No. 02-1667
In the Supreme Court of the United States OCTOBER TERM, 2003
STATE OF TENNESSEE, PETITIONER,
v.
GEORGE LANE, BEVERLY JONES, AND UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR AMICI CURIAE PARALYZED VETERANS OF AMERICA,
AMERICAN PSYCHIATRIC ASSOCIATION, AND 23 OTHER ORGANIZATIONS
IN SUPPORT OF RESPONDENTS (Additional Amici Listed on Inside Cover)
Of Counsel: Timothy K. Armstrong* Ira A. Burnim Elizabeth B. McCallum
Jennifer Mathis
Andrew P. Tower JUDGE DAVID L. BAZELON
Kristien Carbonez
CENTER FOR MENTAL
Thomas Dillickrath HEALTH LAW
Richard Groseclose
1101 Fifteenth St.,
N. W. Kristen McAhren
Washington, D. C. 20005 HOWREY SIMON ARNOLD
(202) 467-5730 & WHITE, LLP
1299 Pennsylvania
Ave., N. W.
Washington, D. C. 20004-2402 (202) 783-0800
* Counsel of Record
Counsel for Amici Curiae
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AMICI CURIAE JOINING THIS BRIEF
AARP American Association on Mental Retardation
American Council of the Blind American Diabetes Association
American Occupational Therapy Association American Psychiatric Association
The Arc of the United States Association on Higher Education and Disability
Bazelon Center for Mental Health Law Alexander Graham Bell Association
for the Deaf and Hard of Hearing Depression and Bipolar Support Alliance
Easter Seals The Epilepsy Foundation®
Lambda Legal Defense and Education Fund, Inc. National Alliance for the Mentally Ill
National Association for Rights Protection and Advocacy National Association of Councils
on Developmental Disabilities National Council on Independent Living
National Health Law Program National Mental Health Association
National Mental Health Consumers' Self-Help Clearinghouse
National Multiple Sclerosis Society Paralyzed Veterans of America
Tennessee Disability Coalition United Cerebral Palsy Associations, Inc.
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TABLE OF CONTENTS
Interest of the Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Title II Of The ADA Protects A Significantly Broader Range Of
Constitutional Rights Than Does Title I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. The Legislative Record Confirms Congress' Specific Findings of
Unconstitutional Discrimination By The States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. The States Have Historically Deprived Americans With Disabilities Of Their
Constitutional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Patterns Of Unconstitutional State Interference With Equal and
Effective Access To The Courts . . . . . . . . . . . . 7
1. States Exclude People With Disabilities From The Judicial
Process As Litigants . . . . . . . . . . . . . . . . . 7
2. States Exclude People With Disabilities From The Judicial
Process As Jurors . . . . . . . . . . . . . . . . . . . 10
B. Patterns Of Unconstitutional State Conduct Involving The
Fundamental Right To Vote . . . . . . . . . . . . . . . 11
1. States Disenfranchise People With Disabilities . . . . . . . . . . . . . . . . . . . . 11
2. States Deny Access To Voting Equipment And Polling Places . . . . . . 13
C. Patterns Of State Interference With The Fundamental Right To Marry
And Form Families . . . . . . . . . . . . . . . . . . . . . . . . 14
1. States Sterilize Persons With Disabilities . . . . . . . . . . . . . . . . . . . . 14
2. States Prohibit The Marriage Of People With Disabilities . . . . . . . . . . 16
3. States Discriminate Against Parents With Disabilities . . . . . . . . . . . 18
D. Patterns Of Unconstitutional State Discrimination In Education . . . . . . . . . . . . . . 19
E. Patterns Of Unconstitutional State Treatment Of People With Disabilities
In Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1. States Institutionalize People With Disabilities Without Necessity
And Treat Them Deplorably While They Are In Civil Institutions . . . . . . . 21
2. States Ignore The Medical Needs Of Prisoners With Disabilities
And Otherwise Violate Their Constitutional Rights . . . . . . . . . . . . . . . 24
F. Patterns Of Irrational State Segregation Of People With Disabilities
From The Community . . . . . . . . . . . . . . . . . . . . . 27
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
APPENDICES
The Amici Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
Non-Current Statutes Cited in Brief as Examples of States Imposing Restrictions
on Jury Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10a
Non-Current Statutes Cited in Brief as Examples of States Excluding Students
With Disabilities from Public Education . . . . . . . . . . . 11a
Non-Current Statutes Cited in Brief as Examples of States Restricting Right
to Marry and Form Families . . . . . . . . . . . . . . . . . . . . . . . 11a
TABLE OF AUTHORITIES
Cases
A. W., In re, 637 P. 2d 366 (Colo. 1981) . . . . . . . . . . . . . . . . . . . . . . . 15,
16
Adoption of Richardson, 59 Cal. Rptr. 323 (Ct. App. 1967) . . . . . . . . . . . . . . . . . . . 19
American Association of People with Disabilities v. Smith, 227 F. Supp. 2d 1276 (M. D. Fla. 2002) . . . . . . . . . . . . . . 14
Armstrong v. Davis, 275 F. 3d 849 (9th Cir. 2001), cert. denied,
537 U. S. 812 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Association of Relatives and Friends of Aids Patients v. Regulations and Permits Admin.,
740 F. Supp. 95 (D. P. R. 1990) . . . . . . . . . . . . . . . . . . . . . . . 28
Association for Retarded Citizens v. Olson, 561 F. Supp. 473 (D. N. D. 1982), aff'd,
713 F. 2d 1384 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . 23
Baby Neal v. Casey, 821 F. Supp. 320 (E. D. Pa. 1993) . . . . . . . . . . . . . . . . . . . . 19
Bangerter v. Orem City Corp., 46 F. 3d 1491 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . 27
Batson v. Kentucky, 476 U. S. 79
(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bednarski v. Bednarski, 366 N. W. 2d 69 (Mich. Ct. App. 1985) . . . . . . . . . . . . . . . 18
Board of Trustees of the University of Alabama v. Garrett, 531 U. S. 356
(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,
5
Boddie v. Connecticut, 401 U. S. 371
(1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Brown v. Board of Education, 347 U. S. 483
(1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Buck v. Bell, 274 U. S. 200
(1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Carey v. Population Services International, 431 U. S. 678
(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Carter v. Jury Commission, 396 U. S. 320
(1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
City of Boerne v. Flores, 521 U. S. 507
(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
City of Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432
(1985) . . . . . . . . . . . . . . . . . . . 4,
12,
17,
23,
27
Clark v. Cohen, 794 F. 2d 79 (3d Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Clark v. Jeter, 486 U. S. 456
(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Clark v. Madden, 725 N. E. 2d 100 (Ind. Ct. App. 2000) . . . . . . . . . . . . . . . . 18
Clarkson v. Coughlin, 898 F. Supp. 1019 (S. D. N. Y. 1995) . . . . . . . . . . . . . . . . . . . . 9
Coleman v. Wilson, 912 F. Supp. 1282 (E. D. Cal. 1995) . . . . . . . . . . . . . . . . . . 26
Cook v. State, 495 P. 2d 768 (Or. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Cruzan v. Director, Missouri Department of Health, 497 U. S. 261
(1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
DeLong v. Brumbaugh, 703 F. Supp. 399 (W. D. Pa. 1989) . . . . . . . . . . . . . . . . . . . 11
Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001) . . . . . . . . . . . . . . . . . . . 12
Downs v. Sawtelle, 574 F. 2d 1 (1st Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Duvall v. County of Kitsap, 260 F. 3d 1124 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 8
Eckstein v. Kirby, 452 F. Supp. 1235 (E. D. Ark. 1978) . . . . . . . . . . . . . . . . . 10
Eisenstadt v. Baird, 405 U. S. 438
(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Epicenter, Inc. v. City of Steubenville, 924 F. Supp. 845 (S. D. Ohio 1996) . . . . . . . . . . . . . . . . . . 27
Eric L. ex rel. Schierberl v. Bird, 848 F. Supp. 303 (D. N. H. 1994) . . . . . . . . . . . . . . . . . . . . . 24
Estelle v. Gamble, 429 U. S. 97
(1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Faretta v. California, 422 U. S. 806
(1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Galloway v. Superior Court, 816 F. Supp. 12 (D. D. C. 1993) . . . . . . . . . . . . . . . . . . . . . . . 11
Gary W. v. Louisiana, 437 F. Supp. 1209 (E. D. La. 1976) . . . . . . . . . . . . . . . . . . 22
Gary W. v. Louisiana, 1990 U. S. Dist. LEXIS 1746 (E. D. La.
Feb. 15, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Gregg v. Georgia, 428 U. S. 153
(1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
H. J. B. v. P. W., 628 So. 2d 753 (Ala. Civ. App. 1993) . . . . . . . . . . . . . . . . 19
Halderman v. Pennhurst State Sch. & Hospital, 446 F. Supp. 1295 (E. D. Pa. 1977), rev'd,
451 U. S. 1 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Harper v. Virginia State Board of Elections, 383 U. S. 663
(1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hill v. New York State Board of Elections, 503 N. Y. S. 2d 958 (Sup. Ct. 1986) . . . . . . . . . . . . . . . . . . . 14
Hill v. Shelby County, 599 F. Supp. 303 (N. D. Ala. 1984) . . . . . . . . . . . . . . . . . . . 10
Honig v. Doe, 484 U. S. 305
(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Interest of T. N. V., In re, 855 S. W. 2d 102 (Tex. App.— Corpus Christi 1993) . . 19
Jackson v. Ft. Stanton Hospital & Training Sch., 757 F. Supp. 1243 (D. N. M. 1990), rev'd,
964 F. 2d 980 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . 24
Jones v. New York City Transit Authority, 483 N. Y. S. 2d 623 (Civ. Ct. 1984) . . . . . . . . . . . . . . . . . . . . 10
Kiman v. New Hampshire Department of Corrections, 301 F. 3d 13 (1st Cir. 2002), aff'd,
332 F. 3d 29 (1st Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Larkin v. Michigan, 883 F. Supp. 172 (E. D. Mich. 1994), aff'd,
89 F. 3d 285 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Layton v. Elder, 143 F. 3d 469 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Lelsz v. Kavanagh, 673 F. Supp. 828 (N. D. Tex. 1987) . . . . . . . . . . . . . . . . . . . 23
Lewinson v. Crews, 282 N. Y. S. 2d 83 (App. Div. 1967) . . . . . . . . . . . . . . . . . . . . 10
Logan v. Zimmerman Brush Co., 455 U. S. 422
(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Manhattan State Citizens' Group Inc. v. Bass, 524 F. Supp. 1270 (S. D. N. Y. 1981) . . . . . . . . . . . . . . . . . . 13
Marriage of Carney, In re, 598 P. 2d 36 (Cal. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Marriage of R. R., In re, 575 S. W. 2d 766 (Mo. Ct. App. 1978) . . . . . . . . . . . . . . . . . 19
McKinney v. McKinney, 805 S. W. 2d 66 (Ark. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Meyer v. Nebraska, 262 U. S. 390
(1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Miles v. Apex Marine Corp., 498 U. S. 19
(1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mills v. Board of Education, 348 F. Supp. 866 (D. D. C. 1972) . . . . . . . . . . . . . . . . . . . . . 20
Motes v. Hall County Dep't of Family & Children Servs., 306 S. E. 2d 260 (Ga. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Moye v. Moye, 627 P. 2d 799 (Idaho 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
National Organization on Disability v. Tartaglione, 2001 WL 1231717 (E. D. Pa. Oct. 11, 2001) . . . . . . . . . 13
Nevada Dep't of Human Resources v. Hibbs, 123 S. Ct. 1972
(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
O'Connor v. Donaldson, 422 U. S. 563
(1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Panitch v. Wisconsin, 444 F. Supp. 320 (E. D. Wis. 1977) . . . . . . . . . . . . . . . . . . 20
Parrish v. Johnson, 800 F. 2d 600 (6th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . 25
Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 343 F. Supp. 279 (E. D. Pa. 1972) . . . . . . . . . . . . . . . . . . . . 20
Pennsylvania Dep't of Corrs. v. Yeskey, 524 U. S. 206
(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
People v. Guzman, 555 N. E. 2d 259 (N. Y. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . 10
People v. Rivera, 480 N. Y. S. 2d 426 (Sup. Ct. 1984) . . . . . . . . . . . . . . . . . . . . . 9
Poe v. Lynchburg Training Sch. & Hospital, 518 F. Supp. 789 (W. D. Va. 1981) . . . . . . . . . . . . . . . . . . . 15
Popovich v. Cuyahoga County Court of Common Pleas, 276 F. 3d 808 (6th Cir.), cert. denied,
537 U. S. 812 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,
7
Reno v. Flores, 507 U. S. 292
(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Reynolds v. Sims, 377 U. S. 533
(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Robinson v. Kansas, 117 F. Supp. 2d 1124 (D. Kan. 2000), aff'd,
295 F. 3d 1183 (10th Cir. 2002), cert. denied, 123 S. Ct. 2574 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Ruiz v. Estelle, 503 F. Supp. 1265 (S. D. Tex. 1980), aff'd,
679 F. 2d 1115 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . 26
San Antonio Independent Sch. Dist. v. Rodriguez, 411 U. S. 1
(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Skinner v. Oklahoma, 316 U. S. 535
(1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Society for Good Will to Retarded Children v. Cuomo, 745 F. Supp. 879 (E. D. N. Y. 1990) . . . . . . . . . . . . . . . . . . . 23
Stanley v. Illinois, 405 U. S. 645
(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
State v. Spivey, 700 S. W. 2d 812 (Mo. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sterilization of Moore, In re, 221 S. E. 2d 307 (N. C. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . 15
Stump v. Sparkman, 435 U. S. 349
(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
T. E. P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993) . . . . . . . . . . . . . . . . . . . . 17
Thomas S. v. Morrow, 781 F. 2d 367 (4th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . 24
Troxel v. Granville, 530 U. S. 57
(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Turner Broad. System v. FCC, 520 U. S. 180
(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,
6
Weems v. United States, 217 U. S. 349
(1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Wisconsin v. Yoder, 406 U. S. 205
(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Wyatt ex rel. Rawlins v. Rogers, 985 F. Supp. 1356 (M. D. Ala. 1997) . . . . . . . . . . . . . . . . . 22
Wyatt v. Stickney, 344 F. Supp. 387 (M. D. Ala. 1972), aff'd,
503 F. 2d 1305 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . 22
Yarbaugh v. Roach, 736 F. Supp. 318 (D. D. C. 1990) . . . . . . . . . . . . . . . . . . . . . 26
Youngberg v. Romeo, 457 U. S. 307
(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Zablocki v. Redhail, 434 U. S. 374
(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Constitutional and Statutory Provisions
20 U. S. C. § 1400( c)( 2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
42 U. S. C. § 12101( a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
42 U. S. C. § 12101( a)( 2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
42 U. S. C. § 12101( a)( 3)
. . . . . . . . . . . . . . . . . . . . . . . . 5,
11,
21,
21
42 U. S. C. § 12101( a)( 5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,
21
42 U. S. C. § 12101( a)( 6)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
42 U. S. C. § 12101( a)( 7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,
6
42 U. S. C. § 12101( b)( 4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
42 U. S. C. § 12131( 1)( A)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
42 U. S. C. § 12132
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,
5
ALA. CODE § 12-16-60 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ALASKA CONST. art. V, § 2 (2000) . . . . . . . . . . . . . . . . . . . . . . . 12
ARK. CODE ANN. § 16-31-102 (1987), amended, 1994 Ark. Acts No. 4, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARK. CONST. art. 3, § 5 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARK. CONST. amend. 51 § 11( a)( 6) (2001) . . . . . . . . . . . . . . . 12
CAL. CIV. CODE § 4201 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CONN. GEN. STAT. § 8-3f (2001) . . . . . . . . . . . . . . . . . . . . . . . . 28
D. C. CODE ANN. § 30-103 (1981) . . . . . . . . . . . . . . . . . . . . . . . 17
D. C. CODE ANN. § 46-403 (2001) . . . . . . . . . . . . . . . . . . . . . . . 17
DEL. CODE ANN. tit. 15, § 1701 (1999) . . . . . . . . . . . . . . . . . 12
DEL. CODE ANN. tit. 22, § 309 (2002) . . . . . . . . . . . . . . . . . . . 28
DEL. CONST. art. 5, § 2 (Supp. 2000) . . . . . . . . . . . . . . . . . . . . 12
DEL. CONST. art. 10, § 1 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . 20
HAW. CONST. art. 2, § 2 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
IND. CODE § 22-1601 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
IOWA CODE ANN. § 595.3 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 17
IOWA CONST. art. 2, § 5 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
KAN. CONST. art. 5, § 2 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
KY. CONST. § 145( 3) (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
KY. REV. STAT. § 116.025( 1) (1993) . . . . . . . . . . . . . . . . . . . . . 12
KY. REV. STAT. § 387.590 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 12
MD. CODE ANN., CTS. & JUD. PROC. § 8-207 (2002) . . . 11
MD. CODE ANN., ELEC. § 3-102( b)( 2) (2002) . . . . . . . . . . . . 12
MD. CONST. art. 1, § 4 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
MASS. ANN. LAWS ch. 51, § 1 (1991) . . . . . . . . . . . . . . . . . . . . 12
MASS. ANN. LAWS CONST. AMEND. art. 3 (2002) . . . . . . . 12
MICH. COMP. LAWS § 551.6 (1988) . . . . . . . . . . . . . . . . . . . . . 17
MISS. CODE ANN. § 23-15-11 (1999) . . . . . . . . . . . . . . . . . . . . 12
MISS. CODE ANN. § 41-21-45 (1990) . . . . . . . . . . . . . . . . . . . . 17
MISS. CODE ANN. § 41-45-1 (1999) . . . . . . . . . . . . . . . . . . . . . 15
MISS. CODE ANN. § 41-45-9 (1999) . . . . . . . . . . . . . . . . . . . . . 15
MISS. CODE ANN. § 93-1-5 (1999) . . . . . . . . . . . . . . . . . . . . . . 17
MISS. CONST. art. 12, § 241 (1999) . . . . . . . . . . . . . . . . . . . . . 12
MONT. CODE ANN. § 13-1-111( 3) (1999) . . . . . . . . . . . . . . . . 12
MONT. CONST. art. 4, § 2 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 12
N. J. CONST. art. 2, § 6 (Supp. 1999) . . . . . . . . . . . . . . . . . . . . 12
N. J. STAT. ANN. § 2B: 201 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 11
N. J. STAT. ANN. § 19: 4-1( 1) (2001) . . . . . . . . . . . . . . . . . . . . . . 12
N. M. CONST. art. 7, § 1 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
N. M. STAT. ANN. § 1-1-4 (Michie 1995) . . . . . . . . . . . . . . . . . 12
NEB. CONST. Art. 6, § 2 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
NEB. REV. STAT. ANN. § 32-313( 1) (Michie 2000) . . . . . . . 12
NEV. CONST. art. 2, § 1 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
OHIO CONST. art. 5, § 6 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PA. STAT. ANN. tit. 48, § 1-5 (West 1990) . . . . . . . . . . . . . . . 17
R. I. CONST. art. 2, § 1 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
R. I. GEN. LAWS § 15-1-5 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 17
TENN. CODE ANN. § 36-3-109 (2001) . . . . . . . . . . . . . . . . . . . 17
UTAH CODE ANN. § 30-1-2( 1) (1987) . . . . . . . . . . . . . . . . . . . . 17
VT. CONST. ch. 2, § 42 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
VT. STAT. ANN. tit. 15, § 512 (1989) . . . . . . . . . . . . . . . . . . . . . 17
VT. STAT. ANN. tit. 15, § 514 (1989) . . . . . . . . . . . . . . . . . . . . . 17
VT. STAT. ANN. tit. 24, § 4409( f) (2002) . . . . . . . . . . . . . . . . . 28
W. VA. CODE § 48-2-2 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
WYO. STAT. § 1-11-101 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Other Authorities
Council of State Governments, Criminal Justice/ Mental Health Consensus Project (June 2002), at
http:// consensusproject. org
. . . . . . . . . . . . . . . . . . . . . . . . . 26
Sharon P. Davis, A Status Report to the Nation on People with Mental Retardation Waiting for
Community Services (1997), at http:// www. thearc. org/ misc/ WaitPage. html
. . . . . . . . . 24
Robert L. Hayman, Jr., Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent,
103 HARV. L. REV. 1201 (1990) . . . . . . . . . . . . . . . . . . . . . 18
Human Rights Watch, Ill-Equipped: U. S. Prisons and Offenders with Mental Illness (Oct. 2003), at
http:// www. hrw. org/ reports/ 2003/ usa1003/
. . . . . . . . . . 26
Letter from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division, DOJ, to The Honorable
Thomas J. Vilsack, Governor of Iowa (July 9, 2002), at http:// www. usdoj. gov/ crt/ split/ documents/
ia findings wsrc gsrc. htm . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
N. Y. State Comm'n on Quality of Care for the Mentally Disabled, Survey of Access to
New York State Courts For Individuals With Disabilities (June 1994), at
http:// www. cqc. state. ny. us/ publications/ pubcourt. htm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Price & Burt, Sterilization, State Action and the Concept of Consent,
1 LAW & PSYCH. REV. 57 (1978) . . . . . . . . . . . . . . . . . . . 15
Phillip R. Reilly, THE SURGICAL SOLUTION: A HISTORY OF INVOLUNTARY STERILIZATION
IN THE UNITED STATES (1991) . . . . . . . . . . . . . . . . . . . . . 14
Bruce Dennis Sales, et al., DISABLED PERSONS AND THE LAW: STATE LEGISLATIVE ISSUES
(Plenum Press 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
D. Schein, At Home Among Strangers (1989) . . . . . . . . . . . . 24
Kay Schriner, et al., Democratic Dilemmas: Notes on the ADA and Voting Rights of People
with Cognitive and Emotional Impairments, 21 BERKELEY J. EMP. & LAB. L. 437 (2000) . . . . . . . 12
Summary of Survey and Public Hearing Reports of the Access for Persons with Disabilities
Subcommittee of the California Judicial Council's Access and Fairness Advisory
Committee (Jan. 1997), at http:// www. courtinfo. ca. gov/ reference/
summarydisabilities. htm . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U. S. Commission on Civil Rights, Accommodating the Spectrum of Individual
Abilities (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,
23
U. S. General Accounting Office, Mental Health: Improper Restraint or Seclusion Use Places
People at Risk (Sept. 1999), at http:// www. gao. gov/ archive/ 1999/ he99176. pdf
. . . . . . 22
INTEREST OF THE AMICI CURIAE
Amici curiae are twenty-five associations of people with disabilities, public interest groups, professional organiza-tions,
and other organizations that advocate for the rights of people with disabilities, including AARP, American As-sociation
on Mental Retardation, American Council of the Blind, American Diabetes Association, American Occupa-tional
Therapy Association, American Psychiatric Associ-ation, The Arc of the United States, Association on Higher
Education and Disability, Bazelon Center for Mental Health Law, Alexander Graham Bell Association for the
Deaf and Hard of Hearing, Depression and Bipolar Support Alliance, Easter Seals, The Epilepsy Foundation®, Lambda
Legal Defense and Education Fund, Inc., National Alliance for the Mentally Ill, National Association for Rights Protec-tion
and Advocacy, National Association of Councils on De-velopmental Disabilities, National Council on Independent
Living, National Health Law Program, National Mental Health Association, National Mental Health Consumers'
Self-Help Clearinghouse, National Multiple Sclerosis So-ciety, Paralyzed Veterans of America, Tennessee Disabil-ity
Coalition, and United Cerebral Palsy Associations, Inc. These organizations, the interests of which are described
in greater detail in the Appendix, wish to ensure that the Court is fully apprised of the extensive evidence of the
States' patterns of unconstitutional treatment of people with disabilities supporting Congress' abrogation of
Eleventh Amendment immunity for violations
of Title II of the Americans with Disabilities Act (" ADA"). 1
1. The parties have consented to the filing of this brief under S. Ct. R. 37.2, and their letters of consent have been lodged with the Clerk of
the Court. Pursuant to S. Ct. R. 37.6, amici state that counsel for a party did not author this brief in whole or in part and that no one other than
amici, their members, or their counsel made a monetary contribution to the preparation or submission of this brief.
2
SUMMARY OF ARGUMENT
State governments have compiled a reprehensible, decades-long record of unconstitutional treatment, includ-ing
deprivations of fundamental rights, of Americans with a broad range of physical or mental disabilities— a record
that Petitioner and its supporting amici do not seriously contest. To redress such treatment, Congress expressly in-voked
the full "sweep of Congressional authority, including the power to enforce the Fourteenth Amendment[,]" when
it enacted the ADA. 42 U. S. C. § 12101( b)( 4).
Congress enacted Title II of the ADA against a backdrop
that in-cluded
ample evidence that States were unconstitutionally excluding people with disabilities from voting and from ac-cessing
the judicial system, prohibiting them from marry-ing and raising families, warehousing them in institutions
in deplorable conditions, and otherwise systematically, ir-rationally, and intentionally depriving them of the rights
guaranteed by the Fourteenth Amendment. Unfortunately, regular instances of such unconstitutional State behavior
persist even today. Undersigned amici anticipate that Respondents and the
United States will detail the extensive evidence of State-sponsored unconstitutional treatment of people with dis-abilities
contained in Congress' legislative record. This brief, therefore, describes the compelling history of State
unconstitutional conduct found in judicial decisions and the public record. The examples in this brief, although nec-essarily
limited by space constraints, confirm what is also plain in Congress' specific statutory findings and in the leg-islative
history: Congress properly exercised its power un-der § 5 of the Fourteenth Amendment when it abrogated
the States' Eleventh Amendment immunity for violations of Title II of the ADA, and Title II represents a congruent
and proportional response to the longstanding pattern of State constitutional violations.
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3
ARGUMENT
I. TITLE II OF THE ADA PROTECTS A SIGNIFICANTLY
BROADER RANGE OF CONSTITUTIONAL RIGHTS THAN DOES TITLE I
The "first step" in analyzing the constitutionality of Con-gress' abrogation of Eleventh Amendment immunity "is to
identify with some precision" the scope of the constitutional right at issue. Board of Trustees of the University of Ala. v.
Garrett, 531 U. S. 356,
365
(2001). Title II of the ADA pro-tects a different, and
significantly
broader, range of consti-tutional
rights than the Title I provisions that this Court analyzed in Garrett. Title I encompasses only discrimina-tion
in employment. Title II, in contrast, applies directly and explicitly to States, and encompasses a broad range
ofState
conduct in the provision of public services and ben-efits. 2
Garrett found that State discrimination against people with disabilities in employment matters is constitutional
unless the State's action lacks a rational basis. Id. at 365–
367
(citing City of Cleburne v. Cleburne Living Center, Inc.,
473
U. S. 432
(1985)). The Court recognized, however, that a separate analysis
of the scope of the constitutional right
at issue would be appropriate under Title II. Id. at 360
n. 1 (" Title II * * * has somewhat different remedial provisions"
from Title I; declining to address applicability of Title II to issue before the Court).
As is evident from Congress' statutory findings, 42
U. S. C. § 12101( a),
the sphere of conduct regulated under
Title II implicates
a number of constitutional rights with heightened substantive protection— the rights to vote, to
marry, to access the courts, and the like. Accordingly, in ad-dition to the type of equal protection/ rational basis claims
2. Title II 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.
"[ P] ublic entit[ ies]" include States and State instrumentalities
and agencies.
Id. § 12131( 1)( A).
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21
4
at issue in Garrett and City of Cleburne, the "history and pattern" of State-sponsored unconstitutional behavior that
Congress examined in enacting Title II properly "encom-passe[ d] various due process-type claims with varying stan-dards
of liability." Popovich v. Cuyahoga County Court of Common Pleas, 276 F. 3d 808, 813 (6th Cir.), cert. denied,
537 U. S. 812 (2002). Assessment of many of the due process and equal
protection-type violations encompassed within Title II re-quires heightened scrutiny because, in contrast to the dis-criminatory
employment practices at issue in Garrett, many Title II violations involve the exercise of fundamen-tal
constitutional rights. When a due process claim in-volves a right that this Court has deemed fundamental, it
is well settled that the Fourteenth Amendment's due pro-cess clause includes "a substantive component, which for-bids
the government to infringe certain 'fundamental' lib-erty interests at all, no matter what process is provided,
unless the infringement is narrowly tailored to serve a com-pelling state interest." Reno v. Flores, 507 U. S. 292,
301–
302
(1993); City of Cleburne, 473 U. S. at 440 (heightened
scrutiny
justified "when state laws impinge
on personal
rights protected by the Constitution"). It is equally well settled that when differential State treatment challenged
under the equal protection clause impinges on a fundamen-tal constitutional right, the discrimination is assessed un-der
a strict scrutiny, not a rational basis, standard. Clark v. Jeter, 486 U. S. 456,
461
(1988).
Accordingly, the
"history
and pattern" of State-sponsored discrimination underlying Title II includes not
only irrational differential treatment of people with disabilities— although there is plenty of such conduct to
be found— but also unconstitutional State conduct with re-spect to people with disabilities and their fundamental con-stitutional
rights. As this Court concluded in Nevada Dep't of Human Resources v. Hibbs, 123 S. Ct. 1972,
1982 (2003),
legislation is more readily sustained under the
Fourteenth Amendment when it serves to secure constitutional rights
warranting heightened scrutiny, because Congress can more readily find a pattern of conduct that fails the more
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22
5
demanding constitutional standards.
II. THE LEGISLATIVE RECORD CONFIRMS CONGRESS'
SPECIFIC FINDINGS OF UNCONSTITUTIONAL DISCRIMINATION BY THE STATES
The second part of Garrett's analysis asks whether Con-gress enacted Title II in response to "a history and pattern"
of unconstitutional discrimination by the States. 531 U. S. at 368.
In Garrett, the Court noted "strong evidence" that
Congress'
"failure to mention States in its legislative find-ings addressing discrimination in employment reflects that
body's judgment that no pattern of unconstitutional state action had been documented." Id. at 372
(emphasis added).
Here, exactly the opposite is true: Congress'
statutory findings are "strong evidence" that Congress could, and did,
identify a pattern of unconstitutional State action in the areas that it addressed in Title II. Thus, Congress' findings
explicitly and unambiguously encompass discrimination in public areas that are largely or entirely within the purview
of the States, as well as multiple areas that indisputably include State conduct. 42 U. S. C. § 12101( a)( 3)
(finding per-sistent
discrimination against individuals with
disabilities in such "critical areas" as "education, transportation, * * *
institutionalization, health services, voting, and access to public services"). Congress also specifically found that the
discrimination at issue was irrational, noting a "history of purposeful unequal treatment * * *resulting from stereo-typic
assumptions." Id. § 12101( a)( 7).
Based on these find-ings, Congress aimed Title II directly
at State conduct. Id.
§ 12132.
Congress' findings command substantial deference. City
of Boerne v. Flores, 521 U. S. 507,
536
(1997). Congress and the courts are coequal actors
with
separate and dif-ferent
roles in our tripartite system of government. Con-gress is uniquely suited to make determinations based on
a wider and different set of information than that available to courts adjudicating specific cases. Judicial deference to
Congress' determinations recognizes Congress' skill in per-
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21
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23
6
forming its specifically legislative function. Turner Broad. Sys. v. FCC, 520 U. S. 180,
195
(1997) (" We owe Congress'
findings deference in part because
the institution is far bet-ter equipped than the judiciary to amass and evaluate the
vast amounts of data bearing upon legislative questions.") (citations omitted).
Congress' findings of State discrimination in areas en-compassed by Title II are also amply supported by the
ADA's legislative history— as amici anticipate will be de-tailed in the briefs for Respondents and the United States—
and by the extensive examples from the judicial and public record described in Section III below. The Court need not
limit its review to the specific legislative record, although that record is replete with examples of unconstitutional
State conduct in the areas encompassed by Title II. Turner, 520 U. S. at 200,
209,
211–
213
(examining evidence outside
the legislative record
to evaluate
Congress' exercise of leg-islative power). This brief provides a sampling of the judi-cial
decisions and other public materials that demonstrate that States regularly deprived people with disabilities of
their constitutional rights. The Court can, and should, pre-sume that Congress was aware of such decisions when it
enacted Title II. Miles v. Apex Marine Corp., 498 U. S. 19,
32
(1990) (courts should presume
that Congress is aware
of relevant
legal precedents). 3
The record reveals, further-more, that such unconstitutional
behavior continues to the
present day.
3. Moreover, even the numerous published decisions finding uncon-stitutional State behavior do not fully reflect the pervasive extent of
such conduct, in light of Congress' findings of invidious and persistent social and political segregation and isolation, and the resulting power-lessness,
of people with disabilities. 42 U. S. C. § 12101( a)( 2), (5), (6), (7).
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24
7
III. THE STATES HAVE HISTORICALLY DEPRIVED
AMERICANS WITH DISABILITIES OF THEIR CONSTITUTIONAL RIGHTS
A. Patterns Of Unconstitutional State Interference With Equal And Effective Access To The Courts
1. States Exclude People With Disabilities From The Judicial Process As Litigants
States have historically denied persons with disabilities an equal opportunity to use the State courts as litigants
by not providing interpreters or other necessities for effec-tive communication, or by imposing architectural barriers
that exclude persons with mobility or sensory impairments from using the court system. Such inaccessibility violates
due process principles when people with disabilities are un-able effectively to access the judicial system, either in the
criminal or civil context. For criminal defendants, the due process clause guarantees that an "accused has a right to
be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. Cali-fornia,
422 U. S. 806,
819
n. 15 (1975). Parties in civil litiga-tion have an analogous
due
process right to be present in
the courtroom and to participate meaningfully in the pro-cess unless their exclusion furthers an important govern-mental
interest. See, e. g., Logan v. Zimmerman Brush Co., 455 U. S. 422,
429
(1982) ("[ t] he Court traditionally has held
that the Due
Process
Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping
to protect their property or as plaintiffs attempting to re-dress grievances"); Boddie v. Connecticut, 401 U. S. 371,
379
(1971) (except in extraordinary circumstances, state must
provide all civil litigants a meaningful opportunity to be
heard). Examples of exclusion from the judicial process in the
civil arena are common. In Popovich v. Cuyahoga County Court of Common Pleas, 276 F. 3d 808 (6th Cir.), cert. de-nied,
537 U. S. 812 (2002), for instance, a person who was partially deaf alleged that the State court failed to provide
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25
8
him with adequate hearing assistance in his child custody case in violation of his equal protection and due process
rights. The Sixth Circuit noted the fundamental nature of the rights at stake in parental custody hearings, and the
procedural safeguards that this Court has repeatedly held are necessary in such hearings, including counsel for indi-gent
defendants and free access to the trial records. Id. at 813– 814 (citing Lassiter v. Dep't of Social Servs., 452 U. S.
18,
30
(1981); Santowsky v. Kramer, 455 U. S. 745,
769– 770
(1982);
M. L. B. v. S. L. J., 519 U. S. 102,
128 (1996)). The
court
explained that "a state's failure to accommodate
plaintiff 's deafness may greatly increase the risk of error in the pro-ceeding,
precluding one side from responding to charges made by the opposing party, an essential element of our
adversary system." Id. at 815. Concluding that the suit raised "obvious due process problems," the Sixth Circuit re-manded
the case for retrial on the unreasonable exclusion claim. 4
Because the Due Process Clause itself required the
State to
accommodate the parent's disability in the custody proceedings, Title II of the ADA plainly represents a con-gruent
and proportional legislative response as applied in such circumstances. See ibid.
State criminal justice systems have also maintained barriers that effectively exclude persons with disabilities
from participating meaningfully in judicial and related ad-ministrative proceedings, even when their own liberty is at
stake. In Armstrong v. Davis, 275 F. 3d 849 (9th Cir. 2001), cert. denied, 537 U. S. 812 (2002), for instance, a class of
prisoners with disabilities alleged that California failed to provide them adequate access to, and a meaningful oppor-tunity
to participate in, their parole hearings. The process depended "to a great extent" on written forms; prisoners
and parolees with disabilities were "provided with inade-4.
The court below applied Popovich when ruling on the cases now before this Court for review. See also, e. g., Layton v. Elder, 143 F. 3d
469, 472 (8th Cir. 1998) (finding state courts physically inaccessible to quadriplegic civil litigant); Duvall v. County of Kitsap, 260 F. 3d 1124
(9th Cir. 2001) (finding material facts in dispute over whether county court proceedings were effectively inaccessible to hearing-impaired liti-gant).
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26
9
quate accommodations to help them understand the con-tent of those forms, and as a consequence some plaintiffs
waived their rights to a hearing and others failed to in-voke their rights on appeal." Id. at 857 (footnote omitted).
The system did not provide American Sign Language in-terpretation services, Braille copies of documents, qualified
readers, or staff capable of effectively communicating with prisoners and parolees with mental retardation or mental
disabilities. Id. at 858 n. 10. Affirming a lower court deci-sion on ADA grounds, the Ninth Circuit held that the "min-imal
due process measures taken [by the defendant parole board] were insufficient to comply with the ADA or to en-able
plaintiffs properly to invoke or assert their rights." Id. at 862. Furthermore, there was no reasonable rela-tion
to any legitimate penological interest that could justify the impingement on the prisoners',
and parolees', constitu-tional
rights. Id. at 873– 874. 5
These kinds of problems, which
prevent people with dis-abilities
from effectively accessing the judicial system and vindicating their rights, are all too common. In 1997, for in-stance,
the California Judicial Council concluded that many California courts conducted their proceedings in buildings
that were not accessible to persons with disabilities, lacked proper communications equipment, provided too few inter-preters,
and
otherwise denied equal access to persons with disabilities. 6
5. See also People v. Rivera, 480 N. Y. S. 2d 426 (Sup. Ct. 1984) (de-privation of due process where defendant with hearing impairment was
sentenced as two time offender, and in earlier convictions, had been de-nied services of an interpreter); Clarkson v. Coughlin, 898 F. Supp. 1019,
1033 (S. D. N. Y. 1995) (failure to provide interpreters for inmates with hearing impairments for parole and disciplinary hearing violates due
process). 6. Summary of Survey and Public Hearing Reports of the Access
for Persons with Disabilities Subcommittee of the California Judicial Council's Access and Fairness Advisory Committee 8– 12 (Jan. 1997),
at http:// www. courtinfo. ca. gov/ reference/ summarydisabilities. htm;
see also N. Y. State Comm'n on Quality of Care for the Mentally Disabled,
Survey of Access to New York State Courts For Individuals With Dis-abilities (June 1994) (only 8% of New York courts fully accessible to
people with disabilities; "significant barriers" to access remain), at http:// www. cqc. state. ny. us/ publications/ pubcourt. htm.
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10
2. States Exclude People With Disabilities From The Judicial Process As Jurors
"Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its cit-izens
and deny it to others * * * than it may invidiously discriminate in the offering * * * of the elective franchise."
Carter v. Jury Comm'n, 396 U. S. 320,
330
(1970). "The harm from discriminatory jury selection
* * *
touch[ es] the
entire community." Batson v. Kentucky, 476 U. S. 79,
87
(1986). There is no compelling interest in, nor any ratio-nal
basis for, excluding people with physical and mental disabilities from jury service without regard to their indi-vidual
ability to function effectively as jurors. Nonethe-less, when Congress passed the ADA, it was relatively com-mon
for State courts categorically to refuse to allow people with certain disabilities to sit on juries. See, e. g., Hill v.
Shelby County, 599 F. Supp. 303, 304 (N. D. Ala. 1984) (not-ing that state courts "routinely excuse" from service "jurors
who have severe physical disabilities"). For example, the State of New York barred persons with
disabilities from jury service for more than 150 years, a
practice which ended only upon the enactment of the ADA. 7
Until 1994, Arkansas barred people with "substantial im-pairments"
to hearing or sight from participating as ju-rors.
ARK. CODE ANN. § 16-31-
102 (1987), amended, 1994 Ark. Acts No. 4, § 6 (1994); 8
see also Eckstein v. Kirby,
452 F. Supp. 1235, 1243 (E. D.
Ark. 1978) (finding hearing-or vision-impaired jurors unfit to serve). The District of
7. Lewinson v. Crews, 282 N. Y. S. 2d 83, 84– 86 (App. Div. 1967) (ex-cluding a blind college professor as a juror); id. at 87– 88 (Hopkins, J.,
dissenting) (law in force since 1829), aff'd, 236 N. E. 2d 853 (N. Y. 1968). New York courts continued to exclude all blind persons from jury service
until the 1980s. E. g., Jones v. New York City Transit Auth., 483 N. Y. S. 2d 623, 625– 626 (Civ. Ct. 1984). Only upon the passage of the ADA did the
New York state courts cease excluding disabled persons solely because of their status and without regard to their individual abilities. People v.
Guzman, 555 N. E. 2d 259, 261 (N. Y. 1990). 8. Copies of all non-current statutes cited in this brief are repro-duced
in the Appendix. The cited statutes are offered only as exem-plars, and do not purport to represent all the discriminatory statutes in
a particular area.
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Columbia Superior Court continued to exclude all blind per-sons from jury service through 1993. Galloway v. Superior
Court, 816 F. Supp. 12, 16– 17 (D. D. C. 1993) (the "conclu-sion that blind jurors are not qualified appears based on ex-actly
the archaic attitudes and unsubstantiated prejudices Congress wished to eradicate" with ADA). In DeLong v.
Brumbaugh, 703 F. Supp. 399, 406 (W. D. Pa. 1989), a judge serving on Pennsylvania's superior court testified that "he
would disqualify a deaf person under all circumstances." In 1985, the Missouri Supreme Court permitted the categori-cal
exclusion of "deaf, mute, deaf-mute, and blind persons, from inclusion in the jury pool." State v. Spivey, 700 S. W. 2d
812, 813– 814 (Mo. 1985) (" We doubt that deaf persons have a community of attitudes or ideas."). Even today, a number
of States have statutes that limit jury service to those who can "read," "write," or "speak" English, with no statutory
exception for people who use American Sign Language or Braille— the same statutes that supported categorical ex-clusion
of deaf and blind jurors in Spivey and DeLong. See, e. g., ALA. CODE § 12-16-60 (1995); MD. CODE ANN., CTS.
& JUD. PROC. § 8-207 (2002); N. J. STAT. ANN. § 2B: 201 (2002); cf. also WYO. STAT. § 1-11-101 (2002) (jurors "in
possession of * * * natural facilities").
B. Patterns Of Unconstitutional State Conduct Involving The Fundamental Right To Vote
When it passed the ADA, Congress found persistent dis-crimination in the "critical" area of "voting." See 42 U. S. C.
§ 12101( a)( 3).
The fundamental right to vote is "preserva-tive
of other
basic civil and political rights." Reynolds v.
Sims, 377 U. S. 533,
562
(1964). Classifications infringing the ability to exercise
the
right to vote must be examined
under strict scrutiny. Harper v. Virginia State Bd. of Elec-tions, 383 U. S. 663,
666
(1966).
1. States Disenfranchise People With Disabilities
States have historically prevented Americans with men-tal disabilities from exercising their fundamental right to
vote through a host of laws, many of which are still on the books. Forty-two States currently have laws disenfranchis-
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12
ing Americans
with mental disabilities in a variety of con-texts. 9
See Doe v. Rowe, 156 F. Supp. 2d 35, 38 n. 2 (D. Me.
2001).
Similar and more egregious laws were on the books when Congress enacted the ADA. Indeed, the concurring
opinion in City of Cleburne had described them just five years before. 473 U. S. at 464 (citing 1979 article finding
that "most states still categorically disqualified 'idiots' from voting")
(Marshall, J., concurring in part and dissenting in
part). 10 Such
laws are unconstitutional when, facially or as ap-plied,
they categorically exclude people with disabilities from voting, without reference to individual competence.
9. See, e. g., ALASKA CONST. art. V, § 2 (2000) (persons of unsound mind); ARK. CONST. art. 3, § 5 (1987); id. amend. 51 § 11( a)( 6) (2001) (id-iots
or insane; adjudicated mentally incompetent); DEL. CONST. art. 5, § 2 (Supp. 2000); DEL. CODE ANN. tit. 15 § 1701 (1999) (idiot or insane);
HAW. CONST. art. 2, § 2 (1997) (non compos mentis); IOWA CONST. art. 2, § 5 (2000) (idiot or insane); KAN. CONST. art. 5, § 2 (1988) (mental ill-ness);
KY. CONST. § 145( 3) (2002); KY. REV. STAT. §§ 116.025( 1) (1993), 387.590 (1984); MD. CONST. art. 1, § 4 (1981); MD. CODE ANN., ELEC.
§ 3-102( b)( 2) (2002) (under care or guardianship for mental disability); MASS. ANN. LAWS CONST. AMEND. art. 3 (2002); MASS. ANN. LAWS ch.
51, § 1 (1991) (under guardianship); MISS. CONST. art. 12, § 241 (1999); MISS. CODE ANN. § 23-15-11 (1999) (idiots and insane); MONT. CONST.
art. 4, § 2 (2001); MONT. CODE ANN. § 13-1-111( 3) (1999) (adjudicated unsound mind unless finding reversed); NEB. CONST. art. 6, § 2 (2001);
NEB. REV. STAT. ANN. § 32-313( 1) (Michie 2000) (non compos mentis); NEV. CONST. art. 2, § 1 (1998) (idiot or insane); N. J. CONST. art. 2, § 6
(Supp. 1999); N. J. STAT. ANN. § 19: 4-1( 1) (2001) (idiot or insane); N. M. CONST. art. 7, § 1 (1992); N. M. STAT. ANN. § 1-1-4 (Michie 1995) (idiots
or insane); OHIO CONST. art. 5, § 6 (1994) (idiots or insane); R. I. CONST. art. 2, § 1 (2002) (adjudicated non compos mentis); VT. CONST. ch. 2, § 42
(1996) (not quiet and peaceable). See Kay Schriner, et al., Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cogni-tive
and Emotional Impairments, 21 BERKELEY J. EMP. & LAB. L. 437, 456 tbl. 2 (2000), for a chart describing these statutes. Many of the ref-erenced
statutory provisions continue to use what are now recognized as archaic, inexact, and pejorative terms, such as "lunatic" and "idiot,"
to describe the class of persons whose exercise of democratic rights are to be denied. Such imprecise categorization is itself suggestive of arbi-trariness
and discriminatory animus rather than legislative rationality, much less a compelling legislative interest or narrow tailoring.
10. When Congress enacted the ADA, the American Bar Association had opined that most of these statutes were unconstitutional. Schriner,
supra note 9,
at 451.
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28
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13
Such categorical exclusions serve no compelling State inter-est in protecting the integrity of the electoral process, much
less provide the least restrictive means of doing so. Indeed, it is difficult to articulate how such laws meet even mini-mal
standards of due process. One recent case overturning a fairly typical State disenfranchisement provision aptly il-lustrates
the defects in such laws. In Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001), a Maine statute prohibiting in-dividuals
under guardianship for reason of "mental illness" from registering to vote or voting failed to pass constitu-tional
muster on due process and equal protection grounds. The court applied strict scrutiny, and found that the State
had "disenfranchised a subset of mentally ill citizens based on a stereotype rather than any actual relevant incapac-ity."
Id. at 52. The court also found the statute facially un-constitutional under the equal protection clause, because
the State's insistence on looking to archaic categories such as "idiotic," "lunatic," and "unsoundness of mind" to deter-mine
who was excluded from voting based on mental illness permitted improper classifications and disenfranchised an
overbroad class of individuals. Id. at 54– 55; see also, e. g., Manhattan State Citizens' Group Inc. v. Bass, 524 F. Supp.
1270 (S. D. N. Y. 1981) (New York statute prohibiting indi-viduals involuntarily committed to mental institution from
voting was unconstitutional as applied).
2. States Deny Access To Voting Equipment and Polling Places
States have also discriminated by denying individuals with disabilities physical access to both polling places and
voting machines. Although the cases in the area generally have been decided on statutory rather than constitutional-grounds,
it is hard to imagine a compelling State interest in making it difficult or impossible for people with disabil-ities
to exercise their fundamental right to vote, particu-larly when necessary modifications often come at a mini-mal
cost. For example, in National Organization on Dis-ability v. Tartaglione, 2001 WL 1231717 (E. D. Pa. Oct. 11,
2001), a group of plaintiffs with visual and mobility impair-ments brought suit against, among others, the Secretary
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29
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31
14
of the Commonwealth of Pennsylvania, because the Sec-retary could, but had not, approved voting machines that
would allow plaintiffs with visual impairments to partici-pate fully in the voting process. See also American Ass'n
of People with Disabilities v. Smith, 227 F. Supp. 2d 1276 (M. D. Fla. 2002) (declining to dismiss a suit against Florida
officials where State officials certified machines which did not provide equal access to voters with disabilities); Hill v.
New York State Bd. of Elections, 503 N. Y. S. 2d 958 (Sup. Ct. 1986) (State board of elections had continually permitted
local entities to locate polling places in sites inaccessible to people with disabilities). Because the States' categorical
disenfranchisement of persons with disabilities and inter-ference with such persons' rights to vote are themselves un-constitutional,
there is no basis for concluding that the rea-sonable accommodation requirements of Title II do not rep-resent
a congruent and proportional legislative response in such circumstances.
C. Patterns Of State Interference With The Fundamental Right To Marry And Form Families
1. States Sterilize Persons With Disabilities
Every individual enjoys a fundamental right to control his or her ability to procreate "free from unwarranted gov-ernmental
intrusion." Eisenstadt v. Baird, 405 U. S. 438,
453
(1972). This Court has also recognized a fundamen-tal
right
to bodily integrity under the Fourteenth Amend-ment's due process clause. Cruzan v. Director, Mo. Dep't of
Health, 497 U. S. 261,
269
(1990). Limitations on these fun-damental rights are
subject
to heightened scrutiny. Carey
v. Population Servs. Int'l, 431 U. S. 678,
684–
686
(1977). The States share a long and shameful
pattern
of depriv-ing
Americans with disabilities of the right and ability to procreate. Early in the last century, most States had laws
authorizing
involuntary sterilization of persons with dis-abilities. 11
Some of those laws were still in force when Con-11.
See generally Phillip R. Reilly, THE SURGICAL SOLUTION: A HISTORY OF INVOLUNTARY STERILIZATION IN THE UNITED STATES
45– 55 (1991).
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15
gress enacted the ADA, although commentators generally had long concluded that "compulsory sterilization laws, no
matter what their rationale, [we] re unconstitutional in the absence of evidence that compulsory sterilization [wa] s the
only remedy available
to further a compelling governmen-tal interest." 12
In 1991, for instance, an Arkansas court
overturned, as
violative of due process, a State statute au-thorizing sterilization of "mentally deficient persons" with-out
provision for notice, right of representation, right of hearing, or judicial oversight of the sterilization decision.
McKinney v. McKinney, 805 S. W. 2d 66 (Ark. 1991); see also Motes v. Hall County Dep't of Family & Children Servs.,
306 S. E. 2d 260, 261– 262 (Ga. 1983) (Georgia statute au-thorizing sterilization on "legal preponderance" of evidence
did not meet constitutional requirements, because
due pro-cess requires " 'clear and convincing' evidence"). 13
In 1981,
former patients of Virginia institutions who were
involun-tarily sterilized under a 1924 statute articulated a contin-uing
constitutional violation, based on the State's continu-ing failure to notify them that they had been involuntarily
sterilized— causing them to suffer "medical, emotional, and mental problems, arising in large part from unsuccessful
and uninformed attempts to deal with their infertility." Poe v. Lynchburg Training Sch. & Hosp., 518 F. Supp. 789, 793
(W. D. Va. 1981). Even after compulsory sterilization statutes were re-pealed,
some States enacted statutes that allowed steril-ization on the consent of the superintendent
of a custodial
care institution or a guardian. 14
Sterilization on the ba-12.
See In re A. W., 637 P. 2d 366, 368– 369 (Colo. 1981) (citing Burgdorf & Burgdorf, The Wicked Witch Is Almost Dead: Buck v. Bell and the
Sterilization of Handicapped Persons, 50 TEMP. L. Q. 995 (1977), and others).
13. Moreover, in the decades immediately before the ADA, State courts still were upholding sterilization statutes, citing the infamous
decision in Buck v. Bell, 274 U. S. 200
(1927). See, e. g., In re Sterilization of Moore, 221 S. E. 2d 307 (N. C. 1976);
Cook v. State, 495 P. 2d 768 (Or.
1972). 14. Price & Burt, Sterilization, State Action and the Concept of Con-sent,
1 LAW & PSYCH. REV. 57 (1978). E. g., MISS. CODE ANN. §§ 41-45-1, 41-45-9 (1999) (sterilization of "insane, idiotic, imbecile or feeble-
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33
16
sis of the legal fiction of "substituted consent" still involves State action threatening the fundamental right of procre-ation.
Relying on substituted consent, courts have per-mitted third persons to consent to sterilizations in circum-stances
in which the facts indicate that no compelling in-terest was at stake. See, e. g., Stump v. Sparkman, 435 U. S.
349
(1978) (15-year-old girl with mild retardation sterilized
involuntarily
after judge approved, ex parte, her mother's
petition, without notice to the daughter or appointment of a guardian ad litem, although the daughter attended pub-lic
school and had been promoted each year with her class); Downs v. Sawtelle, 574 F. 2d 1, 5 (1st Cir. 1978) (21-year-old
woman who was deaf and mute sterilized with consent of her guardian based on doctor's report recommending the
operation " 'based 90% on this girl's low mentality involv-ing poor judgment and her lack of restraint on
sex appetite
and its consequences' ") (citation omitted). 15
Because such unconsented-to State-approved sterilization
is itself a vio-lation
of the constitutional rights of the sterilized individ-ual, there is no support for the contention that Title II of
the ADA fails the requirements of congruence and propor-tionality in this context.
2. States Prohibit The Marriage Of People With Disabilities
Marriage is one of the "basic civil rights of man," Skin-ner v. Oklahoma, 316 U. S. 535,
541
(1942), so the right to
marry has long been considered
fundamental,
Meyer v. Ne-braska, 262 U. S. 390,
399
(1923). State laws restricting the
minded" person who "by the laws of heredity is the probable potential parent of socially inadequate offspring likewise afflicted," upon peti-tion
of director of State institution after hearing); IND. CODE § 22-1601 (1950).
15. See also, e. g., In re A. W., 637 P. 2d at 370 ("[ c] onsent by parents to the sterilization of their mentally retarded offspring has a history of
abuse which indicates that parents, at least in this limited context, can-not be presumed to have an identity of interest with their children. The
inconvenience of caring for the incompetent child coupled with fears of sexual promiscuity or exploitation may lead parents to seek a solution
which infringes their offspring's fundamental procreative rights.") (foot-notes omitted).
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17
right of a class of persons to marry are unconstitutional un-less the State can show a compelling interest. Zablocki v.
Redhail, 434 U. S. 374,
381
(1978). Nevertheless, numerous
State statutes historically and
categorically restricted the right of persons with disabil-ities to marry, without a determination of individual ca-pacity,
in a manner that cannot withstand strict scrutiny. Many States maintained such
restrictive statutes through
the enactment of the ADA. 16
Just five years before Con-gress enacted Title II, for instance,
this Court noted in City
of Cleburne that it was still a criminal offense in several states for people with mental retardation to marry. 473
U. S. at 463
& n. 12. Some statutes discriminating against the right of per-sons
with disabilities to marry are still on the books. TENN. CODE ANN. § 36-3-109 (2001), for instance, forbids the is-suance
of a marriage license "when it appears that the ap-plicants or either of them is at the time drunk, insane or
an imbecile." See also MISS. CODE ANN. § 93-1-5 (1999) (same); D. C. CODE ANN. § 46-403 (2001) (marriage of "an
idiot or of a person adjudged to be a lunatic" is illegal and void). In 1987, Utah declared that marriage with "a per-son
afflicted with acquired immune deficiency syndrome" is "prohibited" and "void." UTAH CODE ANN. § 30-1-2( 1)
(1987) (declared "void and invalid" on statutory grounds in T. E. P. v. Leavitt, 840 F. Supp. 110, 111 (D. Utah 1993)).
Such statutes provide States with the authority to deny marriage licenses to people on the basis of disabilities with-16.
CAL. CIV. CODE § 4201 (1987) (" imbecile"; "insane"); D. C. CODE ANN. § 30-103 (1981) (" idiot"; "lunatic"); IOWA CODE ANN. § 595.3
(1990) (" a mental retardate"; "mentally ill"); MICH. COMP. LAWS § 551.6 (1988) (" feebleminded"; "imbecile"; "insane"); MISS. CODE ANN. § 41-
21-45 (1990) (unlawful to cohabit with "feebleminded" female); PA. STAT. ANN. tit. 48, § 1-5 (West 1990) (" weak-minded"; "insane"); R. I.
GEN. LAWS § 15-1-5 (1988) (" idiot"; "lunatic"); VT. STAT. ANN. tit. 15, § 514 (1989) (" idiot"; "lunatic"); id. tit. 15, § 512 (1989) (" physically in-capable");
W. VA. CODE § 48-2-2 (1990) (" insane"; "idiot"; "imbecile") (copies included in Appendix). See Bruce Dennis Sales, et al., DISABLED
PERSONS AND THE LAW: STATE LEGISLATIVE ISSUES 16– 20 (Plenum Press 1982) (as of 1980, forty-two States and the District of Columbia
had statutes restricting marriage for persons with disabilities).
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18
out any compelling interest or, indeed, any rational basis. Such denials are themselves unconstitutional, and for that
reason, the reasonable accommodation requirement of the ADA must be viewed as a congruent and proportional leg-islative
response in such and similar circumstances.
3. States Discriminate Against Parents With Disabilities
The right to raise one's children is protected by the Con-stitution. Stanley v. Illinois, 405 U. S. 645,
651
(1972). Bal-anced
against this right is the state's interest
in the wel-fare of the child. Wisconsin v. Yoder, 406 U. S. 205,
233–
234
(1972). The Court has repeatedly "recognized the
funda-mental
right of parents to make decisions concerning the
care, custody, and control of their children." Troxel v. Granville, 530 U. S. 57,
66
(2000).
Yet, in matters involving
the parent-child relationship, States historically have treated parents with mental retar-dation
and mental or physical disabilities quite differently from other parents. "[ D] iscrimination begins with the ini-tial
decision to intervene, ends in the decision to terminate the relationship, and is manifest
in nearly every significant
decision along the way." 17
That discrimination often relies on stereotypes, rather than
real individual differences in
capacities. Such stereotyping is evident, for example, in State cus-tody
determinations involving parents with mental or phys-ical disabilities, even in cases citing the "best interest of the
child" standard. In Bednarski v. Bednarski, 366 N. W. 2d 69, 73 (Mich. Ct. App. 1985), a Michigan trial court terminated
a deaf woman's custody of her "[ t] wo normal children," cit-ing her deafness, forcing the appellate court to reverse. In
another example, a trial judge ordered that a blind father— a successful CEO of a computer company— must be accom-panied
at all times by a "responsible adult" while caring for his daughter, simply because of his disability. Clark v.
Madden, 725 N. E. 2d 100, 103 (Ind. Ct. App. 2000) (revers-17.
Robert L. Hayman, Jr., Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, 103 HARV. L. REV. 1201, 1227 (1990).
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34
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36
19
ing trial court). In H. J. B. v. P. W., 628 So. 2d 753, 756 (Ala. Civ. App. 1993), an Alabama court affirmed a father's
loss
of custody primarily because he was HIV-positive. 18
State agencies have also classified children with disabil-ities
as "unadoptable" in violation of their constitutional rights. In Baby Neal v. Casey, 821 F. Supp. 320 (E. D. Pa.
1993), for instance, the court permitted due process claims to proceed on behalf of two children classified as "unadopt-able"
by the Philadelphia Department of Human Services, one because he was tested positive for AIDS, the other be-cause
he was "handicapped." Again, because the underly-ing State conduct at issue in each of these cases was itself
unconstitutional, there is no plausible basis for concluding that Title II fails to serve as a congruent and proportional
legislative response.
D. Patterns Of Unconstitutional State Discrimination In Education
"[ E] ducation is perhaps the most important function of state and local governments." Brown v. Board of Educ., 347
U. S. 483,
493
(1954). In view of the importance of the is-sue,
the categorical
exclusion of any class of children from
the educational system would pose serious equal protection concerns. See San Antonio Indep. Sch. Dist. v. Rodriguez,
18. See also In re Interest of T. N. V., 855 S. W. 2d 102, 103 (Tex. App.— Corpus Christi 1993) (describing trial court's decision to allow HIV-positive
father visitation with his daughter only if both father and child remained "fully robed and fully clothed with gloves, sterile gown and
face masks" and ordering that "[ t] here shall be no 'skin to skin' contact at any time during the visit"); In re Marriage of R. R., 575 S. W. 2d 766,
768 (Mo. Ct. App. 1978) (reversing order of trial judge awarding cus-tody to "immoral" and "dishonest" mother because of unsubstantiated
fear that the children would be "emotionally damaged because of [the father's] handicap," multiple sclerosis); In re Marriage of Carney, 598
P. 2d 36, 42 (Cal. 1979) (condemning trial court's conclusion that father was "deemed forever unable to be a good parent simply because he is
physically handicapped" because "[ l] ike most stereotypes, this is both false and demeaning"); Adoption of Richardson, 59 Cal. Rptr. 323, 329–
330 (Ct. App. 1967) (reversing trial court refusal to permit a deaf couple to adopt a child; "[ t] here can be no doubt that the judge was biased and
prejudiced" against the parents "solely because they were deaf-mutes."); Moye v. Moye, 627 P. 2d 799 (Idaho 1981) (epilepsy).
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35
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37
20
411 U. S. 1,
37
(1973) (distinguishing "absolute denial" of ed-ucation from
inequalities in funding). States nevertheless
have historically discriminated against people with disabil-ities by excluding them from educational opportunities, and
this pattern continues to the present day. Earlier in the last century, a number of States categor-ically
excluded children with disabilities from public edu-cation. See, e. g., DEL. CONST. art. 10, § 1 (1975) (estab-lishing
free public schools for all children except those who were "physically or mentally disabled"). When Congress
enacted the Education for All Handicapped Children Act (" EAHCA") in 1975, it compiled an extensive record that
States simply did not educate children with disabilities. Based on this record, Congress found that one million chil-dren
were "excluded entirely" from the public school system, and "more than one-half" of the 8 million children with dis-abilities
did not receive appropriate educational services. 20 U. S. C. § 1400( c)( 2)
(emphasis added).
Judicial decisions
confirm Congress' conclusion. In Pennsylvania Ass'n for Retarded Children v. Pennsylvania,
343 F. Supp. 279 (E. D. Pa. 1972), for instance, students with mental retardation charged that Pennsylvania statutes ex-cluded
them from schools. The court found that the plain-tiffs had articulated equal protection and due process
claims under the rational basis test. See also Mills v. Board of Educ., 348 F. Supp. 866 (D. D. C. 1972) (due process vio-lation
when defendant excluded students with disabilities from public education). Congress considered these cases
and others like them when it enacted the EAHCA. See Honig v. Doe, 484 U. S. 305,
310
(1988) (" by the time of the
EHA's enactment, parents
had brought
legal challenges to similar exclusionary practices in 27 other States"). Even
when unconstitutional statutory schemes were remedied, States continued to violate the equal protection clause by
excluding students with disabilities from educational op-portunities. See, e. g., Panitch v. Wisconsin, 444 F. Supp.
320 (E. D. Wis. 1977). These constitutional violations continued when Con-gress
enacted the ADA, fifteen years later. In fact, Congress relied upon a Civil Rights Commission Report finding that,
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38
21
notwithstanding the EAHCA, "a great many handicapped
children continue to be excluded from the public schools." 19
Congress found, therefore, that States still were discrim-inating
against children with disabilities in the "critical
area" of "education." 42 U. S. C. § 12101( a)( 3).
Unfortu-nately, instances of unconstitutional State exclusion persist
even today. See, e. g., Robinson v. Kansas, 117 F. Supp. 2d 1124 (D. Kan. 2000) (students with disabilities stated ac-tionable
due process and equal protection claims alleging inadequate school funding), aff'd, 295 F. 3d 1183 (10th Cir.
2002), cert. denied, 123 S. Ct. 2574 (2003).
E. Patterns Of Unconstitutional State Treatment Of People With Disabilities In Institutions
In enacting the ADA, Congress found continuing State-sponsored discrimination in the "critical" area of "institu-tionalization,"
and noted as well pervasive discrimination against people with disabilities through "segregation." See
42 U. S. C. § 12101( a)( 3), (5).
The record before Congress when it passed Title II was
replete with examples of un-constitutional
State-sponsored discrimination in both civil and penal institutions. Such discrimination continues to-day.
1. States Institutionalize People With Disabilities Without Necessity And Treat Them Deplorably
While They Are In Civil Institutions
Just eight years before Congress enacted the ADA, this Court decided Youngberg v. Romeo, 457 U. S. 307,
315–
319
(1982), confirming that people in civil institutions
are
con-stitutionally
entitled to safe conditions, freedom from un-necessary
bodily restraints, and the training necessary to assist them in securing those rights. Nonetheless, the
States when the ADA was enacted and today have proven resistant to improving the deplorable unconstitutional con-ditions
in some civil institutions. A case brought by a class of children with mental re-19.
United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities 29 (1983) (" Accommodating the Spec-trum").
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39
22
tardation, emotional disturbances, and physical disabili-ties against the State of Louisiana is a prime example of a
State's continuing unconstitutional behavior. In 1976, the plaintiffs established unnecessary physical abuse, neglect,
and unnecessary restraint of its wards, and the judge or-dered remedial action. Gary W. v. Louisiana, 437 F. Supp.
1209, 1219, 1213 (E. D. La. 1976). In 1990, twenty-five years later, and notwithstanding the judge's efforts "to facilitate,
cajole, and even coerce compliance," the State institutions still were unable to prevent outright abuse of patients, or
to provide minimally adequate treatment, consistent with constitutional standards. Gary W. v. Louisiana, 1990
U. S.
Dist. LEXIS 1746, at *81 (E. D. La. Feb. 15, 1990). 20
Other egregious examples abound. A federal judge
re-cently
described Alabama's institutions as "essentially warehousing patients in an inhumane environment." Wy-att
ex rel. Rawlins v. Rogers, 985 F. Supp. 1356, 1361– 1362 (M. D. Ala. 1997). The same institutions were the subjects
of similar findings, of unconstitutional conduct as early as 1971 for "grossly substandard" instances including exam-ples
of residents being scalded to death and restrained in a straitjacket for nine years, among others. Wyatt v. Stick-ney,
344 F. Supp. 387, 391 (M. D. Ala. 1972), aff'd in relevant part, 503 F. 2d 1305 (5th Cir. 1974). The year that Congress
passed Title II, the staff at a New York facility for people with mental retardation regularly left the children in their
care lying half-naked and unattended in their own urine
20. Just four years ago, the General Accounting Office doc-umented the continuing practice of unnecessary physical re-straint
among State institutions. GAO, Mental Health: Im-proper Restraint or Seclusion Use Places People at Risk (Sept.
1999), at http:// www. gao. gov/ archive/ 1999/ he99176. pdf.
The De-partment of Justice likewise has settled, with consent
orders,
several recent egregious cases involving unnecessary physical restraints. See, e. g., Letter from Ralph F. Boyd, Jr., Assistant
Attorney General, Civil Rights Division, DOJ, to The Honor-able Thomas J. Vilsack, Governor of Iowa (July 9, 2002), at
http:// www. usdoj. gov/ crt/ split/ documents/ ia findings wsrc gsrc. htm (residents in Iowa institution spent an average of 18 hours a month
in
mechanical restraints, some for as long as 300 hours a month, and many residents were injured by the use of such restraints). Many similar
samples are available at http:// www. usdoj. gov/ crt/ split/ findsettle. htm.
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23
and feces on cold floors while the staff watched television. Society for Good Will to Retarded Children
v. Cuomo, 745 F.
Supp. 879, 879 (E. D. N. Y. 1990). 21
In addition to treating people
with disabilities
deplorably while they are in institutions, the States have a long history of institutionalizing people unnecessarily. The
Constitution protects individuals from unnecessary con-finement in institutions. O'Connor v. Donaldson, 422 U. S.
563,
574–
575
(1975) (if the basis for commitment ceases
to exist,
continued
confinement unconstitutionally deprives
the individual of a significant liberty interest). Historically, the States institutionalized individuals
with mental retardation or deafness as a matter of course, based on false stereotypes, the "science" of eugenics, and
pure xenophobia. City of Cleburne, 473 U. S. at 461–
462
(describing a pattern of State-mandated institutionaliza-tion
that "paralleled the worst excesses of Jim Crow") (Mar-shall, J., concurring in part and dissenting in part). Al-though
the laws that mandated institutionalization have largely been repealed, there still is ample evidence of
unnecessary and unconstitutional civil commitment. Congress
was aware of such evidence when it passed the
ADA, 22
and the judicial record amply confirms that it ex-ists. For
example, in Clark v. Cohen, 794 F. 2d 79, 85– 86 (3d
21. See also, e. g., Halderman v. Pennhurst State Sch. & Hosp., 446 F. Supp. 1295, 1306– 1309 (E. D. Pa. 1977) (unconstitutional, deplorable,
and hazardous conditions, including widespread inappropriate use of re-straints and incidents of direct abuse from staff persons; the walls of the
institution were covered in feces and urine and the residents were sub-ject to outbreaks of infectious disease), rev'd on other grounds, 451 U. S. 1
(1980); Association for Retarded Citizens v. Olson, 561 F. Supp. 473, 476 (D. N. D. 1982) (constitutional violations in North Dakota institutions;
drugs were administered casually, often to the wrong individual; resi-dents were regularly left naked in front of other residents; individuals'
health worsened rather than improved), aff'd in relevant part, 713 F. 2d 1384 (8th Cir. 1983); Lelsz v. Kavanagh, 673 F. Supp. 828, 844– 848 (N. D.
Tex. 1987) (systemic understaffing and communications failures led to inappropriate medication and deaths; behavior modification techniques
were "state of the art 1950's") (internal quotations omitted).
22. See Accommodating the Spectrum, supra note 19,
at 34 (noting
that "segregationist purpose" of institutions continued; institutions
still "lack rational admitting criteria," among other defects).
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24
Cir. 1986), the Third Circuit documented a ten-year effort by staff at a Pennsylvania institution to secure the release
of a woman with mild retardation. At age fifteen, in 1956, she was labeled as "severely defective" and committed with-out
a hearing. Id. at 85. Even after the statute under which she was committed was repealed, and despite her doctors'
recommendations that she be released, State officials never reviewed her case. Ibid. In the end, Pennsylvania did not
dispute that forty years of unnecessary institutionalization had deprived the plaintiff of any hope of living the rest of
her life without supervised care. Id. at 83. The court of appeals found that this conduct violated the plaintiff's sub-stantive
due process rights. Id. at 87. In Eric L. ex rel. Schierberl v. Bird, 848 F. Supp. 303 (D. N. H. 1994), the court
found that the State violated procedural due process, equal protection, and the ADA when it segregated children with
disabilities in institutions which isolated them and denied them services and placement opportunities comparable
to
those available to children without disabilities. 23
2. States Ignore The Medical Needs Of Prisoners With Disabilities And Otherwise Violate Their
Constitutional Rights
The Eighth Amendment prohibits disproportionate pun-ishments, Weems v. United States, 217 U. S. 349,
366–
367
23. See also Thomas S. v. Morrow, 781 F. 2d 367, 369– 373 (4th Cir. 1986) (North Carolina violated constitutional rights of man with mild
retardation when it moved him from State hospital to a detox center rather than providing non-residential support services as hospital rec-ommended);
Jackson v. Ft. Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1294– 1296 (D. N. M. 1990) (New Mexico deprived a class of indi-viduals
with developmental disabilities who were unnecessarily com-mitted of substantive due process rights in numerous instances), rev'd
in part on other grounds, 964 F. 2d 980 (10th Cir. 1992); D. Schein, At Home Among Strangers (1989) (describing numerous deaf individ-uals
committed under repealed statutes allowing for commitment solely by reason of deafness or erroneously considered to have mental dis-abilities;
continued commitment had not been reviewed). Unfortu-nately, the problem of unnecessary institutionalization remains per-vasive.
See Sharon P. Davis, A Status Report to the Nation on Peo-ple with Mental Retardation Waiting for Community Services (1997), at
http:// www. thearc. org/ misc/ WaitPage. html.
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25
(1910), and the "unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U. S. 153,
173
(1976) (plurality opin-ion).
The Constitution also forbids
State prisons to act with deliberate indifference to the medical needs of pris-oners
with
disabilities. Estelle v. Gamble, 429 U. S. 97,
106
(1976). 24
This practice subjects prisoners with disabilities
to multiple
punishments: in addition to their sentence, they suffer unnecessary pain, loss of dignity, and, in some cases,
a shortened lifespan. At the time Title II was enacted, however, State pris-ons
nevertheless continued to abuse prisoners with disabil-ities, denying them these fundamental constitutional pro-tections.
For example, a Michigan prison routinely forced two paraplegic inmates to sit in their own feces for hours
at a time, causing them medical complications. Parrish v. Johnson, 800 F. 2d 600, 602– 603 (6th Cir. 1986). Staff
habitually refused to relay the prisoners' requests for aid to nurses, and deliberately placed their food trays in in-accessible
positions. Moreover, prison officials did noth-ing to stop a guard who on several occasions assaulted the
inmates with a knife and frequently called one inmate a "crippled bastard who should be dead." Id. at 603. The
State's conduct furthered "[ n] o legitimate penological or in-stitutional objective." Id. at 605.
In Kiman v. New Hampshire Department of Corrections, 301 F. 3d 13, 25 n. 9 (1st Cir. 2002), aff'd, 332 F. 3d 29 (1st Cir.
2003) (en banc), for instance, an inmate with Lou Gehrig's Disease sued New Hampshire under the ADA and State
laws. 301 F. 3d at 14– 15. During his confinement, Mr. Ki-man gradually lost the ability to control his voluntary mus-cles.
Id. at 15. Despite his repeated requests, the State re-fused to provide him with a cane to walk or a chair to use in
the shower; cuffed his hands behind his back rather than in front despite his pleas of pain; refused to move his cell
from the third tier despite his inability to climb stairs; and refused to provide him a special toilet, requiring him to rely
on the goodwill of his cellmates to engage in personal hy-24.
Pennsylvania Dep't of Corrs. v. Yeskey, 524 U. S. 206,
210
(1998), confirmed that prisoners with disabilities can sue State prisons
under
Title II for discrimination in the provision of medical services.
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26
giene. Id. at 16. The First Circuit held that the complaint fairly could be read to allege a violation of both the Eighth
Amendment and equal protection. Id. at 24 & 25 n. 9. Be-cause the State's refusal to accommodate Mr. Kiman's dis-ability
was itself a constitutional violation, the ADA repre-sents a congruent and proportional response as applied to
the type of violations alleged in that case. See id. at 25 & n. 9.
The suffering endured by inmates with disabilities is reaching crisis proportions. Prisoners with disabilities are
over-represented in the criminal justice system
and are swelling the ranks of penal institutions. 25
A recent class
action in California illustrated State-wide systemic
and un-constitutional abuse of prisoners with mental disabilities.
In Coleman v. Wilson, 912 F. Supp. 1282, 1305– 1323 (E. D. Cal. 1995), the record revealed that California failed to:
screen inmates for medical needs; maintain basic medi-cal records and medication policies; maintain adequate and
competent staffing; appropriately use mechanical restraints; and prevent inappropriate disciplinary and be-havior
control measures on prisoners with mental disabil-ities, including use of isolation and taser guns. Ibid. Each
one of these practices violated
the prisoners' constitutional rights. Id. at 1305– 1325. 26
25. See Council of State Governments, Criminal Jus-tice/ Mental Health Consensus Project (June 2002), at
http:// consensusproject. org;
Human Rights Watch, Ill-Equipped: U. S. Prisons and Offenders
with Mental Illness ch. III (Oct. 2003), at
http:// www. hrw. org/ reports/ 2003/ usa1003/.
Once incarcerated, inmates with disabilities are far more likely to be
victimized, exploited, and
injured than other inmates. See, e. g., Ruiz v. Estelle, 503 F. Supp. 1265, 1344 (S. D. Tex. 1980), aff'd in relevant part, 679 F. 2d 1115 (5th Cir.
1982). 26. See also, e. g., Ruiz, 503 F. Supp. at 1274– 1391 (126-page opin-ion
describing Texas' unconstitutional treatment of prisoners with dis-abilities, including among many other examples routinely denying
prescribed treatments for prisoners who use asthmatic inhalers and wheelchairs and disciplining prisoners with mental retardation for in-fractions
of rules they did not understand); Yarbaugh v. Roach, 736 F. Supp. 318, 320 (D. D. C. 1990) (prisoner with multiple sclerosis was in-carcerated
for over a year before he was seen by a physician and did not receive assistance in daily activities; as a consequence, he had not
showered in over a year and had fallen repeatedly attempting to move
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27
F. Patterns Of Irrational State Segregation Of People With Disabilities From The Community
Even outside the walls of State-run institutions, the States have historically segregated Americans with disabil-ities
from the community at large through discriminatory zoning laws. Such laws lack a rational basis when they
treat people with disabilities differently than other groups without justification. City of Cleburne, 473 U. S. at 450
(or-dinance
requiring a group home for people with mental
re-tardation to obtain a special use permit but not requiring
other groups to obtain similar permits violated equal pro-tection).
Over the past decades, many individuals with disabil-ities have moved from institutional settings into more in-tegrated
community settings. Unfortunately, States and municipalities reacting to pressure based on stigma and
prejudice responded by enacting dispersion laws that pre-vent the concentration of community residences for individ-uals
with disabilities in one area. Epicenter, Inc. v. City of Steubenville, 924 F. Supp. 845, 849 (S. D. Ohio 1996) (cities
"reacted to the deinstitutionalization movement" like "post-bellum Southern state governments that passed Jim Crow
laws"). When Congress enacted Title II, this form of discrim-ination
was extensive, and involved State as well as lo-cal/ municipal action. In Larkin v. Michigan, 883 F. Supp.
172 (E. D. Mich. 1994), for instance, the court considered a Michigan law forbidding the licensing of a group home for
people with disabilities if the group home was to be located within 1500 feet of another group home. Id. Finding that
the dispersion requirements placed quotas on the people with disabilities who could live in a residential neighbor-hood,
the court struck the law as without rational basis and thus violative
of equal protection guarantees. Id. at 179–
180; 27
see also Bangerter v. Orem City Corp., 46 F. 3d 1491,
from his wheelchair to his bed). 27. The Sixth Circuit affirmed on statutory grounds without reaching
the constitutional issue. 89 F. 3d 285 (6th Cir. 1996). Other States have similar dispersion requirements. See, e. g., CONN. GEN. STAT. § 8-3f
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28
1503 n. 20 (10th Cir. 1995) (statutory claim involving Utah law mandating that community housing for people with
"handicap[ s]" provide 24-hour supervision; "if this case had been brought as an equal protection claim, there is no ev-idence
that the zoning restrictions were rationally related to legitimate government concerns and not based on un-substantiated
fears or irrational prejudices"); Association of Relatives and Friends of AIDS Patients v. Regulations
and Permits Admin., 740 F. Supp. 95, 103– 106 (D. P. R. 1990) (finding intentional discrimination against people with
AIDS in zoning decision).
CONCLUSION
Congress' specific findings, the materials cited in this brief, and the legislative history detailed in other briefs
all provide extensive and compelling evidence that States perpetuated a pattern of unconstitutional discrimination.
In view of this long-standing pattern, Congress was acting well within its constitutional authority when it abrogated
the States' immunity from suit under Title II. Accordingly, this Court should affirm the judgments below.
Respectfully submitted.
Of Counsel: Timothy K. Armstrong* Ira A. Burnim Elizabeth B. McCallum
Jennifer Mathis Andrew P. Tower JUDGE DAVID L. BAZELON Kristien Carbonez
CENTER FOR MENTAL Thomas Dillickrath HEALTH LAW Richard Groseclose
1101 Fifteenth St., N. W. Kristen McAhren Washington, D. C. 20005 HOWREY SIMON ARNOLD
(202) 467-5730 & WHITE, LLP 1299 Pennsylvania Ave., N. W.
Washington, D. C. 20004-2402 (202) 783-0800
Counsel for Amici Curiae
NOVEMBER 2003 * Counsel of Record
(2001); DEL. CODE ANN. tit. 22, § 309 (2002); VT. STAT. ANN. tit. 24, § 4409( f) (2002).
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THE AMICI ORGANIZATIONS
AARP is a nonpartisan, nonprofit membership organi-zation with more than thirty-five million persons age 50
and older that is dedicated to addressing the needs and in-terests of older Americans. Countless AARP members with
disabilities rely on Title II of the ADA to assure access to public programs and services, including those provided by
States and State entities, in a manner free from discrimina-tion. These protections are especially important to AARP
members because older persons have a higher incidence of disabilities than other populations.
The American Association on Mental Retardation (" AAMR") is the nation's oldest and largest interdiscipli-nary
organization of professional and other persons who work exclusively in the field of mental retardation. AAMR
promotes progressive policies, sound research, effective practices, and human rights for people with intellectual
disabilities. The American Council of the Blind (" ACB") is a national
nonprofit, consumer organization of the blind, with seventy affiliates and members in all fifty states. Its mission is to
improve the quality of life, equality of opportunity, and in-dependence for all persons who are blind. To that end,
ACB seeks to educate policy makers about the needs and capabilities of people who are blind, and to assist individ-uals
and organizations wishing to advocate for programs and policies that meet the needs of people who are blind,
or visually impaired. ACB members were very involved in the efforts that led to the passage of the ADA. There-fore,
we are very disturbed about the legal challenges to its constitutionality which have been raised in recent years.
We are especially concerned that state governments are in-creasingly taking up the cause of those who would weaken
the ADA's effectiveness. We urge this Court to give careful consideration to the implications of such challenges for the
rights and welfare of people with disabilities who live and work within those states.
The American Diabetes Association is the nation's lead-ing nonprofit health organization providing diabetes
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research, information, and advocacy. Founded in 1940, the Association conducts programs in all 50 states and the Dis-trict
of Columbia, providing services to hundreds of com-munities across the country. The mission of the organiza-tion
is to prevent and cure diabetes, and to improve the lives of all people affected by diabetes. To fulfill this mis-sion,
the Association funds research, publishes scientific findings, provides information and other services to people
with diabetes, their families, health care professionals and the public, and advocates for scientific research and for the
rights of people with diabetes. The American Occupational Therapy Association
(" AOTA") is the national professional association of over 40,000 occupational therapists and occupational therapy
assistants as well as students of the profession. The AOTA mission is to support the contributions of occupational ther-apy
to health, wellbeing, productivity and quality of life. Occupational therapists provide treatment and interven-tion
for people with physical and mental disabilities to pro-mote full participation in society and maximum achieve-ment
of human potential. Occupational therapy can assist individuals with disabilities in identifying work limitations
and potential. AOTA advocates on behalf of the profes-sion and the public through support of positive public policy
such as that contained in the Americans with Disabilities Act.
The American Psychiatric Association, with approxi-mately 40,000 members, is the Nation's largest organiza-tion
of physicians specializing in psychiatry. It has partici-pated in numerous cases in this Court, including Olmstead
v. L. C. ex rel. Zimring, 527 U. S. 581 (1999). Its members have a strong interest in the constitutionality of the Amer-icans
with Disabilities Act as it bars government entities' discrimination against persons with disabilities, including
persons with mental illnesses or disabilities. The Arc of the United States (" The Arc"), through its
nearly 900 state and local chapters, is the largest national voluntary organization in the United States devoted solely
to the welfare of the more than seven million children and adults with mental retardation and related disabilities and
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their families. Since its inception, The Arc has vigorously challenged attitudes and public policy, based on false stereo-types,
which have authorized or encouraged segregation of people with mental retardation in virtually all areas of life.
The Arc was one of the leaders in framing and supporting passage of the Americans with Disabilities Act.
The Association on Higher Education And Disability (" AHEAD") is a non-profit organization committed to full
participation in higher education and equal access to all opportunities for persons with disabilities, including pro-fessional
licensing and employment. Its membership in-cludes approximately 2,000 institutions including colleges,
universities, not-for-profit service providers, and standard-ized testing organizations, professionals, and college and
graduate students planning to enter the field of disabil-ity practice. Many of its members are actively engaged in
assuring ADA compliance and in providing reasonable ac-commodations to both students and employees at institu-tions
of higher education and in high-stakes standardized testing. In addition, AHEAD members actively work with
students in establishing vocational plans and job readiness. AHEAD publishes numerous resources on the implementa-tion
of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 by post-secondary educa-tional
institutions. The Bazelon Center for Mental Health Law is a national
public interest organization founded in 1972 to advocate for the rights of individuals with mental disabilities. The
Bazelon Center has engaged in litigation, administrative advocacy, and public education to promote equal opportu-nities
for individuals with mental disabilities. Much of the Center's work involves efforts to remedy disability-based
discrimination through enforcement of the ADA. The Alexander Graham Bell Association for the Deaf
and Hard of Hearing (" AG Bell") is a non-profit organiza-tion with chapters throughout the United States, and has
international affiliates throughout the world. AG Bell ad-vocates for spoken language in children and adults. AG
Bell is deemed to be the preeminent organization in deaf-ness. AG Bell provides advocacy, resources and leadership
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for parents, professionals, and individuals who are deaf or hard of hearing.
The Depression and Bipolar Support Alliance (" DBSA") is the leading patient-directed national organization focus-ing
on the most prevalent mental illnesses— depression and bipolar disorder. Studies indicate that there may be 20 to
35 million persons with depression and 2.5 million to 10 million people with bipolar disorder. DBSA was founded
in 1985 and is based in Chicago. DBSA's mission is to im-prove the lives of people living with mood disorders. This
not-for-profit organization fosters an environment of under-standing about the impact and management of these life
threatening illnesses by providing up-to-date, scientifically based tools and information, written in easy to understand
language. DBSA has more than 1,000 peer-run support groups across the country. Assisted by a Scientific Advisory
Board, comprised of the leading researchers and clinicians in the field of mood disorders, DBSA supports research to
promote more timely diagnosis, to develop more effective and tolerable treatments and to discover a cure. The DBSA
organization works to ensure that people living with mood disorders are treated equitably. In that regard, we believe
that the Americans With Disabilities Act should be given a strong and vigorous construction, including coverage for
the unlawful discriminatory acts of State units of govern-ment.
Easter Seals has been providing services that help indi-viduals with disabilities and special needs, and their fam-ilies,
live better lives for more than 80 years. Easter Seals promotes the passage and enforcement of federal legisla-tion,
including the ADA, that enables people with disabil-ities to achieve greater independence. Our primary serv-ices—
medical rehabilitation, job training and employment, inclusive child care, adult day services, and camping and
recreation— benefit more than 1 million individuals and their families each year through one of 450 centers nation-wide.
The Epilepsy Foundation® is the sole national, chari-table voluntary health organization dedicated to advanc-ing
the interests of the more than two million people with
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epilepsy and seizure disorders. The term "epilepsy" evokes stereotyped images and fears in others that affect persons
with this medical condition in all aspects of life, including the delivery of public services and participation in public
programs. Since its inception, the Foundation has worked to dispel the stigma associated with seizures and has sup-ported
the development of laws, such as the ADA, that pro-tect individuals from discrimination based on these stereo-types
and fears. Lambda Legal Defense and Education Fund, Inc.
(" Lambda Legal") is a national non-profit public interest organization committed to achieving full recognition of the
civil rights of lesbians, gay men, bisexuals, the transgen-dered and people with HIV or AIDS through impact litiga-tion,
education and public policy work. Founded in 1973, Lambda Legal is the oldest and largest legal organization
addressing these concerns. Since 1983, when it filed the nation's first AIDS discrimination case, Lambda Legal has
appeared as counsel or amicus curiae in scores of cases in state and federal courts on behalf of people living with HIV
or with other disabilities. As The Nation's Voice on Mental Illness, the National
Alliance for the Mentally Ill (" NAMI") leads a national grassroots effort to transform America's mental health care
system, eliminate stigma, support research, and attain ad-equate health insurance, housing, rehabilitation, jobs and
family support for millions of Americans living with mental illnesses. Since its creation in 1979, NAMI's members have
worked tirelessly at national, state and local levels to com-bat pervasive discrimination against people with mental
illnesses that impose barriers to recovery and prevent these individuals from enjoying fundamental rights accorded
other Americans. The National Association for Rights Protection and Ad-vocacy
(" NARPA") includes recipients of mental health and developmental disabilities services; lay, professional, and
self-advocates; family members; service providers; disabil-ity rights attorneys; and teachers at schools of law, social
work, and public policy. It is dedicated to promoting the preferred options of people who have been labeled mentally
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disabled. The National Association of Councils on Developmental
Disabilities (" NACDD") is a national organization for De-velopmental Disabilities Councils that advocates and works
for change on behalf of people with developmental, as well as other disabilities, and their families. NACDD was es-tablished
in 2003 to bring together the two organizations that supported Developmental Disabilities (" DD") Councils,
CDDC and NADDC. NADDC was established by DD Coun-cils in 1974 to support them in carrying out their man-dated
responsibilities under the Developmental Disabili-ties Assistance & Bill of Rights Act, and to be their na-tional
voice. Members are nationwide State and Territorial DD Councils. State Councils undertake advocacy, capac-ity
building, and systemic change activities that are consis-tent with the purpose of the DD Act, that contribute to a
coordinated, consumer and family-centered, consumer and family-directed, comprehensive system of community ser-vices,
individualized supports and other forms of assistance that enable individuals with developmental disabilities to
exercise self-determination, be independent, be productive and be integrated and included in all facets of community
life. The National Council on Independent Living (" NCIL") is
the oldest cross-disability, national grassroots organization run by and for people with disabilities. NCIL's membership
is comprised of centers for independent living, statewide independent living councils, people with disabilities and
other disability rights organizations. NCIL's mission is to advance the independent living philosophy and to advocate
for the human rights of, and services for, people with dis-abilities to further their full integration and participation
in society. For over thirty years, the National Health Law Program
(" NheLP") has engaged in legal and policy analysis on be-half of low income and working poor people, people with
disabilities, the elderly, and children. NheLP has provided legal representation and conducted research and policy
analysis on issues affecting the health status and health access of these groups. As such, NheLP has worked with
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the ADA, and the program's work and our clients will be significantly affected by the Court's decision in this case.
Established in 1909, the National Mental Health As-sociation, with its more than 340 affiliates, is dedicated
to promoting mental health, preventing mental disorders, and achieving victory over mental illness through advocacy,
education, re-search, and services. NMHA envisions a just, humane and healthy society in which all people are ac-corded
respect, dignity, and the opportunity to achieve their full potential free from stigma and prejudice.
The National Mental Health Consumers' Self-Help Clearinghouse is a national technical assistance center es-tablished
in 1986. It is run by and for people who are consumers of mental health services and survivors of psy-chiatric
illness (known as consumers/ survivors). Its mis-sion is to promote consumer/ survivor participation in plan-ning,
providing and evaluating mental health and commu-nity support services, to provide technical assistance and
information to consumers/ survivors interested in develop-ing self-help services, and advocating to make traditional
services more consumer/ survivor-oriented. The Clearing-house has an interest in helping people with mental illness
live to their full potential as active members of the commu-nity.
The National Multiple Sclerosis Society is dedicated to ending the devastating effects of multiple sclerosis. The
National MS Society is the only national voluntary MS or-ganization that meets the standards of all major agencies
that rate nonprofit groups. The Society supports more MS research and serves more people with MS than any na-tional
voluntary MS organization in the world. Through its 50-state network of chapters, the Society funds research,
furthers education, advocates for people with disabilities, and provides a variety of empowering programs for the
third of a million Americans who have MS and their fami-lies. The Society believes that every individual has the fun-damental
right to lead a full, productive life via the support of laws that promote equality of opportunity for all citizens.
The ADA has proven to be a major advancement in the pub-lic awareness of disability rights and has prompted sub-
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stantial improvements in local disability regulations. Our expression of interest and support in the present case re-flects
our commitment to the right of every American to be free from any discrimination and lack of independence un-der
law. The Paralyzed Veterans of America (" PVA") is a congres-sionally
chartered veterans service organization founded in 1946 with over 20,000 members, all of whom are veterans
of the armed forces with spinal cord injury or dysfunction. PVA has developed a unique expertise on a wide variety of
issues involving the special needs of its members and uses that expertise to be the leading advocate for civil rights
and opportunities which maximize the independence of our members. Virtually all PVA members use wheelchairs for
mobility and have a significant interest in the broadest pos-sible implementation and enforcement of the Americans
with Disabilities Act of 1990. The Tennessee Disability Coalition is an alliance of 42
groups and organizations in Tennessee that have joined to promote the full and equal participation of men, women
and children with disabilities in all aspects of life. Our member groups are predominately organizations operated
by individuals with disabilities or their families. Member agencies represent people of all ages with a wide range of
disabilities. Some are disability specific groups, such as paralyzed veterans, cerebral palsy, autism, the Deaf and
hard of hearing. Others are directed across disability, but focus on specific issues such as civil rights, independent liv-ing,
or employment. The Coalition and its member agencies advocate for public policies that ensure self-determination,
independence, empowerment, integration and inclusion of individuals with disabilities in all aspects of society. The
issues in the Lane case are fundamental to protecting the rights of people with disabilities and are therefore central
to the Coalition's mission and that of its member agencies. United Cerebral Palsy Associations, Inc. (" United Cere-bral
Palsy") is one of the oldest and largest national health organizations dedicated to improving services for people
with disabilities. Founded in 1949, the organization ad-vances the independence, productivity and full citizenship
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of people with disabilities through a nationwide network of more than 100 affiliates in 37 States and the District
of Columbia. United Cerebral Palsy was one of the ma-jor leaders in supporting enactment of the Americans with
Disabilities Act and has a strong interest in ensuring its applicability to States.
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NON-CURRENT STATUTES CITED IN BRIEF AS EXAMPLES OF STATES
IMPOSING RESTRICTIONS ON JURY SERVICE
(Emphasis added throughout.)
ARK. CODE ANN. § 16-31-102 (1987):
Disqualifications.
(a) The following are disqualified to act as grand or petit jurors:
* * *
(2) Mentally retarded or insane persons; * * *
(6) Persons whose senses of hearing or seeing are substan-tially impaired;
* * *
1994 Ark. Acts No. 4, § 6:
It is hereby found and determined by the General As-sembly that Arkansas Code 16-31-102 disqualifies from act-ing
as a juror any person who is mentally retarded or in-sane, and any person whose sense of hearing or seeing is
substantially impaired; this act eliminates those disqual-ifications and in their place disqualifies from jury service
persons who by reason of a physical or mental disability are unable to render jury services with the exception that
no person may be disqualified solely on the basis of loss of hearing or sight; this modification to Arkansas Code 16-31-
102 will bring Arkansas law into compliance with federal law; and this act should go into effect immediately in order
to allow those persons to begin serving as grand or petit jurors as soon as possible * * * .
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NON-CURRENT STATUTES CITED IN BRIEF AS EXAMPLES OF STATES
EXCLUDING STUDENTS WITH DISABILITIES FROM PUBLIC
EDUCATION
(Emphasis added throughout.)
DEL. CONST. Art. X, § 1 (1999):
Establishment and maintenance of free public schools; attendance.
Section 1. The General Assembly shall provide for the establishment and maintenance of a general and efficient
system of free public schools, and may require by law that every child, not physically or mentally disabled, shall at-tend
the public school, unless educated by other means.
NON-CURRENT STATUTES CITED IN BRIEF AS EXAMPLES OF STATES
RESTRICTING RIGHT TO MARRY AND FORM FAMILIES
(Emphasis added throughout.)
IND. CODE § 22-1601 (1950):
Whenever the superintendent of any hospital or other institution of this state, or of any county in this state, which
has the care or custody of insane, feeble-minded or epilep-tic persons, shall be of the opinion that it is for the best
interests of the patient and of society that any inmate of the institution under his care should be sexually sterilized,
such superintendent, if a lawfully licensed physician and surgeon, is hereby authorized to perform, or cause to be
performed by some capable physician or surgeon, an oper-ation or treatment of sterilization on any such patient con-fined
in such institution afflicted with hereditary forms of insanity that are recurrent, epilepsy, or incurable primary
or secondary types of feeble-mindedness: Provided, That
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such superintendent shall have first complied with the re-quirements of this act.
* * *
CAL. CIV. CODE § 4201 (1987):
License; necessity; contents; denial; under age appli-cants; forms; affidavit.
All persons about to be joined in marriage must first obtain a license therefor, from a county clerk, which license
must show all of the following: * * *
No license shall be granted when either of the parties, applicants therefore, is an imbecile, is insane, or is, at the
time of making the application for the license, under the influence of any intoxicating liquor, or narcotic drug.
D. C. CODE ANN. § 30-103 (1981):
Marriages void from date of decree; age of consent. The following marriages in said District shall be illegal,
and shall be void from the time when their nullity shall be declared by decree, namely: (1) The marriage of an idiot or
of a person adjudged to be a lunatic; * * * * * *
IOWA CODE ANN. § 595.3 (West 1988):
License. Previous to the solemnization of any marriage, a license
for that purpose must be obtained from the clerk of the dis-trict court. Such license must not be granted in any case:
* * * 5. Where either party is mentally ill or retarded, a men-tal
retardate, or under guardianship as an incompetent.
MICH. COMP. LAWS § 551.6 (1990):
Mental or venereal disease; incapacity; validation of white-African marriages; penalty; competency of
witness. * * *
Section 6. No insane person, idiot, or person who has been afflicted with syphilis or gonorrhea and has not been
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cured of the same, shall be capable of contracting marriage * * * . No person who has been confined in any public in-stitution
or asylum as a feeble-minded, imbecile or insane patient, or who has been adjudged insane, feeble-minded or
an imbecile by a court of competent jurisdiction, shall be ca-pable of contracting marriage without, before the issuance
by the county clerk of the license to marry, filing in the of-fice of the county clerk a verified certificate from 2 regu-larly
licensed physicians of this state that such person has been completely cured of such insanity, imbecility or feeble-mindedness
and that there is no probability that such per-son will transmit any of such defects or disabilities to the
issue of such marriage. Any person of sound mind who shall intermarry with such insane person or idiot or person who
has been so confined as feeble-minded, imbecile or insane patient, or who has been so adjudged insane, feeble-minded
or an imbecile, except upon the filing of certificate as herein provided, with knowledge of the disability of such person,
or who shall advise, aid, abet, cause, procure or assist in procuring any such marriage contrary to the provisions of
this section, is guilty of a felony and on conviction thereof in any court of competent jurisdiction shall be punished by
a fine of not more than $1,000.00 or by imprisonment in the state prison not less than 1 year nor more than 5 years, or
by both such fine and imprisonment.
MICH. COMP. LAWS § 552.1 (1990):
Invalidity of marriages; relationship of parties, bigamy, insanity, idiocy; legitimacy of issue.
Section 1. All marriages, which are prohibited by law on account of consanguinity or affinity between the parties, or
on account of either of them having a wife or husband then living, and all marriages solemnized when either of the par-ties
was insane or an idiot, shall, if solemnized within this state, be absolutely void. The issue of such marriage shall
be deemed legitimate. * * *
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MISS. CODE ANN. § 41-21-45 (1990):
Unlawful to cohabit with feeble-minded. It shall be unlawful for any person to cohabit with or at-tempt
sexual intercourse with a female who is feebleminded, as defined in section 41-19-101, after adjudication of such
feeblemindedness. Anyone convicted of either of these crimes, shall, upon
conviction thereof, be punished by a fine of not less than one thousand dollars, or imprisonment of not less than one year
in the penitentiary, or by both such fine and imprisonment.
PA. STAT. ANN. tit. 48, § 1-5 (West 1965):
Restrictions on the issue of marriage license. No license to marry shall be issued by any clerk of the
orphans' court. * * *
(e) If either of the applicants is or has been, within five years preceding the time of the application, an inmate of an
institution for weak-minded, insane, or persons of unsound mind, unless a judge of the orphans' court shall decide that
it is for the best interest of such applicant and the general public to issue the license, and shall authorize the clerk of
the orphans' court to issue the license.
R. I. GEN. LAWS § 15-1-5 (1988):
Bigamous marriages void —marriage of lunatics and idiots.
Any marriage when either of the parties thereto, at the time of the marriage, has a former wife or husband living
who has not been, by final decree, divorced from such party, and any marriage where either of the parties thereto is an
idiot or a lunatic at the time of the marriage, shall be abso-lutely void, and no life estate created by chapter 25 of title
33 shall be assigned to any widow in consequence of the marriage, and the issue of the marriage shall be deemed
illegitimate and subject to all the disabilities of illegitimate issue.
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VT. STAT. ANN. tit. 15, § 512 (1990):
Voidable marriages — Grounds for annulment gen-erally.
The marriage contract may be annulled when, at the time of marriage, either party had not attained the age of
sixteen years or was an idiot or lunatic or physically inca-pable of entering into the marriage state or when the con-sent
of either party was obtained by force or fraud.
VT. STAT. ANN. tit. 15, § 514 (1990):
Party an idiot or lunatic. (a) When a marriage is sought to be annulled on the
ground of the idiocy of one of the parties, it may be declared void on the complaint of a relative of such idiot at any time
during the life of either of the parties. (b) When a marriage is sought to be annulled on the
ground of the lunacy of one of the parties, on the complaint of a relative of the lunatic, such marriage may be declared
void during the continuance of such lunacy, or after the death of the lunatic in that condition and during the life-time
of the other party to the marriage. (c) The marriage of a lunatic may be declared void upon
the complaint of a lunatic after restoration to reason, but a decree of nullity shall not be pronounced if the parties
freely cohabited as husband and wife after the lunatic was restored to sound mind.
(d) If an action is not prosecuted by a relative, the mar-riage of an idiot or a lunatic may be annulled during the
lifetime of both the parties to the marriage, on the com-plaint of a person admitted by the court to prosecute as the
next friend of such idiot or lunatic. (e) The word "lunatic" as used in sections 511– 514 of
this title shall extend to persons of unsound mind other than idiots.
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W. VA. CODE § 48-2-2 (1990):
For what and when marriages void; affirmation of annulment of marriage.
(a) The following marriages are voidable and shall be void from the time they are so declared by a judgment order
of nullity: * * *
(3) Marriages solemnized when either of the parties:
(A) Was an insane person, idiot or imbecile;
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