In The
Supreme Court of the United States --------------------------------- ---------------------------------
STATE OF TENNESSEE,
Petitioner, v.
GEORGE LANE, BEVERLY JONES, AND UNITED STATES OF AMERICA,
Respondents.
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On Writ Of Certiorari To The United States Court Of Appeals
For The Sixth Circuit
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BRIEF OF THE STATES OF KANSAS AND DELAWARE AMICI CURIAE
IN SUPPORT OF RESPONDENTS
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STATE OF KANSAS Office of the Attorney General
Memorial Bldg., 2nd Floor 120 SW 10th Avenue
Topeka, Kansas 66612-1597 (785) 296-2215
STATE OF DELAWARE Office of the Attorney General
820 N. French Street Wilmington, Delaware 19801
(302) 577-8400
PHILL KLINE Kansas Attorney General M. JANE BRADY Delaware Attorney General
RALPH JAMES DEZAGO Assistant Attorney General
Counsel of Record
DAVID W. DAVIES
Deputy Attorney General
HARRY KENNEDY Assistant Attorney General
================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831
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TABLE OF CONTENTS
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INTEREST OF THE AMICI CURIAE STATES......... 1
SUMMARY OF THE ARGUMENT ............................ 2
ARGUMENT............................................................... 4
I. Fundamental Rights Under The Due Process Clause Are Distinguishable From Equal Pro-tection-
Based Concerns And Are Entitled To Greater Protections From Interference By
Government, Including A Protection Against Application Of Eleventh Amendment Immu-nity.
.................................................................. 4
II. Congress Found Ample Evidence Of A Prob-lem Of Unconstitutional Treatment Of Indi-viduals
With Disabilities, Specifically As To The Exercise Of Fundamental Rights, And,
Therefore, When Enacting Title II Of The ADA, Validly Abrogated The States' Eleventh
Amendment Immunity As To Fundamental Rights............................................................... 6
A. Historic and Enduring Discrimination of Fundamental Rights ................................. 7
B. Access to the Courts.................................. 9
C. Voting ........................................................ 10
D. Fourth Amendment Rights ....................... 12
E. Parenting Rights....................................... 13
F. Licensing................................................... 14
G. Eighth Amendment Violations ................. 14
III. Congress Validly Abrogated The States' Eleventh Amendment Immunity In Terms Of
Violations Of Fundamental Rights. ................ 15
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TABLE OF CONTENTS – Continued
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A. Congress Made its Intention Clear in the Language of the Act .................................. 15
B. Congress Acted in Accordance with its Enforcement Power Under Section 5 of
the Fourteenth Amendment. .................... 16
C. Abrogation of States' Immunity Is Con-gruent and Proportional ........................... 16
CONCLUSION............................................................ 18
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TABLE OF AUTHORITIES
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CASES
Alexander v. Choate, 469 U. S. 287, 105 S. Ct. 712 (1985) ................................................................................ 2
Board of Trustees of the University of Alabama v. Garrett, 531 U. S. 356, 121 S. Ct. 955 (2001)........... passim
Boddie v. Connecticut, 401 U. S. 371, 91 S. Ct 780 (1971) ............................................................................ 5, 9
City of Boerne v. Flores, 521 U. S. 507, 117 S. Ct. 2157 (1997) ................................................................. 5, 16
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U. S. 432 (1985) ............................................................. 2, 8
Clark v. Jeter, 486 U. S. 456, 108 S. Ct. 1910 (1998).......... 17
Evans v. Cornman, 398 U. S. 419, 90 S. Ct. 1752 (1970) .............................................................................. 10
Farmer v. Brennan, 511 U. S. 825, 114 S. Ct. 1970 (1994) .............................................................................. 14
Goldberg v. Kelly, 397 U. S. 254, 90 S. Ct. 1011 (1970) .............................................................................. 13
Kimel v. Fla. Bd. of Regents, 528 U. S. 62, 120 S. Ct. 631 (2000) ....................................................................... 15
Lane v. Tennessee, 315 F. 3d 680 (6th Cir. 2003)............................................................ 2, 9, 10, 17, 18
Memorial Hospital v. Maricopa County, 415 U. S. 250, 94 S. Ct. 1076 (1974) ................................................. 5
Moore v. City of East Cleveland, 431 U. S. 494, 97 S. Ct. 1932 (1977) .............................................................. 2
Parrish v. Johnson, 800 F. 2d 600 (6th Cir. 1986) ............. 15
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TABLE OF AUTHORITIES – Continued
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Plyler v. Doe, 457 U. S. 202, 102 S. Ct. 2382 (1982) ............. 4
Popovich v. Cuyahoga County Court of Common Pleas, 276 F. 3d 808 (6th Cir. 2002) ........... 2, 3, 16, 17, 18
Reno v. Flores, 507 U. S. 292, 113 S. Ct. 1439 (1993) ........... 4
Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362 (1964) .......................................................................... 5, 10
Rhodes v. Chapman, 452 U. S. 337, 101 S. Ct. 2392 (1981) .............................................................................. 14
Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 100 S. Ct. 2814 (1980) ............................................... 9
San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 93 S. Ct. 1278 (1973) ...................................... 5
School Bd. of Nassau County v. Arline, 480 U. S. 273, 107 S. Ct. 1123 (1987) ............................................... 2
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 116 S. Ct. 1114 (1996)............................................................. 15
Shapiro v. Thompson, 394 U. S. 618, 89 S. Ct. 1322 (1969) .............................................................................. 17
Skinner v. State of Okla. ex rel. Williamson, 316 U. S. 535, 62 S. Ct. 1110 (1942) ......................................... 5
Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208 (1972) .............................................................................. 13
Stump v. Sparkman, 435 U. S. 349, 98 S. Ct. 1099 (1978) ................................................................................ 8
Troxel v. Granville, 530 U. S. 57, 120 S. Ct. 2054 (2000) .................................................................... 4, 13, 17
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TABLE OF AUTHORITIES – Continued
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Vacco v. Quill, 521 U. S. 793, 117 S. Ct. 2293 (1997)............ 5
Washington v. Glucksberg, 521 U. S. 702, 117 S. Ct. 2258 (1997) ................................................................... 2, 4
Yick Wo v. Hopki ns, 118 U. S. 356, 6 S. Ct. 1064 (1886) .............................................................................. 10
Zablocki v. Redhail, 434 U. S. 374, 98 S. Ct. 673 (1978) ................................................................................ 5
STATUTES/ OTHER AUTHORITIES
42 U. S. C. § 12101( a)( 7) ...................................................... 10
42 U. S. C. § 12101( a)( 3) ...................................................... 10
42 U. S. C. §§ 12131-12165 .................................................... 1
42 U. S. C. § 12202 ............................................................... 15
K. S. A. 25-1234...................................................................... 7
K. S. A. 23-120........................................................................ 7
Americans with Disabilities Act of 1989: Hearings on S. 933 before the Subcomm. on the Handi-capped
and the Senate Comm. on Labor & Hu-man Res., 101st Cong., 1st Sess. 76 (1989) (May
1989 Hearings) ................................................................ 11
California Att'y Gen., Comm'n on Disability: Final Report 17 (Dec. 1989) ..................................................... 13
Equal Access to Voting for Elderly & Disabled Persons: Hearings Before the Task Force on Elec-tions
of the House Comm. on House Admin., 98th Cong., 1st Sess. 94 (1984) ............................................... 11
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TABLE OF AUTHORITIES – Continued
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M. Burgdorf & R. Burgdorf, A History of Unequal Treatment, 15 Santa Clara lawyer 855, 863
(1974) ................................................................................ 7
Governor J. Kitzhaber, Proclamation of Human Rights Day and Apology for Oregon's Forced
Sterilization (Dec. 2, 2002)............................................... 8
New Mexico, Official 2002 General Election Results by Office (Dec. 2002)......................................................... 8
P. Reilly, The Surgical Solution 2, 148 (1991) ..................... 8
National Public Radio, Look Back at Oregon's History of Sterilizing Residents of State Institu-tions
(Dec. 2, 2002) ........................................................... 8
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) ................................. passim
Task Force on the Rights and Empowerment of Americans with Disabilities, From ADA to Em-powerment
16 (1990)...................................... 6, 12, 13, 14
H. R. Rep. No. 485, Pt. 2 ..................................................... 14
S. Rep. No. 116 .................................................................... 11
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INTEREST OF THE AMICI CURIAE STATES
This amici curiae brief is submitted on behalf of the
amici curiae States of Kansas and Delaware. The amici
curiae States support a finding by the United States
Supreme Court in favor of Respondents on a limited basis.
In this brief, the amici curiae advocate that Congress
validly abrogated the various states' Eleventh Amendment
sovereign immunity when it enacted Title II of the Ameri-cans
with Disabilities Act of 1990, 42 U. S. C. §§ 12131-
12165 (" ADA"). However, the amici curiae also advocate
that Congress abrogated Eleventh Amendment immunity
protection relative to Title II of the ADA only to the extent
said immunity obstructs the pursuit or enforcement of
fundamental due process rights. Moreover, the amici
curiae advocate that Congress did not validly abrogate the
states' Eleventh Amendment immunity protection as to
equal protection-based claims under Title II because doing
so would not have been a "congruent and proportional"
remedy, would have overstepped Congress' enforcement
powers, and would have been in direct conflict with long-standing
constitutional mandates.
The amici curiae recognize that fundamental due
process-based rights such as access to the courts, voting,
and privacy issues, represent crucial and historically
significant rights. The amici curiae also recognize that the
states should be leading the fight to eliminate discrimina-tion
against persons with disabilities as to the exercise of
their fundamental rights. Therefore, in order to encourage
full pursuit and protection of fundamental rights, the
states should not be immune from damage claims brought
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by individuals under Title II of the ADA for violations that
implicate a citizen's fundamental due process rights.
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SUMMARY OF THE ARGUMENT
This Court has recognized that people with disabili-ties
suffer discrimination resulting from irrational fears,
prejudices and ignorance. See, e. g., Alexander v. Choate,
469 U. S. 287, 105 S. Ct. 712 (1985); City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U. S. 432 (1985); School Bd.
of Nassau County v. Arline, 480 U. S. 273, 107 S. Ct. 1123
(1987). Unfortunately, people with disabilities have suf-fered
discrimination in areas that directly affect funda-mental
due process rights. See Popovich v. Cuyahoga
County Court of Common Pleas, 276 F. 3d 808 (6th Cir.
2002) and the instant case Lane v. Tennessee, 315 F. 3d 680
(6th Cir. 2003). These fundamental rights are "deeply
rooted in this Nation's history and tradition." See Wash-ington
v. Glucksberg, 521 U. S. 702, 720-21, 117 S. Ct. 2258,
2267-68 (1997) (quoting Moore v. City of East Cleveland,
431 U. S. 494, 503, 97 S. Ct. 1932, 1938 (1977)). As such, it
is imperative that the states strive to eliminate discrimi-nation
that affects these fundamental rights. One way of
doing so is to recognize the fact that Congress validly
abrogated the states' Eleventh Amendment immunity, in
terms of these fundamental rights, when it enacted Title II
of the ADA.
It is clear that Congress, when enacting the ADA, held
numerous hearings and documented the past history of
discrimination against disabled persons, including signifi-cant
testimony in the legislative record regarding in-fringement
of fundamental rights. It is also clear that, in
addition to hearing testimony and gathering evidence
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related to infringement of fundamental rights, Congress
also heard testimony and gathered evidence related to
equal protection-based concerns.
While any discrimination exhibited against a class of
persons is abhorrent, Congress does not have the author-ity,
as Respondents and certain amici suggest, to create
new suspect or quasi-suspect classes in order to address
equal protection-based concerns like those reviewed and
documented in the legislative record during passage of the
ADA. However, Congress does have the authority to
address barriers or discrimination affecting fundamental
rights due to the heightened scrutiny attributed to funda-mental
rights.
In enacting Title II, Congress provided for a congruent
and proportional remedy for widespread constitutional
violations by the states in terms of fundamental rights. It
is clear that Congress initiated Title II legislation to
remedy and deter continued discrimination against people
with disabilities with respect to governmental functions in
the area of fundamental rights. Accordingly, as limited to
these fundamental rights, Title II was a valid exercise of
Congress' Section 5 power.
In enacting Title II, Congress did not go so far as
enacting the same congruent and proportional legislative
remedies when equal protection-based purposes are
concerned. This is so, because any attempt to do so would
have exceeded Congress' enforcement powers – essentially
carving out a new protected class of persons – and would
have been in direct violation of the Constitution. See
Popovich v. Cuyahoga County Court of Common Pleas, 276
F. 3d 808 (6th Cir. 2002).
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ARGUMENT
I. Fundamental Rights Under The Due Process Clause Are Distinguishable From Equal Protec-tion-
Based Concerns And Are Entitled To Greater Protections From Interference By Government,
Including A Protection Against Application Of Eleventh Amendment Immunity.
Fundamental rights under the Due Process clause, as
documented in the legislative record during passage of the
ADA, are distinguishable from equal protection-based
concerns documented in the same record.
This Court has "long recognized that the Fourteenth
Amendment's Due Process Clause, like its Fifth Amend-ment
counterpart, 'guarantees more than fair process. ' "
Troxel v. Granville, 530 U. S. 57, 65, 120 S. Ct. 2054, 2060
(2000) (quoting Washington v. Glucksberg, 521 U. S. 702,
719, 117 S. Ct. 2258, 2267 (1997)). The Due Process Clause
also includes a substantive component that "provides
heightened protection against government interference
with certain fundamental rights and liberty interests." Id.;
see also Reno v. Flores, 507 U. S. 292, 301-02, 113 S. Ct.
1439, 1447 (1993). Statutes affecting fundamental consti-tutional
rights must be drawn with precision and must be
tailored to serve their legitimate objectives; if there are
other, reasonable ways to achieve those goals with a lesser
burden on constitutionally protected activity, a state must
choose the least restrictive means. Plyler v. Doe, 457 U. S.
202, 102 S. Ct. 2382 (1982), reh'g denied, 458 U. S. 1131
(1982).
In determining whether a particular state law in-fringes
on a fundamental right or interest so as to require
strict judicial scrutiny, the United States Supreme Court
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does not pick out particular human activities or conduct,
characterize them as "fundamental," and give them added
protection, rather, the Court simply recognizes, as it must,
an established constitutional right, and gives to that right
no less protection than the Constitution itself demands.
San Antonio Independent School Dist. v. Rodriguez, 411
U. S. 1, 31, 93 S. Ct. 1278, 1296 (1973), reh'g denied, 411
U. S. 959 (1973). The equal protection clause "creates no
substantive rights," but rather, "it embodies general rule
that states must treat like cases alike but may treat
unlike cases accordingly." Vacco v. Quill, 521 U. S. 793, 799,
117 S. Ct. 2293, 2297 (1997). This Court has also confirmed
"the long-settled principle that it is the responsibility of
the Court, not Congress, to define the substance of consti-tutional
guarantees." Board of Trustees of the University of
Alabama v. Garrett, 531 U. S. 356, 365, 121 S. Ct. 955, 963
(2001) (citing City of Boerne v. Flores, 521 U. S. 507, 519-
24, 117 S. Ct. 2157, 2163-67 (1997)).
The amici curiae advocate that fundamental rights
that must be protected by eliminating the States' applica-tion
of Eleventh Amendment Immunity include: the right
to vote Reynolds v. Sims, 377 U. S. 533, 561-62, 84 S. Ct.
1362, 1381 (1964); access to the courts Boddie v. Con-necticut,
401 U. S. 371, 378-79, 91 S. Ct 780, 786-87 (1971);
certain privacy rights, including the right of procrea-tion
Skinner v. State of Okla. ex rel. Williamson, 316 U. S.
535, 62 S. Ct. 1110 (1942), and the right to marry
Zablocki v. Redhail, 434 U. S. 374, 98 S. Ct. 673 (1978); and
interstate travel Memorial Hospital v. Maricopa County,
415 U. S. 250, 94 S. Ct. 1076 (1974).
Violations of these fundamental rights, including acts
of discrimination affecting these fundamental rights, must
be eliminated. That is exactly what Congress attempted to
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do when it enacted Title II of the ADA and validly abro-gated
the States' Eleventh Amendment immunity as to
fundamental rights.
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II. Congress Found Ample Evidence Of A Problem Of Unconstitutional Treatment Of Individuals
With Disabilities, Specifically As To The Exer-cise Of Fundamental Rights, And, Therefore,
When Enacting Title II Of The ADA, Validly Ab-rogated The States' Eleventh Amendment Im-munity
As To Fundamental Rights.
Congress engaged in extensive study and fact-finding
concerning the problem of discrimination against persons
with disabilities and set forth in the legislative record a
history of discrimination against disabled persons as to
their fundamental rights. 1
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Congress held 13 hearings devoted specifically to consideration of
the Disabilities Act. See Garrett, 531 U. S. at 389-90 (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. See Task Force on the Rights and
Empowerment of Americans with Disabilities, From ADA to Empower-ment
16 (1990) (Task Force Report). The Task Force presented evidence
to Congress submitted by nearly 5,000 individuals documenting the
problems with discrimination persons with disabilities face 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.). See also Task Force Report 16. The
Task Force submitted those "several thousand documents" evidencing
"massive discrimination and segregation in all aspects of life" to
Congress, 2 Leg. Hist. 1324-25, as part of the official legislative history
of the Disabilities Act. See id. at 1336, 1389. In Garrett, the United
(Continued on following page)
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A. Historic and Enduring Discrimination of Fundamental Rights
Numerous States have restricted the rights of physi-cally
disabled people to enter into contracts. United States
Civil Rights Comm'n Accommodating the Spectrum of
Individual Abilities (Spectrum) 40. Until 1977, the State of
Kansas prevented marriage between developmentally
disabled persons. See K. S. A. 23-120.
Amazingly, some cities enacted "ugly laws," that
prohibited the physically disabled from appearing in
public. M. Burgdorf & R. Burgdorf, A History of Unequal
Treatment, 15 Santa Clara lawyer 855, 863 (1974). Chi-cago'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 al-lowed 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.
Id. (quoting ordinance).
Additionally, until 1968, the State of Kansas required
a disabled person to provide a doctor's note or statement if
that person could not register to vote in person. See K. S. A.
25-1234.
States lodged with the Clerk a complete set of those submissions. See
531 U. S. at 391-424 (Breyer, J., dissenting).
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The involuntary sterilization of the disabled is not
distant history; it continued into the 1970s, and occasion-ally
even into the 1980s – well within the lifetime of many
current governmental decision makers. P. Reilly, The
Surgical Solution 2, 148 (1991) (Reilly); National Public
Radio, Look Back at Oregon's History of Sterilizing Resi-dents
of State Institutions (Dec. 2, 2002). As recently as
1983, fifteen States continued to have compulsory sterili-zation
laws on the books. Spectrum 37; see also Stump v.
Sparkman, 435 U. S. 349, 351, 98 S. Ct. 1099 (1978) (Indi-ana
judge ordered the sterilization of a "somewhat re-tarded"
15 year old girl); Reilly at 148-60.
Until the late 1970s, "peonage was a common practice
in [Oregon] institutions." Governor J. Kitzhaber, Procla-mation
of Human Rights Day and Apology for Oregon's
Forced Sterilization (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). New
Mexico recently reaffirmed its unqualified exclusion of
"idiots [and] insane persons" from voting. New Mexico,
Official 2002 General Election Results by Office (Dec.
2002).
It is evident from the legislative record that Congress
discerned a substantial risk that persons with disabilities
will be unconstitutionally denied the opportunity to
exercise fundamental rights. Therefore, the amici curiae
advocate that the enactment of Title II abrogated the
States' sovereign immunity regarding fundamental rights.
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B. Access to the Courts
The Fourteenth Amendment protects the rights of
civil litigants, criminal defendants, and members of the
public to have access to the courts. See, e. g., Richmond
Newspapers, Inc. v. Virginia, 448 U. S. 555, 100 S. Ct. 2814
(1980); see also Boddie v. Connecticut, 401 U. S. 371, 378-
79, 91 S. Ct 780, 786-87 (1971). Yet Congress learned that
"[ t] he courthouse door is still closed to Americans with
disabilities" – literally. 2 Legislative History of the Ameri-cans
with Disabilities Act (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 ar-rival
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 hear-ing. 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 1070-1071 (Emeka Nwojke).
Such differential treatment affects not only the ability
to get into the courthouse, but also the ability to be heard
and participate effectively and meaningfully in judicial
proceedings. For instance, in this case, Respondent Lane
was summoned to appear at the Polk County Courthouse
in Benton, Tennessee. Lane v. Tennessee, 315 F. 3d 680 (6th
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Cir. 2003) (No. 98-6730). All court proceedings in that
courthouse took place on the second floor. Id. At his first
appearance, Lane crawled up the stairs to the courtroom
where he was arraigned and ordered to appear at a later
date for his hearing. Id. Lane returned for the hearing, but
refused to climb to the courtroom and refused to be carried
by officers. Id. The court then ordered Lane's arrest and he
was jailed. Id. Such egregious intrusion on a person's
fundamental rights should not be protected under the
guise of Eleventh Amendment immunity.
C. Voting
This Court has stated that "[ u] ndoubtedly, the right of
suffrage is a fundamental matter in a free and democratic
society. Especially since 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 meticu-lously
scrutinized." Reynolds v. Sims, 377 U. S. 533, 561-
62, 84 S. Ct. 1362, 1381 (1964); Evans v. Cornman, 398
U. S. 419, 422, 90 S. Ct. 1752, 1755 (1970) (" moreover, the
right to vote, as the citizen's link to his laws and govern-ment,
is protective of all fundamental rights and privi-leges"
citing Yick Wo v. Hopki ns, 118 U. S. 356, 370, 6 S. Ct.
1064, 1071 (1886)).
However, in making its findings relative to enactment
of the ADA, Congress found that persons with disabilities
have been "relegated to a position of political powerless-ness,"
42 U. S. C. § 12101( a)( 7), and continue to be sub-jected
to discrimination in voting. 42 U. S. C. § 12101( a)( 3).
Congress made such findings after hearing testimony that
"people with disabilities have been turned away from the
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polling places after they have been registered to vote
because they did not look competent." 2 Leg. Hist. 1220
(Nancy Husted-Jensen).
Furthermore, Congress learned that when one witness
turned in the registration card of a voter who has cerebral
palsy and was blind, the "clerk of the board of canvassers
looked aghast and said to me, 'Is that person competent?
Look at that signature, ' " and then invented a reason to
reject the registration. Id. at 1219. Additionally, one deaf
voter was told that "you still have to be able to use your
voice" to vote. Equal Access to Voting for Elderly & Dis-abled
Persons: Hearings Before the Task Force on Elec-tions
of the House Comm. on House Admin., 98th Cong.,
1st Sess. 94 (1984) (Equal Voting Hearings).
Another voter with a disability was "told to go home
once when I came to the poll and found the voting ma-chines
down a flight of stairs with no paper ballots avail-able;"
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. See also Garrett, 531
U. S. at 391-424 (Breyer, J., dissenting) (citing additional
examples).
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. See S. Rep. No. 116 at
12. As a consequence, persons with disabilities "were
forced to vote by absentee ballot before key debates by the
candidates were held." Id.; see also Americans with Disabili-ties
Act of 1989: Hearings on S. 933 before the Subcomm. on
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the Handicapped and the Senate Comm. on Labor &
Human Res., 101st Cong., 1st Sess. 76 (1989) (May 1989
Hearings). Voting by absentee ballot also "deprives the
disabled voter of an option available to other absentee
voters, the right to change their vote by appearing person-ally
at the polls on election day." 2 Leg. Hist. 1745
(Nanette Bowling).
D. Fourth Amendment Rights
The legislative history of the passage of the ADA,
demonstrated that persons with disabilities have been
victimized in their dealings with law enforcement, in
violation of their Fourteenth Amendment right to due
process and Fourth Amendment protection from unrea-sonable
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 spend the night." 2
Leg. Hist. 1005 (Belinda Mason). Police also refused to
accept a rape complaint from a blind woman because she
could not make a visual identification. Task Force Report
(NM 1081). 2 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. Id. (VA 1684).
2
See supra footnote 1, describing Task Force on the Rights and
Empowerment of Americans with Disabilities, From ADA to Empower-ment
(Task Force Report). In Garrett, the complete set of Task Force
submissions were cited by state and bates stamp number. See Garrett,
531 U. S. at 391-424.
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Task Force Chairman Justin Dart testified, moreover,
that persons with hearing impairments "have been ar-rested
and held in jail over night without ever knowing
their rights nor what they are being held for." 2 Leg. Hist.
1331. A parole agent "sent a man who uses a wheelchair
back to prison since he did not show up for his appoint-ments
even though *** he could not make the appoint-ments
because he was unable to get accessible
transportation." California Att'y Gen., Comm'n on Disabil-ity:
Final Report 17, 81 (Dec. 1989). Other instances of
discrimination revealed in the legislative record included
situations where 1) a sheriff threatened persons with
disabilities who stop in town due to car trouble, 2 Leg.
Hist. 1115 (Paul Zapun); 2) a 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;" Id. at 1197
and 3) six wheelchair users arrested for failing to leave
restaurant after manager complained that "they took up
too much space." Task Force Report 21.
E. Parenting Rights
This Court has long recognized that the Constitution
protects and respects the sanctity of the parent-child
relationship. See, e. g., Troxel v. Granville, 530 U. S. 57
(2000); Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208
(1972). In addition, the Due Process Clause requires
States to afford 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, 90 S. Ct. 1011 (1970).
Another government agency refused to authorize a cou-ple's
adoption of a child solely because the woman had
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muscular dystrophy. Task Force Report (MA 829). "[ B] eing
paralyzed has meant far more than being unable to walk –
it has meant being *** deemed an 'unfit parent' " in
custody proceedings. H. R. Rep. No. 485, Pt. 2, at 41.
"Historically, child-custody suits almost always have
ended with custody being awarded to the non-disabled
parent." 2 Leg. Hist. 1611 n. 10 (Arlene Mayerson).
F. Li cens i ng
The hearings on the ADA documented evidence of 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. See also 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"); Task Force Report (CA 261)
(discrimination in licensing teachers); Id. (TX 1549) (state
licensing requirements for teaching deaf students include
the ability to hear); Id. (TX 1528 & 1542) (interpreters and
readers not allowed for licensing exams); Id. (TX 1543)
(blind applicant not allowed to take state chiropractor's
exam because she could not read x-ray without assis-tance).
G. Eighth Amendment Violations
The Eighth Amendment protects inmates with dis-abilities
against treatment that is deliberately indifferent
to their serious medical needs and safety or imposes
wanton suffering. Farmer v. Brennan, 511 U. S. 825, 114
S. Ct. 1970 (1994); Rhodes v. Chapman, 452 U. S. 337, 347,
101 S. Ct. 2392 (1981). But Congress heard that "their
jailers rational[ ize] taking away their wheelchairs as a
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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).
III. Congress Validly Abrogated The States' Elev-enth Amendment Immunity In Terms Of Vio-lations
Of Fundamental Rights.
Congress validly abrogated state sovereign immunity
in Title II with regard to the fundamental rights discussed
above. Congress may abrogate the States' Eleventh
Amendment immunity from suit in federal court if two
requirements are met. First, Congress must make its
intention to abrogate "unmistakably clear in the language
of the statute." Kimel v. Fla. Bd. of Regents, 528 U. S. 62,
73, 120 S. Ct. 631 (2000) (citations omitted). Second,
Congress must act in accordance with its enforcement
power under Section 5 of the Fourteenth Amendment.
Garrett, 531 U. S. at 364; Kimel, 528 U. S. at 80; Seminole
Tribe of Fla. v. Florida, 517 U. S. 44, 59, 116 S. Ct. 1114
(1996).
A. Congress Made its Intention Clear in the Language of the ADA.
In adopting Title II, Congress clearly stated its inten-tion
to abrogate the States' Eleventh Amendment immu-nity:
"A State shall not be immune under the Eleventh
amendment to the Constitution of the United States from
an action in Federal or State court of competent jurisdic-tion
for a violation of this chapter." 42 U. S. C. § 12202.
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Therefore, the remaining issue before the Court is whether
Title II of the ADA constitutes a valid exercise of Congress'
Section 5 power.
B. Congress Acted in Accordance with its En-forcement Power Under Section 5 of the
Fourteenth Amendment.
To be valid under Section 5, Congressional enactments
"must exhibit 'congruence and proportionality between the
injury to be prevented or remedied and the means adopted
to that end. ' " Garrett, 531 U. S. at 365 (quoting City of
Boerne v. Flores, 521 U. S. 507, 520 (1997)). As discussed,
Congress, in enacting Title II of the ADA, identified the
history of discrimination as to fundamental rights. Con-gress
then sought to remedy discrimination against those
fundamental rights by enacting legislation that was
"congruent and proportional" in light of the heightened
standard of scrutiny attributed to those fundamental
rights.
C. Abrogation of States' Immunity Is Congru-ent and Proportional.
In Garrett, this Court found that Title I is not congru-ent
with the Equal Protection Clause because it greatly
expands "discrimination" liability by creating a very large
new suspect class of plaintiffs. Popovich, 276 F. 3d at 812.
Further, in the Garrett decision the majority of this Court
established that disability discrimination deserves a
rational basis review and that Congress may not go beyond
this standard in applying the Equal Protection Clause by
imposing new liabilities on the States by creating a new
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suspect class. Id. This rationale should apply equally to
Title I and Title II of the ADA.
The constitutional balance under Title II, however, is
quite different. Title II, unlike Title I, encompasses vari-ous
due process type claims with varying standards and is
not limited to Equal Protection. Much of the identified
state conduct interferes with or threatens the fundamental
rights of individuals with disabilities. Such violations are
subject to a more intense scrutiny and persons, regardless
of class status, cannot be excluded from voting, participat-ing
in court proceedings or raising their children "unless
shown to be necessary to promote a compelling govern-mental
interest." Shapiro v. Thompson, 394 U. S. 618, 634,
89 S. Ct. 1322 (1969), overruled in part on other grounds,
Edelman v. Jordan, 415 U. S. 651, 94 S. Ct. 1347 (1974); see
also Troxel, 530 U. S. at 65 (plurality opinion); Clark v.
Jeter, 486 U. S. 456, 461, 108 S. Ct. 1910 (1988). Congress
is well within its express authority under Section 5 to
require states to accommodate disabilities as Congress is
enforcing the Due Process right rather than expanding it.
Popovich, 276 F. 3d at 815.
In the present case before the Court, Respondent
Lane, who is a person with quadriplegia and uses a wheel-chair
for mobility, found himself in the Polk County
Courthouse. Lane v. Tennessee, 315 F. 3d 680. The court
room in which Respondent was to appear was located on
the second floor, with no elevators to provide access to the
upper floors of the Courthouse. Id. The Respondent at a
previous hearing faced with this circumstance was forced
to drag himself up two flights of stairs. Id. On the occa-sion,
which led to this cause of action, the Respondent,
when given the choice to either again drag himself to the
second floor or endure the prospect of being carried,
refused and was subsequently arrested and jailed upon the
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court's order. Id. Respondent was denied the opportunity
to meaningfully participate in an adversary court proceed-ing.
Id. Consequently, as evidenced in the instant case, a
state's failure to accommodate Plaintiff ' s disability may
greatly increase the risk of error in proceeding, precluding
one side from responding to charges made by the opposing
party, an essential element of our adversary proceeding.
Popovich, 276 F. 3d at 815.
Congress properly abrogated States' Eleventh
Amendment immunity for citizens' fundamental rights.
Such an abrogation would be congruent and proportional
as Congress was not creating a new suspect class as cited
in Garrett; or creating new liabilities for the states.
Rather, it was merely enforcing rights that already exist
for all citizens, due to the heightened scrutiny associated
the those rights, that are expressly contained within or
implicitly implied in the text of the Constitution.
The Petitioner's action should be barred by the Elev-enth
Amendment insofar as the action relied on Congres-sional
enforcement of the Equal Protection Clause,
however, it should not be barred insofar as any abrogation
would rely upon the congressional enforcement for the Due
Process Clause. Popovich, 276 F. 3d at 812.
--------------------------------- ---------------------------------
CONCLUSION
Faced with well-documented incidents of state dis-crimination
against people with disabilities affecting
fundamental Due Process rights, Congress enacted a
comprehensive and legislative response that recognized
the States' central role in the provision of fundamental
government functions, such as access to the courts, voting,
and the ability to petition government officials.
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Title II involves, in part, an area of regulation for
which people with disabilities have no options. That is,
governments have a central role in providing fundamental
government functions, and should strive to ensure that
those functions are performed in a manner that does not
impede the fundamental rights of its citizens.
Because of the states' central role, a limitation on the
ability of people with disabilities to enforce Title II against
the States, in terms of pursuing the enforcement and protec-tion
of fundamental rights, may substantially diminish Title
II's effectiveness. In this limited situation, the Court should
grant Congress reasonable latitude in crafting remedies that
people with disabilities can use without restriction.
For the foregoing reasons, this Court should find in
favor of the Respondents and hold that Congress, pursuant
to Section 5 of the Fourteenth Amendment, in enacting Title
II of the ADA, validly abrogated the states' sovereign immu-nity
as to issues affecting fundamental due process rights.
Dated: November 12, 2003
Respectfully submitted,
PHILL KLINE Kansas Attorney General M. JANE BRADY Delaware Attorney General
RALPH JAMES DEZAGO Assistant Attorney General
Counsel of Record
DAVID W. DAVIES
Deputy Attorney General
HARRY KENNEDY Assistant Attorney General
Attorneys for Amici Curiae States Kansas and Delaware 26