Pages 1--43 from Civil Rights Brief

Respondents.

BRIEF OF AMICI CURIAE THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, THE NATIONAL ASIAN PACIFIC AMERICAN
LEGAL CONSORTIUM, THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, THE PUERTO RICAN
LEGAL DEFENSE AND EDUCATION FUND, PEOPLE FOR THE AMERICAN WAY FOUNDATION, AND THE ANTI-DEFAMATION
LEAGUE IN SUPPORT OF RESPONDENTS

No. 02-1667
IN THE
Supreme Court of the United States

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

BARBARA R. ARNWINE THOMAS J. HENDERSON
MICHAEL L. FOREMAN KRISTIN M. DADEY
THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
1401 New York Avenue, N. W. Suite 400
Washington, DC 20005 (202) 662-8600

CHARLES LESTER, JR. Counsel of Record
TERESA WYNN ROSEBOROUGH DEBORAH M. DANZIG
JENNIFER N. IDE ANDREW W. BROY
NICOLE D. LAWSON SUTHERLAND ASBILL
& BRENNAN LLP 999 Peachtree Street, N. E.
Atlanta, GA 30309 (404) 853-8000

Counsel for Amici Curiae (Other counsel listed on inside cover) 1
1 Page 2 3
VINCENT A. ENG NATIONAL ASIAN PACIFIC AMERICAN
LEGAL CONSORTIUM 1140 CONNECTICUT AVENUE, N. W.
Suite 1200 Washington, DC 20036
(202) 296-2300
DENNIS C. HAYES General Counsel
THE NATION ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
4805 Mt. Hope Drive Baltimore, MD 21215-3297
(410) 580-5777
FOSTER MAER PUERTO RICAN LEGAL
DEFENSE AND EDUCATION FUND, INC. 99 Hudson Street, 14 th Floor
New York, NY 10013
ELLIOT MINCBERG DEBORAH LIU
PEOPLE FOR THE AMERICAN WAY FOUNDATION
2000 M Street, N. W., Suite 400 Washington, DC 20036
(202) 467-4999
ABBEY GANS MICHAEL LIEBERMAN
ANTI-DEFAMATION LEAGUE 823 United Nations Plaza
New York, NY 10017 (212) 885-5885 2
2 Page 3 4
i
QUESTION PRESENTED

Whether Congress validly abrogated states' Eleventh Amendment immunity to enable private individuals to bring
damages suits to protect the exercise of fundamental constitutional rights by individuals with disabilities and to
insure to these individuals the equal protection of the law under Title II of the American with Disabilities Act of 1990,
42 U. S. C. §§ 12131-12165 (2002). 3
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TABLE OF CONTENTS

Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . i i
Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . iv
Interest of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . 4
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Title II Of The ADA Guarantees The Fundamental Rights And Liberties Of
Individuals With Disabilities. . . . . . . . . . . . . 7
II. For Legislation Intended To Protect Against Constitutional Violations Invoking
Heightened Scrutiny, Courts Should Apply The Rational Means Test Enunciated In
M'Culloch v. Maryland. . . . . . . . . . . . . . . . . 12
III. Even Under The Analysis Set Forth In Garrett, Title II Is Appropriate Legislation
Under § 5 Of The Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4
4 Page 5 6
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A. Title II Is Intended to Guarantee Individuals with Disabilities Equal

Opportunity to Obtain Vital Services and to Exercise Fundamental Rights and
Liberties. . . . . . . . . . . . . . . . . . . . . . . . . 15
B. Congress Supported Title II With Specific Findings Concerning the
Pervasiveness of State Discrimination Against Individuals with Disabilities in
the Provision of Programs and Services. . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. The Substantive and Remedial Provisions of Title II are Proportional
and Congruent to the Rights Protected by the Legislation. . . . . . . . . . . . . . . . . . 20

IV. The Rigorous Standard Of Review Recently Applied To §  5 Legislation Unduly
Compromises Congressional Power. . . . . . . 23
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Contents 5
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TABLE OF CITED AUTHORITIES

CASES
Adarand Constructors, Inc. v. Mineta, 534 U. S. 103 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Board of Trustees of the University of Alabama v. Garrett, 531 U. S. 356 (2001) . . . . . . . . . . . . . . . passim
Brown & Williamson v. F. T. C., 710 F. 2d 1165 (CA6 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Burroughs v. United States, 290 U. S. 534 (1934) . . 29
City of Boerne v. Flores, 521 U. S. 507 (1997) . . . passim
Duncan v. Louisiana, 391 U. S. 145 (1968) . . . . . . . 7
Eastland v. United States Servicemen's Fund, 421 U. S. 491 (1975) . . . . . . . . . . . . . . . . . . . . . . . 27

Faretta v. California, 422 U. S. 806 (1975) . . . . . . . 9
FCC v. Beach Communications, 508 U. S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Field v. Clark, 143 U. S. 649 (1892) . . . . . . . . . . . . . 27
Fitzpatrick v. Bitzer, 427 U. S. 445 (1976) . . . . . . . . 28
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985) . . . . . . . . . . . . . . 29 6
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Gravel v. United States, 408 U. S. 606 (1972) . . . . . 27

Harper v. Virginia Board of Elections, 383 U. S. 663 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

Helminski v. Ayerst Laboratoriess, 766 F. 2d 208 (CA6 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Katzenbach v. Morgan, 384 U. S. 641 (1966) . . . . . 5
Kimel v. Florida Board of Regents, 528 U. S. 62 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Lopez v. Monterey County, 525 U. S. 266 (1999) . . . 1
M'Culloch v. Maryland, 4 Wheat, 17 U. S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Medical Bd. Of California v. Hason, 537 U. S. 1028 (2002), cert. dismissed, 123 S. Ct. 1779 (2003)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003) . . . . . . . . . . . . . . . . . . . . passim

Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980) . . . 10
Olmstead v. Zimring, 527 U. S. 581 (1999) . . . . . . . 8, 21
Popovich v. Cuyahoga County Court, 276 F. 3d 808 (CA6 2002), cert. denied, 537 U. S. 812 (2002) . . . . 4, 21-22 7
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Press-Enterprise Co. v. Superior Court, 478 U. S. 1 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Reynolds v. Sims, 377 U. S. 533 (1964) . . . . . . . . . . 10
Romer v. Evans, 517 U. S. 620 (1996) . . . . . . . . . . . 15
Seminole Tribe v. Florida, 517 U. S. 44 (1996) . . . . 14
Shapiro v. Thompson, 394 U. S. 618 (1969) . . . . . . . 8
Skinner v. Oklahoma, 316 U. S. 535 (1942) . . . . . . . 8
Stanley v. Illinois, 405 U. S. 645 (1972) . . . . . . . . . . 8
Tashjian v. Republican Party of Conn., 479 U. S. 208 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Ballin, 144 U. S. 1 (1892) . . . . . . . . 27
United States v. Carolene Products Co., 304 U. S. 144 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Morrison, 529 U. S. 598 (2000) . . . 12
Ex parte Virginia, 100 U. S. 339 (1879) . . . . . . . . . . 29
Waller v. Georgia, 467 U. S. 39 (1984) . . . . . . . . . . . 9
Zablocki v. Redhail, 434 U. S. 374 (1978) . . . . . . . . 8 8
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UNITED STATES CONSTITUTION

art. I, § 5, cls. 2, 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27
art. I, § 6, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10
Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . passim
Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . passim
Fifteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 8
STATUTES
42 U. S. C. § 12101( a)( 2) . . . . . . . . . . . . . . . . . . . . . . 17
42 U. S. C. § 12101( a)( 3) . . . . . . . . . . . . . . . . . . . . 7, 16, 17
42 U. S. C. § 12101( a)( 5) . . . . . . . . . . . . . . . . . . . . . . 16, 17 9
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42 U. S. C. §§ 12101( a)( 5)-( 9) . . . . . . . . . . . . . . . . . . 16

42 U. S. C. § 12101( a)( 6) . . . . . . . . . . . . . . . . . . . . . . 17
42 U. S. C. § 12101( a)( 7) . . . . . . . . . . . . . . . . . . . . . . 17
42 U. S. C. § 12101( a)( 8) . . . . . . . . . . . . . . . . . . . . . . 17
42 U. S. C. § 12101( a)( 9) . . . . . . . . . . . . . . . . . . . . . . 17
42 U. S. C. § 12131-12165 . . . . . . . . . . . . . . . . . . . . . i
42 U. S. C. § 12131 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U. S. C. § 12131, et seq . . . . . . . . . . . . . . . . . . . . . 3
42 U. S. C. § 12131( 2) . . . . . . . . . . . . . . . . . . . . . . . . 21
42 U. S. C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 13
42 U. S. C. § 12202 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Tenn. Code Ann. § 8-50-103 . . . . . . . . . . . . . . . . . . . 19 10
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LEGISLATIVE MATERIALS

135 Cong. Rec. 8,712 (1989) . . . . . . . . . . . . . . . . . . 18
H. R. Rep. No. 101-485 (1990), reprinted in 1990 U. S. C. C. A. N. 267 . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19

S. Rep. No. 101-116 (1989) . . . . . . . . . . . . . . . . . . passim
2 Staff of the House Comm. Of Educ. and Labor, 101 st Cong., 2d Sess., Legis. Hist. Of Pub. L. No.
101-336: The Americans with Disabilities Act, 100th Cong., 2d Sess. 936 (Comm. Print 1990)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Oversight Hearing on H. R. 4498, Americans with Disabilities Act: Hearing Before the Subcomm. On
Select Educ. Of the House Comm. On Educ. & Labor, 100th Cong., 2d Sess. 40-41 (1998) . . . . 9, 18

ADMINISTRATIVE MATERIALS
28 C. F. R. § 35.130( b)( 7) . . . . . . . . . . . . . . . . . . . . . . 13, 21
28 C. F. R. § 35.150( a) . . . . . . . . . . . . . . . . . . . . . . . . 21
28 C. F. R. § 35.150( a)( 2) . . . . . . . . . . . . . . . . . . . . . . 21
28 C. F. R. § 35.150( a)( 3) . . . . . . . . . . . . . . . . . . . . . . 21
28 C. F. R. § 35.164 . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 11
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OTHER AUTHORITIES

Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's
New "On the Record" Constitutional Review of Federal Statutes, 86 Cornell L. Rev. 328 (2001)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Nat'l Council on Disability, Tennessee v. Lane: The Legal Issues and the Implications for People with
Disabilities (2003), at http:// www. ncd. gov/ newsroom/ publications/ legalissues. html . . . . . . . 22

Philip P. Frickey & Steven S. Smith, Judicial Review, The Congressional Process, and the Federalism
Cases: An Interdisciplinary Critique, 111 Yale L. J. 1707 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

John T. Noonan, Jr., Narrowing the Nation's Power: The Supreme Court Sides with the States 93
(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation
after Morrison and Kimel, 110 Yale L. J. 441 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 12
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INTEREST OF AMICI CURIAE
The Lawyers' Committee for Civil Rights Under Law (the "Lawyers' Committee"), the National Asian Pacific

American Legal Consortium (" NAPALC"), the National Association for the Advancement of Colored People
(" NAACP"), the Puerto Rican Legal Defense and Education Fund (" PRLDEF"), People For the American Way Foundation
(" People For"), and the Anti-Defamation League (" ADL") submit this Brief as amici curiae with the consent of the Parties, 1
in support of Respondents' argument that 42 U. S. C. §§ 12131-12132, Title II of the Americans With Disabilities Act, was
validly enacted pursuant to the power of Congress under § 5 of the Fourteenth Amendment.

The Lawyers' Committee was formed in 1963 at the request of President Kennedy to involve private attorneys in the effort
to insure the civil rights of all Americans. The Lawyers' Committee has been involved as amicus curiae or counsel in
several cases before the Court involving the scope of Congress' legislative power. See, e. g., Nevada Dep't of Human Res. v.
Hibbs, 123 S. Ct. 1972 (2003); Medical Bd. of California v. Hason, 537 U. S. 1028 (2002), cert. dismissed, 123 S. Ct. 1779
(2003); Adarand Constructors, Inc. v. Mineta, 534 U. S. 103 (2001); Lopez v. Monterey County, 525 U. S. 266 (1999).

NAPALC is a national non-profit, non-partisan organization whose mission is to advance the legal and civil rights of Asian
Americans. NAPALC and its affiliates have a long-standing
1. Counsel for amici curiae authored this brief in its entirety. No person or entity other than amici curiae, their staff, or their counsel
made monetary contribution to the preparation or submission of this brief. Letters of consent to the filing of this brief have been filed with
the Clerk of the Court. 13
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interest in addressing matters of discrimination that have an impact on the Asian American community, and this interest has

resulted in NAPALC's participation in a number of amicus briefs before the courts.

The NAACP is a non-profit membership corporation that traces its roots to 1909 and was chartered by the State of
New York. The NAACP supports the rights guaranteed by the Fourteenth Amendment and Congress's power under § 5 of that
Amendment to pass legislation that in certain circumstances abrogates the state sovereignty immunity.

PRLDEF is a national non-profit civil rights organization founded in 1972, dedicated to protecting and furthering the civil
rights of Puerto Ricans and other Latinos through litigation and policy advocacy. Since its inception, PRLDEF has participated
both as direct counsel and as amicus curiae in numerous cases throughout the country concerning the proper interpretation of
the civil rights laws.
People For is a nonpartisan citizens' organization established to promote and protect civil and constitutional rights.

People For has supported the Americans with Disabilities Act of 1990, and joins this brief to help vindicate Congress's power
under § 5 of the Fourteenth Amendment and its ability to protect individuals with disabilities against discrimination by states and
state agencies.
ADL was founded in 1913 to advance good will and mutual understanding among Americans of all creeds and races, and to

secure justice and fair treatment to all citizens alike. ADL has filed amicus briefs in this Court cases defending government
enactments designed to prevent or punish discrimination and hate. ADL has supported Congress's broad authority under the 14
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Fourteenth Amendment to remedy constitutional deprivations caused by States, and Congress's authority to abrogate state

sovereign immunity in cases of clear civil rights violations.
The Court's interpretation of the scope of Congress's power to enforce the Fourteenth Amendment through its § 5 powers

will directly impact the communities represented by this amici. Therefore, amici present their views on this extremely important
issue.
STATEMENT OF THE CASE
George Lane and Beverly Jones are individuals with paraplegia. Both were unable to participate in court proceedings

in the State of Tennessee because the State failed to make its courts accessible to individuals with disabilities. Pet. App. 13,
19. Respondent George Lane was denied access to the General Sessions Court of Polk County. After refusing to crawl up the
stairs of the courthouse and declining to be carried by a Sheriff's deputy to reach the second floor courtroom where misdemeanor
charges against him were pending, Lane was arrested for failure to appear and taken to jail. Pet. App. 15. Respondent Beverly
Jones, a certified court reporter, also was denied access to courthouses in the State of Tennessee. Pet. App. 19-20. Jones'
income is dependent on her ability to participate in court proceedings; however, Jones was unable to participate in court
proceedings in several Tennessee counties because the courthouses in those counties were inaccessible to individuals
with disabilities. Id.
Respondents filed separate actions for money damages that were consolidated into this action under Title II of the

Americans with Disabilities Act of 1990 (" ADA"), as amended, 42 U. S. C. § 12131, et seq. (" Title II"). Petitioner moved to 15
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dismiss on grounds of sovereign immunity under the Eleventh Amendment, but the District Court denied this motion.

Pet. App. 6-7. The State of Tennessee subsequently filed an interlocutory appeal. While the appeal was pending, the Sixth
Circuit issued its decision in Popovich v. Cuyahoga County Court, 276 F. 3d 808 (CA6 2002), cert. denied, 537 U. S. 812
(2002). The Popovich court held that Congress validly abrogated states' sovereign immunity by enacting Title II to
the extent due process violations were at issue. Applying Popovich, the appellate court affirmed the district court's
denial of the State of Tennessee's motion to dismiss. On rehearing, the court of appeals affirmed the denial of
the motion to dismiss. Pet. App. 5. Thereafter, this Court granted Petitioner's request for a writ of certiorari.

SUMMARY OF ARGUMENT
Pursuant to its power to enforce § 5 of the Fourteenth Amendment, Congress purposefully abrogated the states'

Eleventh Amendment immunity when it enacted Title II. Congress recognized and sought to address the pervasive and
widespread violations of the due process and equal protection rights of individuals with disabilities by the states, including
their right to vote, to participate in judicial proceedings, and to access public buildings and facilities. Title II also operates
to enable individuals with disabilities to exercise their right to travel, to protect them from cruel and unusual punishment,
and to enable them to participate fully in educational and other government programs. Because these important
constitutional rights were at stake, Congress had wide latitude to construct legislation to remedy existing state
discrimination against individuals with disabilities and to prevent further discrimination. 16
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Unlike state conduct affecting the rights protected by Title I of the ADA, state classifications and conduct affecting

the exercise of the rights underlying Title II invoke heightened scrutiny. See Harper v. Virginia Bd. of Elections, 383 U. S. 663,
670 (1966). When Congress acts to protect such fundamental rights as the right to vote or to access courthouses and other
public buildings, the rational basis review applied in Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000); City of Boerne v.
Flores, 521 U. S. 507 (1997); and Board of Trustees of the University of Alabama v. Garrett, 531 U. S. 356 (2001), and the
"congruence and proportionality" test employed in those cases are inappropriate tests of whether Congress has exceeded its
constitutional authority. Cf. Nevada Dep't of Human Resources v. Hibbs, 123 S. Ct. 1972, 1982-83 (2003) (acknowledging that
Congress has broad discretion to legislate to enforce constitutional principles that invoke a heightened level of
scrutiny of state conduct). Instead, as it historically has done with legislation enacted to remedy the effects of discrimination
invoking heightened scrutiny, the Court should apply the deferential rational means test first enunciated in M'Culloch v.
Maryland, 17 U. S. (4 Wheat.) 316 (1819). See Katzenbach v. Morgan, 384 U. S. 641 (1966) (upholding Voting Rights Act of
1965).
Title II is a rational means of effectuating the protection of individuals' with disabilities constitutional rights under the

Fourteenth Amendment. That alone requires rejection of Tennessee's claim of immunity.

Even if the Court were to apply the congruence and proportionality test implemented in Garrett, however, Title II's
abrogation of the states' Eleventh Amendment immunity would survive. First, the legislative history behind Title II is compelling,
well-defined, and explicit. It shows that Congress became 17
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informed of a nationwide pattern of unconstitutional discrimination by the states against persons with disabilities in

the provision of public services and access to public accommodations, including specifically access to courts. Indeed,
as both the majority and dissenting opinions in Garrett noted, the bulk of the legislative history supporting the Act pertained
to this type of discrimination against individuals with disabilities. Garrett, 531 U. S. at 360 n. 1, 372 n. 7. Not surprisingly given
the testimony before Congress, Title II is aimed directly at preventing and remedying discrimination in the provision of
public services and access to public accommodations.
Second, the scope of Title II is no broader than necessary to achieve its critical purposes. As the Court instructed in City

of Boerne, "[ t] he appropriateness of remedial measures must be considered in light of the evil presented." 521 U. S. at 530.
Because the discrimination Congress addressed affects the exercise of fundamental rights and liberties and is subject to
heightened review, the scope of the remedial measures permitted under § 5 is broad — broader than that permitted under § 5
when Congress acts to affect classifications invoking only rational basis review. Congress acted in response to a widespread
pattern of discrimination by states against individuals with disabilities and tailored Title II to remedy these specific
constitutional violations. Title II therefore meets the congruence and proportionality test laid down in Garrett.

Finally, although Title II meets the congruence and proportionality test set out in Garrett, amici do not wish to
endorse this standard as proper for review of any legislation. For the reasons discussed in dissenting opinions in Garrett and
Kimel, amici respectfully submit that this standard is premised on an unworkable view of the legislative process, effectively
requires Congress to dramatically alter the way in which it 18
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legislates, and threatens to violate separation of powers principles by imposing judicial requirements upon Congress's

legislative procedure. Amici, therefore, respectfully urge the Court to return to its prior rational means standard enunciated
in M'Culloch.
ARGUMENT
I. TITLE II OF THE ADA GUARANTEES THE FUNDAMENTAL RIGHTS AND LIBERTIES OF

INDIVIDUALS WITH DISABILITIES.
Congress enacted Title II of the ADA to protect individuals with disabilities from violations of their fundamental rights and

liberties by state and local governments. 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 (2003). Congress sought in Title II to address
its explicit finding that "discrimination against individuals with disabilities persists in such critical areas as employment,
housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services,
voting, and access to public services." 42 U. S. C. § 12101( a)( 3). Within these areas, individuals with disabilities have
constitutional rights arising under the Due Process Clause of the Fourteenth Amendment.

The Due Process Clause incorporates most of the guarantees of the Bill of Rights and encompasses state conduct subject to
constitutional limitations embodied in the First, Fourth, Fifth, Sixth, Eighth Amendments. See Duncan v. Louisiana, 391 U. S.
145, 148 (1968). Where fundamental rights and liberties such as the ones guaranteed by these Amendments are involved, state 19
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discrimination is subjected to strict scrutiny, see Harper, 383 U. S. at 670, and must be justified with a compelling state interest.

See Olmstead v. Zimring, 527 U. S. 581 (1999) (right to be free from unreasonable confinement); Zablocki v. Redhail, 434 U. S.
374 (1978) (right to marry); Stanley v. Illinois, 405 U. S. 645 (1972) (right to custody of one's children); Shapiro v. Thompson,
394 U. S. 618 (1969) (right to travel); Harper, 383 U. S. at 663 (voting); Skinner v. Oklahoma, 316 U. S. 535 (1942) (right to
procreate); cf. Garrett 531 U. S. at 373 (describing the Voting Rights Act of 1965 as a valid exercise of Congress's
power under § 2 of the Fifteenth Amendment). Congress's power to legislate to protect citizens from such state discrimination is
at the core of § 5.
The legislative record confirms that Congress was concerned with due process violations, such as inaccessible

courthouses and the infringement of individuals' with disabilities right to participate in judicial proceedings, when it enacted Title
II. Congress heard an abundance of testimony and reviewed a number of reports concerning the inability of individuals with
disabilities to participate in judicial proceedings in courthouses throughout the nation. 2 Staff of the House Comm. on Educ.
and Labor, 101st Cong., 2d Sess., Legis. Hist. of Pub. L. No. 101-336: The Americans with Disabilities Act, 100th Cong., 2d
Sess. 936 (Comm. Print 1990) (Sen. Harkin) (Leg. Hist.). One individual shared the following illustrative account:

I went to the courtroom one day . . . I could not get into the building because there were about 500 steps
to get in there. [T] he security guard . . . told me there was an entrance at the back door for the
handicapped. . . . I went to the back door and there were three more stairs for me to get over to be able
to ring a bell to announce my arrival so that 20
20 Page 21 22
9
somebody would come and open the door and maybe let me in. . . . This is the court system that is supposed

to give me a fair hearing. It took me 2 hours to get in. . . .

Oversight Hearing on H. R. 4498, Americans with Disabilities Act: Hearing Before the Subcomm. on Select Educ. of the House
Comm. On Educ. & Labor, 100th Cong., 2d Sess. 40 (1988) (Emeka Mwojke).

Other disturbing examples of discrimination brought to Congress's attention through the Task Force on Rights and
Empowerment of Americans with Disabilities highlighted a multitude of instances where courts were not accessible or did
not have services needed by individuals with disabilities. Garrett, 531 U. S. at 391-424 (App. C to opinion of Breyer, J.,
dissenting). The summaries repeatedly referenced individuals with disabilities who faced "inaccessible public buildings,"
"inaccessible state buildings," and "inaccessible government buildings." Id.

Many courts, including this Court, have held that the Due Process Clause guarantees access to judicial proceedings.
Inaccessible courtrooms and courtrooms closed to the public potentially violate the rights of both individuals with disabilities
and the general public. Pursuant to the Sixth Amendment and the Due Process Clause, a criminal defendant has "a right to be
present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U. S.
806, 819 n. 15 (1975). Mr. Lane's exclusion from the courtroom plainly compromised the fairness of the proceedings against
him. Criminal defendants also have the right to have their trials open to the public. See Waller v. Georgia, 467 U. S. 39, 46 (1984).
Likewise, civil litigants have a due process right to be present 21
21 Page 22 23
10
in the courtroom unless their exclusion furthers important government interests. Helminski v. Ayerst Labs., 766 F. 2d 208,

213 (CA6 1985). Even non-parties have a First Amendment right to view public proceedings in court. See Press-Enterprise
Co. v. Superior Court, 478 U. S. 1 (1986); Newspapers, Inc. v. Virginia, 448 U. S. 555, 574 (1980); Brown & Williamson v.
F. T. C., 710 F. 2d 1165, 1179 (CA6 1983). Title II serves to prevent these constitutional violations.

Concern about the exercise of other fundamental rights by individuals with disabilities also motivated Title II's enactment.
For example, Congress was concerned with the ability of individuals with disabilities to exercise their right to vote.
This Court has acknowledged several times that the right to vote is a fundamental right guaranteed by the Constitution.
See, e. g., Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986); Reynolds v. Sims, 377 U. S. 533 (1964). Evidence
abounds throughout the legislative record of the ADA that Congress sought to address violations of this fundamental right
by enacting Title II. Recounting testimony from Neil Hartigan, then Attorney General from Illinois, the Senate Report
specifically mentions the need to ensure access to polling places. S. REP . NO. 101-116, at 12 (1989). Hartigan testified: "' You
cannot exercise one of your most basic rights as an American if the polling places are not accessible. '" Id. Congress was likewise
aware that some individuals with disabilities had been forced to vote by absentee ballot before the candidates had participated
in key debates. Id. Furthermore, like inaccessible courthouses, examples of inaccessible polling places and other procedural
deficiencies related to voting flooded the report submitted to Congress by the Task Force on Rights and Empowerment
of Americans with Disabilities. Garrett, 531 U. S. at 391-424 (App. C to opinion of Breyer, J., dissenting). 22
22 Page 23 24
11
Given Congress's recognition of and intent to remedy longstanding state discrimination infringing on individuals' with

disabilities due process rights, Congress was constitutionally authorized to use great latitude in enacting Title II. Unlike Title
I of the ADA, which was enacted to enforce persons' with disabilities equal protection rights to employment only, Title II
was drafted to enable individuals with disabilities to exercise fundamental rights and liberties guaranteed by the Constitution.
In that respect, Title II is less similar to Title I and more like the Family and Medical Leave Act (" FMLA"), which was
reviewed by this Court in Hibbs. State classifications affecting fundamental rights and state gender discrimination both trigger
a heightened level of scrutiny. Furthermore, like Congress's previous efforts to remedy the gender discrimination targeted
by the FMLA, previous efforts to remedy discrimination against individuals with disabilities in exercising fundamental rights
were also unsuccessful. There is an explicit acknowledgement in the ADA's legislative history that "Federal and State laws
[were] inadequate to address the discrimination faced by people with disabilities." S. REP. 101-116, at 6 (1989). As recognized
by the Hibbs Court, "[ s] uch problems may justify added prophylactic measures in response." 123 S. Ct. at 1982. While
amici respectfully disagree with the application of the "congruence and proportionality" test, which was applied in
Hibbs, the ultimate conclusion reached by the Hibbs Court is similarly justified in this case. Because fundamental rights and
liberties were at stake when Congress enacted Title II, there should be no doubt that Congress validly abrogated states'
Eleventh Amendment immunity to enforce the Fourteenth Amendment. 23
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12
II. FOR LEGISLATION INTENDED TO PROTECT AGAINST CONSTITUTIONAL VIOLATIONS

INVOKING HEIGHTENED SCRUTINY, COURTS SHOULD APPLY THE RATIONAL MEANS TEST
ENUNCIATED IN M'CULLOCH v. MARYLAND.
Where fundamental rights and liberties are at issue, this Court has not held that the congruence and proportionality test

is appropriate. Indeed, prior to City of Boerne, when reviewing § 5 legislation the Court applied the rational means test
enunciated in M'Culloch v. Maryland. 2
The M'Culloch standard requires only a rational relationship between the ends of the legislation and Congress's chosen

means. In the words of Chief Justice Marshall:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are

appropriate, which are plainly adapted to that end, which are not prohibited, but consist[ ent] with the
letter and spirit of the constitution, are constitutional.
M'Culloch, 17 U. S. (4 Wheat.) 316, 421. Under this test, the desirability of the legislation as a policy matter, or the extent to

which Congress might have chosen other, more narrowly tailored means, is beyond the scope of the Court's review. All that the
Court need determine is whether the legislation is a rational means of enforcing the Fourteenth Amendment's substantive
guarantees.
2. Although the Court, in dicta, used the words "congruence" and "proportional" in reviewing the Violence Against Women Act, see United

States v. Morrison, 529 U. S. 598 (2000), the holding in Morrison was that the VAWA was unconstitutional because it was directed not "at any
State or state actor, but at individuals who . . . committed criminal acts motivated by gender bias." Id. at 626. 24
24 Page 25 26
13
Title II is a rational means of addressing the documented pattern of discrimination by the states against individuals with

disabilities. When Congress passed Title II, it was well aware that individuals with disabilities like George Lane and Beverly
Jones were, among other things, burdened by inaccessible courthouses, inaccessible polling places, inaccessible public
transportation, and inaccessible government buildings and agencies. Responding to this problem of limited access,
Congress enacted Title II to ensure that individuals with disabilities would not continue to be shut out of polling places,
public buildings, schoolhouses, and other vital public facilities. In doing so, Congress took steps to mediate the impact on states.
For example, rather than mandating that public entities overhaul their buildings and facilities completely, Congress structured
Title II to require states to make only "reasonable modifications" that do not "fundamentally alter the nature of the service,
program, or activity." 28 C. F. R. § 35.130( b)( 7). In addition, states are required to make these modifications only for
"qualified individual[ s] with a disability." See 42 U. S. C. § 12132.

Although, as discussed below, Title II is also a congruent and proportional means of addressing discrimination against
individuals with disabilities, the Court need not conduct that more exacting analysis. In the context of fundamental rights,
state discrimination is presumptively unconstitutional and Congress's chosen means of addressing that discrimination need
only be rational. Title II serves a legitimate end, is consistent with the letter and spirit of the constitution, and brings to bear
means that are plainly and rationally adapted to achieve its purposes. Congress acted well within the scope of its
constitutional powers when it enacted Title II. 25
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14
III. EVEN UNDER THE ANALYSIS SET FORTH IN GARRETT, TITLE II IS APPROPRIATE

LEGISLATION UNDER § 5 OF THE FOURTEENTH AMENDMENT.

Assuming the Court departs from the well-established standards in M'Culloch, Title II is nevertheless a congruent and
proportional response to the states' documented history of discrimination against individuals with disabilities. Under the
framework set out in Garrett, after determining that Congress unequivocally expressed its intent to abrogate the states'
immunity, a court turns to whether Congress properly exercised its power to abrogate. 3 First, the Court must "identify with some
precision the scope of the constitutional right at issue." Garrett, 531 U. S. at 365. Second, the Court must ask "whether Congress
identified a history and pattern of unconstitutional .. . discrimination by the states." Id. at 368. Last, the Court must
determine whether the legislation is congruent and proportional to the identified wrong.

3. The first step of this analysis questions whether Congress explicitly expressed its intent to abrogate the states' Eleventh Amendment
immunity. See Kimel, 528 U. S. at 73; Seminole Tribe v. Florida, 517 U. S. 44, 55 (1996) There is no dispute in this case that this criterion has
been met. Pet'r Br. at 12; 42 U. S. C. §  12202. There is also no dispute that § 5 of the Fourteenth Amendment is a valid source for this power to
abrogate. Pet'r Br. at 12. 26
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15
A. Title II Is Intended to Guarantee Individuals with Disabilities Equal Opportunity to Obtain Vital

Services and to Exercise Fundamental Rights and Liberties.

The majority in Garrett instructed that a court must "identify with some precision the scope of the constitutional right at issue"
and define the "metes and bounds" of that right. Garrett, 531 U. S. at 365-68. As discussed in Parts I and II above, Title II
is intended to prohibit and remedy violations of the Due Process Clause and the infringement by the government of the
fundamental rights and liberties of individuals with disabilities. These fundamental rights and liberties, which frequently overlap
with the right to equal protection, include the right to vote, to access the courts and the government process, to bear children,
to have custody of one's children, to marry, and to be free from unreasonable confinement. Discrimination such as a state's
refusal to provide reasonable access to the courts for individuals with disabilities is presumptively unconstitutional under the
Due Process Clause and the Equal Protection Clause.
Title II also helps insure that individuals with disabilities have the same equal access to their government as all other

citizens, a fundamental principal embodied by the equal protection clause: "Central both to the idea of the rule of law
and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open
on impartial terms to all who seek its assistance." Romer v. Evans, 517 U. S. 620, 633 (1996). Thus, while Congress's power
to enact Title II and to abrogate the states' Eleventh Amendment Immunity was rooted in its authority to enforce the Due Process
Clause of the Fourteenth Amendment, Congress recognized that Title II would also inevitably protect the Equal Protection rights
of individuals with disabilities. 27
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16
B. Congress Supported Title II With Specific Findings Concerning the Pervasiveness of State

Discrimination Against Individuals with Disabilities in the Provision of Programs and Services.

Congress enacted Title II in light of a history and pattern of unconstitutional discrimination by the states against people with
disabilities. Garrett, 531 U. S. at 368. The legislative history of the ADA shows that the vast majority of unconstitutional
discrimination by the states related to the states in their role as public entities and providers of government services. In Garrett,
the Court acknowledged that the "overwhelming majority of these accounts [of discrimination in the legislative history]
pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are
addressed in Titles II and III of the ADA." Garrett, 531 U. S. at 371-72 & n. 7. The strength of this legislative history is evidenced
by Congress's specific findings of persistent discrimination in the provision of public services and accommodations. 42 U. S. C.
§ 12101( a)( 3), (5)–( 9). The legislative history of the ADA fully supports valid abrogation of Eleventh Amendment immunity
under Title II.
In enacting the ADA, Congress made explicit findings of persistent discrimination by the states in the provision of public

services and accommodations. 42 U. S. C. §  12101( a)( 3) (" discrimination against individuals with disabilities persists in
such critical areas as . . . public accommodations, education, transportation, communication, recreation, institutionalization,
health services, voting, and access to public services"); see also 42 U. S. C. § 12101( a)( 5) (" individuals with disabilities
continually encounter various forms of discrimination, including outright intentional exclusion; the discriminatory effects of
architectural, transportation, and communication barriers, 28
28 Page 29 30
17
overprotective rules and policies, failure to make modifications to existing facilities and practices"); id. §  12101( a)( 6) (" census

data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in
our society, and are severely disadvantaged socially, vocationally, economically, and educationally"); id. § 12101( a)( 7)
(" individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations .. . and
relegated to a position of political powerlessness in our society"); id. §  12101( a)( 8) (" the Nation's proper goals regarding
individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency");
id. § 12101( a)( 9) (" the continuing existence of unfair and unnecessary discrimination and prejudice denies
people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society
is justifiably famous").
Congress insured that its legislative response to the invidious and widespread discrimination by the states against

individuals with disabilities in the provision of public services and public accommodations was appropriate. 4

4. Congress held thirteen hearings and mobilized a special task force to examine whether the ADA would be appropriate legislation.
See Garrett, 531 U. S. at 377 (Breyer, J., dissenting). Moreover, both the House and Senate cited seven substantive studies or reports to support
its conclusion that discrimination against individuals with disabilities is a serious, widespread problem. S. REP. NO. 101-116, at 6 (1989);
H. R. REP. NO. 101-485 a, pt. 2 at 28, U. S. C. C. A. N. 1990, 267, 309-310 (1990). The legislative record demonstrates that Congress identified
numerous findings of unconstitutional discrimination by states falling under the ambit of Title II. See 42 U. S. C. § 12101( a)( 2)-( a)( 3), (a)( 5) -(
a)( 6); H. R. REP. NO. 101-485, pt. 2, at 22, 30, 42 (1990), reprinted in, 1990 U. S. C. C. A. N. 303, 310, 311-12, 324. This legislative record goes

(Cont'd) 29
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18
The Congressional Committee Reports conclude that state discrimination in the areas of public accommodations and

public services reveals a "compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the
basis of disability in the areas of .. . public accommodations [and] public services." H. R. REP. NO. 101-485, pt. 2, at 28
(1990), reprinted in, 1990 U. S. C. C. A. N. 303, 310; see also S. REP. NO. 101-116, at 6 (1989). Particularly notable because
of the facts of this case, one study conducted in 1980 found that 76% of state-owned buildings available to the general public
were physically inaccessible and unusable for providing services to individuals with disabilities. See 135 Cong. Rec. 8,712 (1989)
(remarks of Rep. Coehlo discussing U. S. Comm'n on Civil Rights, Accommodating the Spectrum of Individual Abilities 38-
39 (1983)); 100th Cong., 2d Sess. 40-41 (1988) (testimony of Emeka Nwojke discussing courthouse access).

In addition, Appendix C of Garrett cites hundreds of allegations of discrimination against individuals with
disabilities falling under the ambit of Title II. Garrett, 531 U. S. at 372 n. 7. These submissions enabled Congress to identify an
overwhelming number of instances of discriminatory conduct by state actors, ranging from inaccessible courthouses and
polling places to an inaccessible "office of handicapped services" at the University of Georgia, which was located on the second
floor. Id. at 401. Moreover, these findings evidence a history and pattern of widespread discrimination, as many states were
cited numerous times for continually committing similar violations and a substantial number of these violations occurred

far beyond the "unexamined, anecdotal accounts" of discrimination criticized by this Court in Garrett. 531 U. S. at 370. Cf. City of Boerne,
521 U. S. at 530-31 (relying on testimony in congressional hearings to demonstrate valid abrogation).

(Cont'd) 30
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19
nationwide. The concern expressed by the Court in Garrett about what it found to be a lack of legislative evidence directly

supporting Title I is met in the context of Title II. Ample congressional evidence, compiled "after extensive review and
analysis over a number of Congressional sessions," H. R. REP . NO. 101-485, pt. 2, at 28 (1990), reprinted in 1990 U. S. C. C. A. N.
303, 310, reveals a pattern of state discrimination against individuals with disabilities in the area of public services and
public accommodations.
Petitioners contend that Congress' legislative record acknowledged the states as leaders in "safeguarding the rights

of the disabled." Pet'r Br. at 22. While it is true that states such as Tennessee enacted various laws protecting the rights of
individuals with disabilities, see, e. g., Tenn. Code Ann. § 8-50-103, when Congress enacted the ADA, Congress recognized
that then "[ c] urrent Federal and State laws [were] inadequate to address the discrimination faced by people with disabilities in
these critical areas." S. REP. 101-116, at 6 (1989). Even with the enactment of the ADA, as shown by this case, many states
still failed to meaningfully address discrimination against individuals with disabilities. As Justice Rehnquist noted in
Hibbs, 123 S. Ct. at 1980, the Court should not ignore states' shortcomings by referencing their efforts to remedy
discrimination. Although Tennessee put a formal guarantee of access on its law books, George Lane still had to crawl up stairs
to appear at a judicial proceeding that required his presence. It was not until this lawsuit was brought that an elevator was added
to the courthouse building. Without the threat of damages suits for ADA violations, states may continue to take a lackadaisical
approach to addressing discrimination against individuals with disabilities. 31
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20
C. The Substantive and Remedial Provisions of Title II are Proportional and Congruent to the Rights

Protected by the Legislation.
Because Congress has "wide latitude" in defining the bounds of § 5 through prophylactic and remedial legislation,

City of Boerne, 521 U. S. at 520, the congruence and proportionality analysis does not require an exact match between
legislative and constitutional prohibitions. Rather, as noted in Kimel, the affirmative grant of legislative power contained in
§ 5 of the Fourteenth Amendment permits Congress to "remedy and deter" unconstitutional acts that violate § 5, as well as
"prohibit[ ] a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text."
Kimel, 528 U. S. at 81 (citing City of Boerne, 521 U. S. at 518). The Court recently affirmed this principle in Hibbs, 123 S. Ct.
1972 (holding that the abrogation of states' Eleventh Amendment immunity by the FMLA was a valid act of Congress
under § 5 of the Fourteenth Amendment). As the Court noted in Hibbs, as long as Congress does not attempt to redefine the
obligations of the states, Congress may exercise its § 5 power to "enact so-called prophylactic legislation that proscribes
facially constitutional conduct in order to prevent and deter unconstitutional conduct." Id. at 1973. "[ L] egislation which
'deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process
it prohibits conduct which is not itself unconstitutional. '" Id. at 1992 (quoting City of Boerne, 521 U. S. at 518).

The appropriateness of Title II should be examined in light of the injuries that Congress was seeking to remedy and prevent.
City of Boerne, 521 U. S. at 530. These injuries included violations of persons' with disabilities right to access courts, to
vote, to travel, and to have custody of one's children. Thus, the 32
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21
evils before Congress involved the infringement of fundamental rights and liberties guaranteed by the United States Constitution.

Title II is congruent and proportional to the evils identified by Congress because it is tailored to remedy these constitutional
violations while placing the least burden possible on states. First, the requirements under Title II are narrowly tailored and
sensitive to financial and other burdens the requirements may place on the states. For example, Title II only requires a public
entity to ensure that "when viewed in its entirety, [it] is readily accessible to and usable by individuals with disabilities."
28 C. F. R. § 35.150( a). It also does not "[ n] ecessarily require a public entity to make each of its existing facilities accessible to
and usable by individuals with disabilities." Id. §  35.150( a)( 2). Moreover, except for new construction and alterations, public
entities need not take any steps that would "result in a fundamental alteration in the nature of a service, program,
or activity or in undue financial and administrative burdens." Id. § 35.150( a)( 3); see also 28 C. F. R. §§  35.130( b)( 7), 35.164;
Olmstead v. Zimring, 527 U. S. 581, 606 n. 16 (1999).
Second, states retain discretion to exclude persons from programs, services, or benefits for any lawful reasons unrelated

to disability. A state is required only to make "reasonable modifications in policies, practices, and procedures" that do not
"fundamentally alter the nature of the service, program, or activity." 28 C. F. R. §  35.130( b)( 7); see also 42 U. S. C.
§  12131( 2) (defining "qualified individual with a disability" as an individual "who, with or without reasonable modifications
. . . , meets the essential eligibility requirements for the receipt of services") (emphasis added). Title II permits discrimination
based on disability if a person cannot "meet[] the essential eligibility requirements" of the governmental program or service.
42 U. S. C. §  12131( 2). See also Popovich v. Cuyahoga County 33
33 Page 34 35
22
Court, 276 F. 3d 808, 820 (CA 6 2002) (" Title II requires reasonable modifications only when a disabled individual is

otherwise eligible. . . . The states therefore maintain their discretion over the provision of public services so long as they
do not arbitrarily discriminate against the disabled.")
The availability of a damages remedy is critical to the protection of the fundamental rights and liberties of individuals

with disabilities. The availability of damages enables Title II plaintiffs to obtain representation more easily from private
attorneys and accelerates state compliance. States facing exposure to liability for damages and attorneys' fees are more
likely to comply with the law in advance of litigation. See NAT'L COUNCIL ON DISABILITY, TENNESSEE V. LANE: THE LEGAL ISSUES AND
THE IMPLICATIONS FOR PEOPLE WITH DISABILITIES (2003), at http://
www. ncd. gov/ newsroom/ publications/ legalissues. html. Injunctive relief alone fails to afford these incentives. Moreover,

injunctive relief only prevents future misconduct. It does nothing to make whole individuals who have been injured by violation
of their fundamental rights. Id.
Title II is proportional and congruent. It is targeted to protect the fundamental rights and liberties of individuals with

disabilities. The obligations imposed on the states are limited and sensitive to the financial and other burdens imposed on the
states. The private right of action for damages is essential to the effectiveness of Title II. Therefore, Congress acted within its
power to abrogate the Eleventh Amendment immunity of the states. 34
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23
IV. THE RIGOROUS STANDARD OF REVIEW RECENTLY APPLIED TO §  5 LEGISLATION

UNDULY COMPROMISES CONGRESSIONAL POWER.

Although Title II meets the standard of review employed to determine congruence and proportionality in cases like Kimel
and Garrett, amici respectfully urge the Court to return to the traditional, deferential standard used in evaluating the validity
of all legislation enacted pursuant to Congress's §  5 powers.
In City of Boerne and subsequent cases, the Court has continued to recognize that it should defer to Congress's

judgments because "[ i] t is for Congress in the first instance to determin[ e] whether and what legislation is needed to secure
the guarantees of the Fourteenth Amendment." Kimel, 528 U. S. at 80-81 (quoting City of Boerne, 521 U. S. at 517). Nevertheless,
in applying the congruence and proportionality standard, the Court has closely scrutinized the legislative record for evidence
of a "pattern" of unconstitutional state discrimination, has insisted that attempts to deal with such discrimination on a
uniform, national basis be supported by evidence in the record, and has questioned the quality of the evidence that is reflected
in the record and the inferences that Congress was entitled to draw from it.

Respectfully, we submit that this approach is inconsistent with the principle of separation of powers and unduly intrudes
on Congress's legislative function. The Court has noted that
[a] legislative choice is not subject to courtroom factfinding and may be based on rational speculation

unsupported by evidence or empirical data. Only by faithful adherence to this guiding principle . . . is it 35
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24
possible to preserve to the legislative branch its rightful independence and its ability to function.

FCC v. Beach Communications, 508 U. S. 307, 308, 315 (1993) (citations omitted). Yet, in determining congruence and
proportionality in cases such as Kimel and Garrett, the Court has required that Congress indicate the "reasons for [its] action"
in the legislative record and support those "reasons" with evidence of the necessity of §  5 legislation. Kimel, 528 U. S. at
88. The Court thus appears to have imposed an evidentiary standard more appropriate to an administrative agency than a
coordinate branch of the Federal Government. See Garrett, 531 U. S. at 376 (dissenting opinion of Breyer, J., joined by Stevens,
Souter, and Ginsburg, JJ.).
Moreover, the Court appears to have limited the inferences that Congress may draw through the use of common sense from

the information it has received from multiple sources. For example, in Garrett, the Court held that substantial evidence
of society-wide stereotypes concerning individuals with disabilities, and even discrimination by government officials,
did not provide a sufficient basis for Congress to infer that state officials were as likely to hold the same stereotypes and
prejudices that affected or were likely to affect their treatment of individuals with disabilities. See id. at 377-78. And the
requirement of a record showing a pattern of discriminatory state action also implies that Congress's power "to enforce" the
Fourteenth Amendment is limited to legislation remedying past conduct that can be reflected in a record and precludes it from
legislating prophylactically to protect against incipient or potential conduct that threatens to undermine the guarantees of
the Fourteenth Amendment. See JOHN T. NOONAN, JR., NARROWING THE NATION'S POWER: THE SUPREME COURT SIDES
WITH THE STATES 93 (2002). 36
36 Page 37 38
25
With all respect, we believe that the Court's standard of review in these cases not only violates the separation of powers

by imposing judicial requirements upon Congress's legislative procedure, but also reflects an unworkable view of the legislative
process and, in effect, calls upon Congress to dramatically alter the way in which it legislates.

First, the Court's apparent requirement that Congress articulate a single, coherent policy rationale and support that
rationale with evidence in the legislative record does not accord with the reality of the legislative process. Members of Congress
represent constituencies with diverse, often conflicting, interests. Hence, legislation is rarely, if ever, reached through consensus,
but rather, through competition and majority vote. See Philip P. Frickey & Steven S. Smith, Judicial Review, The Congressional
Process, and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L. J. 1707, 1741-45 (2002). Moreover,
legislation is generally the product of a competitive process of bargaining and coalition-building as opposed to the type of
deliberation engaged in by judicial and administrative bodies. Accordingly, in many, if not most, cases, no single, identifiable
rationale exists. See id. at 1744-45.
In addition, the Court's requirement of an evidentiary predicate in the legislative record mistakenly assumes that all

the information Congress draws upon in enacting legislation is incorporated in that record. Congress is informed through
numerous sources that are not reflected in the legislative record. For example, Members of Congress bring to the legislature the
views and experiences of the citizens whom they represent. Thus, unlike a trier of fact in a court or an administrative law judge,
Congress is not a "tabula rasa until it conducts on-the-record proceedings," but rather, "grounds its claim to legitimacy on 37
37 Page 38 39
26
knowledge of and accountability to the citizens it represents." A. Christopher Bryant & Timothy J. Simeone, Remanding to

Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 Cornell L. Rev.
328, 385-86 (2001). In addition, Congress acquires information from, inter alia, communications with interest groups,
information support services such as the General Accounting Office and the Congressional Research Service of the Library
of Congress, written materials from party leadership offices, members' caucuses, legislators' personal staffs, and
communications with the executive branch. See id. at 384-87; Frickey & Smith, supra, at 1734-36.

Among the branches of the Federal Government, Congress is uniquely capable of amassing information from a wide range
of sources, both during and outside of its formal proceedings. Reliance on the legislative record alone is therefore an
incomplete measure of the basis for Congress's judgments. More significantly, however, it appears that if Congress were to
satisfy the congruence and proportionality test as applied in cases like Kimel and Garrett, it must painstakingly catalogue the
information acquired from such extra-record sources in the legislative record. For the reasons discussed above, this would
mark a dramatic alteration of Congress's legislative procedure.
Furthermore, by requiring Congress to adhere to judicially imposed procedural requirements when it legislates, the Court's

application of the congruence and proportionality test conflicts with at least the spirit of a number of constitutional provisions
that limit judicial intrusion into the legislative sphere. These include the Rules and Journal Clauses of Article I, which
provide, respectively, that "[ e] ach House may determine the rules of its proceedings" and "shall keep a journal of its proceedings,
and from time to time publish the same, excepting such parts as may in their judgment require secrecy." U. S. Const. art. I, §  5, 38
38 Page 39 40
27
cls. 2, 3. The Court has interpreted both of these provisions as giving Congress wide discretion to determine how to report and

record its consideration of legislation. See, e. g., United States v. Ballin, 144 U. S. 1 (1892); Field v. Clark, 143 U. S. 649 (1892).

The more demanding standard of review applied in cases such as Kimel and Garrett also appears to conflict with the
Speech or Debate Clause, which provides that "for any speech or debate in either House, [Senators and Representatives] shall
not be questioned in any other place." U. S. Const. art. I, §  6, cl. 1. The Court has determined that one of the Speech or Debate
Clause's chief purposes is "to insure that the legislative function the Constitution allocates to Congress may be performed
independently" and "reinforc[ e] the separation of powers so deliberately established by the Founders." Eastland v. United
States Servicemen's Fund, 421 U. S. 491, 502 (1975). See also Gravel v. United States, 408 U. S. 606, 628-29 (1972) (holding
that Speech or Debate Clause prohibited court from inquiring into conduct of, or preparation for, congressional proceeding);
Bryant & Simeone, supra, at 376-83.
The Court's approach, first articulated in City of Boerne and applied in cases like Kimel and Garrett, reflects two

concerns: first, that in the absence of a judicially recognized history of state discrimination, Congress actually may be seeking
to expand the substantive scope of the Fourteenth Amendment or may be adopting a remedy that is disproportionate to the
number of instances of unconstitutional state conduct; and second, that in such circumstances, there is a need to protect
the sovereignty of the states against unwarranted intrusions by Congress in the guise of enforcing the Fourteenth Amendment.
We respectfully submit that neither concern justifies the intrusion into the legislative process that application of the standard of
review in cases like Kimel and Garrett has entailed. 39
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In the absence of conduct involving a judicially recognized history of unconstitutional state action, this Court has limited

itself to rational basis review in evaluating whether state conduct entails arbitrary and purposeful discrimination, in recognition
of the Court's own fact-finding limitations and the deference due to democratically elected legislatures. But it is precisely
because Congress, as a democratically elected legislature, is not so limited that it is inappropriate to impose a rigorous standard
of judicial review on Congress's determination of the existence or a threat of unconstitutional state conduct, even if not
previously recognized by the Court. See Garrett, 531 U. S. 356, 382-85 (opinion of Breyer, J., dissenting, joined by Stevens,
Souter, and Ginsberg, JJ.); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination
Legislation after Morrison and Kimel, 110 Yale L. J. 441, 467-73 (2000). As discussed above, in making legislative judgments,
Congress relies on many sources of information and intuition that would not support a judicial or administrative determination,
but which are characteristic of a democratic legislative process. The Fourteenth Amendment expressly assigns to Congress the
task of enforcing its guarantees and, under the long tradition established by M'Culloch, its judgments that there exists
arbitrary and purposeful state discrimination requiring legislation, and what legislation is "appropriate" to enforce the
Fourteenth Amendment's guarantees against such discrimination and its effects, deserve deference and respect.

Concerns that Congress may be unjustifiably intruding on state sovereignty do not support a more rigorous standard of
review of Congress's legislative judgments under §  5. To begin with, as the Court has recognized, the Civil War Amendments
were specifically designed as an expansion of federal power and an intrusion on state sovereignty. See Fitzpatrick v. Bitzer,
427 U. S. 445, 455-56 (1976) (noting that the Amendments 40
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29
effected "the expansion of Congress' powers with the corresponding diminution of state sovereignty") (discussing

Ex parte Virginia, 100 U. S. 339, 345-46 (1879)). Moreover, the states are not an isolated minority requiring heightened
judicial protection against a tyrannical majority. To the contrary, the political process and the structure of the Federal
Government – in particular, the states' equal representation in the Senate – were the principal means intended by the
Framers to prevent inappropriate intrusions by the federal legislature on the states' sovereignty. See Kimel, 528 U. S. at
93-94 (opinion of Stevens, J., dissenting, joined by Souter, Ginsburg, and Breyer, JJ.); Garcia v. San Antonio Metro.
Transit Auth., 469 U. S. 528, 550-51 (1985).
The standard recently applied by the Court to determine congruence and proportionality substitutes the Court's views

of how Congress should conduct its lawmaking processes in carrying out its duty to "enforce, by appropriate legislation,
the provisions of [the Fourteenth Amendment]," U. S. CONST. amend. XIV, § 5, and ultimately substitutes the Court's
judgment for that traditionally left to Congress alone as to the "closeness of the relationship between the means [to be]
adopted and the end to be attained." Burroughs v. United States, 290 U. S. 534, 548 (1934). This is a departure from
the Court's historic recognition of its own institutional limitations and the deference due to the democratically
elected legislative branch, except in cases where the Court's intervention is needed to protect the rights of individuals
guaranteed by the Constitution and those "discrete and insular minorities" who do not have access to the democratic process
to protect their rights against a dominant majority. United States v. Carolene Prods. Co., 304 U. S. 144, 153 n. 4 (1938).
Accordingly, for the reasons discussed above, amici curiae respectfully urge the Court to reconsider the rigorous standard 41
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30
of review it has recently applied to determine congruence and proportionality, even in cases where the Court has not previously

recognized a history of purposeful unequal treatment.
CONCLUSION
For the foregoing reasons, amici urge the Court to affirm the decision of the United States Court of Appeals for the Sixth

Circuit.
Respectfully submitted,
CHARLES LESTER, JR. Counsel of Record

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