Respondents Brief

• TABLE OF CONTENTS
• STATEMENT
  • I. The Statutory Scheme
  • II. The Facts
  • III. Proceedings Below
• SUMMARY OF ARGUMENT
• ARGUMENT
  • • I. Title II's Requirement That State Courts Be Accessible To People With Disabilities
    • A. Inaccessible Courts Threaten An Array Of Constitutional Rights
    • B. There Is A Significant Pattern Of Inaccessible Courts Throughout The States
    • C. Title II's Program Accessibility Requirement Is A Proportional Response To The Constitutional Violations Threatened By Inaccessible Courts
    • Title II As A Whole Reasonably Responds To The History And Threat Of Unconstitutional Exclusion Of Citizens With Disabilities From A Wide Range Of State Activities
• CONCLUSION
• Appendix
• Alabama
• Physical accessibility, Robertsdale Municipal Court (Oct. 31, 2001, Settlement: http://www.usdoj.gov/crt/ada/roberal.htm)
• Courthouse Access Enforcement by the Department of Justice (source: http://www.usdoj.gov/crt/ada/enforce.htm)
• Arizona
• Arkansas
• California
• Colorado
• Connecticut
• Florida
• Georgia
• Hawaii
• Idaho
• Illinois
• Indiana
• Iowa
• Kentucky
• Louisiana
• Maryland
• Massachusetts
• Michigan
• Mississippi
• Missouri
• Nebraska
• New Jersey
• New Mexico
• New York
• North Carolina
• North Dakota
• Ohio
• Oklahoma
• Oregon
• Pennyslvania
• South Carolina
• South Dakota
• Tennessee
• Texas
• Utah
• Vermont
• Virginia
• Washington
• West Virginia
• Wisconsin
• Wyoming
• Unidentified States

Pages 1--75 from Respondents Brief

State of Tennessee,
Petitioner,
v.

George Lane, Beverly Jones, and
United States of America. _____________

On Writ of Certiorari to the United States Court of Appeals
for the Sixth Circuit ____________

BRIEF FOR THE PRIVATE RESPONDENTS ____________
Samuel R. Bagenstos 1545 Massachusetts Ave.
Cambridge, MA 02138
Thomas C. Goldstein Goldstein & Howe, P. C.
4607 Asbury Pl., NW Washington, DC 20016

November 12, 2003

William J. Brown (Counsel of Record)
William J. Brown & Assocs. 23 North Ocoee St.
Cleveland, TN 37364 (423) 476-4515 1
1 Page 2 3

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................. i
TABLE OF AUTHORITIES.......................................... iii
STATEMENT ................................................................. 1
I. The Statutory Scheme .......................................... 1
II. The Facts .............................................................. 3
III. Proceedings Below .............................................. 6
SUMMARY OF ARGUMENT....................................... 7
ARGUMENT................................................................... 9
I. Title II's Requirement That State Courts Be Accessible To People With Disabilities

Reasonably Protects Against Violations Of Disabled Citizens' Rights Of Access To The
Courts........................................................................ 12
A. Inaccessible Courts Threaten An Array Of Constitutional Rights ................................................ 13

B. There Is A Significant Pattern Of Inaccessible Courts Throughout The States .................................. 20
C. Title II's Program Accessibility Requirement Is A Proportional Response To The Constitutional
Violations Threatened By Inaccessible Courts......... 28 II. Title II As A Whole Reasonably Responds

To The History And Threat Of Unconstitutional Exclusion Of Citizens With Disabilities From A
Wide Range Of State Activities................................ 34
A. Because Congress Had Power To Mandate Accessible State Court Systems, The Court Need

Not Consider Whether Title II May Be Upheld More Broadly.......................................................... 134

B. Title II Responds To A Widespread Record Of Actual And Threatened Constitutional Violations .... 20 2
2 Page 3 4

ii
C. Title II Is A Proportional Response To This Widespread Pattern Of Unconstitutional

Exclusion................................................................... 28 CONCLUSION ............................................................. 50 3
3 Page 4 5
iii
TABLE OF AUTHORITIES
Cases Barnes v. Gorman, 536 U. S. 181 (2002) .............................. 33

BE& K Constr. Co. v. NLRB, 536 U. S. 516 (2002)............... 14 Beckford v. Irvin, 49 F. Supp. 2d 170 (W. D. N. Y. 1999)...... 48
Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U. S. 388 (1971) ........................................ 33
Board of County Comm'rs v. Umbehr, 518 U. S. 668 (1996)................................................................................ 19
Board of Trustees v. Garrett, 531 U. S. 356 (2001) ....... passim Boddie v. Connecticut, 401 U. S. 371 (1971) ........................ 16

Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam)................ 21 Bullock v. Carter, 405 U. S. 134 (1972)................................ 44
Bush v. Gore, 531 U. S. 98 (2000) (per curiam).............. 15, 46 Callahan v. City of Philadelphia, 207 F. 3d 668 (3d Cir.
2000) ................................................................................. 20
Casey v. Lewis, 834 F. Supp. 1569 (D. Ariz. 1993) ............. 48 City of Boerne v. Flores, 521 U. S. 507 (1997).............. passim

City of Cleburne v. Cleburne Living Ctr., 473 U. S. 432 (1985).......................................................................... 43, 49
Clarkson v. Coughlin, 898 F. Supp. 1019 (S. D. N. Y. 1995) ................................................................................. 48
Davis v. Tuolumne County, No. CV-F-97-5516-SMS (E. D. Cal.)......................................................................... 24
Doe v. Regier, No. 03-2794 (Fla. Dist. Ct. App.)................. 11 Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001).................. 43

Esteves v. Brock, 106 F. 3d 674 (5th Cir.), cert. denied, 522 U. S. 828 (1997).......................................................... 20
Faretta v. California, 422 U. S. 806 (1975) .......................... 16 Fitzpatrick v. Bitzer, 427 U. S. 445 (1976)............................ 32

Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U. S. 627 (1999) .......................... 36
Franceschi v. Schwartz, 57 F. 3d 828 (9th Cir. 1995)........... 20 4
4 Page 5 6
iv
Franklin v. Gwinnett County Pub. Schs., 503 U. S. 60 (1992)................................................................................ 33

Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982)................................................................................ 18
Griffin v. Breckenridge, 403 U. S. 88 (1971) .............. 9, 37, 38 Harper v. Bd. of Elections, 383 U. S. 663 (1966) ........... 43, 44

Illinois v. Allen, 397 U. S. 337 (1970)................................... 16 Jernigan v. Superior Court, No. C03-2530WHA( PR),
2003 WL 21640489 (N. D. Cal. July 7, 2003) .................. 20 Jonas v. General Services Comm'n, No. A-95-CV-468-
JN (W. D. Tex.) ................................................................. 24
Kelly v. Municipal Courts, 97 F. 3d 902 (7th Cir. 1996)....... 20 Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000).... passim

Kroll v. St. Charles County, 766 F. Supp. 744 (E. D. Mo. 1991) ......................................................................... 24
LaFaut v. Smith, 834 F. 2d 389 (4th Cir. 1987) .................... 49 Layton v. Elder, 143 F. 3d 469 (8th Cir. 1999) ..................... 24

Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992) ........... 33 M. L. B. v. S. L. J., 519 U. S. 102 (1996)................. 15, 16, 18, 35
Manhattan State Citizens' Group, Inc. v. Bass, 524 F. Supp. 1270 (S. D. N. Y. 1981)............................................. 43
Maryland v. Craig, 497 U. S. 836 (1990).............................. 16 Matthews v. Jefferson, 29 F. Supp. 2d 525 (W. D. Ark.
1998) ................................................................................. 24
McCarthy v. Hale, No. 03-50608 (5th Cir.) ......................... 11 Meyers v. Texas, No. 02-50452 (5th Cir.) ............................ 11

Miles v. County of Los Angeles, No. 02-CV-3932 DT (JTLx) (C. D. Cal.) ............................................................ 24
Nevada Dep't of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003)................................................................ passim
No Barriers, Inc. v. Cornelius, No. 3: 97CV-2330-R (N. D. Tex.)........................................................................ 24
Olmstead v. L. C., 527 U. S. 581 (1999) .................... 18, 47, 50 Owen v. City of Independence, 445 U. S. 622 (1980) ........... 33 5
5 Page 6 7
v
Plessy v. Ferguson, 163 U. S. 537 (1896) ............................. 10 Plyler v. Doe, 457 U. S. 202 (1982) ...................................... 45

Popovich v. Cuyahoga County Court of Common Pleas, 276 F. 3d 808 (6th Cir.) (en banc), cert. denied, 537
U. S. 812 (2002)................................................................... 7
Powers v. Ohio, 499 U. S. 400 (1991)................................... 18 Press-Enterprise Co. v. Superior Court, 478 U. S. 1

(1986)................................................................................ 18
Pusey v. City of Youngstown, 11 F. 3d 652 (6th Cir. 1993), cert. denied, 512 U. S. 1237 (1994)........................ 20

Reynolds v. Sims, 377 U. S. 533 (1964) .......................... 15, 43 Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555
(1980)................................................................................ 19
Romer v. Evans, 517 U. S. 620 (1996) ........................... passim Saenz v. Roe, 526 U. S. 489 (1999) ............................. 9, 10, 42

Salinas v. United States, 522 U. S. 52 (1997) ............. 9, 34, 39 Salmond v. County of Teton, No. CV-97-130-GF-LBE
(D. Mont. Dec. 21, 2000).................................................. 24 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U. S. 1
(1973)................................................................................ 45
Shotz v. Cates, 256 F. 3d 1077 (11th Cir. 2001).................... 24 Skinner v. Oklahoma, 316 U. S. 535 (1942).......................... 46

Snyder v. Massachusetts, 291 U. S. 97 (1934) ...................... 16 South Carolina v. Katzenbach, 383 U. S. 301 (1966) ........... 27
Stanley v. Illinois, 405 U. S. 645 (1972).......................... 46, 49 State v. Rendon, 832 So. 2d 141 (Fla. Dist. Ct. App.
2002), rvw. denied, 851 So. 2d 729 (Fla. 2003) ............... 11
Taylor v. Louisiana, 419 U. S. 522 (1975) ............................ 17 Thompson v. Colorado, 278 F. 3d 1020 (10th Cir. 2001),

cert. denied, 535 U. S. 1077 (2002)................................... 11
Troxel v. Granville, 530 U. S. 57 (2000)............................... 46 United States v. Nat'l Treasury Employees Union, 513

U. S. 454 (1995)........................................................... 38, 39
United States v. Raines, 362 U. S. 17 (1960) .............. 9, 37, 38 6
6 Page 7 8
vi
United States v. Salerno, 481 U. S. 739 (1987)..................... 36 Waller v. Georgia, 467 U. S. 39 (1984) ...................... 5, 18, 29

Waters v. Churchill, 511 U. S. 661 (1994) ............................ 20 Weeks v. Chaboudy, 984 F. 2d 185 (6th Cir. 1993)............... 48
Wessel v. Glendening, 306 F. 3d 203 (4th Cir. 2002)............ 39 Wheat v. United States, 486 U. S. 153 (1988) ....................... 17
Youngberg v. Romeo, 457 U. S. 307 (1982) .................... 47, 49 Zablocki v. Redhail, 434 U. S. 374 (1978) ............................ 46

Statutes 18 U. S. C. § 666( a)( 1)( B) ................................................ 35, 39
20 U. S. C. § 1400( c)( 2)( C) .................................................... 46
42 U. S. C. § 12101( a)( 2)........................................................ 47
42 U. S. C. § 12101( a)( 3)...................................... 41, 42, 43, 47
42 U. S. C. § 12101( a)( 7)........................................................ 42
42 U. S. C. § 12111( 2) ............................................................ 39
42 U. S. C. § 12111( 5) ............................................................ 39
42 U. S. C. § 12111( 7) ............................................................ 39
42 U. S. C. § 12131................................................................. 49
42 U. S. C. § 12132....................................................... 1, 39, 49
42 U. S. C. § 12134( b) .............................................................. 1
42 U. S. C. § 12181( 7) ............................................................ 41
42 U. S. C. § 12182( b)( 2)( A)( iv) .............................................. 1
42 U. S. C. § 12183( a)( 1).......................................................... 1
42 U. S. C. § 12202................................................................. 39
42 U. S. C. § 1971( c) .............................................................. 37
42 U. S. C. § 1985( 3) .............................................................. 37
42 U. S. C. § 2000e( a) ............................................................ 39
Civil Rights Act of 1957, 42 U. S. C. § 1971 et seq............... 37
Rehabilitation Act of 1973, 42 U. S. C. § 12134...................... 1

Other Authorities 56 Fed. Reg. 35694 (1991) ..................................................... 1 7
7 Page 8 9
vii
Americans with Disabilities Act of 1989: Hearings Before Senate Comm. on Labor & Subcom. on the

Handicapped (1989) ....................................... 22, 26, 44, 45 Attorney General's Comm'n on Disability, Final Report

(1989)................................................................................ 14
Br. for the United States, Medical Board of California v. Hason, No. 02-479........................................................ 42

Burton D. Dunlop & Marisa E. Collett, Jury Service Accessibility for Older Persons and Persons with
Disabilities in Florida, available at http:// www. fiu. edu/~ coa/ research/ jury. htm...................... 23

Civil and Legal Rights Subcomm., Governor's Comm. on Disability Issues & Employment, Interim Court
and Courthouse Access Project (2000)............................. 23
Comm'n on the Future of the Tenn. Judicial Sys., Final Report (1996), available at

http:// www. tsc. state. tn. us/ geninfo/ publications/ future s. pdf (last visited Nov. 11, 2003) ........................................ 4

D. Michailakis, Government Action on Disability Policy: A Global Survey (1997) ....................................... 11
Disability Discrimination Act of 1992 (Austl.) .................... 11 House Comm. on Educ. & Labor, Legislative History of
Pub. L. No. 101-336: The Americans with Disabilities Act (1990)............................................... passim
http:// www. usdoj. gov/ crt/ ada/ enforce. htm ........................... 25 Judicial Council of California, Public Hearings Report:
Access for Persons with Disabilities (1996)..................... 23 N. Y. State Comm'n on Qual. of Care for the Mentally
Disabled & N. Y. State Bar Ass'n Comm. on Mental & Physical Disability, Survey of Access to N. Y.
State Courts for Individuals with Disabilities (1994) ....... 23
Phyllis S. Launius, Removing Public Access Barriers to the Courts in the New Millennium: A Sampling and

Analysis of Missouri's Trial Courts (2000)...................... 23 8
8 Page 9 10
viii
Ruth Colker & Adam Milani, The Post-Garrett World: Insufficient State Protection Against Disability

Discrimination, 53 Ala. L. Rev. 1075, 1083 (2002)......... 26 Task Force Submission, Cal. ................................................ 22

Task Force Submission, Col. ................................................ 22
Task Force Submission, Ga. ................................................. 22
Task Force Submission, Haw. .............................................. 22
Task Force Submission, Mass. ............................................. 22
Task Force Submission, Mo. ................................................ 22
Task Force Submission, Pa................................................... 22
Task Force Submission, S. D................................................. 22
Task Force Submission, W. Va. ........................................... 22
Task Force Submission, Wash.............................................. 22
Task Force Submission, Wis. ............................................... 22
Task Force Submission, Wyo. .............................................. 22
Task Force Submissions, Ala................................................ 22
Task Force Submissions, Idaho ............................................ 22
Task Force Submissions, Miss.............................................. 22
Task Force Submissions, Va................................................. 22 Texas Civil Rights Project, Courts Closed to Justice: A

Survey of Courthouse Accessibility in Texas for People with Disabilities (1996) ........................................ 23
Theresia Degener & Gerard Quinn, A Survey of International, Comparative, and Regional Disability
Law Reform, in Disability Rights Law and Policy: International and National Perspectives (Mary Lou
Breslin et al. eds., 2002) ................................................... 11 U. S. Comm'n on Civil Rights, Accommodating the

Spectrum of Individual Abilities (1983).................... passim
United Kingdom Disability Discrimination Act 1995.......... 11

Regulations 28 C. F. R. § 35.151( c) ............................................................. 2

28 C. F. R. § 35.130( d) ........................................................... 39 9
9 Page 10 11
ix
28 C. F. R. § 35.150................................................................ 39
28 C. F. R. § 35.150( a) .................................................... passim
28 C. F. R. § 35.150( a)( 2)....................................................... 31
28 C. F. R. § 35.150( a)( 3)................................................... 3, 31
28 C. F. R. § 35.150( b) ....................................................... 2, 31
28 C. F. R. § 35.150( b)( 1)............................................... 2, 8, 31
28 C. F. R. § 35.150( b)( 7)................................................. 39, 49
28 C. F. R. § 35.150( c) ....................................................... 3, 31
28 C. F. R. § 35.150( d)( 1)......................................................... 3
28 C. F. R. § 35.151( a) ....................................................... 2, 31
28 C. F. R. § 39.150 (1989) ...................................................... 2
28 C. F. R. § 41.58 (1989) ........................................................ 2

Constitutional Provisions U. S. Const., amend. I ..................................................... passim

U. S. Const., amend. VI ........................................................... 8
U. S. Const., amend. XI ......................................................... 32
U. S. Const., amend. XIV ............................................... passim
U. S. Const., amend. XIV, § 5 ........................................ passim 10
10 Page 11 12

1
STATEMENT

I. The Statutory Scheme
This case involves disabled citizens' basic civil right of access to the state courts of justice. Title II of the

Americans with Disabilities Act (ADA) generally prohibits any "public entity"— including state governments— from
"subject[ ing]" any "qualified individual with a disability" to "discrimination." 42 U. S. C. § 12132. Rather than adopt
more detailed statutory provisions to give content to that general prohibition (as it did in Titles I and III of the ADA),
Congress directed the Attorney General to flesh out that prohibition by adopting regulations that would incorporate
various requirements previously applied under the Rehabilitation Act of 1973. See id. § 12134. The Attorney
General duly promulgated those regulations, which became effective January 26, 1992, eighteen months after the statute's
enactment. See 56 Fed. Reg. 35694 (1991). The basic obligations Title II imposes on states stem from those
regulations. The regulations, as relevant here, impose a

requirement of accessibility on state activities. Like the earlier regulations that implemented the Rehabilitation Act of
1973, the Title II regulations governing physical accessibility sharply distinguish between new and existing facilities. 1 For

1 See 42 U. S. C. § 12134( b) (directing the Attorney General to
follow the Rehabilitation Act regulations in this regard). Title III of the ADA, which covers private places of public accommodation,

draws a similar distinction between new construction and existing facilities for accessibility purposes. Compare 42 U. S. C.
§ 12183( a)( 1) (imposing "readily accessible" standard on new construction) with id. § 12182( b)( 2)( A)( iv) (requiring removal of
structural barriers in existing facilities only when doing so is "readily achievable"). Cf. 1 House Comm. on Educ. & Labor,
Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act 357 (1990) (hereinafter "Leg. Hist.") (House 11
11 Page 12 13
2
facilities on which "construction was commenced after January 26, 1992," a stringent standard of accessibility

applies: Each such facility must be "readily accessible to and usable by individuals with disabilities," 28 C. F. R.
§ 35.151( a), and generally must satisfy a detailed set of accessibility guidelines, see id. § 35.151( c). The strict
standard applied to new construction draws from the relevant Rehabilitation Act regulations, see 28 C. F. R. § 41.58 (1989),
and rests on the premise that accessibility features are exceptionally inexpensive when incorporated in a facility's
initial design. See 1 Leg. Hist., supra, at 187 (Senate comm. report).

For facilities already in existence in 1992, the Title II regulations follow the earlier Rehabilitation Act regulations,
see 28 C. F. R. § 39.150 (1989), in taking a more lenient approach. Instead of demanding that each building in the
state be readily accessible, the existing-facility provisions require only that a state "operate each service, program, or
activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by
individuals with disabilities." 28 C. F. R. § 35.150( a) (emphasis added). The regulations emphasize that public
entities need not "make structural changes in existing facilities where other methods are effective in achieving
compliance" with the program accessibility mandate. Id. § 35.150( b)( 1). Rather, states have a variety of ways of
complying with that mandate, including: such means as redesign of equipment, reassignment of

services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and construction of new facilities, use of
accessible rolling stock or other conveyances, or any

committee report) (prohibitions imposed by Title II regulations should track those imposed by Titles I and III). 12
12 Page 13 14

3
other methods that result in making its services, programs, or activities readily accessible to and usable

by individuals with disabilities. Id. States need not take any action 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 id. (" action that would threaten or destroy the historic significance of an historic property" not
required). In recognition of the fact that Title II's mandate might

nonetheless require states to make physical alterations to some existing buildings (as we contend were required here),
states may take advantage of several provisions that address the need for an orderly transition to compliance. Each public
entity, by January 26, 1993, was to "evaluate its current services, policies, and practices, and the effects thereof, that
do not or may not meet the requirements of this part and . . . proceed to make the necessary modifications." 28 C. F. R.
§ 35.105( a). Where "structural changes to facilities" were necessary to achieve compliance, states were to "develop,
within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes."
Id. § 35.150( d)( 1). And "[ w] here structural changes in facilities are undertaken to comply" with the accessibility
requirement, the regulations provided that "such changes shall be made within three years of January 26, 1992, but in any
event as expeditiously as possible." Id. § 35.150( c). The events that form the basis for this case all occurred more than
four years after that January 1992 effective date. See Pet. App. 15-17, 19-20.

II. The Facts
The six named plaintiffs 2 were denied the opportunity to participate effectively in Tennessee court proceedings

2 Two of these plaintiffs, George Lane and Beverly Jones,
were named in the original complaint and are Respondents here. 13
13 Page 14 15
4
because the state's courthouses were not physically accessible to individuals with disabilities. In 1996, at roughly the same

time as the events underlying this case, the Commission on the Future of the Tennessee Judicial System reported that
"[ f] or persons with significant physical or mental impairment, the system can be quite literally inaccessible." Comm'n on
the Future of the Tenn. Judicial Sys., Final Report 31 (1996). When the original complaint was filed in 1998, plaintiffs
identified courthouses in 23 Tennessee counties that were not physically accessible to individuals with mobility disabilities.
Pet. App. 22. The experience of the plaintiffs— one of whom was arrested for failure to appear when he refused to crawl up
the steps of an inaccessible courthouse to attend a hearing in the criminal case in which he was a defendant— illustrates the
consequences of that inaccessibility. 1. George Lane— In September 1996, Respondent

George Lane was compelled to appear at the Polk County courthouse to answer a set of criminal charges the state had
filed against him. Pet. App. 15. Due to extensive injuries he had suffered in an automobile accident, Lane used a
wheelchair for mobility; he could neither walk nor climb stairs. Id. 13. Because all proceedings in that courthouse
occurred on the second floor, and the building had no elevator, Lane was required to abandon his wheelchair and
literally crawl up the steps in order to appear in court. Id. at 15. Following his arraignment, Lane was summoned to
appear at an October hearing in the same courtroom. Id. Lane duly arrived at the courthouse but sent word to the trial

See Pet. App. 12. After the state took its interlocutory appeal from the denial of the motion to dismiss, the district court granted two
separate motions to join the others— Dennis Cantrel, Ann Marie Zappola, Ralph E. Ramsey, Sr., and A. Russell Larson— as party
plaintiffs. (Respondents have moved for leave to lodge the motions and court orders.) Because this case arises on a motion to dismiss,
allegations in the complaint must of course be taken as true and read in the light most favorable to the plaintiff. 14
14 Page 15 16

5
judge that he refused to go through the humiliation of crawling up the courthouse steps again, nor would he put his

safety at risk by allowing court employees to carry him. Id. On the order of the trial judge, Lane was arrested and jailed
for failure to appear. Id. Subsequent proceedings in Lane's criminal case

occurred in the same inaccessible courthouse. At those proceedings, Lane typically waited at the bottom of the stairs
while his attorney shuttled back and forth to the courtroom. Pet. App. 16. As a result, the court conducted proceedings,
including discussing the course of future proceedings and the possibility of a change of venue, out of Lane's presence. 3
When an arraignment hearing was called in the second-floor courtroom after a new misdemeanor indictment was returned
in March 1997, Lane's attorney requested that the court dismiss or at least stay proceedings until accessible facilities
could be provided. Pet. App. 16. The trial court denied the motion; the judge suggested that Lane might have a right to
bring an independent civil suit to make the courthouse accessible, but that inaccessibility was no basis for delaying
or dismissing the pending criminal case. See 3/ 17/ 97 Tr. 5. The Tennessee appellate courts declined to accept jurisdiction
over Lane's request for extraordinary relief. Pet. App. 16-17. Proceedings were subsequently stayed in Lane's criminal
case, id. at 17, and Lane ultimately pleaded guilty to a single charge of driving on a revoked license.

2. Beverly Jones— Respondent Beverly Jones has paraplegia and uses a wheelchair for mobility. Pet. App. 19.
She works for parties to judicial proceedings as a certified court reporter, but because courthouses in many Tennessee
counties are inaccessible, her opportunity to perform her work
3 The court held one proceeding (the preliminary hearing) in a
location (the ground-floor library) that was accessible to Lane but generally inaccessible to the public. Pet. App. 16; cf. Waller v.

Georgia, 467 U. S. 39, 48 (1984) (criminal defendant has constitutional right to public suppression hearing). 15
15 Page 16 17
6
has been significantly impeded. Id. at 19-20. She has specifically requested modifications to the courthouses in four

Tennessee counties, but none has been made accessible to her. Id. 20.

3. Ann Marie Zappola, Ralph E. Ramsey, Sr., Dennis Cantrel, and A. Russell Larson— Plaintiffs Ann Marie
Zappola, Ralph E. Ramsey, Sr., Dennis Cantrel, and A. Russell Larson similarly were excluded from core state
programs held at inaccessible Tennessee courthouses. Zappola has a spinal cord injury that makes it extremely
painful if not impossible for her to climb stairs. Motion for Permissive Joinder of Cantrell et al. 6. In two cases in 1997
and 1998 (a civil proceeding in which she was a defendant, and a juvenile proceeding in which she was the complainant),
Zappola was forced to climb the steps to the third floor of the Houston County Courthouse to attend proceedings. Id. at 6-7.
Ramsey, who has a venous condition that makes him unable to climb stairs, was likewise a defendant in a civil proceeding.
Id. at 8-9. When he arrived at the Cocke County Courthouse for a hearing on that case in 1995, Ramsey discovered that the
courtroom was located on the second floor, up a flight of stairs; although Ramsey sent word that he was in the
courthouse but could not get to the courtroom, the trial court entered judgment against him for failure to appear. Id. at 9.
Cantrel, who has paraplegia, was forced to crawl up the stairs of the Fayette County Courthouse to attend a County
Commission meeting. Id. at 3. And Larson, an attorney with a condition that makes it "difficult to impossible to climb
stairs," Motion for Permissive Joinder of Larson 2, was required to provide pretrial representation to his clients in
first-floor courthouse hallways and was unable to provide effective representation to clients whose cases went to trial,
id. at 2-3.
III. Proceedings Below
Respondents filed this suit on August 10, 1998, against the State of Tennessee and a number of counties. Pet. 16
16 Page 17 18
7
App. 12. Suing on their own behalf and as representatives of a class of persons denied access to the state's courthouses

because of their disabilities, id. 25-27, respondents alleged that the defendants had violated Title II of the ADA by
maintaining inaccessible courthouses, id. 23-25. They sought both damages and injunctive relief. Id. 27-28.

The state moved to dismiss on Eleventh Amendment grounds, the district court denied the motion, Pet. App. 7, and
the state took an interlocutory appeal. The Sixth Circuit affirmed on the basis of Popovich v. Cuyahoga County Court
of Common Pleas, 276 F. 3d 808 (6th Cir.) (en banc), cert. denied, 537 U. S. 812 (2002), which held that Title II validly
abrogates state sovereign immunity in cases in which the statute enforces due process principles. As amended on
rehearing, the Sixth Circuit's opinion here explained that respondents were "seeking to vindicate" their due process
"right of access to the courts in Tennessee." Pet. App. 5. The court therefore affirmed the denial of the motion to dismiss
and remanded for further proceedings. Id.
SUMMARY OF ARGUMENT
Unlike Title I of the Americans with Disabilities Act (ADA)— the employment discrimination title that was at issue

in Board of Trustees v. Garrett, 531 U. S. 356 (2001)— Title II of the statute directly implicates the core rights of citizenship.
Romer v. Evans, 517 U. S. 620, 633 (1996). In the courthouse access context of this case, the constitutional concerns are
particularly powerful, for courts that are inaccessible to people with disabilities threaten to violate an array of
constitutional rights. Because the court of appeals limited its analysis to the

courthouse access context, and this Court can resolve this case without going further, we begin by focusing on the clear
Section 5 justification for applying Title II to demand access to the state's court system. But the constitutional concerns
addressed by the statute extend well beyond the narrow context of this case. Title II protects people with disabilities 17
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8
against violations of constitutional rights in numerous areas of state government. Whether considered in its application to

courthouse access or more broadly, Title II is a congruent and proportional response to actual and threatened violations of
the Fourteenth Amendment. City of Boerne v. Flores, 521 U. S. 507, 520 (1997).

I. Congress clearly had power under Section 5 of the Fourteenth Amendment to require the State of Tennessee to
assure that its court system, "when viewed in its entirety, is readily accessible to and usable by individuals with
disabilities." 28 C. F. R. § 35.150( a). When a state maintains courts that are not accessible to people with disabilities, the
state's actions threaten an array of constitutional rights under the First, Sixth, and Fourteenth Amendments that impose far
more than rational-basis scrutiny on states. Both at the time the ADA was enacted and today, inaccessible courts have
threatened to violate these rights of individuals with disabilities throughout the Nation. A variety of sources—
legislative testimony, published studies, litigation records, and the Department of Justice's enforcement reports—
demonstrate that the problem was and remains widespread. Title II responds directly to the threat inaccessible

courts pose to constitutional rights. It requires that court programs be accessible, a standard that can often be satisfied
without making structural changes to existing facilities. See 28 C. F. R. § 35.150( a), (b)( 1). If, as here, the lack of
accessible court programs in a given county renders the state's court system not "readily accessible to and usable by"
disabled citizens in that county, 28 C. F. R. § 35.150( b)( 1) [please confirm], that is precisely the circumstance in which
individuals with disabilities are most likely to experience violations of their constitutional rights. To the limited extent
that this "program accessibility" requirement imposes obligations that go beyond those imposed by the Constitution
itself, that additional margin is fully justified as a reasonably prophylactic measure given the substantial record of
widespread courthouse inaccessibility. 18
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9
II. Because Congress clearly had power to impose the "program accessibility" requirement on states in the

courthouse access context of this case, this Court need go no further to uphold the statute as applied here. See Salinas v.
United States, 522 U. S. 52, 60-61 (1997); Griffin v. Breckenridge, 403 U. S. 88, 104 (1971); United States v.
Raines, 362 U. S. 17, 24-25 (1960). But even when considered more broadly, ADA Title II is proper Section 5
legislation. Unlike Title I of the statute— which equally barred employment discrimination in the public and private
sectors— Title II focuses specifically on governmental conduct and was enacted on the basis of a weighty record of
actual and threatened constitutional violations by states in a wide range of nonemployment areas. In many of these areas,
the state is subject to constitutional constraints that impose more than rational-basis scrutiny. Even in instances where
the state's conduct is ordinarily subject only to rational-basis scrutiny, Congress had ample reason to believe that applying
Title II was necessary both to dismantle the widespread exclusion of people with disabilities that has effectively
marked them as second-class citizens, cf. Saenz v. Roe, 526 U. S. 489, 506-07 (1999), and to stop the "mutually
reinforcing stereotypes" that have "created a self-fulfilling cycle of discrimination." Nevada Dep't of Human Resources
v. Hibbs, 123 S. Ct. 1972, 1982 (2003).
ARGUMENT
Unlike Title I of the Americans with Disabilities Act (ADA), which deals exclusively with employment

discrimination, Title II of the ADA responds to a widespread denial of core rights and obligations of citizenship protected
by the Constitution. By guaranteeing that people with disabilities will not be systematically shut out of the
opportunity to participate in, influence, and seek redress from their state governments, the statute enforces a principle that
this Court has deemed "[ c] entral both to the idea of the rule of law and to our own Constitution's guarantee of equal 19
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10
protection"—" 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). Unlike ADA Title I, which implicates no fundamental rights
and therefore involves conduct that triggers only rational-basis scrutiny, see Garrett, 531 U. S. at 365-68, Title II affects
an array of conduct in which states have heightened constitutional obligations. Congress thus had broader latitude
to craft a remedy than in Title I's employment context. See Hibbs, 123 S. Ct. at 1982.

The courthouse access context implicates these fundamental constitutional rights in an especially powerful
way. Courthouses are the locations in which individual citizens often have their most important and extensive
contacts with the government. In rural communities like the ones in which this case arose, the local courthouse is often the
focal point of civic life. Wherever located, courthouses sit at the nexus of an array of rights and obligations of citizenship,
including the opportunity to seek redress as litigants, to testify as witnesses, to participate as jurors, and to observe
proceedings as members of the interested public. When a state's courthouses are inaccessible to individuals with
disabilities, the state's actions effectively create a class of persons who are denied access to core privileges of
citizenship. Such a result is intolerable under a Constitution that "' neither knows nor tolerates classes among citizens. '"
Romer, 517 U. S. at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 539 (1896) (Harlan, J., dissenting)); cf. Saenz, 526
U. S. at 506-07 (Fourteenth Amendment's Citizenship and Privileges or Immunities Clauses do not allow for degrees of
citizenship or a hierarchy among citizens). Both the state and its amici reassure the Court that

their position does not call into question the ultimate constitutionality of Title II; all that supposedly is at issue is
whether Congress can properly impose a damages remedy on states that have violated the statute. See Pet. Br. 15-16; Ala.
Br. 25-26. But the reassurances of the state and its amici ring 20
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11
hollow. If this Court rules that Title II cannot be supported by a sufficient Fourteenth Amendment predicate, the statute

will provide no basis for any relief— damages or an injunction— unless it can be upheld under Congress's Article
I commerce power. In their brief before this Court, the State's amici pointedly refuse to concede that the commerce
power supports Title II. See Ala. Br. 5 (noting that an injunctive remedy exists for Title II violations only "assuming
[Title II] is a valid exercise of Congress's Article I power"); id. 22, 25 (same). And a number of states have recently
challenged the Commerce Clause basis for the statute. See Thompson v. Colorado, 278 F. 3d 1020, 1025 n. 2 (10th Cir.
2001), cert. denied, 535 U. S. 1077 (2002); State v. Rendon, 832 So. 2d 141, 146 n. 5 (Fla. Dist. Ct. App. 2002), rvw.
denied, 851 So. 2d 729 (Fla. 2003); Meyers v. Texas, No. 02-50452 (5th Cir.) (pending); Doe v. Regier, No. 03-2794 (Fla.
Dist. Ct. App.) (pending); McCarthy v. Hale, No. 03-50608 (5th Cir.) (pending). Of particular importance, the
applications of Title II that come closest to the core of Congress's Fourteenth Amendment power— those
guaranteeing participation in such quintessential activities of self-government as voting, jury service, and the like— are
precisely those that are least likely to be sustained under the Commerce Clause. For all intents and purposes, then,
petitioner is mounting a facial challenge to the basic constitutionality of Title II.

A ruling that Title II exceeds Congress's authority would invalidate the very "' milestone on the path to a more
decent, tolerant, progressive society'" that the State purports to endorse. 4 Pet. Br. 15-16 (quoting Garrett, 531 U. S. at 375

4 Since passage of the ADA, laws requiring accessibility have
become common outside the United States according to a study undertaken by the United Nations in 1996, more than 60 of the 85

respondents had some sort of legislation in place to ensure accessibility of public places to the disabled. D. Michailakis,
Government Action on Disability Policy: A Global Survey (1997). 21
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12
(Kennedy, J., concurring)). Fortunately, Title II fully meets the state's constitutional challenge. The statute directly

enforces core Fourteenth Amendment rights— particularly where, as here, plaintiffs seek nothing more than access to the
state's courts. This Court should thus uphold Title II as proper Section 5 legislation. Because the court of appeals
focused its analysis on the courthouse access context, and this Court can resolve this case without going beyond that context,
we begin by showing that Congress plainly had Section 5 power to require states to make their court systems accessible.
As we demonstrate, however, Title II as a whole is a proper exercise of Section 5 authority as well.

I. Title II's Requirement That State Courts Be Accessible To People With Disabilities
Reasonably Protects Against Violations Of Disabled Citizens' Rights Of Access To The
Courts
This Court has held that Congress has power under Section 5 of the Fourteenth Amendment to enact "reasonably

prophylactic legislation" that responds to actual or threatened constitutional violations, Kimel v. Florida Bd. of Regents, 528
U. S. 62, 88 (2000), so long as there is "a congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end." City of Boerne, 521 U. S. at 520. Applying that test, Congress had ample
authority to impose Title II's requirement of program accessibility on state court systems. Inaccessible courts
threaten an array of constitutional rights, and the program

Australia, for example, requires that facilities be accessible to the disabled, unless doing so would cause an undue hardship. See
Disability Discrimination Act of 1992, § 23; see also United Kingdom Disability Discrimination Act 1995, §§ 19-21. See
generally Theresia Degener & Gerard Quinn, A Survey of International, Comparative, and Regional Disability Law Reform,
in Disability Rights Law and Policy: International and National Perspectives 3, 19, 20, 29-34 (Mary Lou Breslin et al. eds., 2002). 22
22 Page 23 24
13
accessibility requirement, when considered in the light of the nationwide problem of inaccessible courthouses, is

reasonably calculated to prevent the constitutional harm without unduly impinging on state interests.
A. Inaccessible Courts Threaten An Array Of Constitutional Rights

In determining whether Congress has properly exercised its Section 5 authority, the "first step" is to identify
the constitutional rights Congress has sought to enforce. Garrett, 531 U. S. at 365. Where Congress regulates state
conduct that implicates ordinary rational-basis scrutiny, this Court accords the legislature comparatively little latitude to
craft prophylactic legislation. See Garrett, 531 U. S. at 367; Kimel, 528 U. S. at 86. Where, by contrast, Congress seeks to
regulate state conduct that implicates heightened constitutional obligations, this Court has recognized that the
legislature must have a substantially wider area in which to act. See Hibbs, 123 S. Ct. at 1982 (according Congress
greater leeway because "the standard for demonstrating the constitutionality of a gender-based classification is more
difficult to meet than our rational-basis test"). The statutory obligation at issue in this case implicates

a variety of fundamental constitutional rights that impose far more than a rational-basis requirement on states. Plaintiffs
here seek to enforce the requirement that the state operate a court system that, "when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities." 28 C. F. R. § 35.150( a). When a state violates that requirement by
conducting its judicial proceedings in courthouses that are inaccessible, the state threatens an array of constitutional
rights secured by the Fourteenth Amendment to both its disabled and its nondisabled citizens. Where, as here,
disabled citizens in a number of counties lack ready access to the state's courts because judicial proceedings are held in
inaccessible courthouses, and people with disabilities are compelled to appear as litigants in inaccessible courtrooms, 23
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14
the state's actions threaten to shut out an entire class of citizens from a range of civic rights and obligations simply

because those citizens have disabilities. At the most basic level, such inaccessible courts

threaten the core right of individuals with disabilities to seek the "protection of the laws" by invoking the proceedings of
courts for redress. Cf. Romer, 517 U. S. at 633 (equal protection requires "that government and each of its parts
remain open on impartial terms to all who seek its assistance") (emphasis added). And they threaten the related
First Amendment right "to petition the Government for redress of grievances," which includes a "right of access to
the courts." BE& K Constr. Co. v. NLRB, 536 U. S. 516, 525 (2002) (internal quotation marks omitted); cf. City of Boerne,
521 U. S. at 519 (Section 5 gives Congress power to enforce incorporated Bill of Rights protections).

Inaccessible courthouses prevent individuals with disabilities from invoking protections of the law that are
available only in court. The experience of plaintiff Zappola provides an example. In order to initiate legal proceedings by
swearing out a juvenile-court complaint, she was required to bring herself to a third-floor courtroom in an inaccessible
courthouse. See p. 6, supra. Zappola's experience is hardly unusual. Individuals with disabilities who seek to obtain
restraining orders against those who threaten violence against them will also be unable to obtain the protection of the laws if
the court system is inaccessible, as will those individuals with disabilities who seek to testify as victim-witnesses in criminal
trials. As the California Attorney General's Commission on Disability noted in 1989, the inability to testify and seek
redress is a particularly salient issue for many individuals with disabilities, whose impairments make them especially
vulnerable targets of abuse or predation. See Attorney General's Comm'n on Disability, Final Report 101-02 (1989)
(finding that victims and witnesses with disabilities encounter "significant barriers to due process and just treatment"
because, inter alia, many courtrooms are inaccessible). One 24
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15
witness in the congressional hearings on the proposed ADA, a woman with quadriplegia who had "experienced many

crimes," described the constitutional harm she experienced because of her inability to obtain the law's protection: "I live
in fear of crime because equal protection under law is not seen as a right of Americans with disabilities because
Americans with disabilities are seen as natural victims rather than equal citizens." 2 Leg. Hist., supra, at 1196-97 (Cynthia
Miller). The opportunity to testify and seek redress in the

courts was a primary aspect of the "protection of the laws" that the Fourteenth Amendment's drafters sought to guarantee
to all persons. See Reynolds v. Sims, 377 U. S. 533, 597 (1964) (Harlan, J., dissenting) (quoting Thaddeus Stevens's
speech opening debate on the Fourteenth Amendment in the House of Representatives). The shutting out of an entire class
of citizens from such a core means of obtaining legal protection makes that class, in a real sense, "a stranger to [the
state's] laws." Romer, 517 U. S. at 635. 5 Inaccessible courts also threaten the rights of litigants

with disabilities, guaranteed by the Sixth Amendment and the Due Process Clause, to be present at and participate
meaningfully in a range of court proceedings. This Court has

5 It is irrelevant that the denial of the protection of the laws in
such circumstances may be unintentional. Discriminatory purpose is not required to make out an equal protection violation in

fundamental rights contexts. See Bush v. Gore, 531 U. S. 98, 105-06 (2000) (per curiam) (requirement that election officials discern
intent of the voter violates equal protection because of lack of safeguards to assure that ballots are counted in a uniform manner,
even absent any indication of purpose that the requirement be applied in a disuniform manner). In the access to courts context
specifically, this Court has recognized both that no purposeful discrimination requirement applies and that states may be required
to shoulder some financial burden to guarantee access. See M. L. B. v. S. L. J., 519 U. S. 102, 125-27 (1996). 25
25 Page 26 27

16
held, for example, that both the Sixth Amendment's Confrontation Clause and the due process guarantee of a fair

trial give criminal defendants the "right to be present at all stages of the trial where [their] absence might frustrate the
fairness of the proceedings." Faretta v. California, 422 U. S. 806, 819 n. 15 (1975). 6 Under this Court's line of cases
running from Boddie v. Connecticut, 401 U. S. 371 (1971), through M. L. B., supra, moreover, states have an obligation to
facilitate the presence of litigants who are compelled to participate in many civil proceedings— at least where such
presence is necessary to provide a "meaningful opportunity to be heard." Boddie, 401 U. S. at 379. In many cases, this
constitutional obligation requires states to bear some cost to facilitate access, at least where doing so imposes no "undue
burden on the State." M. L. B., 519 U. S. at 122; see id. at 124 (state must waive fee requirement for obtaining appellate
transcript in termination of parental rights proceeding);

6 The state's amici note that this right is not absolute. Ala. Br.
14-15. They cite cases that hold that "' the privilege [of personally confronting witnesses] may be lost by consent or at times even by

misconduct, '" Illinois v. Allen, 397 U. S. 337, 342-43 (1970) (quoting Snyder v. Massachusetts, 291 U. S. 97, 106 (1934)), and
that courts may override the Sixth Amendment's requirement of face-to-face confrontation "where denial of such confrontation is
necessary to further an important public policy." Maryland v. Craig, 497 U. S. 836, 850 (1990); see id. at 857 (finding that
standard satisfied by the state's interest in "protect[ ing] a child witness from trauma that would be caused by testifying in the
physical presence of the defendant, at least where such trauma would impair the child's ability to communicate"). But these
narrow, case-by-case exceptions to the general right of courtroom presence are a far cry from the broad inability to attend court
proceedings imposed by an inaccessible court system— a denial of the right to presence that is imposed, not because of any fault of the
defendant or overriding public policy, but simply because of the constitutionally irrelevant fact that the defendant has a disability. 26
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17
Boddie, 401 U. S. at 380-81 (state must waive filing fee requirement for divorce proceeding).

When courts are inaccessible, criminal defendants and participants in important civil proceedings face a serious risk
that they will be unable effectively to protect their interests in the litigation simply because of their disabilities. 7 The
experience of respondent Lane, who was arrested for failure to appear when he could not ascend the stairs to attend his
pretrial hearing, provides a particularly dramatic example. See p. 4-5, supra. But Lane's experience is not atypical.
Plaintiff Ramsey had a similar experience when he was a defendant in a civil proceeding: a default judgment was
entered against him when he could not ascend the stairs to the courtroom in which the case was being heard. See p. 6,
supra. And inaccessible courts do not simply exclude

individuals with disabilities from participation as litigants; they also operate to bar such individuals from the civic right
and obligation of jury service. Although individuals with disabilities might be properly excused from the jury pool on a
case-by-case basis, a court system that broadly excludes people with a class of impairments from jury service violates
core Sixth Amendment principles. This Court has held that "excluding identifiable segments playing major roles in the
community cannot be squared with the constitutional concept of jury trial." Taylor v. Louisiana, 419 U. S. 522, 530 (1975).

It is not just criminal defendants who suffer when inaccessible courts deny people with disabilities the
opportunity to participate as jurors; disabled would-be jurors experience constitutional harm as well. "Jury service is an
exercise of responsible citizenship by all members of the
7 As plaintiff Larson's experience demonstrates, inaccessible
courts can also deny criminal defendants who choose to be represented by attorneys with disabilities their Sixth Amendment

right to the counsel of their choice. See, e. g., Wheat v. United States, 486 U. S. 153, 159 (1988). 27
27 Page 28 29

18
community, including those who otherwise might not have the opportunity to contribute to our civic life." Powers v.

Ohio, 499 U. S. 400, 402 (1991). "Indeed, with the exception of voting, for most citizens the honor and privilege of jury
duty is their most significant opportunity for participation in the democratic process." Id. at 407. By denying them the
opportunity to participate in such a core aspect of citizenship, the exclusion of people with disabilities from jury service
"perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in
community life." Olmstead v. L. C., 527 U. S. 581, 600 (1999). No more than a state could deny individuals with
disabilities the right to vote by refusing to provide accessible polling places, a state may not deny individuals with
disabilities the right to jury service by refusing to provide accessible courthouses. Cf. M. L. B., 519 U. S. at 123-24
(stating that the right to vote or run for office cannot be limited by the ability to pay for a license, even if the fee
provides the state needed revenue). Finally, inaccessible courts also prevent a large class

of individuals with disabilities from attending court proceedings as members of the interested public. This
Court's cases make clear both that members of the public have a First Amendment right to attend criminal proceedings,
and that criminal defendants themselves have a Sixth Amendment right to public access to the proceedings in
which they participate. See Press-Enterprise Co. v. Superior Court, 478 U. S. 1, 8-15 (1986) (First Amendment right of
public to access proceedings); Waller v. Georgia, 467 U. S. at 46 (Sixth Amendment right of defendant to public access).
The state's amici assert that these guarantees are satisfied so long as members of the public are generally allowed to attend
proceedings; there is, in amici's words, no "individualized personal right to attend trial." Ala Br. 13 n. 3. 8 That assertion

8 Amici also assert that the First Amendment right of public
access triggers only rational basis scrutiny. Ala. Br. 13 n. 3. To the 28
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19
is doubly flawed. First, amici ignore this Court's explanation that the First Amendment right of access to court proceedings

"serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government."
Globe Newspaper Co., 457 U. S. at 604 (emphasis added). Second, the exclusion of a broad class of
individuals from a broad array of judicial proceedings simply because of those individuals' disabilities— the inevitable
consequence of an inaccessible court system— goes much farther than the isolated denial of an individual's chance to
attend a particular hearing. Citizens with disabilities, like those without them, have a "fundamental, natural yearning to
see justice done," Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 571 (1980) (opinion of Burger, C. J.)— one that
cannot be satisfied if they are categorically unable to attend court proceedings.

From the foregoing, it should be clear that the maintenance of courts that are inaccessible to individuals with
disabilities operates to exclude a large class of persons from the exercise of many core rights and obligations of citizenship
and puts an array of constitutional rights at risk. This case is therefore decisively unlike Garrett, which involved ADA
Title I. Title I applies to state governments only when they act in their capacity as employers— a context in which the
state's decisions are judged only by the deferential rational-basis test. See Garrett, 531 U. S. at 366-68; cf. Board of
County Comm'rs v. Umbehr, 518 U. S. 668, 676 (1996) ("'[ T] he government's interest in achieving its goals as
effectively and efficiently as possible is elevated from a

contrary, this Court has made clear that the right of public access to court proceedings "may be overcome only by an overriding interest
based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest," Press-Enterprise,
478 U. S. at 9 (internal quotation marks omitted)— a standard the Court has expressly labeled "strict scrutiny," Globe Newspaper Co.
v. Superior Court, 457 U. S. 596, 607 n. 17 (1982). 29
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20
relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. '") (quoting Waters

v. Churchill, 511 U. S. 661, 675 (1994) (plurality opinion)). Here, by contrast, plaintiffs invoke Title II in a context in
which the states have heightened constitutional obligations to their citizens.

B. There Is A Significant Pattern Of Inaccessible Courts Throughout The States
The threat to constitutional rights posed by inaccessible courts is not merely theoretical. At the time
Congress adopted the ADA, inaccessible courthouses were a major problem across the Nation— and significant problems
remain even today. There is thus a substantial "history and pattern" of state constitutional violations. Garrett, 531 U. S.
at 368. Particularly given the heightened constitutional interests at stake, see Hibbs 123 S. Ct. at 1982, that pattern is
more than sufficient to support Title II's requirement that court systems be accessible to individuals with disabilities.

1. The record Congress compiled in developing the ADA makes clear that courthouses throughout the country
were inaccessible at the time of the statute's enactment. A Civil Rights Commission report that provided much of the
basis for Congress's consideration of the statute declared that seventy-six percent of all state buildings open to the general
public were inaccessible to people with disabilities. U. S. Comm'n on Civil Rights, Accommodating the Spectrum of
Individual Abilities 39 (1983). Congress had every reason to conclude that courthouses were no exception. 9 Hearings held

9 Many of the examples Respondents cite involve courts that
are designated "local" or "county" courts. But although Garrett declined to attribute localities' acts of employment discrimination to

the states for purposes of the Eleventh Amendment abrogation analysis, see Garrett, 531 U. S. at 368-69, the inaccessibility of
proceedings at nominally "local" courts is properly attributed to the states for those purposes. "County," "City," and "Municipal"
courts are frequently held to be arms of the state entitled to 30
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21
by congressional committees and by the congressionally designated Task Force on the Rights and Empowerment of

Americans with Disabilities 10 discussed inaccessible

Eleventh Amendment immunity. See, e. g., Callahan v. City of Philadelphia, 207 F. 3d 668, 670-74 (3d Cir. 2000) (Pennsylvania
Municipal Courts are arms of the state); Kelly v. Municipal Courts, 97 F. 3d 902, 907-08 (7th Cir. 1996) (Marion County, Indiana,
Municipal Court is arm of the state); Franceschi v. Schwartz, 57 F. 3d 828, 831 (9th Cir. 1995) (California Municipal Courts are
arms of the state); Jernigan v. Superior Court, No. C03-2530WHA( PR), 2003 WL 21640489 at *1 (N. D. Cal. July 7, 2003)
(" The Superior Court for Santa Clara County is an arm of the state and thus under the Eleventh Amendment cannot be sued in federal
court."). Even when such courts are not in and of themselves arms of the state, their failure to provide access to proceedings that
adjudicate rights established by state law— and that frequently result in confinement in a state prison— is surely attributable to the
state for Eleventh Amendment purposes. Cf. Carter v. City of Philadelphia, 181 F. 3d 339, 352-53 (3d Cir. 1999) (county
prosecutors are state agents for Eleventh Amendment purposes when they bring prosecutions to enforce state law, although they
are county agents when they manage their own offices), cert. denied, 528 U. S. 1005 (1999); Esteves v. Brock, 106 F. 3d 674, 678
(5th Cir.) (in Texas, "when acting in the prosecutorial capacity to enforce state penal law, a district attorney is an agent of the state
[for § 1983 purposes], not of the county in which the criminal case happens to be prosecuted," though district attorney is a county
agent for other purposes), cert. denied, 522 U. S. 828 (1997); Pusey v. City of Youngstown, 11 F. 3d 652, 658 (6th Cir. 1993) (local
prosecutor, though a city employee, "acts as a state agent [for § 1983 purposes] when prosecuting state criminal charges"), cert.
denied, 512 U. S. 1237 (1994). 10
Although the Garrett Court noted, 531 U. S. at 370, that testimony submitted to the Task Force was not submitted "directly

to Congress," it did not disregard that evidence. See id. at 371 n. 7 (considering evidence before Task Force and discounting it
because, inter alia, nearly all of it related to discrimination by states outside of the employment context). Nor could the Court
properly have done so, for the Task Force was a body specifically 31
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22
courthouses and court proceedings in at least eighteen states— including Tennessee. 11

Even today, thirteen years after enactment of the ADA, there is ample evidence that the problem of
inaccessible courthouses persists in every corner of the Nation. Published studies have identified serious and
pervasive denials of accessibility in a number of state court systems. In Tennessee, the state's own commission on the
future of its judicial system warned in 1996 that "[ f] or persons with physical or mental impairment, the system can
be quite literally inaccessible." Comm'n on the Future of the

appointed by the chair of a congressional subcommittee of jurisdiction to gather facts regarding the proposed legislation. See
1 Leg. Hist., supra, at 300. The determination of the means by which Congress will inform itself regarding pending legislation is a
core legislative prerogative under our Constitution's separation of powers. See Buckley v. Valeo, 424 U. S. 1, 137-38 (1976) (per
curiam). See also City of Boerne, 521 U. S. at 531-32 (" As a general matter, it is for Congress to determine the method by which
it will reach a decision."). 11
See 2 Leg. Hist., supra, at 1070-71 (Massachusetts); id. at 1078-79 (Connecticut); Americans with Disabilities Act of 1989:

Hearings Before Senate Comm. on Labor & Subcom. on the Handicapped 663-664 (1989) [hereinafter May 1989 Hearings]
(Mary Lynn Fletcher) (Tennessee); Task Force Submissions, Ala. 0005, 0006, 0015; Task Force Submission, Cal. 0254; Task Force
Submission, Col. 0273; Task Force Submission, Ga. 0374; Task Force Submission, Haw. 0496; Task Force Submissions, Idaho
0506, 0528; Task Force Submission, Mass. 0812; Task Force Submissions, Miss. 0990, 0998; Task Force Submission, Mo. 1015;
Task Force Submission, Pa. 1394; Task Force Submission, S. D. 1475; Task Force Submissions, Va. 1663, 1668, 1674, 1676, 1678,
1679, 1680; Task Force Submission, Wash. 1690; Task Force Submission, W. Va. 1745; Task Force Submission, Wis. 1771;
Task Force Submission, Wyo. 1786; see also 2 Leg. Hist., supra, at 1993 (reprinting New York Times article in which a lawyer with a
disability described courtrooms as "often inaccessible"). 32
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23
Tenn. Judicial Sys., supra, at 31. Similar reports addressing courthouse accessibility in California, Florida, Missouri, New

York, Texas, and Washington State have echoed that warning; those reports have often provided detailed accounts
of the barriers faced by people with disabilities who seek to participate in court proceedings. 12

12 See Judicial Council of California, Public Hearings Report:
Access for Persons with Disabilities at 5-68 to 5-79 (1996) (detailing numerous problems of physical accessibility throughout

the state's courts); N. Y. State Comm'n on Qual. of Care for the Mentally Disabled & N. Y. State Bar Ass'n Comm. on Mental &
Physical Disability, Survey of Access to N. Y. State Courts for Individuals with Disabilities 13 (1994) (finding based on a
stratified, random sample of 275 New York courts that "only 8% of all courtrooms were fully accessible"; "only 30% of the courts
provided accessible rest rooms"; and well over half lacked accessible parking spaces, proper signage, and accessible
elevators); Burton D. Dunlop & Marisa E. Collett, Jury Service Accessibility for Older Persons and Persons with Disabilities in
Florida, (study by Florida International University's Center on Aging concluding that "some of Florida's courts remain clearly out
of compliance with some of the basic requirements for accommodating persons with disabilities"— inter alia, more than
40% of sampled courts did not have even a single accessible jury box); Phyllis S. Launius, Removing Public Access Barriers to the
Courts in the New Millennium: A Sampling and Analysis of Missouri's Trial Courts 3-4 (2000) (study for the Missouri Office of
State Courts Administrator finding "many barriers limiting access to those individuals with physical disabilities" and observing that
"only 26 percent of this sample's accessed areas are compliant with ADA standards"); Texas Civil Rights Project, Courts Closed to
Justice: A Survey of Courthouse Accessibility in Texas for People with Disabilities 4-5 (1996) (concluding that "the accessibility of
courtrooms for jurors, litigants, members of the public, and attorneys with disabilities is abysmal and unjustifiable" in Texas
courts, and discussing several widespread courthouse accessibility problems); Civil and Legal Rights Subcomm., Governor's Comm.
on Disability Issues & Employment, Interim Court and Courthouse 33
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24
In addition, there has been "extensive litigation," Garrett, 531 U. S. at 376 (Kennedy, J, concurring),

challenging the lack of accessibility at courthouses across the country. In a number of these cases, plaintiffs have received
final adjudications in their favor. See, e. g., Layton v. Elder, 143 F. 3d 469, 472 (8th Cir. 1999) (directing entry of
injunction against inaccessible courthouse); Matthews v. Jefferson, 29 F. Supp. 2d 525, 533-34 (W. D. Ark. 1998)
(granting summary judgment to plaintiff); Kroll v. St. Charles County, 766 F. Supp. 744, 752 (E. D. Mo. 1991) (concluding
that inaccessible courthouse violated the Rehabilitation Act). Others have resulted in favorable settlements for plaintiffs,
and still others remain at an earlier procedural stage. 13 Because complaints filed by individual plaintiffs are

not collected in any readily accessible centralized database, the cases cited above presumably represent only a fraction of
the courthouse-access suits that have been brought since the effective date of the ADA. A richer picture comes from the

Access Project 1 (2000) (observing "that there are some serious access problems in the courts and courthouses in Washington" and
that those problems "appeared to extend to all courts: Superior, Municipal, District, and Juvenile").
13 See, e. g., Shotz v. Cates, 256 F. 3d 1077, 1080-81 (11th Cir.
2001) (plaintiffs stated claim for Title II violation based on inaccessible courthouse); Salmond v. County of Teton, No. CV-97-

130-GF-LBE (D. Mont. Dec. 21, 2000) (consent decree in litigation regarding accessibility of Teton County Courthouse); Davis v.
Tuolumne County, No. CV-F-97-5516-SMS (E. D. Cal.) (consent decree in litigation regarding accessibility of Tuolumne County
Courthouse); No Barriers, Inc. v. Cornelius, No. 3: 97CV-2330-R (N. D. Tex.) (settlement in litigation regarding accessibility of Ellis
County Courthouse); Jonas v. General Services Comm'n, No. A-95-CV-468-JN (W. D. Tex.) (settlement in litigation regarding
accessibility of building housing state Supreme Court and Court of Criminal Appeals); Miles v. County of Los Angeles, No. 02-CV-3932
DT (JTLx) (C. D. Cal.) (complaint challenging several inaccessible courthouses in Los Angeles County). 34
34 Page 35 36
25
United States Department of Justice's published enforcement records. Those records demonstrate that the inaccessibility of

courthouses is a nationwide problem. On its website, http:// www. usdoj. gov/ crt/ ada/ enforce. htm, the Department
posts periodic status reports that provide a snapshot of its enforcement activities; it also posts the full text of selected
settlement agreements. A review of the posted reports and agreements reveals over 120 instances in forty-one states
(including at least six in Tennessee) in which state courts and court proceedings were inaccessible, and the court system
agreed to make its facilities and proceedings more accessible only after the federal government intervened (typically in
response to a citizen complaint). See App., infra. Given the limitations on the federal government's enforcement
resources (and the fact that the Department of Justice's published status reports do not purport to be comprehensive),
these enforcement actions likely represent only the tip of the iceberg. But they demonstrate in any event that courthouse
inaccessibility is a problem of nationwide scope. Particularly in light of the fundamental constitutional

interests at stake in the denial of access to court proceedings, the widespread record of inaccessible courthouses across the
country is more than "weighty enough to justify the enactment of prophylactic § 5 legislation." Hibbs, 123 S. Ct.
at 1981. Through a variety of sources— legislative testimony, published studies, litigation records, and the Department of
Justice's enforcement reports— the public record describes significant limitations in courthouse accessibility in nearly
every state. Those limitations threaten the constitutional rights of disabled litigants, jurors, and members of the
interested public. This is hardly a case in which Congress has sought to impose on states "an unwarranted response to a
perhaps inconsequential problem." Kimel, 528 U. S. at 89; cf. Garrett, 531 U. S. at 369-70 (half-dozen incidents "fall far
short of even suggesting" a "pattern of unconstitutional discrimination" against people with disabilities in state
employment). Rather, Title II's requirement that court 35
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26
programs be accessible to individuals with disabilities responds to the potent threat that inaccessible proceedings

have posed and continue to pose to the constitutional rights of individuals with disabilities.

2. The continuing record of inaccessible courthouses throughout the country puts the lie to the assertion, made by
both the state and its amici, that the existence of state laws requiring accessible construction made the ADA unnecessary.
See Pet. Br. 16 n. 2, 22; Ala Br. 22-24. To the contrary, Congress enacted the ADA based on the conclusion, given its
own heading in the House Education and Labor Committee report on the bill, that "CURRENT FEDERAL AND STATE
LAWS ARE INADEQUATE." 1 Leg. Hist., supra, at 320. The Civil Rights Commission had determined that "[ d] espite .
. . the fact that nearly every state has a statute prohibiting architectural barriers, such barriers continue to be a serious
problem." U. S. Comm'n on Civil Rights, supra, at 38. And Congress even heard specific testimony regarding the failure
of Tennessee's own law to guarantee access. See May 1989 Hearings, supra, at 663-64 (Mary Lynn Fletcher).

A recent, comprehensive study of state laws that purport to guarantee the accessibility of state facilities
demonstrates that Congress had ample basis for finding those laws inadequate. The authors found that only twenty-three
states had laws that "provided clear statutory language with protection comparable to ADA Title II," Ruth Colker &
Adam Milani, The Post-Garrett World: Insufficient State Protection Against Disability Discrimination, 53 Ala. L. Rev.
1075, 1083 (2002)— even after (as petitioner's amici emphasize) twenty states responded to the ADA's passage by
"enact[ ing] new protections for the disabled or strengthen[ ing] existing protections." Ala. Br. 24 & n. 5. Cf.
Hibbs, 123 S. Ct. at 1980 (discounting state family leave policies because "it was only since Federal family leave
legislation was first introduced that the States had even begun 36
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27
to consider similar family leave initiatives") (internal quotation marks and brackets omitted). 14 Most important

here, the procedures for enforcing these accessibility laws against the states often range from the uncertain to the
nonexistent. See Colker & Milani, supra, at 1087-92, 1102-18 (cataloging state statutes). Given these significant
limitations in coverage and enforcement, it is no surprise that the statutes cited by the state and its amici have failed to solve
the problem of courthouse inaccessibility, in Tennessee and throughout the country. Just as the "important shortcomings
of some state policies" supported Congress's decision to impose a uniform requirement of family and medical leave,
Hibbs, 123 S. Ct. at 1980, the many shortcomings of existing state accessibility laws gave Congress ample reason to believe
that a uniform federal guarantee was necessary. This Court has recognized that Congress may properly

attend to the ways in which states' actual practices diverge from their formal policies. See id. (" evidence that, even
where state laws and policies were not facially discriminatory, they were applied in discriminatory ways,"
supports Congress's adoption of a universal guarantee of family and medical leave); South Carolina v. Katzenbach,

14 In their haste to sing the praises of states' "beneficen[ ce],"
Ala. Br. 22, the state's amici fall into self-contradiction. Amici first contend that Title II will stifle state enactment of broader

protections for individuals with disabilities, because "enforcement of federal anti-discrimination law by way of private damages
actions naturally tends to remove, or displace, the States' incentives to create their own such protections for their citizens." Ala. Br. 23.
But on the very next page they tout the fact that "since the ADA's passage several States have enacted new protections for the
disabled or strengthened existing protections." Ala. Br. 24 (citing 20 such states). Even if it were the province of the Court to
consider such policy questions, it should be obvious from amici's own argument that the enforcement of Title II has not displaced
state protections for people with disabilities; it has spurred them into existence. 37
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28
383 U. S. 301, 333-34 (1966) (Congress could properly prohibit state literacy tests, constitutional on their face, based

on evidence that they had been discriminatorily administered). Tennessee and its amici therefore may not
hide behind the formal guarantees of accessibility that appear on their statute books. Whatever Tennessee law may declare
regarding the accessibility of public buildings, the simple fact remains that at the time this lawsuit was filed more than
twenty county courts in the state remained inaccessible. As the evidence discussed above indicates, similar statements
could be made about states throughout the Nation. Congress was entitled to conclude that the proof of any accessibility
legislation lies in actual access, and that the widespread inaccessibility of state courts required a federal remedy.

C. Title II's Program Accessibility Requirement Is A Proportional Response To The Constitutional Violations
Threatened By Inaccessible Courts
From the foregoing, it should be evident that Title II's requirement of accessibility in court proceedings is a

"reasonably prophylactic" measure, Kimel, 528 U. S. at 88, that permissibly serves "to prevent and deter unconstitutional
conduct," Hibbs, 123 S. Ct. at 1977. Although any given instance in which an individual is denied access to court
proceedings might not violate the Constitution, cf. Ala. Br. 11-16 (arguing that inaccessible court proceedings are not
always unconstitutional), a judicial system marked by inaccessible courthouses will likely violate the constitutional
rights of litigants, witnesses, jurors, and the general public in a large number of cases. See City of Boerne, 521 U. S. at 532
(preventive measures satisfy Section 5 when "there is reason to believe" that much of the conduct they target has "a
significant likelihood of being unconstitutional"). And the nationwide phenomenon of inaccessible courthouses— a
phenomenon that persisted long after the Rehabilitation Act of 1973— demonstrates that Congress faced a "[ d] ifficult and
intractable problem[]" that "require[ s] powerful remedies." 38
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29
Kimel, 528 U. S. at 88. As the Senate committee report on the ADA noted, the Rehabilitation Act's requirement that the

defendant program receive federal funds had proved burdensome and confusing to plaintiffs, thus limiting the
statute's effectiveness. See 1 Leg. Hist., supra, at 110 (quoting Neil Hartigan). Contrary to the state's argument,
Pet. Br. 35-36, this is quite clearly an area "where previous legislative attempts had failed" and "added prophylactic
measures" were justified. Hibbs, 123 S. Ct. at 1982. 1. Title II's requirement of program accessibility is

precisely targeted at those situations that are most likely to violate constitutional rights. That requirement is clearly
violated when, as here, litigants with disabilities are compelled to attend proceedings in inaccessible courthouses,
and the lack of accessible facilities in a given county renders the state's courts not "readily accessible to and usable by"
disabled citizens in that county. 28 C. F. R. § 35.150( a). Such core violations of the program accessibility requirement are
precisely the circumstances in which individuals with disabilities are most likely to be deprived of their
constitutional rights of access to the courts. To the limited extent that this requirement imposes obligations that go
beyond those imposed by the Constitution itself, its additional margin of protection is fully justified by the widespread
record of inaccessible courthouses we discuss above. That requirement is "congruent and proportional to its remedial
object, and can 'be understood as responsive to, or designed to prevent, unconstitutional behavior. '" Hibbs, 123 S. Ct. at
1984 (quoting City of Boerne, 521 U. S. at 532). Amici appear to contend that Title II cannot be

congruent and proportional unless each individual plaintiff who invokes the statute can show that the state actually
violated his or her constitutional rights. See Ala. Br. 13-14 (denying that Jones's constitutional rights were violated); id. 39
39 Page 40 41

30
15 (denying that Lane's constitutional rights were violated). 15 This Court has made clear, however, that "Congress 'is not

confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment, ' but may
prohibit 'a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. '"
Hibbs, 123 S. Ct. at 1983 (quoting Kimel, 528 U. S. at 81). The proper question is whether inaccessible courts
sufficiently threaten constitutional rights that a requirement of accessibility in court programs operates as a "reasonably
prophylactic" response. Kimel, 528 U. S. at 88. That standard is amply satisfied here.

15 In any event, amici are simply incorrect about the facts of
Respondents' cases. Amici emphasize the state judge's offer to hold Lane's trial in a different, accessible location. Ala. Br. 15.

But the state offered Lane no alternative means of access before arresting him for failure to appear at a pretrial hearing (other than
the unsafe and humiliating suggestion that they might carry him up the stairs). In those circumstances, his arrest constituted a due
process violation that was independent of any right Lane had to appear personally at later proceedings. The lower-court judge held
a subsequent preliminary hearing in the accessible law library. In later proceedings, a trial-level judge offered to hold the trial in the
same library or in an accessible courthouse in a different county (although he made this offer at a hearing that was inaccessible to
Lane), but neither option fully preserved Lane's constitutional rights: The library was not generally accessible to the public,
thereby impinging on Lane's right to public proceedings, see Waller, 467 U. S. at 46-48; and a change of venue would have been
burdensome and denied Lane's state constitutional right to trial in the county in which he was charged. As to Jones, amici urge the
lack of any constitutional right to obtain courthouse access for the specific purpose of plying one's trade. Ala. Br. 13-14. But
whether or not such a specific right exists, Jones was denied her more general right as a member of the public to attend court
proceedings. 40
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31
2. Title II also includes a number of limitations that permit flexibility and cushion the burden on states. Contrary

to amici's suggestion, the program accessibility requirement can be satisfied— like the constitutional requirements amici
discusses— by "provid[ ing] alternative means by which [disabled] citizens can attend legal proceedings." Ala. Br. 15-
16. The relevant regulations offer an array of means states can take, short of physical alterations to their facilities, to
comply with the statute. See 28 C. F. R. § 35.150( b). 16 These alternatives to physical alteration specifically include such
relatively simple actions as "reassignment of services to accessible buildings," "delivery of services at alternate
accessible sites," the use of aides to provide services to individuals who cannot obtain physical access to the places
where those services are offered, and "any other methods that result in making [the state's] services, programs, or activities
readily accessible to and usable by individuals with disabilities." Id. § 35.150( b)( 1). In no event is a state
required to make any change— to physical structures or otherwise— that would effect a fundamental alteration,
impose an undue burden, or threaten historic preservation interests. See 28 C. F. R. § 35.150( a)( 2) & (3).

Where, as here, existing facilities were insufficient to provide access at the time Title II became effective, the
ADA's imposition of its program accessibility requirement did effectively compel states to make structural changes to
their facilities. But even in such circumstances, the law offered states a fair amount of leeway. Not only could states
invoke the fundamental alteration and undue burden defenses, see id. § 35.150( a)( 2); they also enjoyed a substantial grace

16 Title II imposes a strict requirement of accessibility only on
facilities that were the subject of new construction after the ADA's effective date. See 28 C. F. R. § 35.151( a). That requirement, too, is

proportional given the minimal costs involved in incorporating accessibility features in new construction. See 1 Leg. Hist., supra,
at 187 (Senate comm. report). 41
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32
period of three years from the statute's effective date (four and a half years from the statute's enactment) in which to

make the required modifications. See id. § 35.150( c). Title II's requirement that court systems be accessible thus targets
precisely the sort of conduct that is likely to violate constitutional rights, while carefully limiting the scope of any
intrusion on state prerogatives. 3. The state and its amici suggest that Congress must

do more than show that the substantive program accessibility requirement satisfies the congruence and proportionality test.
In their view, Congress must make an independent showing that the imposition of a damages remedy was congruent and
proportional. See Pet. Br. 33-34; Ala. Br. 5-6, 25-26. Amici go so far as to ask this Court to second-guess Congress's
policy judgment that damages are an effective way of achieving compliance with Title II's requirements. See Ala.
Br. 5, 25 (arguing that "private damages actions to enforce the federal guarantee would more likely undermine than advance
the ADA's goals" and are accordingly "not the optimal means" of implementing the statute). The state and its amici
profoundly misapprehend the law. The "congruence and proportionality" test is a means

of determining whether Congress has exceeded its remedial power and instead sought "to decree the substance of the
Fourteenth Amendment's restrictions on the States." City of Boerne, 521 U. S. at 519-20 (emphasis added). It does not
limit Congress's unquestioned power to determine the remedies for violation of an otherwise constitutional law.
Where the substantive obligations Congress has imposed on the states satisfy the congruence and proportionality test,
nothing in Section 5 demands an additional showing to justify a damages remedy to enforce those obligations. Nor does
anything in the Eleventh Amendment demand such a showing. This Court's decision in Fitzpatrick v. Bitzer, 427
U. S. 445 (1976), makes clear that, so long as Congress has Section 5 power to impose a given substantive rule on the
states, the Eleventh Amendment does not limit the power of 42
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33
Congress to impose any remedy, damages or otherwise, for a violation of that rule. See id. at 456 (Eleventh Amendment

no obstacle "[ w] hen Congress acts pursuant to § 5"). These points hold particularly true where the remedy

authorized by Congress consists merely of compensatory damages. Damages are "a traditional form of compensation
for invasion of a legally protected interest." Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U. S.
388, 408 (1971) (Harlan, J., concurring). Indeed, compensatory damages are generally presumed to be
available when Congress authorizes a right of action without specifying the remedy. See Barnes v. Gorman, 536 U. S. 181,
189 (2002); Franklin v. Gwinnett County Pub. Schs., 503 U. S. 60, 66-71 (1992). And for many Title II plaintiffs, any
claim for injunctive relief is moot; "it is damages or nothing." Bivens, 403 U. S. at 410 (Harlan, J., concurring). 17 Having
properly adopted a substantive rule of law to enforce the Fourteenth Amendment, Congress was surely entitled to
authorize the most basic of damages remedies for violating that rule. That is particularly true here, where prior
enactments had failed to achieve the constitutionally demanded access, and Congress could reasonably believe that
only damages and not a mere prospective injunctive remedy would provide the necessary incentive for states to comply.
See Owen v. City of Independence, 445 U. S. 622, 651-52 (1980) (noting deterrent function of damages). The State of
Tennessee's own conduct in this case— mouthing support for the ADA while at the same time failing even to come up with
the required self-evaluation and transition plan as a necessary first step to compliance— provides powerful testimony to the

17 For example, an individual might be excluded from a
particular court proceeding that is of great importance to his life but have no interest in ever attending another court proceeding in the

future; once the initial proceeding is concluded, that individual may well lack standing to seek purely prospective relief. See Lujan v.
Defenders of Wildlife, 504 U. S. 555, 564 (1992). 43
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34
need for a damages remedy in this context. Both Title II's program accessibility requirement and the damages remedy

attached to it thus represent proper exercises of Congress's Section 5 authority to enforce disabled citizens' constitutional
rights to accessible court proceedings.
II. Title II As A Whole Reasonably Responds To The History And Threat Of Unconstitutional

Exclusion Of Citizens With Disabilities From A Wide Range Of State Activities

The courthouse access context offers a particularly important example of the widespread exclusion of people
with disabilities from civic life and political participation. But it is far from the only example. As the ADA's statutory
findings and the supporting record before Congress demonstrated, people with disabilities have frequently been
excluded from the opportunity to participate in an array of state activities. In many of these areas, the exclusion has
operated to deny people with disabilities rights secured by constitutional provisions that impose far more than a rational-basis
obligation on states. Considered in the aggregate, this widespread exclusion of people with disabilities from state
institutions and services has effectively created a second class of citizens who lack the full and equal opportunity to
participate in civic life. Title II's general requirements are directly aimed at eliminating that second-class status.
Although the Court need look no further than the courthouse access context to decide this case, Title II is proper Section 5
legislation even when considered as a whole. A. Because Congress Had Power To Mandate Accessible
State Court Systems, The Court Need Not Consider Whether Title II May Be Upheld More Broadly
As we showed in Part I of this brief, Congress plainly had Section 5 power to impose on states the Title II
requirements at issue in this case— specifically, the requirement that state court systems, viewed in their entirety,
be accessible to individuals with disabilities. Like the court 44
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35
of appeals, this Court need go no further to uphold the statute as applied here. See Salinas, 522 U. S. at 60-61 (rejecting

defendant's argument that 18 U. S. C. § 666( a)( 1)( B) exceeded Congress's spending power because "[ w] hatever might be
said about § 666( a)( 1)( B) 's application in other cases, the application of § 666( a)( 1)( B) to Salinas did not extend federal
power beyond its proper bounds"). 18 The state suggests that it is not enough that Congress

plainly intended and had the Section 5 power to regulate state conduct like that alleged in the complaint. In the state's view,
the Court should hold that Title II is incongruent and disproportional because Congress also sought to reach other
state conduct, not at issue in this case, that assertedly lies outside of the legislature's Section 5 authority. See Pet. Br.
29-30 (discussing Title II's application to "parking space

18 The court of appeals properly focused on the courthouse
access context of this case in affirming the denial of the state's motion to dismiss. Pet. App. 3-5. But by stating that Title II could

be upheld only to the extent that it enforced the Due Process Clause, id. 3— and suggesting that the district court on remand
could consider only due process and not equal protection bases for the statute, id. 5— the discussion in the court's opinion was unduly
formalistic. As Hibbs, 123 S. Ct. at 1982, makes clear, the crucial dividing line for Section 5 purposes is not between due process and
equal protection but between state conduct that triggers heightened constitutional obligations and state conduct that implicates ordinary
rational-basis scrutiny. We take the court of appeals' references to "due process" and "equal protection" as recognizing that, after
Garrett, Title II cannot be justified simply as enforcing ordinary protected-class-based equal protection guarantees. But there is no
reason to believe that a similar analysis applies to other aspects of equal protection law such as the fundamental rights doctrine, which
were not at issue, and therefore not affected by the discussion of equal protection scrutiny, in Garrett. Indeed, this Court has noted
that in the access-to-courts context "[ d] ue process and equal protection principles converge." M. L. B., 519 U. S. at 120 (internal
quotation marks omitted). 45
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36
availability at museums," "concert seating priorities at state performing arts centers," "recreational offerings at state

parks," and "configuration of bathroom stalls at highway rest areas"). That analysis misapprehends the governing law.

Under this Court's precedents, a statute should be sustained so long as Congress had the power to reach the
particular factual context before the Court. The Court has emphasized that a "facial challenge to a legislative Act is, of
course, the most difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987); see also
Hibbs, 123 S. Ct. at 1986 (Scalia, J., dissenting) (arguing that the Salerno "no set of circumstances" test governs states'
claims that statutes facially exceed Congress's Section 5 authority). The state's own amici agree that principles of
"constitutional avoidance and separation of powers" dictate a focus on the courthouse access context of this case. Ala. Br.
10. Although it has not expressly confronted the issue in

any of its post-Boerne cases, 19 this Court has previously
19 None of the post-Boerne cases has called on the Court to
address the question whether a Section 5 statute may be upheld as applied to a case Congress had the power and intended to reach,

even if other applications of the statute would exceed the legislature's enforcement power. The Court came closest to
confronting the issue in Florida Prepaid Postsecondary Education Expense Board. v. College Savings Bank, 527 U. S. 627 (1999).
There, the Court supported its conclusion that the Patent Remedy Act lacked congruence and proportionality by noting that the
statute did not require a showing of intent to infringe the plaintiff's patent, see id. at 645, although the case before the Court involved
an allegation of intentional deprivation, see id. at 653-54 (Stevens, J., dissenting). The majority opinion did not expressly address
Justice Stevens's argument for an as-applied analysis, but it did note that intentional infringement of patents by a state could not
violate the Due Process Clause unless "the State provides no 46
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37
applied these principles in resolving the very type of question presented here: Whether Congress had exceeded its authority

to enforce the Reconstruction Amendments. The leading example is United States v. Raines, supra. Raines involved
the Civil Rights Act of 1957, which authorized the United States to bring an injunctive action against "any person" who
interfered with protected voting rights. 42 U. S. C. § 1971( c). The federal government had brought such an action against
state election officials, who argued that the statute exceeded Congress's authority to enforce the Fifteenth Amendment.
The lower court read the statute's "any person" language as "allow[ ing] the United States to enjoin purely private action
designed to deprive citizens of the right to vote on account of race or color." Raines, 362 U. S. at 20. And it concluded that
the statute, as so construed, extended beyond Congress's Fifteenth Amendment power because it exceeded that
Amendment's limitation to state action. See id. This Court reversed: "if the complaint here called for an application of
the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of
constitutionality." Id. at 24-25. Because the complaint alleged conduct Congress clearly had power to reach— race
discrimination by state actors— the lower court should "have gone no further and should have upheld the Act as applied in
the present action." Id. at 26. See also Griffin, 403 U. S. at 104, 107 (upholding 42 U. S. C. § 1985( 3) on the facts before
the Court, even though the statute's terms might extend to private conspiracies that lie beyond Congress's power to
regulate, because the Court's inquiry "need go only to

remedy, or only inadequate remedies, to injured patent owners" and that "the State of Florida provides remedies to patent owners for
alleged infringement on the part of the State." Florida Prepaid, 527 U. S. at 642-44 & n. 9. Accordingly, there was no plausible
argument that Congress had Section 5 power to apply the Patent Remedy Act to the facts of the case before the Court. 47
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38
identifying a source of congressional power to reach the private conspiracy alleged by the complaint in this case").

This case is in an identical posture. Congress's authority to enforce the array of Fourteenth Amendment
rights threatened by an inaccessible court system plainly constitutes "a source of congressional power to reach the
[facts] alleged by the complaint in this case." Griffin, 403 U. S. at 104. Whether or not the state's conduct actually
violated the constitutional rights of the plaintiffs here, 20 Congress had the prophylactic authority to require that
Tennessee make its courthouses accessible. Because "the complaint here called for an application of the statute clearly
constitutional under the [Fourteenth] Amendment," that should be the "end to the question of constitutionality."
Raines, 362 U. S. at 24-25. The Court need not consider whether Congress had power to extend Title II outside of the
courthouse access context.
Indeed, as the state's own amici suggest, the variety of applications of Title II almost compels such a context-specific

inquiry into the Section 5 basis for the statute. Title II applies to an array of "qualitatively different" state activities. Ala.
Br. 7. The constitutional predicate for the statute is likely to vary widely across those different activities. Cf. United
States v. Nat'l Treasury Employees Union, 513 U. S. 454, 478 (1995) (NTEU) (refusing in First Amendment case brought by
lower-level executive branch employees to consider constitutionality of the statutory honoraria ban as it would
apply to senior executive branch officials, because such an application would "presen[ t] a different constitutional
question than the one we decide today"). Application of Title
20 To the extent that the court of appeals' opinion may be read
as suggesting that the as-applied validity of Title II turns on a fact-specific inquiry into whether the plaintiffs' own constitutional

rights were violated, see Pet. App. 5, such a suggestion is inconsistent with this Court's recognition of Congress's
prophylactic power. See Hibbs, 123 S. Ct. at 1983. 48
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39
II to demand courthouse access, we have shown, implicates an array of rights guaranteed by the Bill of Rights and the

Fourteenth Amendment's Equal Protection and Due Process Clauses. As we demonstrate infra, the statute's application to
areas of state conduct such as voting, unnecessary institutionalization, and the treatment of prisoners with
disabilities raises quite distinct sets of constitutional issues. Not only will the underlying constitutional principles

differ in each of these contexts, but the actual substantive obligations imposed by the statute are likely to differ as well.
While demands for accessible courthouses and polling places would invoke the "program accessibility" regulation, 28
C. F. R. § 35.150, a demand for accommodation to a prisoner's medical needs would invoke the "reasonable modifications"
regulation, id. § 35.130( b)( 7) (requiring "reasonable modifications in policies, practices, or procedures" except
when such modifications "fundamentally alter the nature of the service, program, or activity"), and a demand for freedom
from unnecessary institutionalization would invoke the "integration" regulation, id. § 35.130( d) (" A public entity
shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified
individuals with disabilities."). A doctrine that sought in one fell swoop to resolve all of the issues raised by these diverse
applications would be nonsensical and is not required by this Court's Section 5 precedents— none of which involved a
statute that, like Title II, implicated such different statutory and constitutional questions in its different applications.

Where, as here, application of Title II involves a state activity in which the statute permissibly responds to a realistic
threat of constitutional violations on a documented record, it should make no difference that other applications of the
statutory language might extend beyond the sweep of Congress's enforcement power. 21 Because the strong

21 It is irrelevant that Title II's operative section is a textually
unitary provision that applies equally to any "public entity" without 49
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40
predicate of past and threatened constitutional violations in the courthouse context plainly gave Congress power to reach

state action like that alleged in this case, and Congress plainly intended to reach such action, the state may not challenge
Title II as it might apply to other conduct not at issue here. B. Title II Responds To A Widespread Record Of Actual And
Threatened Constitutional Violations

distinguishing among different public entities. 42 U. S. C. § 12132; cf. Wessel v. Glendening, 306 F. 3d 203, 208 (4th Cir. 2002)
(concluding that "absent judicial redrafting of the statute, there is no narrower constitutional question to address" than the Section 5
basis for Title II as a whole). Contrary to the Fourth Circuit's analysis in Wessel, "this Court has on several occasions declared a
statute invalid as to a particular application without striking the entire provision that appears to encompass it." NTEU, 513 U. S. at
487 (O'Connor, J., concurring in the judgment in part and dissenting in part). For examples of cases other than Raines, supra,
and Griffin, supra, in which the Court has limited its constitutional analysis to particular applications of undifferentiated statutory
language, see Garrett, 531 U. S. at 368-69 (limiting Section 5 analysis to ADA Title I's application to state as opposed to local
governments, even though Title I by its terms applies equally to all "governments, governmental agencies, [and] political
subdivisions," 42 U. S. C. § 2000e( a) (incorporated by reference in 42 U. S. C. § 12111( 2), (5), (7))); id. at 360 n. 1 (holding ADA's
abrogation provision unconstitutional only as it applied to Title I, even though that provision appears in a single section of the statute,
42 U. S. C. § 12202, that applies to all titles of the ADA in an undifferentiated manner); Salinas, 522 U. S. at 60-61 (upholding 18
U. S. C. § 666( a)( 1)( B) at least as applied to cases in which bribes threaten "the integrity and proper operation of the federal
program," although the statutory text contained no such limitation); NTEU, 513 U. S. at 477-78 (holding statutory honoraria ban invalid
only as applied to "Executive Branch employees below grade GS-16," although the relevant statute applied in an undifferentiated
manner to any "Member, officer, or employee" of the federal government). 50
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Should the Court go further and consider Title II as a whole, it should conclude that the statute is proper Section 5

legislation. ADA Title II is fundamentally unlike the statute's Title I— which the Garrett Court held not to validly abrogate
state sovereign immunity. Title I adopted a general rule of nondiscrimination in employment, based almost entirely on
evidence of discrimination in the private sector. Because the Constitution prohibits employment discrimination against
people with disabilities only when that discrimination takes the form of irrational state action, and Congress adduced
virtually no record of such discrimination in public sector employment, the Court held that Congress lacked Section 5
power to apply the statutory nondiscrimination rule to states. See Garrett, 531 U. S. at 365-72.
But Title II is specifically directed at governmental conduct, and it is supported by extensive findings of
governmental discrimination in such important nonemployment areas as "education, transportation,
communication, recreation, institutionalization, health services, voting, and access to public services." 42 U. S. C.
§ 12101( a)( 3). As this Court noted in Garrett, the "overwhelming majority" of incidents of potentially
unconstitutional state conduct discussed in the ADA's legislative history involved not employment discrimination
but the discrimination in public services that is addressed by Title II of the statute. Garrett, 531 U. S. at 371 n. 7. 22 In many
areas of state government, the uniquely governmental discrimination attacked by Title II threatens constitutional
rights secured by doctrines that impose far more than rational

22 The Court suggested that the record of state constitutional
violations might also have related to matters covered by Title III, the ADA's public accommodations title. See Garrett, 531 U. S. at

371 n. 7. But Title III by its terms covers only "private entities." 42 U. S. C. § 12181( 7). To the extent that states violate the
constitutional rights of individuals with disabilities outside of the employment context, it is Title II that addresses those violations. 51
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basis scrutiny on states. Unlike in the employment context, there is often "confirming judicial documentation" of the

pattern of unconstitutionality in the areas covered by Title II, in the form of "extensive litigation and discussion of the
constitutional violations" in judicial opinions. Id. at 376 (Kennedy, J., concurring); see generally Br. for the United
States, Med. Br. of California v. Hason, No. 02-479, at 1a-8a (listing more than 60 "[ c] ases [e] videncing [u] nconstitutional
[t] reatment of [i] ndividuals with [d] isabilities"). That extensive record of state discrimination fully justifies Title II
as remedial and prophylactic legislation. See Hibbs, 123 S. Ct. at 1981-83.
But the constitutional problem addressed by Title II goes beyond even the discrete categories of state action that in
and of themselves implicate heightened constitutional obligations. The exclusion of a specific class of persons from
a wide range of state activities creates a constitutional harm that is greater than the sum of its individual parts. The
statutory findings state that people with disabilities have experienced discrimination in an array of government
activities, 42 U. S. C. § 12101( a)( 3)— discrimination that has "relegated people with disabilities to a position of political
powerlessness in our society," id. § 12101( a)( 7). Although not all of the state practices that exclude people with
disabilities from specific public services trigger heightened scrutiny, the aggregate impact of that exclusion raises
independent constitutional concerns, for it imposes "general hardships" on "a certain class of citizens." Romer, 517 U. S.
at 633. As such, it effectively relegates people with disabilities to a second class of citizenship— a result that is
abhorrent to the Fourteenth Amendment. See id. at 623; Saenz, 526 U. S. at 506-07.
The number of specific contexts in which the conduct addressed by Title II implicates heightened constitutional
scrutiny is nonetheless significant. States' denial of disabled citizens' core rights of democratic participation, for example,
has extended far beyond the problem of inaccessible 52
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courthouses. As the statutory findings explicitly noted, see 42 U. S. C. § 12101( a)( 3), states have frequently denied

individuals with disabilities their fundamental right to vote. See Reynolds, 377 U. S. at 561-62 (stating that the right to
vote "is a fundamental matter in a free and democratic society" because it is "preservative of other basic civil and
political rights"). For people with mental disabilities and others, the problem has been outright exclusion. States have
frequently disenfranchised classes of people with disabilities categorically, without engaging in the individualized
determination of competence the Constitution requires. 23 For people with physical disabilities, the denial of the
right to vote has more frequently resulted from the denial of a place to vote. Just as a voter's wealth "is not germane to
one's ability to participate intelligently in the electoral process," Harper v. Bd. of Elections, 383 U. S. 663, 668
(1966), so too is a voter's ability to climb stairs or overcome other physical obstacles irrelevant to legitimate voting
qualifications. Yet, as Congress was well aware when it enacted the ADA, inaccessible polling places remained a

23 See Doe v. Rowe, 156 F. Supp. 2d 35, 51-56 (D. Me. 2001)
(state constitutional provision disenfranchising persons under guardianship by reason of mental illness violates Fourteenth

Amendment because not narrowly tailored to incompetent voters); Manhattan State Citizens' Group, Inc. v. Bass, 524 F. Supp. 1270,
1274-75 (S. D. N. Y. 1981) (state statute disenfranchising, inter alia, people involuntarily committed to hospitals or mental institutions
violates Fourteenth Amendment as applied to those who had not been adjudged incompetent); see also City of Cleburne v. Cleburne
Living Center, 473 U. S. 432, 464 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part) (" As of 1979, most
States still categorically disqualified 'idiots' from voting, without regard to individual capacity and with discretion to exclude left in
the hands of low-level election officials."); 2 Leg. Hist., supra, at 1220 (Nancy Husted-Jensen) ("[ P] eople with disabilities have been
turned away from the polling places after they have been registered to vote because they did not look competent"). 53
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widespread problem throughout the Nation. See, e. g., 1 Leg. Hist., supra, at 110 (Senate committee report); 2 id. at 1767

(Rick Edwards); 3 id. at 1984 (Laura Cooper); 3 id. at 2068 (Stephen Fawcett and Barbara Bradford); May 1989
Hearings, supra, at 663 (Mary Lynn Fletcher); 135 CONG. REC. S10793 (1989) (Sen. Biden). 24
Although removing physical barriers to polling place access might cost money, that fact does not diminish the
unconstitutionality of denying a wide class of people with disabilities an effective franchise because they have no place
to vote. Poll taxes, for example, may be a source of revenue that finances elections, see Harper, 383 U. S. at 674 (Black, J.,
dissenting), but states may not condition the franchise on the payment of those taxes, for the ability to pay one's way is
irrelevant to legitimate voting q