ

(A) that reflects consultation with individuals
with disabilities affected by such plan and the results of
a public hearing and public comments on such plan, and

(B) that establishes milestones for achievement of
the requirements of this subsection. 177
177 Page 178 179
21d
§ 12148. Public transportation programs and activities
in existing facilities and one car per train
rule

(a) Public transportation programs and activities in exist-ing
facilities

(1) In general
With respect to existing facilities used in the provision
of designated public transportation services, it shall be
considered discrimination, for purposes of section 12132 of
this title and section 794 of Title 29, for a public entity to
fail to operate a designated public transportation program
or activity conducted in such facilities so that, when
viewed in the entirety, the program or activity is readily
accessible to and usable by individuals with disabilities.

(2) Exception
Paragraph (1) shall not require a public entity to make
structural changes to existing facilities in order to make
such facilities accessible to individuals who use wheel-chairs,
unless and to the extent required by section
12147( a) of this title (relating to alterations) or section
12147( b) of this title (relating to key stations).

(3) Utilization
Paragraph (1) shall not require a public entity to which
paragraph (2) applies, to provide to individuals who use
wheelchairs services made available to the general public
at such facilities when such individuals could not utilize or
benefit from such services provided at such facilities.

(b) One car per train rule
(1) General rule
Subject to paragraph (2), with respect to 2 or more ve-hicles
operated as a train by a light or rapid rail system, 178
178 Page 179 180
22d
for purposes of section 12132 of this title and section 794
of Title 29, it shall be considered discrimination for a
public entity to fail to have at least 1 vehicle per train that
is accessible to individuals with disabilities, including in-dividuals
who use wheelchairs, as soon as practicable but
in no event later than the last day of the 5-year period be-ginning
on the effective date of this section.

(2) Historic trains
In order to comply with paragraph (1) with respect to
the remanufacture of a vehicle of historic character which
is to be used on a segment of a light or rapid rail system
which is included on the National Register of Historic
Places, if making such vehicle readily accessible to and
usable by individuals with disabilities would significantly
alter the historic character of such vehicle, the public en-tity
which operates such system only has to make (or to
purchase or lease a remanufactured vehicle with) those
modifications which are necessary to meet the require-ments
of section 12142( c)( 1) of this title and which do not
significantly alter the historic character of such vehicle.

§ 12149. Regulations
(a) In general
Not later than 1 year after July 26, 1990, the Secretary of
Transportation shall issue regulations, in an accessible for-mat,
necessary for carrying out this subpart (other than sec-tion
12143 of this title).

(b) Standards
The regulations issued under this section and section
12143 of this title shall include standards applicable to facili-ties
and vehicles covered by this part. The standards shall
be consistent with the minimum guidelines and requirements
issued by the Architectural and Transportation Barriers 179
179 Page 180 181
23d
Compliance Board in accordance with section 12204 of this
title.

§ 12150. Interim accessibility requirements
If final regulations have not been issued pursuant to sec-tion
12149 of this title, for new construction or alterations for
which a valid and appropriate State or local building permit
is obtained prior to the issuance of final regulations under
such section, and for which the construction or alteration
authorized by such permit begins within one year of the
receipt of such permit and is completed under the terms of
such permit, compliance with the Uniform Federal Accessi-bility
Standards in effect at the time the building permit is
issued shall suffice to satisfy the requirement that facilities
be readily accessible to and usable by persons with disabili-ties
as required under sections 12146 and 12147 of this title,
except that, if such final regulations have not been issued
one year after the Architectural and Transportation Barriers
Compliance Board has issued the supplemental minimum
guidelines required under section 12204( a) of this title, com-pliance
with such supplemental minimum guidelines shall be
necessary to satisfy the requirement that facilities be readily
accessible to and usable by persons with disabilities prior to
issuance of the final regulations.

* * * * *
§ 12161. Definitions
As used in this subpart:
(1) Commuter authority
The term "commuter authority" has the meaning given
such term in section 502( 8) of Title 45. 180
180 Page 181 182
24d
(2) Commuter rail transportation
The term "commuter rail transportation" has the
meaning given the term "commuter rail passenger trans-portation"
in section 502( 9) of Title 45.

(3) Intercity rail transportation
The term "intercity rail transportation" means trans-portation
provided by the National Railroad Passenger
Corporation.

(4) Rail passenger car
The term "rail passenger car" means, with respect to
intercity rail transportation, single-level and bi-level
coach cars, single-level and bi-level dining cars, single-level
and bi-level sleeping cars, single-level and bi-level
lounge cars, and food service cars.

(5) Responsible person
The term "responsible person" meansÑ
(A) in the case of a station more than 50 percent
of which is owned by a public entity, such public entity;

(B) in the case of a station more than 50 percent
of which is owned by a private party, the persons pro-viding
intercity or commuter rail transportation to such
station, as allocated on an equitable basis by regulation
by the Secretary of Transportation; and

(C) in a case where no party owns more than 50
percent of a station, the persons providing intercity or
commuter rail transportation to such station and the
owners of the station, other than private party owners,
as allocated on an equitable basis by regulation by the
Secretary of Transportation. 181
181 Page 182 183
25d
(6) Station
The term "station" means the portion of a property lo-cated
appurtenant to a right-of-way on which intercity or
commuter rail transportation is operated, where such por-tion
is used by the general public and is related to the
provision of such transportation, including passenger
platforms, designated waiting areas, ticketing areas,
restrooms, and, where a public entity providing rail
transportation owns the property, concession areas, to the
extent that such public entity exercises control over the
selection, design, construction, or alteration of the
property, but such term does not include flag stops.

§ 12162. Intercity and commuter rail actions consid-ered
discriminatory

(a) Intercity rail transportation
(1) One car per train rule
It shall be considered discrimination for purposes of
section 12132 of this title and section 794 of Title 29 for a
person who provides intercity rail transportation to fail to
have at least one passenger car per train that is readily
accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs, in accordance
with regulations issued under section 12164 of this title, as
soon as practicable, but in no event later than 5 years af-ter
July 26, 1990.

(2) New intercity cars
(A) General rule
Except as otherwise provided in this subsection
with respect to individuals who use wheelchairs, it
shall be considered discrimination for purposes of sec-tion
12132 of this title and section 794 of Title 29 for a 182
182 Page 183 184
26d
person to purchase or lease any new rail passenger
cars for use in intercity rail transportation, and for
which a solicitation is made later than 30 days after
July 26, 1990, unless all such rail cars are readily ac-cessible
to and usable by individuals with disabilities,
including individuals who use wheelchairs, as pre-scribed
by the Secretary of Transportation in regula-tions
issued under section 12164 of this title.