No. 02-1667
In The
Supreme Court of the United States
___________________________________________________________
STATE OF TENNESSEE,
Petitioner,
v.
GEORGE LANE, BEVERLY JONES, AND UNITED STATES OF AMERICA,
Respondents.
___________________________________________________________
On Writ Of Certiorari
To The United States Court Of
Appeals
For The Sixth Circuit
___________________________________________________________
BRIEF OF THE STATES OF MINNESOTA, CONNECTICUT, ILLINOIS, MISSOURI, NEW
MEXICO, NEW YORK, WASHINGTON AND WISCONSIN AMICI
CURIAE IN SUPPORT OF RESPONDENTS
___________________________________________________________
MIKE HATCH
Attorney General
State of Minnesota
Counsel of Record
GARY R. CUNNINGHAM
KRISTYN ANDERSON
Assistant Attorneys General
445 Minnesota Street, Suite 1100
St. Paul, Minnesota 55101-2128
(651) 282-5700
RICHARD BLUMENTHAL
Attorney General
State of Connecticut
LISA MADIGAN
Attorney General
State of Illinois
JEREMIAH W. (JAY) NIXON
Attorney General
State of Missouri
PATRICIA A. MADRID
Attorney General
State of New Mexico
ELIOT SPITZER
Attorney General
State of New York
CHRISTINE O. GREGOIRE
Attorney General
State of Washington
PEGGY A. LAUTENSCHLAGER
Attorney General
State of Wisconsin
Page
INTEREST OF THE AMICI CURIAE states
D. Shortcomings In
Existing Law Justified The Enactment of Title II.
A. Title II Reasonably
Proscribes Unconstitutional State Conduct.
APPENDIX
Page
Federal Cases
Alexander v. Choate,
469 U.S. 287 (1985)............................................................................................................ 2
Amadon v. Immigration & Naturalization Serv.,
226 F.3d 724 (6th Cir. 2000)........................................................................................ 17,
19
Board of Educ. v. Mergens,
496 U.S. 226 (1990).......................................................................................................... 11
Board of Trustees of the University of Alabama v.
Garrett,
531 U.S. 356 (2001).................................................................................................... passim
Boddie v. Connecticut,
401 U.S. 371 (1971)...................................................................................................... 7,
16
Bounds v. Smith,
430 U.S. 817 (1977).......................................................................................................... 19
City of Boerne v. Flores,
521 U.S. 507 (1997)................................................................................................ 4,
14, 20
City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985).................................................................................................. 2,
5, 18
Dunn v. Blumstein,
405 U.S. 330 (1972)...................................................................................................... 7,
16
Estelle v. Gamble,
429 U.S. 1066 (1976)........................................................................................................ 17
Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn,
280 F.3d 98, (2d Cir. 2001)............................................................................................... 16
Harper v. Va. State Bd. of Elections,
383 U.S. 663 (1966)............................................................................................................ 8
Katzenbach v. Morgan,
384 U.S. 641 (1966).......................................................................................................... 19
Kimel v. Fla. Bd. of Regents,
528 U.S. 62 (2000)........................................................................................................ 4,
14
Nevada Human Resources v. Hibbs,
__ U.S. __, 123 S. Ct. 1972 (2003)............................................................................. passim
Olmstead v. Zimring,
527 U.S. 581 (1999).......................................................................................................... 10
Plyler v. Doe,
457 U.S. 202 (1982).................................................................................................... 15,
18
Popovich v. Cuyahoga County Court of Common Pleas,
276 F.3d 808 (6th Cir. 2002), cert. denied, 123 S. Ct.
72 (2002)....................................... 19
Radice v. New York,
264 U.S. 292 (1924).......................................................................................................... 11
School Bd. of Nassau County v. Arline,
480 U.S. 273 (1987)............................................................................................................ 2
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996).............................................................................................................. 4
Sutton v. United Airlines, Inc.,
527 U.S. 471 (1999).......................................................................................................... 20
Toyota Motor Mfg., Kentucky, Inc. v. Williams,
534 U.S. 184 (2002).......................................................................................................... 20
Youngberg v. Romeo,
457 U.S. 307 (1982).......................................................................................................... 17
Constitutional Provisions and Statutes
20 U.S.C. §§
1400-1491................................................................................................................ 15
20 U.S.C. §
1440-1491.................................................................................................................. 15
29 U.S.C. §
794a...............................................................................................................................
42 U.S.C. §
2000e-5(g)......................................................................................................................
42 U.S.C. §
12101......................................................................................................................... 10
42 U.S.C. §
12102(2)..................................................................................................................... 20
42 U.S.C.
§ 12131-12165................................................................................................................ 1
42 U.S.C. §
12131(2)............................................................................................................... 18,
20
42 U.S.C. §
12133......................................................................................................................... 20
42 U.S.C. §
12202........................................................................................................................... 4
42 U.S.C. §§
12101(a)(3), (5).................................................................................................. 10,
12
Federal Rules and Regulations
28 C.F.R. § 35.130(b)(7)......................................................................................................... 18,
20
28 C.F.R. § 35.150(b)(1)............................................................................................................... 21
Miscellaneous
Accommodating the Spectrum of Individual Abilities (Report by U.S. Civil Rights Commission, 1983)
Americans
with Disabilities Act of 1988: Hearing
on H.R. 4498 Before
the Subcomm. on Select Educ. of House Comm. on Educ. and
Labor, 100th Cong. 132‑33 (1988).....................................................................................
Americans
With Disabilities Act of 1989: Hearings on S. 933 Before the Senate
Comm. on Labor and Human Resources and the Subcomm. on the
Handicapped, 101st Cong. (1989)...................................................................................
Americans
with Disabilities Act of 1989: Hearing on H.R. 2273 Before Subcomm. on Select Educ. of the House
Comm. on Educ. and Labor, 101st Cong. (1989).............................................................................................................
Education of the Handicapped Act, Pub. L. 91-230, Title VI, 84 Stat. 121 (1970)...................
Field Hearing on Americans with Disabilities Act: Hearing Before the Subcomm. on Select Educ. of the House Comm. on Educ. and Labor, 101st Cong. (1989).............................................................................................................
H. R. Rep. No.
101-485, pt. 2 (1990), reprinted in 1990 U.S.C.C.A.N. 267......................... 10, 12
Oversight Hearing on H.R. 4498,
Americans with Disabilities Act of 1988:
Hearing on H.R. 4498 Before the Subcomm. on Select Educ. of the
House
Comm. on Educ. and Labor, 100th Cong. 40‑41 (1988).......................................................
S. Rep. No.
101-16 (1989)...................................................................................................... 10,
15
Staff of the House Comm. on Educ. and Labor, 101st
Cong., 2d Sess., Legis. Hist. of Pub. L. No. 101-336: The Americans with Disabilities Act
100th Cong., 2d Sess. (Comm. Print 1990)...................................................................................
The Post-Garrett World: Insufficient State Protection
Against Disability Discrimination, 53 Ala. L. Rev. 1075, 1112 (2002) 13
135 Cong. Rec.
19,799 (1989)....................................................................................................... 13
This amici curiae brief is submitted on behalf of ____ (__) states: Minnesota, Connecticut, Illinois, Missouri, New Mexico, New York, Washington and Wisconsin. The amici curiae States strongly support a finding in favor of Respondents in this case and the resulting use of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131‑12165 (“ADA”), by state citizens without limitation. Although the states more typically advocate the application of Eleventh Amendment immunity, this case is different. Because of the vital public policy underlying the landmark ADA legislation, in particular Title II, and because of the central role of the states in providing the public services, programs and activities subject to Title II, the amici curiae States, consistent with the obligation of their respective attorneys general to protect the public interest, file this amici curiae brief.
Where,
as here, a legislative enactment constitutes a valid exercise of Congress’s
Section 5 power under the Fourteenth Amendment, the states have a
compelling interest in the full implementation of the law. The states should
support every effort to eradicate the effects of the documented long‑term,
pervasive and invidious discrimination against people with disabilities in the
provision of public services. Citizens
should not have to depend upon a waiver of immunity from the state to pursue
the important rights protected by Title II.
Rather, Title II’s equal protection and due process-based purposes, and
the amici curiae States’ desire to
eliminate discrimination against the members of our society with disabilities,
mandate that citizens be empowered to enforce their Title II rights without
restriction.
This Court has recognized that people with disabilities suffer discrimination resulting from irrational fears, prejudices and ignorance. See, e.g., Alexander v. Choate, 469 U.S. 287 (1985); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985); School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). In considering Title II, Congress had before it substantial and uncontroverted evidence of state-sponsored invidious discrimination against individuals with disabilities in the provision of public services, programs and activities. Indeed, states engaged in numerous activities that unconstitutionally discriminated against individuals with disabilities. Although this Court in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), found that Title I of the ADA was not a valid exercise of Congress’s Section 5 power, the Garrett Court’s analysis was limited to conduct which is accorded only rational basis review under the Equal Protection Clause. In contrast, Title II implicates fundamental rights protected by the Equal Protection and Due Process Clauses, which are subject to heightened scrutiny, including voting and access to the courts. As it relates to Title II, the legislative record identified violations of these and other constitutionally protected rights.
In Title II, Congress provided for a congruent and proportional remedy for widespread constitutional violations by the states. As authorized by Section 5 of the Fourteenth Amendment, Title II not only proscribes unconstitutional discrimination, but also seeks to deter such discrimination. In accordance with City of Cleburne, 473 U.S. at 442‑43, where this Court recognized that the legislative branch is in a better position than the judiciary to address disability discrimination, Congress, in enacting Title II, tailored appropriate and balanced legislation to remedy and deter continued discrimination against people with disabilities with respect to government-provided services.
The important limitations on Title II’s remedial scheme provide further evidence of Congress’s congruent and proportionate response to the endemic problem of disability discrimination by the states. By imposing significant restrictions on Title II’s applicability, Congress appropriately balanced the needs of the states with meaningful protection against disability discrimination in public services, programs and activities. Accordingly, Title II is a valid exercise of Congress’s Section 5 power.
Unlike Title I of the ADA, Title II is a valid exercise of Congress’s Section 5 power. This Court determined in Garrett that Congress failed to abrogate state sovereign immunity in Title I of the ADA because the record did not reflect a pattern of disability discrimination in state employment sufficient to justify application of the Title to the states, and because Congress failed to create a statutory remedy that was congruent and proportional to the targeted violation. Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 374 (2001). The Court did not extend this holding, however, to Title II of the ADA, governing the provision of public services, programs and activities. In footnote 1 of the Garrett opinion, this Court, recognizing Title II’s distinct remedial scheme, expressly declined to decide whether Title II could survive constitutional challenge. Id. at 360 n.1. Moreover, while this Court found the legislative record lacking with respect to evidence of disability discrimination in state employment, it explicitly noted that the “overwhelming majority” of accounts of disability discrimination in the legislative record “pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA.” Id. at 371 n.7. Unlike Title I, Title II passes muster under the Garrett analysis.
Congress validly abrogated state
sovereign immunity in Title II.
Congress may abrogate the states’ Eleventh Amendment immunity from suit
in federal court if two requirements are met.
First, Congress must make its intention to abrogate “unmistakably clear
in the language of the statute.” Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 73 (2000) (citations omitted).
Second, Congress must act in accordance with its enforcement power under
Section 5 of the Fourteenth Amendment.
Garrett, 531 U.S. at 364;
Kimel, 528 U.S. at 80; Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996).
In adopting Title II, Congress
clearly stated its intention to abrogate the states’ Eleventh Amendment
immunity: “A State shall not be immune
under the eleventh amendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a violation of
this chapter.” 42 U.S.C.
§ 12202.
Thus, the remaining issue before the Court is whether Title II of the ADA constitutes a valid exercise of Congress’s Section 5 power. To be valid under Section 5, Congressional enactments “must exhibit ‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’” Garrett, 531 U.S. at 365 (quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997)). In contrast to Garrett, and in accord with Nevada Human Resources v. Hibbs, __ U.S. __, 123 S. Ct. 1972 (2003), the legislative record supporting Title II sufficiently documents constitutional injuries by the states. Congress made explicit findings to that end. Moreover, shortcomings in existing laws justified Title II’s enactment.
The legislative record supporting Title II sufficiently documents state actions that were based on irrational stereotypes against people with disabilities and which, even under rational basis scrutiny, violate the Equal Protection Clause. See City of Cleburne, 473 U.S. at 450. Reports in the Congressional Record detail a long history of states sterilizing people with disabilities and restricting the rights of people with disabilities to marry, enter into contracts, retain custody of their children and obtain state-issued drivers’ licenses. See Towards Independence (Nat’l Council on the Handicapped, 1986); On the Threshold of Independence (Nat’l Council on the Handicapped, 1988); Accommodating the Spectrum of Individual Abilities (Report by U.S. Civil Rights Commission, 1983). For example, the record before Congress included the United States Commission on Civil Rights’ report, Accommodating the Spectrum of Individual Abilities (1983), which details the history of state institutionalization and other policies that were applied in a discriminatory manner against people with disabilities. Id. at 32‑37. These state practices often were unconstitutionally based on “irrational fears or ignorance, traceable to the prolonged social and cultural isolation” of people with disabilities. See City of Cleburne, 473 U.S. at 467 (Marshall, J., concurring and dissenting). As Justice Marshall declared: “A regime of state-mandated segregation . . . emerged that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow.” Id. at 462 (emphasis added).
The legislative record includes various examples of state conduct devoid of any rational basis: Congress heard that a blind voter with cerebral palsy was arbitrarily refused the right to register to vote in state elections; it heard that state mental hospitals misused medications to punish and restrain their disabled, institutionalized patients; it heard that such hospitals subjected their patients to abusive treatment and inhumane conditions; it also heard that a blind woman was refused instructions on how to use her state’s voting machines. See Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., 2 Legis. Hist. of Pub. L. No. 101-336: The Americans with Disabilities Act 1220, 100th Cong., 2d Sess. at 1203, 1262-63 (Comm. Print 1990)[1]; Task Force on the Rights and Empowerment of Americans with Disabilities, Alabama Submissions 16.[2]
Bonnie O’Day, of the Independent Center of Hampton, testified to Congress that a wheelchair user plunged fifty feet to his death because he was using a makeshift path at the University of Virginia, which was physically inaccessible, lacking a barrier-free accessible route on which to travel. Legis. Hist. at 1076. Greg Hlibok, then president of the Student Body Government at Gallaudet University, testified that he and others who are deaf and hard of hearing had been denied medical treatment at hospitals because they could not be understood and the hospital refused to hire a qualified sign language interpreter. Id. at 1006. Judy Heumann, of the World Institute on Disability, was denied entry to her dorm house because of her wheelchair. After college, she was denied her teaching credential because of “paralysis.” Id. at 1002. The record also included a statement of a mother whose deaf son was charged with speeding. The judge chose to dismiss the charges because it was “cheaper” than to provide an interpreter for the court appearance. Task Force, Georgia Submissions 374.
The Congressional Record shows evidence of state action that would not satisfy even rational basis review, justifying application of Title II to the states.
More than showing equal protection
violations subject to rational basis review, the record supporting
Title II shows that discrimination by the states in public services
impinged upon fundamental constitutional rights of people with disabilities,
including such rights as parental rights, voting rights, access to the courts
and prisoners’ rights to humane conditions of confinement. Since a higher standard of scrutiny applies to
these rights, Congress was justified in concluding that the record documented
constitutional violations by the states.
In Garrett, the Court held that the record of state conduct was
insufficient to justify abrogation of sovereign immunity, in part, because of
the standard of review applicable to state treatment of people with
disabilities, namely the rational basis test under the Equal Protection Clause.[3] The Court determined that the respondents
failed to demonstrate that the identified state conduct could never have a
rational basis. In contrast to Title
I’s regulation of employment, Title II, which governs the provision of public
services, programs and activities, addresses state conduct that impinges upon
fundamental constitutional rights embodied in the First, Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments. In
such a case, a higher standard of scrutiny applies. See, e.g., Dunn v.
Blumstein, 405 U.S. 330 (1972) (holding that right to vote can be
restricted only when purpose of restriction and overriding interests served
thereby meet close constitutional scrutiny); Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that due
process requires state to provide meaningful access to courts absent showing of
countervailing state interest of overriding significance); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966) (“We
have long been mindful that where fundamental rights and liberties are asserted
under the Equal Protection Clause, classifications which might invade or
restrain them must be closely scrutinized and carefully confined.”).
In Hibbs, this Court recognized that where
Congress directs its attention to categories that trigger a heightened level of
scrutiny, it is “easier for Congress to show a pattern of state constitutional
violations.” 123 S. Ct. at 1982.[4] Congress succeeded in showing a pattern of
state constitutional violations in support of Title II.
The record for Title II shows
that people with disabilities were denied access to public facilities,
including courthouses, legislative assemblies, and voting places. See U.S.
Comm’n on Civil Rights, supra, at 21‑22,
38‑39; see also Americans With
Disabilities Act of 1989: Hearings on S. 933 Before the Senate Comm. on
Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong.,
662‑64 (1989) (testimony of Mary Lynn
Fletcher). This lack of access
adversely impacted the ability of people with disabilities to effectively
participate in the state governmental process, including the ability to
exercise their right to vote[5]
and to utilize the state judicial system.[6]
Congress heard that a disabled man, called to testify in court, had to get out of his wheelchair and pull himself up three flights of stairs to reach the courtroom. Task Force, Alabama Submissions 15. A disabled man who was to appear as a witness in a criminal trial had to be carried by state troopers up two flights of stairs because he had no other means to access the courtroom. Id., West Virginia Submissions 1745. A disabled woman, to reach the polls to vote in a general election, had to leave her wheelchair, walk with two canes up a flight of steps (taking 30 minutes), walk with her canes to the voting machine (taking 25 minutes), and hold on to the machine and beat on the levers with her cane to move them to cast her vote. Id., Delaware Submissions 307. Dozens of people with disabilities from across the country offered statements describing the ways in which they were denied access to polling places or were otherwise hampered in their ability to cast their votes.
The facts in the present case are an
example of just the sort of unconstitutional conduct presented to Congress
which prompted the passage of Title II.
Here, Mr. Lane, a person with paraplegia, was denied his fundamental
right of access to the courts because of the courthouse’s inaccessible
courtrooms. Mr. Lane was required to
crawl up two flights of stairs in order to satisfy the requirement to appear at
his criminal arraignment. At a second
court date, when Mr. Lane refused the humiliation of crawling or being carried
by officers to the courtroom, he was arrested and jailed.
Like the legislative record supporting the FMLA in Hibbs, the legislative record supporting Title II, including evidence of violations of fundamental constitutional rights by the states, which trigger a heightened level of scrutiny, justifies Congress’s judgment to apply Title II to the states.
Unlike Title I,[7] Title II is supported by express legislative findings of disability discrimination by the states. In the text of the statute itself, as well as in the Senate and House Committee Reports,[8] Congress made explicit findings of a history and pattern of state-sponsored discrimination in the provision of public services, programs and activities.[9] The statute expressly identifies persistent discrimination against people with disabilities in such areas of traditional state involvement as education, transportation, institutionalization,[10] health services, voting and access to public services, as well as “outright intentional exclusion, . . . segregation, and relegation to lesser services, programs, activities . . . .” 42 U.S.C. §§ 12101(a)(3), (5) (emphasis added).[11]
Congress’s finding of a pattern of state discrimination is entitled to great deference by this Court. “Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the Legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.” Radice v. New York, 264 U.S. 292, 294 (1924). Moreover, “[g]iven the deference due ‘the duly enacted and carefully considered decision of a coequal and representative branch of our Government,’” a court does “not lightly second-guess such legislative judgments.” Board of Educ. v. Mergens, 496 U.S. 226, 251 (1990).
The Hibbs Court recognized that Congress is justified in enacting added prophylactic measures where previous legislative attempt