TABLE OF CONTENTS
TABLE OF AUTHORITIES. ii
INTEREST OF
THE AMICUS CURIAE.. 1
INTRODUCTION
AND SUMMARY.. 2
ARGUMENT. 5
I. The ADA Provides Protection With
Respect to Both State Facilities and State Services 5
II. When the ADA Was Enacted, Individual
State Laws Failed To Ensure Persons with Disabilities Access to State
Facilities. 8
A. Remedies With Respect to State
Facilities. 8
1. Private Right of Action for Damages. 9
2. Attorney’s Fees. 12
B. Coverage of State Facilities. 14
III. When the ADA Was Enacted, Individual
State Laws Failed To Protect Persons with Disabilities Against Discrimination
in the Provision of State Services. 17
A. Coverage of State Services. 17
B. Limitations in Coverage of State
Services. 20
1. Definition of Persons with
Disabilities. 21
2. Reasonable Modification. 23
3. Remedies. 25
IV. Invalidating Title II of the ADA Would
Severely Undermine the Protections Currently Afforded to Persons with
Disabilities in a Majority of States. 27
CONCLUSION.. 29
TABLE OF AUTHORITIES
cases:
Alexander v. Choate, 469 U.S. 287 (1985)....................... 25
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) 13
Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002), cert. denied, 123 S. Ct. 2639 (2003) 4
Barnes v. Gorman, 536 U.S. 181 (2002)............................. 7
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) 2
Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388
(1971) 10
Black v. Dep’t of Mental Health, 100 Cal. Rptr. 2d 39 (Ct. App. 2000) 10, 18
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) 21
City of Colo. Springs v. Conners, 993 P.2d 1167 (Colo. 2000) 11
Davis v. Flexman, 109 F. Supp. 2d 776 (S.D. Ohio 1999) 20
Doe v. Div’n of Youth & Family Servs., 148 F. Supp. 2d 462 (D.N.J.
2001) 12, 15, 18
Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001)................. 7
Fell v. Spokane Transit Authority., 911 P.2d 1319 (Wash. 1996) 19
Johnson v. Tufton Group, Inc., No. CIV. L-99-144, 2001 WL 210046 (D. Md. Feb
28, 2001) 11
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)............... 3
Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993).............. 14
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002), cert. denied, 537 U.S. 1105 (2003) 8
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)........ 10
Nev. Dep’t of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003) 4, 16
New York ex. rel. Spitzer v. County of Schoharie, 82 F. Supp. 2d 19
(N.D.N.Y. 2000) 7
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) 12–13
Olmstead v. L.C., ex rel. Zimring, 527 U.S. 581 (1999)..... 7
Owen v. City of Independence, 445 U.S. 622 (1980).......... 9
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998)............. 7
School Bd. v. Arline, 480 U.S. 273 (1987)........................ 21
State v. Haskell, 621 N.W.2d 358 (N.D. 2001)................ 27
Sutherland v. Nationwide Gen. Ins. Co., 657 N.E.2d 281 (Ohio Ct. App. 1995) 13, 14
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)............ 24
Wong v. Regents of the Univ. of Calif., 192 F.3d 807 (9th Cir. 1999) 7
federal statutes:
Americans with Disabilities Act:
Section
2(a)(3), 42 U.S.C. § 12101(a)(3)........................ 2
Section
2(a)(4), 42 U.S.C. § 12101(a)(4)........................ 2
Section
2(a)(5), 42 U.S.C. § 12101(a)(5)........................ 2
Section
2(a)(9), 42 U.S.C. § 12101(a)(9)........................ 2
Section
3(2), 42 U.S.C. § 12102(2)......................... 22,
23
Section
201(2), 42 U.S.C. § 12131(2)........................... 24
Section
202, 42 U.S.C. § 12132........................ 2,
4, 6, 24
Section
203, 42 U.S.C. § 12133.................................. 7,
9
Section
204(a), 42 U.S.C. § 12134(a)........................... 24
Section
204(b), 42 U.S.C. § 12134(b)............................. 6
Section
204(c), 42 U.S.C. § 12134(c)............................. 6
Section
505, 42 U.S.C. § 12205............................ 7,
9, 13
Civil
Rights Act of 1964, Title VI, 42 U.S.C. § 2000d et seq. 7
Civil
Rights Attorney’s Fees Awards Act of 1976................ 13
Family
and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–2654 3–4
Rehabilitation Act of 1973:
Section
504, 29 U.S.C. § 794.................................... 6,
21
Section
505, 29 U.S.C. § 794a.................................... 6–7
Rev. Stat. § 722(b), 42 U.S.C. § 1988(b)........................... 13
state statutes:
Ala.
Code § 21-4-4 (1990)................................................ 10
Ala.
Code § 21-4-7 (1990)................................................ 10
Ala.
Code § 21-7-3 (1990).............................. 10,
19, 22, 23
Ala.
Code § 21-7-5 (1990).......................................... 10,
18
Ariz.
Rev. Stat. Ann. § 34-438 (1990)................................ 10
Ariz.
Rev. Stat. Ann. § 41-1441 (1990).............................. 18
Ariz.
Rev. Stat. Ann. § 41-1492 (2003).............................. 28
Ariz.
Rev. Stat. Ann. § 41-1492.09[B] (2003).................... 27
Ark.
Code Ann. § 20-14-302 (1990)........................... 10,
18
Ark.
Code Ann. § 20-14-303 (1990)..................... 19,
22, 23
Ark.
Code Ann. § 20-14-610 (1990)................................. 10
Cal.
Civ. Code § 51 (1990).............................. 10–11,
18, 22
Cal.
Gov’t Code § 4458 (1990)......................................... 10
Cal.
Gov’t Code § 12926 (1990)....................................... 23
Cal.
Gov’t Code § 12926 (2003)....................................... 28
Cal.
Gov’t Code § 12944 (1990)....................................... 22
Colo.
Rev. Stat. Ann. § 24-34-306 (1990)............. 11,
14, 26
Colo.
Rev. Stat. Ann. § 24-34-605 (1990)................... 14,
26
Conn.
Gen. Stat. Ann. § 46a-64 (1990).............................. 23
Conn.
Gen. Stat. Ann. § 46a-99 (1990).................. 11,
14, 26
Del.
Code Ann. tit. 6, § 4501 (1990)................ 18,
19, 22, 23
Del.
Code Ann. tit. 6, § 4502 (2003).................................. 28
Fla.
Stat. Ann. § 393.13 (1990).................................... 20,
22
Fla.
Stat. Ann. § 413.08 (1990).......................................... 23
Fla.
Stat. Ann. § 413.08(1) (1990)............................... 20,
22
Fla.
Stat. Ann. § 768.28 (1990).......................................... 12
Ga.
Code Ann. § 30-3-1 (1990)............................. 19,
22, 23
Ga.
Code Ann. § 30-3-5 (1990)......................................... 11
Ga.
Code Ann. § 30-3-6 (1990)......................................... 18
Ga.
Code Ann. § 30-4-3 (1990)......................................... 11
Haw.
Rev. Stat. Ann. § 368-1.5(a) (1990).......................... 25
Haw.
Rev. Stat. Ann. § 489-7.5 (1990)........................ 11,
26
Haw.
Rev. Stat. Ann. § 489-7.5 (2003).............................. 28
Haw.
Rev. Stat. Ann. § 489-7.5(a)(1) (2003)..................... 27
Idaho
Code § 39-3201 (1990)............................... 11,
20, 22
Idaho
Code § 39-3210 (1990)........................................... 18
Idaho
Code § 39-4126 (1990)........................................... 23
Ind.
Code Ann. § 22-9-1-2 (1990)..................................... 11
Ind.
Code Ann. § 22-9-1-2(a) (1990)................................ 20
Ind.
Code Ann. § 22-9-1-3(r) (1990)................................. 23
Ind.
Code Ann. § 22-9-8-1 (2003)............................... 11,
27
Ind.
Code Ann. § 22-9-8-3 (2003)..................................... 27
Ind.
Code Ann. § 22-15-2-7 (1990)................................... 11
Iowa
Code Ann. § 601A.2 (1990)...................................... 23
Kan.
Stat. Ann. § 44-1002 (1990)...................................... 23
Kan.
Stat. Ann. § 44-1002 (2003)...................................... 28
Kan.
Stat. Ann. § 44-1005 (1990)................................ 14,
26
Kan.
Stat. Ann. § 44-1005(k) (1990)........................... 12,
26
Kan.
Stat. Ann. § 44-1009(c)(3) (1990)............................. 22
Ky.
Rev. Stat. Ann. § 344.010 (2003)................................ 28
Ky.
Rev. Stat. Ann. § 344.120 (1990)................................ 18
Ky.
Rev. Stat. Ann. § 344.120 (2003)................................ 28
Ky.
Rev. Stat. Ann. § 344.130 (2003)................................ 28
La.
Rev. Stat. Ann. § 46:2254 (1990)................................. 25
Mass.
Gen. Laws Ann. Const. Amend. CXIV (1990)......... 25
Mass.
Gen. Laws ch. 272, § 98 (1990)............................... 23
Md.
Ann. Code art. 49B, § 5 (1990)............................ 11,
23
Md.
Ann. Code art. 49B, § 7 (1990).................................. 20
Me.
Rev. Stat. Ann. tit. 5, § 4551 (1990) ........................... 20
Me.
Rev. Stat. Ann. tit. 5, § 4553 (1990) ........................... 23
Me.
Rev. Stat. Ann. tit. 5, § 4553 (2003)............................ 28
Me.
Rev. Stat. Ann. tit. 5, § 4592 (2003)............................ 28
Mich.
Comp. Laws § 37.1103 (1990)................................ 23
Minn.
Stat. Ann. § 363.03(3)(2) (1991).............................. 25
Minn.
Stat. Ann. § 363.03(4)(1) (1991).............................. 25
Miss.
Code Ann. § 43-6-5 (1990).......................... 20,
22, 23
Miss.
Code Ann. § 43-6-11 (1990).............................. 11,
18
Miss.
Code Ann. § 43-6-123 (1990).................................. 11
Mo.
Rev. Stat. § 213.010 (1990)....................................... 23
Mo.
Rev. Stat. § 213.010 (2003)....................................... 28
Mo.
Ann. Stat. § 213.010(8) (1990)................................... 25
Mont.
Code Ann. § 49-2-101 (1990)................................. 23
Mont.
Code Ann. § 49-2-101 (2003)................................. 28
N.C.
Gen. Stat. § 168A-3(10)(b) (1990)............................ 25
N.C.
Gen. Stat. § 168A-11(b) (1990).......................... 11,
26
N.D.
Cent. Code § 14-02.4-14 (2003).............................. 28
N.D.
Cent. Code § 14-02.4-15 (2003).............................. 28
N.D.
Cent. Code § 14-02.4-20 (2003).............................. 27
N.D.
Cent. Code § 48-02-19 (1991)..................... 11,
20, 22
N.H.
Rev. Stat. Ann. § 155:39-b (1990)............................. 18
N.H.
Rev. Stat. Ann. § 354-A:2 (2003).............................. 28
N.H.
Rev. Stat. Ann. § 354-A:3 (1990)........................ 22,
23
N.H.
Rev. Stat. Ann. § 354-A:21 (2003)............................ 27
N.H.
Rev. Stat. Ann. § 354-A:22 (2003)............................ 11
N.J.
Stat. Ann. § 10:5-5 (1990).......................................... 18
N.J.
Stat. Ann. § 10:5-13 (1990)........................................ 12
N.J.
Stat. Ann. § 52:32-4 (1990)........................................ 15
N.M.
Stat. Ann. § 28-1-2(A) (1990).................................. 17
N.M.
Stat. Ann. § 28-1-7(f) (1990).................................... 17
N.Y.
Exec. Law § 296(2)(a) (1990)............................. 11,
20
N.Y.
Pub. Bldgs. Law § 50(1) (1990)................................ 11
N.Y.
Pub. Bldgs. Law § 51 (1990)..................................... 11
Neb.
Rev. Stat. § 20-127 (1990)............................ 20,
22, 23
Neb.
Rev. Stat. § 20-129 (1990).................................. 11,
18
Neb.
Rev. Stat. § 72-1108 (1990)...................................... 15
Neb.
Rev. Stat. § 72-1119 (1990)...................................... 11
Neb.
Rev. Stat. § 72-1122 (1990)...................................... 15
Neb.
Rev. Stat. § 72-1124 (1990)...................................... 11
Nev.
Rev. Stat. Ann. § 41.035 (1991).......................... 12,
26
Nev.
Rev. Stat. Ann. § 651.050 (1990).............................. 23
Nev.
Rev. Stat. Ann. § 651.050 (2003).............................. 28
Nev.
Rev. Stat. Ann. § 651.070 (1991).............................. 22
Nev.
Rev. Stat. Ann. § 651.090(1) (1991).................... 12, 26
Ohio
Rev. Code Ann. § 3781.111(A) (2003)..................... 15
Ohio
Rev. Code Ann. § 4112.01(A)(9) (2003)................... 15
Ohio
Rev. Code Ann. § 4112.02 (2002)............................. 20
Ohio
Rev. Code Ann. § 4112.02(G) (2003)....................... 15
Ohio
Rev. Code Ann. § 4112.99 (1990)............................. 12
Ohio
Rev. Code Ann. § 4112.99 (2000)............................. 14
Okla.
Stat. tit. 25, § 1402 (1990).................................. 11,
26
Pa.
Stat. Ann. tit. 43, § 954 (1990)..................................... 23
Pa.
Stat. Ann. tit. 43, § 954 (2003)..................................... 28
Pa.
Stat. Ann. tit. 43, § 962(c.2) (2003).................. 13,
26, 27
R.I.
Gen. Laws § 42-87-4 (1990)................................. 13,
26
S.C.
Code Ann. § 43-33-520 (1990)................................. 22
S.C.
Code Ann. § 43-33-540 (1990)........................... 12,
26
S.C.
Code Ann. § 43-33-560 (1990)........................... 22,
23
S.D.
Codified Laws § 5-14-14 (1991)................................ 11
S.D.
Codified Laws § 20-13-23 (1990).............................. 26
S.D.
Codified Laws § 20-13-23.7 (1990)........................... 25
S.D.
Codified Laws § 20-13-24 (1991).............................. 26
S.D.
Codified Laws § 20-13-35.1 (2003)............... 11,
27, 28
Tenn.
Code Ann. § 4-21-501 (1990).................................. 18
Tenn.
Code Ann. § 68-18-202 (1990)............................ 9,
15
Tenn
Code Ann. § 68-18-203(2) (1990)............................ 15
Tenn.
Code Ann. § 68-120-205 (1990)................................ 9
Tenn.
Code Ann. § 68-120-205(b) (1990)......................... 11
Tenn.
Pub. Acts 1970, ch. 484, § 2...................................... 9
Tex.
Hum. Res. Code Ann. § 121.001 (1990).................... 20
Tex.
Hum. Res. Code Ann. § 121.002(4) (1990)................ 23
Tex.
Hum. Res. Code Ann. § 121.004(b) (1990)................ 13
Utah
Code Ann. § 26-29-2 (1990)............................... 22,
23
Utah
Code Ann. § 26-29-4 (1990)..................................... 11
Utah
Code Ann. § 26-30-1 (1990)..................................... 20
Utah
Code Ann. § 26-30-4 (1990)............................... 11,
18
Va.
Code Ann. § 51.5-3 (1990)......................................... 23
Va.
Code Ann. § 51.5-40 (1990)....................................... 25
Va.
Code Ann. § 51.5-46(A) (1990)............................ 12,
26
Vt.
Stat. Ann. tit. 9, § 4501(1) (2003)................................. 28
Vt.
Stat. Ann. tit. 9, § 4502 (1990)..................................... 20
Vt.
Stat. Ann. tit. 9, § 4502(c) (2003)................................. 28
Wash.
Rev. Code Ann. § 49.60.040 (1990)....................... 19
Wash.
Rev. Code Ann. § 49.60.215 (1990)....................... 19
Wash.
Rev. Code Ann. § 70.84.010 (1990)....................... 23
W.
Va. Code Ann. § 5-11-10 (1991)........................... 12,
26
W.
Va. Code Ann. § 5-11-13(c) (1991)....................... 12,
26
Wis.
Stat. Ann. § 101.13 (1990)......................................... 23
Wis.
Stat. Ann. § 101.13(2)(d) (1990)................................ 15
Wis.
Stat. Ann. § 101.13(4) (1990).................................... 12
Wis.
Stat. Ann. § 101.22(1m)(b) (1990)............................. 22
Wis.
Stat. Ann. § 101.22(1m)(bp) (1990)........................... 18
Wis.
Stat. Ann. § 101.22(9)(a) (1990)................................ 20
Wis.
Stat. Ann. § 106.52(c) (2003).................................... 28
Wyo.
Stat. Ann. § 16-6-501 (1990)................................... 11
Wyo.
Stat. Ann. § 35-13-201 (1990)................................. 20
Wyo. Stat. Ann. § 35-13-201(a) (1990)............................. 23
Wyo. Stat. Ann. § 35-13-203 (1990)........................... 11, 18
regulations:
28
C.F.R. § 35.130(b)(7) (2003)....................................... 25
28
C.F.R. § 35.149 (2003).................................................. 6
other authorities:
American
National Standard for Buildings and Facilities § 4.13.8 (1986) 16
American
National Standards Association, ANSI—An
Historical Overview, http://www.ansi.org/about_ansi/introduction/history.aspx?menuid=1 (visited Nov. 9, 2003) 16
Colker, Ruth, &
Adam Milani The Post-Garrett World:
Insufficient State Protection Against Disability Discrimination, 53 Ala. L.
Rev. 1075 (2002)...... 5, 19, 27
Del.
Op. Att’y Gen. No. 00-IB09 (May 30, 2000), 2000 WL 1092966 (Del. A.G.) 18
H.R.
Rep. No. 94-1558 (1976).......................................... 13
H.R.
Rep. No. 101-485, pt. 3 (1990)................................. 13
S.
Rep. No. 94-1011 (1976).............................................. 13
S.
Rep. No. 101-116 (1989)........................................ 3,
6, 8
U.S.
Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (1983) 8
BRIEF
FOR THE TRAINING AND ADVOCACY SUPPORT CENTER OF THE NATIONAL ASSOCIATION OF PROTECTION
AND ADVOCACY SYSTEMS AS AMICUS CURIAE
IN SUPPORT OF RESPONDENTS
INTEREST
OF THE AMICUS CURIAE
Amicus Training and Advocacy Support Center of the National
Association of Protection and Advocacy Systems (“TASC/NAPAS”) provides training
and technical assistance to the nationwide system of protection and advocacy
(“P&A”) agencies. Located in all 50 states, the District of Columbia,
Puerto Rico, and the territories (the Virgin Islands, Guam, American Samoa, and
the Northern Marianas Islands), P&As are mandated under various federal
statutes to provide legal representation and related advocacy services on
behalf of all people with disabilities in a variety of settings. In fiscal year
2002, P&As served over 65,000 persons with disabilities through individual
case representation and systemic advocacy.
The P&A system
comprises the nation’s largest provider of legally based advocacy services for
persons with disabilities. P&As are particularly active in providing
assistance to persons with disabilities under the Americans with Disabilities
Act (“ADA”).
Because of its
national P&A membership and familiarity with the protections afforded by
each state to persons with disabilities, TASC/NAPAS has firsthand knowledge of
the state laws and how they operate in practice. TASC/NAPAS is thus uniquely
suited to assist the Court in understanding the state law backdrop against
which Congress enacted the ADA as well as the status of that backdrop today.
INTRODUCTION
AND SUMMARY
Title II of the Americans
with Disabilities Act (“ADA”) proscribes discrimination in the provision of
public “services, programs, or activities.” Section 202, 42 U.S.C.
§ 12132. After an exhaustive investigation, Congress determined that such
national legislation was required, expressly finding that persons with
disabilities “continually encounter * * * [the] failure to make modifications
to existing facilities” such as court houses and polling places, and that discrimination
against persons with disabilities persists in “access to public services.” Section
2(a)(3), (5), 42 U.S.C. § 12101(a)(3), (5). Congress expressly determined
that this discrimination continued in significant measure because persons with
disabilities “have often had no legal recourse to redress such discrimination.”
Section 2(a)(4), 42 U.S.C. § 12101(a)(4). As a result, Congress concluded
that “the continuing existence of unfair and unnecessary discrimination and
prejudice denies people with disabilities the opportunity to compete on an
equal basis.” Section 2(a)(9), 42 U.S.C. § 12101(a)(9).
In the face of these
express statutory findings, petitioner nevertheless suggests in its opening
brief that the legislative history of the ADA demonstrates that when it enacted
the ADA, Congress believed that state law was generally sufficient to safeguard
against the pervasive discrimination against people with disabilities. Pet. Br.
at 21–22 (“[F]ar from indicating concerns about state-sponsored misconduct, the
legislative record reflects congressional recognition of the States’ leadership
in safeguarding the rights of the disabled,” citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368 n.5 (2001)).
Petitioner’s error in
this assertion is three-fold. First, petitioner ignores the clear legislative
findings quoted above specifically referencing the pervasive discrimination in facilities
and services, and noting the inadequacy of existing remedies. Such legislative
findings, included in the statutory text, must be given greater weight than
isolated statements selected from the vast legislative history. See, e.g., Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 90-91 (2000) (noting that an examination of the legislative record
is not necessary in all circumstances and striking down the ADEA in part
because there were no statutory findings regarding state action).
Second, the weight of
legislative history is in line with the statutory findings and contrary to petitioner’s
position. For example, the Fifty State Governors’ Committees, on whose reports
Congress relied, concluded that “existing State laws do not adequately counter
such acts of discrimination.” S. Rep. No. 101-116, at 18 (1989). And
petitioner’s suggestion regarding the adequacy of state law conflicts sharply
with the conclusion of the Senate Report that “State laws are inadequate to
address the pervasive problems of discrimination that people with disabilities
are facing.” Id.
Third, consistent
with the legislative findings noted above, an examination of state laws in
existence at the time the ADA was passed shows that they provided inconsistent
and inadequate remedies and coverage, seriously limiting the ability of many
persons with disabilities to gain redress for egregious discrimination by the
states. Indeed, much of the “unfair and unnecessary discrimination and
prejudice” that Congress observed can be traced directly to the states’ failure
to guarantee persons with disabilities access to state facilities and services.
We demonstrate that
when the ADA was enacted, only one state had explicit statutory protection
comparable to Title II of the ADA in the areas we discuss below. Thus, contrary
to the suggestions of petitioner, Title II was not unnecessary legislation
enacted over a landscape of protective state law. Rather, like the Family and Medical
Leave Act of 1993 (“FMLA”) recently upheld in Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003), Title II was enacted to respond to
the inadequate protection provided by an incomplete and porous patchwork of
state laws. 123 S. Ct. at 1980–81 (holding that Congress was justified in
enacting the FMLA as remedial legislation, relying in part on the fact that the
Court had identified fourteen states whose family leave policies had “important
shortcomings”).
Title II ensures that
persons with disabilities have consistent protection against discrimination in
access to state facilities and services, regardless of the state in which they
reside. See Section 202, 42 U.S.C. § 12132 (“[N]o 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.”). Although we address state facilities and state services separately
in this brief, the two go hand-in-hand because without accessible facilities
most of a state’s services will be inaccessible to persons with disabilities.
See, e.g., Barden v. City of Sacramento,
292 F.3d 1073, 1075 (9th Cir. 2002), cert.
denied, 123 S. Ct. 2639 (2003) (“One
form of prohibited discrimination [under Title II] is the exclusion from a
public entity’s services, programs, or activities because of the
inaccessibility of the entity’s facility.”). Similarly, a state facility that complies
with Title II does not provide meaningful access if state services within the
facility are denied to persons with disabilities.
In Part I below we
briefly describe the coverage of the ADA with respect to state facilities and
services. We also explain why the ADA’s remedial scheme is essential to this
coverage. In Part II we demonstrate
that in 1990, when the ADA was passed, thirty-four states had statutes that did
not ensure access to state facilities in a manner equivalent to Title II. Then,
in Part III, we shift our focus to state services and demonstrate that all but
one of the states failed to provide access to state services in a manner equivalent
to Title II.
Finally, we demonstrate
in Part IV that state law remains inadequate today. Absent Title II,
enforcement of the rights of people with disabilities to access state
facilities and services would be greatly diminished. Thus, not only was
Congress acting to remedy significant gaps in state anti-discrimination laws
when it enacted the ADA, but the continuing vitality of Title II of the ADA is
essential to secure the guarantee of equal protection and due process for all
persons with disabilities.
ARGUMENT
I. The ADA Provides Protection With Respect to Both
State Facilities and State Services
The
ADA’s coverage of state facilities and services has two main components: a general
prohibition of discrimination in access to state facilities and services and a
remedial scheme that deters such discrimination and provides appropriate relief
when such discrimination occurs. Section 202, which prohibits discrimination in
services, programs, and activities provides that:
“[N]o 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.
Public
facilities such as public buildings, sidewalks, and recreational facilities are
covered in two ways. First, without access to public buildings, sidewalks, and
recreational facilities, persons with disabilities are systematically denied
the “services, programs, [and] activities” provided by the state. Second, the
existing regulations from Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794, expressly covered such facilities, and thus Congress ensured
that Title II covered such facilities by specifically directing the Attorney
General to adopt regulations “consistent with” the Rehabilitation Act
regulations to cover “facilities.” See Sections 204(b) and (c), 42 U.S.C. §§ 12134(b)
& (c).
Moreover,
Congress recognized that without an effective remedial scheme such prohibitions
would have little impact on the pervasive discrimination existing at the time
and that the “inclusion of penalties and damages i[s] the driving force that
facilitates voluntary compliance.” S. Rep. No. 101-116, at 15 (1989). Title II therefore
incorporates by reference the enforcement provisions under Section 505 of the
Rehabilitation Act, 29 U.S.C. § 794a (which themselves are based on
the remedies applicable to Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d et seq.). See Section 203,
42 U.S.C. § 12133. Under this remedial scheme plaintiffs may obtain
injunctive relief and damages. The ADA also allows a successful plaintiff to receive
“a reasonable attorney’s fee, including litigation expenses, and costs.” Section,
505, 42 U.S.C. § 12205. This set of remedies gives states a strong
incentive to provide access to facilities and services and provides adequate
redress for a person who encounters discrimination by the state.
Since
1990, persons with disabilities have relied on Title II to challenge numerous
discriminatory acts involving core governmental functions. Respondents are among
the many persons with disabilities who have used Title II to challenge a
state’s unwillingness to make its courts accessible to persons with
disabilities. Title II has also been used to challenge discriminatory acts
involving voting,
institutionalization,
education,
prisoners’ rights, law
enforcement, and
public assistance programs. By
ensuring that individuals with disabilities have access to such basic facilities
and services, Title II of the ADA has enabled them to participate as equal
citizens in the most fundamental aspects of our society. Before the ADA was
enacted, many state laws failed to adequately address the exclusion of people
with disabilities from government facilities and services and their resulting isolation
from public life and inability to participate fully in the rights and
privileges of citizenship. Had Congress not enacted Title II, many people with
disabilities would have remained second-class citizens, unable to have their
day in court, attend school or state universities, cast a ballot, or receive
public assistance benefits.
II. When the ADA Was Enacted, Individual State Laws
Failed To Ensure Persons with Disabilities Access to State Facilities.
A. Remedies
With Respect to State Facilities
In
prohibiting discrimination in access to state facilities Congress recognized
that “the rights guaranteed by the ADA are meaningless without effective
enforcement provisions” and that “the inclusion of penalties and damages i[s]
the driving force that facilitates voluntary compliance.” S. Rep. No. 101-116,
at 15 (1989). Congress was also aware of a report by the U.S. Commission on
Civil Rights that found that seventy-six percent of state buildings were not accessible
to persons with disabilities even though many states had statutes requiring that
such buildings be accessible. See U.S. Commission on Civil Rights,
Accommodating the Spectrum of Individual Abilities 39 (1983). Thus, as
discussed above, Congress guaranteed the enforcement of Title II’s prohibitions
by allowing those with the greatest incentive to enforce its prohibitions—persons
with disabilities—to recover damages and attorney’s fees when states failed to
comply with Title II. See Sections 203 and 505, 42 U.S.C. §§ 12133 & 12205.
As
reflected in the Senate report cited above, at the time Congress enacted the
ADA most states failed to provide equivalent relief for discrimination in
access to state facilities thus depriving their accessibility “requirements” of
any real meaning. For example, in 1990 petitioner had a policy requiring
accessibility in all “public buildings” that had been in effect since 1970. See
Tenn. Code Ann. § 68-18-202 (1990) (historical notes indicate statute was
enacted in 1970 Pub. Acts, ch. 484, § 2). But
no fine or penalty was available for state violations of this provision. See id. § 68-120-205 (1990). Thus, Tennessee
and other states that did not provide meaningful enforcement mechanisms had no
incentive to comply with their own accessibility statutes and failed to provide
relief to individuals who suffered discrimination.
1.
Private Right of Action for Damages
The private right of
action for damages provided by Title II serves several important purposes.
First, the threat of damages provides states with a strong incentive not to
discriminate in providing access to its facilities. See Owen v. City of Independence,
445 U.S. 622, 651–52 (1980) (noting the deterrent effect of damage remedies on
governmental conduct). Second, a person with a disability who suffers
discrimination at the hands of the state should be able to receive damages for any
compensable harm that is attributable to the discrimination. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 410
(1971) (Harlan, J., concurring). Finally, a damage remedy is a particularly
important remedy for discrimination in access to state facilities because when an
individual is denied access to a state facility to which he may never return,
such as a courthouse, he may lack standing to seek injunctive relief under this
Court’s precedents. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564
(1992). Thus, for some persons with disabilities, it may be that “damages is
the only possible remedy.” Bivens, 403
U.S. at 409.
A survey
of state accessibility statutes in 1990 reveals that thirty-one states either did
not clearly allow a person who was illegally denied access to a facility to sue
for damages or significantly restricted such relief. First, nineteen states
did not clearly allow a private right of action for facilities discrimination.
For example, Alabama’s statute had two provisions requiring state facilities to
be accessible. See Ala. Code §§ 21-4-4, 21-7-2 (1990). Section 21-4-4 was enforced
by the state fire marshal who could order compliance, see Section 21-4-7, while
Section 21-7-2 could only be enforced by a misdemeanor penalty, see Section 21-7-5.
Because a state prosecutor cannot bring a criminal action against the state,
the misdemeanor penalty does not even apply to state discrimination. Thus,
Alabama provided no private right of action against the state for
discriminating in providing access to the state’s facilities.
Second, in three additional states an
individual could bring a private right of action, but could not recover damages
(even for intentional discrimination).
Six other states failed to provide adequate relief because the states had significant
limits on the amount of damages that an individual could recover. In South
Carolina, for example, a successful plaintiff’s recovery of actual damages was
limited to $5,000. See S.C. Code Ann. § 43-33-540 (1990).
Finally, three states allowed a private right of action for damages against the
state but this remedy was not clearly available for discrimination involving
all state facilities.
2. Attorney’s
Fees
Attorney’s fees, like
damages, play a critical role in the enforcement of facilities accessibility
requirements. The enforcement of accessibility requirements, like other civil
rights laws, is dependent to a large degree on causes of action filed by plaintiffs
acting as “private attorney[s] general.” Newman
v. Piggie Park Enterprises, Inc., 390
U.S. 400, 402 (1968).
Without attorney’s fees, however, an individual who has suffered discrimination
may not be able to find an attorney willing to file an action on his or her
behalf. See, e.g., H.R. Rep. No.
94-1558, at 1 (1976) (“Because a vast majority of the victims of civil rights
violations cannot afford legal counsel, they are unable to present their cases
to the courts * * *.”). Furthermore, the threat of paying a
successful plaintiff’s attorney’s fees, like the threat of paying damages, gives
states an incentive to comply with a prohibition.
Nevertheless, seven of the states that
allowed some private right of action against the state did not provide
attorney’s fees for a successful plaintiff.
Three states that covered facilities and allowed a full private right of action
against the state for damages did not have an attorney’s fees provision.
Four other states that allowed only a limited private right of action against
the state for facilities violations did not allow attorney’s fees.
B. Coverage
of State Facilities
In addition to
addressing states’ failure to provide adequate remedies for discrimination in
the provision of access to facilities, Title II addressed important
shortcomings in the scope of some states’ facilities coverage. Title II
prohibits states from discriminating in access to all state facilities,
including public buildings, such as court houses and schools, as well as public
sidewalks, streets, and recreational facilities. Accessible sidewalks and
streets are particularly important rights guaranteed by Title II because,
without them, a person with a disability might never get to an accessible
building and the accessible services therein:
“Without curb cuts, people with ambulatory disabilities simply
cannot navigate the city; activities that are commonplace to those who are
fully ambulatory become frustrating and dangerous endeavors. At present, people
using wheelchairs must often make the Hobson’s choice between traveling in the
streets—with cars and buses and trucks and bicycles—and traveling over uncut
curbs which, even when possible, may result in the wheelchair becoming stuck or
overturning, with injury to both passenger and chair.” Kinney v. Yerusalim, 9
F.3d 1067, 1069 (3d Cir. 1993).
At the time Congress passed the
ADA, four states did not have statutes that clearly applied to state facilities
other than buildings. For example, as noted above, petitioner had a policy
requiring accessibility in all “public buildings.” Tenn. Code Ann.
§ 68-18-202 (1990). The state’s definition of “public buildings” however,
did not include other facilities such as streets, sidewalks, and recreational
facilities. Tenn. Code Ann. § 68-18-203(2) (1990). Three other states had
statutes that, like Tennessee’s, covered public buildings but failed to clearly
cover such other facilities.
Furthermore, some state statutes which
covered state facilities did not provide sufficient accessibility guidelines or
require an agency to promulgate accessibility regulations. For example,
Nebraska’s statute contained some specific requirements for facilities
accessibility and provided that the “Public Buildings Safety Advisory Committee
may promulgate and implement codes
pursuant to sections 72-1101 to 72-1119 consistent with the uniform building
codes and standards set by the American Standards Association, Inc.” Neb. Rev.
Stat. § 72-1122 (1990) (emphasis added). Thus it was left to the Public
Buildings Safety Advisory Committee to decide whether to adopt detailed
guidelines to facilitate compliance with vague requirements such as those
provided for door thresholds. Id.
§ 72-1108 (“[A]s much as practicable” door thresholds “shall be flush with
the floor.”). As
recognized in Hibbs, 123 S. Ct at
1981, Congress could “reasonably conclude” that statutes such as Nebraska’s
“offered significantly less firm protection” than Title II which mandated
compliance with the Attorney General’s detailed accessibility regulations that
were to be based on the regulations already promulgated under Section 504 of
the Rehabilitation Act.
* * * *
In sum, thirty-four
states had facilities accessibility provisions with at least one significant
shortcoming in the remedial scheme or coverage of facilities. These
shortcomings standing alone provided Congress with sufficient justification for
passing Title II. See Hibbs, 123 S.
Ct. at 1980-81 (relying on shortcomings in only fourteen
states). But Congress was also concerned with the lack of accessibility in
state services and, as demonstrated below, states failed to provide adequate
protection in this area as well.
III.
When the ADA Was
Enacted, Individual State Laws Failed To Protect Persons with Disabilities
Against Discrimination in the Provision of State Services.
As demonstrated in Part II above, states failed to
provide adequate protection from discrimination in access to state facilities
in 1990. In Part III we demonstrate that in 1990 states provided even less
protection with respect to state services. Many state laws failed to cover
state services at all, and many that did had substantial shortcomings in that
coverage. And, as with state facilities, the remedies provided under state law
fell well short of those provided under the ADA.
A.
Coverage of State Services
When the ADA was
enacted, only twenty-four states provided statutory protection against
disability discrimination in the provision of public services and programs. In
the states which did offer such protection, the statutes often took the form of
“public accommodation” laws that could be interpreted to cover state services
as well as facilities.
For example, New Mexico had a statute forbidding any person, specifically
including the state, “in any public accommodation” from discriminating in
“offering or refusing to offer its services,
facilities, accommodations or goods to any individual because of * * *
physical or mental handicap.” N.M. Stat. Ann. §§ 28-1-7(f) and 28-1-2(A)
(1990) (emphasis added). Thus, we assume that a claimant could sue the state if
it were discriminating against that individual with respect state services (or
programs or activities) because of his or her disability.
Twenty-six of the
states, however, had no such statutory protection. First, similar statutes in
three states—Arizona, Kentucky, and Tennessee—did not cover persons with
disabilities at all.
In these states, the statutes prohibited discrimination on the basis of sex,
national origin and the like but left persons with disabilities without
protection.
Second, in thirteen states,
the general public accommodation statute either did not cover or was not
enforceable against the state. For example, in Mississippi, the only penalty
for a violation of the statute was a misdemeanor which would not be enforceable
against the state. See Miss. Code Ann. § 43-6-11 (1990).
In other states, the types of public accommodations covered by the statute did
not expressly include state-run accommodations and services. See, e.g., Cal. Civ. Code § 51 (1990)
(prohibiting discrimination on the basis of physical disability by “business
establishments”) and Black v. Dep’t of Mental Health, 100 Cal. Rptr.
2d 39, 42 n.4 (Ct. App. 2000) (declining to address the lower court’s ruling
that the state was not covered by the act).
Finally, twenty
states had statutes prohibiting disability discrimination with respect to
general public accommodations, but unlike New Mexico, these statutes did not clearly
cover “services.” For example, Washington had a statute prohibiting any person
from committing an act which “results in any distinction, restriction, or
discrimination * * * in any place of public resort, accommodation,
assemblage, or amusement” regardless of disability. Wash. Rev. Code Ann.
§ 49.60.215 (1990). As in New Mexico, the term “person” was defined to
include the state. See Wash. Rev. Code Ann. § 49.60.040 (1990). But the
statute did not prohibit such discrimination in the provision of services or
programs or activities. To the contrary, in Fell
v. Spokane Transit Authority, 911
P.2d 1319, 1329 (Wash. 1996), the Supreme Court of Washington held that the
statute could not be interpreted to cover transportation services offered by
the city. The Court held that:
“What must be very clear * * * is that the [state]
statutory mandate to provide access to places of public accommodation is not a
mandate to provide services. While entitlement to services may be in the ADA,
the Legislature has not enacted a counterpart to the ADA in Washington creating
such entitlements.” Id.
Thus,
in Washington, state buildings that accommodate the public may be covered by
the statute, but none of the services provided by the state would be.
Of the twenty states
that failed to cover discrimination in the provision of services, ten also
failed to cover the state (and hence have already been counted in the thirteen
states listed above).
Ten additional states, including Washington, had statutes that did cover the
state, at least with respect to its buildings, but failed to cover services.
Adding up the three
states that had statutes that did not cover disability discrimination, the thirteen
states that had statutes that did not cover the state, and the ten additional
states that did cover the state but did not cover services, there were twenty-six
states that failed to provide statutory protection against disability
discrimination with respect to state services.
B. Limitations
in Coverage of State Services
Having established that only twenty-four
states had any form of statutory protection against disability discrimination
in the provision of state services, we now turn to the various limitations in
that protection as compared to what Congress deemed necessary in Title II of the
ADA. As we demonstrate below, many of the statutes failed to cover critical
populations of persons with disabilities. They also by and large failed to
require that states make reasonable modifications in such services to ensure
that persons with disabilities would not be denied the benefits of public services.
Finally, we show that in many of the states, as with facilities, the remedies with
respect to discrimination in public services were inadequate to address the
problem of discrimination effectively.
1. Definition
of Persons with Disabilities
A critical step in prohibiting
discrimination on the basis of disability is to define the protected class with
sufficient breadth. Persons with both physical and mental impairments have long
suffered discrimination in this country. So too have persons who have a record
of impairment or who are regarded as having such an impairment.
Congress recognized that all such persons
need protection against discrimination when it enacted the Rehabilitation Act
of 1973 and the 1978 amendments thereto. See 29 U.S.C. § 794 and
historical notes. Moreover, by 1990, this Court had similarly recognized the
importance of these elements. In City of
Cleburne, this Court noted that persons with mental disabilities are often
the subject of discrimination on the basis of “negative attitudes and fear.” City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 448 (1985) (holding that the city council’s denial of a
special use permit under a zoning ordinance that prevented a home for persons
with mental impairments was unconstitutionally discriminatory under the
Fourteenth Amendment).
It is also clear that invidious
discrimination can be aimed at persons who, though not currently disabled, have
a record of disability or are regarded as having such a disability. Indeed, in School Board v. Arline, 480 U.S. 273, 284 (1987), this Court recognized that by
including both having a “record of” disability and being “regarded as” having a
disability in the definition of disability in the Rehabilitation Act, “Congress
acknowledged that society’s accumulated myths and fears about disability and
disease are as handicapping as are the physical limitations that flow from
actual impairment.”
In light of this history, it is not
surprising that Congress incorporated these elements into the definition of “disability”
in the ADA. Thus, Section 3(2) of the ADA defines “disability” to mean:
“(A)
a physical or mental impairment that substantially limits one or more of the
major life activities of such individual;
“(B)
a record of such an impairment; or
“(C)
being regarded as having such an impairment.” 42 U.S.C. § 12102(2).
Looking at the landscape of state law in
1990, however, several states failed to incorporate these critical categories. For
example, Nevada and Kansas each had statutes that prohibited discrimination in
the provision of services, but their coverage of persons with disabilities was
limited to those with “physical and visual” impairments (Nev. Rev. Stat. Ann.
§ 651.070 (1991) (see historical notes in 1991 database) or those with a
“physical handicap” (Kan. Stat. Ann. § 44-1009(c)(3) (1990)). Similarly,
South Carolina prohibited discrimination against persons because of “handicap”
but specifically excluded persons with “mental illness.” See S.C. Code Ann.
§§ 43-33-520, 43-33-560 (1990).
In addition, eleven of the states that
prohibited disability discrimination in the provision of public services failed
to include in the protected class persons who are “regarded as” having an
impairment and persons who have a “record of” an impairment. Desiring to put an end to discrimination
based on such “accumulated myths and fears,” Congress drafted the ADA to
include protection for both groups. See Section 3(2), 42 U.S.C.
§ 12102(2).
2. Reasonable
Modification
Another significant problem with many state
statutes was their failure to require that the states make even simple
modifications to their services and programs to avoid excluding persons with
disabilities from participating in or enjoying the benefits of such services
and programs. In passing the ADA, Congress recognized that such a requirement
was essential to ensure that discrimination could not persist under false
rationales. See, e.g., US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002) (recognizing that the ADA “seeks
to diminish or to eliminate the stereotypical thought processes, the
thoughtless actions, and the hostile reactions that far too often bar those
with disabilities from participating fully in the Nation’s life”).
Thus, Title II of the ADA specifies that
“qualified individual[s] with disabilit[ies]” shall not be “excluded from
participation in or be denied the benefits of” such services by reason of their
disabilities. Section 202, 42 U.S.C. § 12132. In turn, a “qualified
individual with a disability” is defined to be a person who,
“with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” Section
201(2), 42 U.S.C. § 12131(2) (emphasis added).
The
Attorney General’s regulations issued pursuant to Section 204(a),
42 U.S.C. § 12134(a), interpret this definition to require a public
entity to
“make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the public entity can
demonstrate that making the modifications would fundamentally alter the nature
of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7) (2003)
(emphasis added).
Thus, Title II requires that public
entities, including states, make “reasonable modifications” to their policies,
practices, and procedures in order to insure that persons with disabilities can
participate in and benefit from public services.
Nevertheless, when Congress enacted Title
II, only four of the twenty-four states that had a statutory prohibition
against disability discrimination in state services incorporated an express
obligation to make such modifications with respect to such services.
3. Remedies
The remedies available under state law for
violations of state accessibility requirements in the provision of state services
were, like the states’ remedies for facilities violations, substantially more
limited than the remedies available under Title II. First, taking the same
twenty-four states that did provide statutory protection against disability
discrimination in the provision of state services, six failed to provide for
damages as a remedy for violations by the state (even to remedy and deter
intentional discrimination), and another five significantly limited such
damages.
Second, of the twenty-four states that covered
services, eight did not allow successful plaintiffs to obtain attorney’s fees
for claims involving services. As discussed in more detail in Part II
above, without the availability of such an award, enforcement is substantially
limited, especially where the relief sought does not otherwise entail damages.
* * * *
The limitations in state laws prohibiting
discrimination in access to facilities and services show that only Minnesota
had statutory protections in the areas we have discussed at least as strong as
those Congress deemed adequate to ensure that persons with disabilities be able
to enjoy the benefits of critical state services, programs and activities. Thus,
it can hardly be said that Congress enacted the ADA, and Title II in
particular, against a backdrop of sufficient or effective state laws.
IV. Invalidating Title II of the ADA Would Severely
Undermine the Protections Currently Afforded to Persons with Disabilities in a
Majority of States.
Unfortunately,
since the enactment of the ADA, only a few states have improved their
disability statutes with respect to state facilities and services. As a recent
study in the University of Alabama Law Review concludes, “Our study confirms
* * * [that] only a minority of states actually have statutory
protection against disability discrimination * * * similar to that
found in ADA Title II.”
Facilities
access statutes remain inadequate in the majority of states. While six states have
revised their statutes to allow damage suits against the state for failing to
provide access to facilities,
none of the states that prohibited or limited such damages have abandoned these
restrictions. Of the seven states that allowed a private right of action for
damages but did not allow attorney’s fees, only Pennsylvania has adopted such a
provision. Finally, none
of the states that failed to require accessibility to all state facilities in
1990 has added such a requirement.
State
laws pertaining to services likewise remain inadequate today. Since 1990 only
four states—Kentucky, Maine, North Dakota and Vermont—have added statutes that
prohibit the state from discriminating in the provision of its services.
Of the six states which covered state services but did not provide a private
right of action for damages, only Hawaii and South Dakota have revised their
statutes to allow such relief.
Similarly, while eight states broadened their definition of disability to cover
at least some persons with mental impairments,
and ten states have done so to include those with a record of impairment or who
are regarded as having an impairment,
over twenty states still have definitions of disability more limited than the
ADA.
Thus,
the Brief of Amici Curiae Alabama et al. in Support of petitioner is
simply wrong when it asserts (at 24) that “existing State laws are sufficient
to address the vast majority of accessibility problems.” In fact, the need for
Title II of the ADA is as real now as it was in 1990. There can be no assurance
that the state legislatures which have not acted since 1990 would act now to
rectify the deficiencies in their laws if this Court were to strike down Title
II as applied to the states. Yet discrimination against persons with
disabilities will not simply go away. Accordingly, the comprehensive coverage
and remedies available under Title II of the ADA are vital to the protection of
persons with disabilities, and many persons with disabilities will be harmed if
these protections are taken away.
CONCLUSION
For
the reasons set forth in the Briefs for Respondents and above, this Court
should affirm the judgment of the court of appeals.
Respectfully submitted,
|
Sharon Masling
National Association of Protection and Advocacy Systems
900 Second Street, N.E.
Washington, D.C. 20002
(202) 408-9514
|
John Townsend
Rich*
James Chad
Oppenheimer
David M. Booth
Shea & Gardner
1800 Massachusetts Avenue, N.W.
Washington D.C. 20036
(202) 828-2000
|
Counsel
for Amicus Curiae
November 12, 2003 * Counsel of Record
Supreme Court of the United States
Respondents.
of Appeals
for the Sixth Circuit
BRIEF
FOR THE TRAINING AND ADVOCACY SUPPORT CENTER OF THE NATIONAL ASSOCIATION OF PROTECTION
AND ADVOCACY SYSTEMS AS AMICUS CURIAE
IN SUPPORT OF RESPONDENTS