Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955, 531 U.S. 356, 531 U.S. 356, 193 F.3d 1214, 148 L.Ed.2d 866 (U.S. 02/21/2001)

[1] United States Supreme Court


[2] No. 99-1240


[3] 121 S.Ct. 955, 531 U.S. 356, 531 U.S. 356, 193 F.3d 1214, 148 L.Ed.2d 866, 2001.SCT, 69 USLW 4105, 151 Ed. Law Rep. 35, 69 USLW 4105


[4] February 21, 2001


[5] BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, ET AL., PETITIONERS
v.
PATRICIA GARRETT ET AL.


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2000


[8] BOARD OF TRUSTEES OF UNIV. OF ALA.v. GARRETT


[9] NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


[10] SUPREME COURT OF THE UNITED STATES


[11] BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA et al. v. GARRETT et al.


[12] Certiorari To The United States Court Of Appeals For The Eleventh Circuit


[13] No. 99-1240.


[14] Argued October 11, 2000


[15] Decided February 21, 2001


[16] Respondents Garrett and Ash filed separate lawsuits against petitioners, Alabama state employers, seeking money damages under Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits the States and other employers from "discriminat[ing] against a qualified individual with a disability because of th[at] disability ... in regard to ... terms, conditions, and privileges of employment," 42 U. S. C. §12112(a). In an opinion disposing of both cases, the District Court granted petitioners summary judgment, agreeing with them that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. The Eleventh Circuit reversed on the ground that the ADA validly abrogates such immunity.


[17] Held: Suits in federal court by state employees to recover money damages by reason of the State's failure to comply with Title I of the ADA are barred by the Eleventh Amendment. Pp. 4-17.


[18] (a) Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority. Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73. Only the second of these requirements is in dispute here. While Congress may not base abrogation of state immunity upon its Article I powers, see e.g., id., at 79, it may subject non-consenting States to federal-court suit when it does so pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment, see e.g., id., at 80. Section 5 authorizes Congress to enforce the substantive guarantees contained in §1 of that Amendment by enacting "appropriate legislation." See City of Boerne v. Flores, 521 U. S. 507, 536. Because it is this Court's responsibility, not Congress', to define the substance of constitutional guarantees, id., at 519-524, §5 legislation, to the extent it reaches beyond the precise scope of §1's protections, must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end, id., at 520. Pp. 4-7.


[19] (b) The first step in applying these principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires examination of the limitations §1 of the Fourteenth Amendment places upon States' treatment of the disabled. To do so, the Court looks to its prior decisions under the Equal Protection Clause dealing with this issue. Kimel, supra, at 83. In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, the Court held, inter alia, that mental retardation did not qualify as a "quasi-suspect" classification for equal protection purposes, id., at 435, and that, accordingly, a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded incurred only the minimum "rational-basis" review applicable to general social and economic legislation, id., at 446. Although "negative attitudes" and "fear" often accompany irrational biases, their presence alone does not a constitutional violation make. Thus, the Fourteenth Amendment does not require States to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly -- and perhaps hardheartedly --hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause. Pp. 7-10.


[20] (c) The requirements for private individuals to recover money damages against the States -- that there be state discrimination violative of the Fourteenth Amendment and that the remedy imposed by Congress be congruent and proportional to the targeted violation -- are not met here. First, the ADA's legislative record fails to show that Congress identified a history and pattern of irrational employment discrimination by the States against the disabled. See, e.g., Kimel, supra, at 89. Because Eleventh Amendment immunity does not extend to local governmental units such as cities and counties, see Lincoln County v. Luning, 133 U. S. 529, 530, the Court rejects respondents' contention that the inquiry as to unconstitutional discrimination should extend to such units as well as to States. Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination ... continue to be a serious and pervasive social problem." 42 U. S. C. §12101(a)(2). Although the record includes instances to support such a finding, the great majority of these incidents do not deal with state activities in employment. Even if it were to be determined that the half a dozen relevant examples from the record showed unconstitutional action on the part of States, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which §5 legislation must be based. See, e.g., Kimel, supra, at 89-91. Moreover, statements in House and Senate committee reports indicate that Congresss targeted the ADA at employment discrimination in the private sector. Second, the rights and remedies created by the ADA against the States raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, while it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees able to use existing facilities, the ADA requires employers to make such facilities readily accessible to and usable by disabled individuals, §§12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer can demonstrate that accommodation would impose an "undue hardship" upon it, §12112(b)(5)(A), but, even with this exception, the accommodation duty far exceeds what is constitutionally required. The ADA's constitutional shortcomings are apparent when it is compared to the Voting Rights Act of 1965. Holding the latter Act to be "appropriate" legislation to enforce the Fifteenth Amendment's protection against racial discrimination in voting, South Carolina v. Katzenbach, 383 U. S. 301, this Court emphasized that Congress had there documented a marked pattern of unconstitutional action by the States, see id., at 312, and had determined that litigation had proved ineffective to remedy the problem, see id., at 313. The contrast between the kind of evidence detailed in Katzenbach, and the evidence that Congress considered in the present case, is stark. To uphold the ADA's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne. Section 5 does not so broadly enlarge congressional authority. Pp. 10-17.


[21] 193 F. 3d 1214, reversed.


[22] Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.


[23] Court below: 193 F.3d 1214


[24] Jeffrey S. Sutton argued the cause for petitioners. With him on the briefs were Bill Pryor, Attorney General of Alabama, Alice Ann Byrne and Margaret L. Fleming, Assistant Attorneys General, Gregory G. Katsas, and Lisa Huggins. Michael H. Gottesman argued the cause for respondents. With him on the brief were Arlene Mayerson, Laurence Gold, Deborah Mattison, Sandra Reiss, Ira Burnim, and Jennifer Mathis. Solicitor General Waxman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Jessica Dunsay Silver, and Seth M. Galanter. Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Audrey J. Anderson, Earl I. Anzai, Attorney General of Hawaii, Charles F. Fell, Senior Deputy Attorney General, and Nancy Albano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Alan G. Lance of Idaho, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper. Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Mike Hatch, Attorney General of Minnesota, Alan I. Gilbert, Chief Deputy Attorney General, and W. Karl Hansen, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, James E. Ryan of Illinois, Thomas J. Miller of Iowa, A. B. "Ben" Chandler III of Kentucky, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the American Association on Mental Retardation et al. by James W. Ellis, Michael B. Browde, and Christian G. Fritz; for the American Association of People with Disabilities et al. by John Townsend Rich; for the American Bar Association by Robert Lewin, James A. Shifren, and Claude G. Szyfer; for the American Cancer Society by Daniel G. Jarcho, Michael J. Haungs, William J. Dalton, and Mary P. Rouvelas; for the Lambda Legal Defense & Education Fund, Inc., et al. by Catherine A. Hanssens and David S. Buckel; for the National Association of Protection and Advocacy Systems et al. by Mark E. Haddad, Jacqueline G. Cooper, and Sharon Masling; for the National Council on Disability by Robert L. Burgdorf, Jr.; for Self-Advocates Becoming Empowered et al. by Thomas K. Gilhool, Michael Churchill, Barbara Ransom, and Max Lapertosa; for the Voice of the Retarded et al. by William J. Burke and Tamie Hopp; for Senator Robert Dole et al. by Chai R. Feldblum; and for Law Professors by Leo G. Rydzewski. Briefs of amici curiae were filed for the Association of State Correctional Administrators by Marci A. Hamilton; for the Coalition for Local Sovereignty by Kenneth B. Clark; for the National Employment Lawyers Association et al. by Daniel F. Goldstein, C. Christopher Brown, and Merl H. Wayman; for Paralyzed Veterans of America et al. by Ted G. Dane and Eve Hill; for the Southern Poverty Law Center by Pamela L. Sumners and Elizabeth J. Hubertz; and for Morton Horwitz et al. by Kenneth W. Brothers, Elizabeth B. McCallum, and Claudia Center. Former President George H. W. Bush filed a statement as amicus curiae.


[25] The opinion of the court was delivered by: Chief Justice Rehnquist


[26] On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit


[27] We decide here whether employees of the State of Alabama may recover money damages by reason of the State's failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U. S. C. §§12111-12117.*fn1 We hold that such suits are barred by the Eleventh Amendment.


[28] The ADA prohibits certain employers, including the States, from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." §§12112(a), 12111(2), (5), (7). To this end, the Act requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." §12112(b)(5)(A).


[29] " `[R]easonable accommodation' may include --


[30] "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." §12111(9).


[31] The Act also prohibits employers from "utilizing standards, criteria, or methods of administration ... that have the effect of discrimination on the basis of disability." §12112(b)(3)(A).


[32] The Act defines "disability" to include "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." §12102(2). A disabled individual is otherwise "qualified" if he or she, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." §12111(8).


[33] Respondent Patricia Garrett, a registered nurse, was employed as the Director of Nursing, OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham Hospital. See App. 31, 38. In 1994, Garrett was diagnosed with breast cancer and subsequently underwent a lumpectomy, radiation treatment, and chemotherapy. See id., at 38. Garrett's treatments required her to take substantial leave from work. Upon returning to work in July 1995, Garrett's supervisor informed Garrett that she would have to give up her Director position. See id., at 39. Garrett then applied for and received a transfer to another, lower paying position as a nurse manager. See ibid.


[34] Respondent Milton Ash worked as a security officer for the Alabama Department of Youth Services (Department). See id., at 8. Upon commencing this employment, Ash informed the Department that he suffered from chronic asthma and that his doctor recommended he avoid carbon monoxide and cigarette smoke, and Ash requested that the Department modify his duties to minimize his exposure to these substances. See ibid. Ash was later diagnosed with sleep apnea and requested, again pursuant to his doctor's recommendation, that he be reassigned to daytime shifts to accommodate his condition. See id., at 9. Ultimately, the Department granted none of the requested relief. See id., at 8-9. Shortly after Ash filed a discrimination claim with the Equal Employment Opportunity Commission, he noticed that his performance evaluations were lower than those he had received on previous occasions. See id., at 9.


[35] Garrett and Ash filed separate lawsuits in the District Court, both seeking money damages under the ADA.*fn2 Petitioners moved for summary judgment, claiming that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. See 989 F. Supp. 1409, 1410 (ND Ala. 1998). In a single opinion disposing of both cases, the District Court agreed with petitioners' position and granted their motions for summary judgment. See id., at 1410, 1412. The cases were consolidated on appeal to the Eleventh Circuit. The Court of Appeals reversed, 193 F. 3d 1214 (1999), adhering to its intervening decision in Kimel v. State Bd. of Regents, 139 F. 3d 1426, 1433 (CA11 1998), cert. granted, 525 U. S. 1121, cert. dismissed, 528 U. S. 1184 (2000), that the ADA validly abrogates the States' Eleventh Amendment immunity.


[36] We granted certiorari, 529 U. S. 1065 (2000), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court under the ADA.


[37] I.


[38] The Eleventh Amendment provides:


[39] "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."


[40] Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890). The ultimate guarantee of the Eleventh Amendment is that non-consenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73.


[41] We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and "act[s] pursuant to a valid grant of constitutional authority." 528 U. S., at 73. The first of these requirements is not in dispute here. See 42 U. S. C. §12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter"). The question, then, is whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA.


[42] Congress may not, of course, base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra, at 79 ("Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers"); Seminole Tribe, supra, at 72-73 ("The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction"); College Savings Bank, supra, at 672; Florida Prepaid Post-secondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 636 (1999); Alden v. Maine, 527 U. S. 706, 730-733 (1999). In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), however, we held that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment." Id., at 456 (internal citation omitted). As a result, we concluded, Congress may subject non-consenting States to suit in federal court when it does so pursuant to a valid exercise of its §5 power. See ibid. Our cases have adhered to this proposition. See, e.g., Kimel, supra, at 80. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate §5 legislation.*fn3


[43] Section 1 of the Fourteenth Amendment provides, in relevant part:


[44] "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


[45] Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in §1 by enacting "appropriate legislation." See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence. "Rather, Congress' power `to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, supra, at 81; City of Boerne, supra, at 536.


[46] City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. Accordingly, §5 legislation reaching beyond the scope of §1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520.


[47] II.


[48] The first step in applying these now familiar principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires us to examine the limitations §1 of the Fourteenth Amendment places upon States' treatment of the disabled. As we did last Term in Kimel, see 528 U. S., at 83, we look to our prior decisions under the Equal Protection Clause dealing with this issue.


[49] In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), we considered an equal protection challenge to a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded. The specific question before us was whether the Court of Appeals had erred by holding that mental retardation qualified as a "quasi-suspect" classification under our equal protection jurisprudence. Id., at 435. We answered that question in the affirmative, concluding instead that such legislation incurs only the minimum "rational-basis" review applicable to general social and economic legislation.*fn4 Id., at 446. In a statement that today seems quite prescient, we explained that


[50] "if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so." Id., at 445-446.


[51] Under rational-basis review, where a group possesses "distinguishing characteristics relevant to interests the State has the authority to implement," a State's decision to act on the basis of those differences does not give rise to a constitutional violation. Id., at 441. "Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe, 509 U. S. 312, 320 (1993) (citing Nordlinger v. Hahn, 505 U. S. 1 (1992); New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam)). Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative " `any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Heller, supra, at 320 (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993)).


[52] Justice Breyer suggests that Cleburne stands for the broad proposition that state decisionmaking reflecting "negative attitudes" or "fear" necessarily runs afoul of the Fourteenth Amendment. See post, at 5 (dissenting opinion) (quoting Cleburne, 473 U. S., at 448). Although such biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make. As we noted in Cleburne: "[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently ... ." Id., at 448 (emphasis added). This language, read in context, simply states the unremarkable and widely acknowledged tenet of this Court's equal protection jurisprudence that state action subject to rational-basis scrutiny does not violate the Fourteenth Amendment when it "rationally furthers the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (1976) (per curiam).


[53] Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational. They could quite hard headedly -- and perhaps hardheartedly -- hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.*fn5


[54] III.


[55] Once we have determined the metes and bounds of the constitutional right in question, we examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled. Just as §1 of the Fourteenth Amendment applies only to actions committed "under color of state law," Congress' §5 authority is appropriately exercised only in response to state transgressions. See Florida Prepaid, 527 U. S., at 640 ("It is this conduct then -- unremedied patent infringement by the States -- that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act"); Kimel, 528 U. S., at 89 ("Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation"). The legislative record of the ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.


[56] Respondents contend that the inquiry as to unconstitutional discrimination should extend not only to States themselves, but to units of local governments, such as cities and counties. All of these, they say, are "state actors" for purposes of the Fourteenth Amendment. Brief for Respondents 8. This is quite true, but the Eleventh Amendment does not extend its immunity to units of local government. See Lincoln County v. Luning, 133 U. S. 529, 530 (1890). These entities are subject to private claims for damages under the ADA without Congress' ever having to rely on §5 of the Fourteenth Amendment to render them so. It would make no sense to consider constitutional violations on their part, as well as by the States themselves, when only the States are the beneficiaries of the Eleventh Amendment.


[57] Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U. S. C. §12101(a)(2). The record assembled by Congress includes many instances to support such a finding. But the great majority of these incidents do not deal with the activities of States.


[58] Respondents in their brief cite half a dozen examples from the record that did involve States. A department head at the University of North Carolina refused to hire an applicant for the position of health administrator because he was blind; similarly, a student at a state university in South Dakota was denied an opportunity to practice teach because the dean at that time was convinced that blind people could not teach in public schools. A microfilmer at the Kansas Department of Transportation was fired because he had epilepsy; deaf workers at the University of Oklahoma were paid a lower salary than those who could hear. The Indiana State Personnel Office informed a woman with a concealed disability that she should not disclose it if she wished to obtain employment.*fn6


[59] Several of these incidents undoubtedly evidence an unwillingness on the part of state officials to make the sort of accommodations for the disabled required by the ADA. Whether they were irrational under our decision in Cleburne is more debatable, particularly when the incident is described out of context. But even if it were to be determined that each incident upon fuller examination showed unconstitutional action on the part of the State, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which §5 legislation must be based. See Kimel, 528 U. S., at 89-91; City of Boerne, 521 U. S., at 530-531. Congress, in enacting the ADA, found that "some 43,000,000 Americans have one or more physical or mental disabilities." 42 U. S. C. §12101(a)(1). In 1990, the States alone employed more than 4.5 million people. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 338 (119th ed. 1999) (Table 534). It is telling, we think, that given these large numbers, Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled.


[60] Justice Breyer maintains that Congress applied Title I of the ADA to the States in response to a host of incidents representing unconstitutional state discrimination in employment against persons with disabilities. A close review of the relevant materials, however, undercuts that conclusion. Justice Breyer's Appendix C consists not of legislative findings, but of unexamined, anecdotal accounts of "adverse, disparate treatment by state officials." Post, at 3. Of course, as we have already explained, "adverse, disparate treatment" often does not amount to a constitutional violation where rational-basis scrutiny applies. These accounts, moreover, were submitted not directly to Congress but to the Task Force on the Rights and Empowerment of Americans with Disabilities, which made no findings on the subject of state discrimination in employment.*fn7 See the Task Force's Report entitled From ADA to Empowerment (Oct. 12, 1990). And, had Congress truly understood this information as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act's legislative findings. There is none. See 42 U. S. C. §12101. Although Justice Breyer would infer from Congress' general conclusions regarding societal discrimination against the disabled that the States had likewise participated in such action, post, at 3, the House and Senate committee reports on the ADA flatly contradict this assertion. After describing the evidence presented to the Senate Committee on Labor and Human Resources and its subcommittee (including the Task Force Report upon which the dissent relies), the Committee's report reached, among others, the following conclusion: "Discrimination still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and telecommunications." S. Rep. No. 101-116, p. 6 (1989) (emphasis added). The House Committee on Education and Labor, addressing the ADA's employment provisions, reached the same conclusion: "[A]fter extensive review and analysis over a number of Congressional sessions, ... there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the areas of employment in the private sector, public accommodations, public services, transportation, and telecommunications." H. R. Rep. No. 101-485, pt. 2 p. 28 (1990) (emphasis added). Thus, not only is the inference Justice Breyer draws unwarranted, but there is also strong evidence that Congress' failure to mention States in its legislative findings addressing discrimination in employment reflects that body's judgment that no pattern of unconstitutional state action had been documented.


[61] Even were it possible to squeeze out of these examples a pattern of unconstitutional discrimination by the States, the rights and remedies created by the ADA against the States would raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U. S. C. §§12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." §12112(b)(5)(A). However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall short of imposing an "undue burden" upon the employer. The Act also makes it the employer's duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer's decision. See ibid.


[62] The ADA also forbids "utilizing standards, criteria, or methods of administration" that disparately impact the disabled, without regard to whether such conduct has a rational basis. §12112(b)(3)(A). Although disparate impact may be relevant evidence of racial discrimination, see Washington v. Davis, 426 U. S. 229, 239 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny. See, e.g., ibid. ("[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact").


[63] The ADA's constitutional shortcomings are apparent when the Act is compared to Congress' efforts in the Voting Rights Act of 1965 to respond to a serious pattern of constitutional violations. In South Carolina v. Katzenbach, 383 U. S. 301 (1966), we considered whether the Voting Rights Act was "appropriate" legislation to enforce the Fifteenth Amendment's protection against racial discrimination in voting. Concluding that it was a valid exercise of Congress' enforcement power under §2 of the Fifteenth Amendment,*fn8 we noted that "[b]efore enacting the measure, Congress explored with great care the problem of racial discrimination in voting." Id., at 308.


[64] In that Act, Congress documented a marked pattern of unconstitutional action by the States. State officials, Congress found, routinely applied voting tests in order to exclude African-American citizens from registering to vote. See id., at 312. Congress also determined that litigation had proved ineffective and that there persisted an otherwise inexplicable 50-percentage-point gap in the registration of white and African-American voters in some States. See id., at 313. Congress' response was to promulgate in the Voting Rights Act a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified.


[65] The contrast between this kind of evidence, and the evidence that Congress considered in the present case, is stark. Congressional enactment of the ADA represents its judgment that there should be a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U. S. C. §12101(b)(1). Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne.*fn9 Section 5 does not so broadly enlarge congressional authority. The judgment of the Court of Appeals is therefore


[66] Reversed.


[67] Kennedy, J., concurring


[68] Justice Kennedy, with whom Justice O'Connor joins, concurring.


[69] Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature. There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will.


[70] One of the undoubted achievements of statutes designed to assist those with impairments is that citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. The law works this way because the law can be a teacher. So I do not doubt that the Americans with Disabilities Act of 1990 will be a milestone on the path to a more decent, tolerant, progressive society.


[71] It is a question of quite a different order, however, to say that the States in their official capacities, the States as governmental entities, must be held in violation of the Constitution on the assumption that they embody the misconceived or malicious perceptions of some of their citizens. It is a most serious charge to say a State has engaged in a pattern or practice designed to deny its citizens the equal protection of the laws, particularly where the accusation is based not on hostility but instead on the failure to act or the omission to remedy. States can, and do, stand apart from the citizenry. States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand. The failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause. See Washington v. Davis, 426 U. S. 229 (1976).


[72] For the reasons explained by the Court, an equal protection violation has not been shown with respect to the several States in this case. If the States had been transgressing the Fourteenth Amendment by their mistreatment or lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the courts of the United States extensive litigation and discussion of the constitutional violations. This confirming judicial documentation does not exist. That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation.


[73] It must be noted, moreover, that what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether the States can be subjected to liability in suits brought not by the Federal Government (to which the States have consented, see Alden v. Maine, 527 U. S. 706, 755 (1999)), but by private persons seeking to collect moneys from the state treasury without the consent of the State. The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity. That predicate, for reasons discussed here and in the decision of the Court, has not been established. With these observations, I join the Court's opinion.


[74] Breyer, J., dissenting


[75] Justice Breyer, with whom Justice Stevens, Justice Souter and Justice Ginsburg join, dissenting.


[76] Reviewing the congressional record as if it were an administrative agency record, the Court holds the statutory provision before us, 42 U. S. C. §12202, unconstitutional. The Court concludes that Congress assembled insufficient evidence of unconstitutional discrimination, ante, at 12, that Congress improperly attempted to "re-write" the law we established in Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), ante, at 16, and that the law is not sufficiently tailored to address unconstitutional discrimination, ante, at 14-15.


[77] Section 5, however, grants Congress the "power to enforce, by appropriate legislation" the Fourteenth Amendment's equal protection guarantee. U. S. Const., Amdt. 14, §5. As the Court recognizes, state discrimination in employment against persons with disabilities might " `run afoul of the Equal Protection Clause' " where there is no " `rational relationship between the disparity of treatment and some legitimate governmental purpose.' " Ante, at 8 (quoting Heller v. Doe, 509 U. S. 312, 320 (1993)). See also Cleburne v. Cleburne Living Center, Inc., supra, at 440 (stating that the Court will sustain a classification if it is "rationally related to a legitimate state interest"). In my view, Congress reasonably could have concluded that the remedy before us constitutes an "appropriate" way to enforce this basic equal protection requirement. And that is all the Constitution requires.


[78] I.


[79] The Court says that its primary problem with this statutory provision is one of legislative evidence. It says that "Congress assembled only ... minimal evidence of unconstitutional state discrimination in employment." Ante, at 12. In fact, Congress compiled a vast legislative record documenting " `massive, society-wide discrimination' " against persons with disabilities. S. Rep. No. 101-116, pp. 8-9 (1989) (quoting testimony of Justin Dart, chairperson of the Task Force on the Rights and Empowerment of Americans with Disabilities). In addition to the information presented at 13 congressional hearings (see Appendix A, infra), and its own prior experience gathered over 40 years during which it contemplated and enacted considerable similar legislation (see Appendix B, infra), Congress created a special task force to assess the need for comprehensive legislation. That task force held hearings in every State, attended by more than 30,000 people, including thousands who had experienced discrimination first hand. See From ADA to Empowerment, Task Force on the Rights and Empowerment of Americans with Disabilities, 16 (Oct. 12, 1990) (hereinafter Task Force Report). The task force hearings, Congress' own hearings, and an analysis of "census data, national polls, and other studies" led Congress to conclude that "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally." 42 U. S. C. §12101(a)(6). As to employment, Congress found that "[t]wo-thirds of all disabled Americans between the age of 16 and 64 [were] not working at all," even though a large majority wanted to, and were able to, work productively. S. Rep. No. 101-116, at 9. And Congress found that this discrimination flowed in significant part from "stereotypic assumptions" as well as "purposeful unequal treatment." 42 U. S. C. §12101(a)(7).


[80] The powerful evidence of discriminatory treatment throughout society in general, including discrimination by private persons and local governments, implicates state governments as well, for state agencies form part of that same larger society. There is no particular reason to believe that they are immune from the "stereotypic assumptions" and pattern of "purposeful unequal treatment" that Congress found prevalent. The Court claims that it "make[s] no sense" to take into consideration constitutional violations committed by local governments. Ante, at 71. But the substantive obligation that the Equal Protection Clause creates applies to state and local governmental entities alike. E.g., Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). Local governments often work closely with, and under the supervision of, state officials, and in general, state and local government employers are similarly situated. Nor is determining whether an apparently "local" entity is entitled to Eleventh Amendment immunity as simple as the majority suggests -- it often requires a " `detailed examination of the relevant provisions of [state] law.' " Regents of Univ. of Cal. v. Doe, 519 U. S. 425, 430, n. 6 (1997) (quoting Moor v. County of Alameda, 411 U. S. 693, 719-721 (1973)).


[81] In any event, there is no need to rest solely upon evidence of discrimination by local governments or general societal discrimination. There are roughly 300 examples of discrimination by state governments themselves in the legislative record. See, e.g., Appendix C, infra. I fail to see how this evidence "fall[s] far short of even suggesting the pattern of unconstitutional discrimination on which §5 legislation must be based." Ante, at 12.


[82] The congressionally appointed task force collected numerous specific examples, provided by persons with disabilities themselves, of adverse, disparate treatment by state officials. They reveal, not what the Court describes as "half a dozen" instances of discrimination, ante, at 11, but hundreds of instances of adverse treatment at the hands of state officials -- instances in which a person with a disability found it impossible to obtain a state job, to retain state employment, to use the public transportation that was readily available to others in order to get to work, or to obtain a public education, which is often a prerequisite to obtaining employment. State-imposed barriers also frequently made it difficult or impossible for people to vote, to enter a public building, to access important government services, such as calling for emergency assistance, and to find a place to live due to a pattern of irrational zoning decisions similar to the discrimination that we held unconstitutional in Cleburne, 473 U. S., at 448. See Appendix C, infra.


[83] As the Court notes, those who presented instances of discrimination rarely provided additional, independent evidence sufficient to prove in court that, in each instance, the discrimination they suffered lacked justification from a judicial standpoint. Ante, at 12 (stating that instances of discrimination are "described out of context"). Perhaps this explains the Court's view that there is "minimal evidence of unconstitutional state discrimination." Ibid. But a legislature is not a court of law. And Congress, unlike courts, must, and does, routinely draw general conclusions -- for example, of likely motive or of likely relationship to legitimate need -- from anecdotal and opinion-based evidence of this kind, particularly when the evidence lacks strong refutation. See Task Force Report 16, 20 (task force "met many times with significant representatives of groups opposed to [the] ADA," and as to the general public, although the task force received "about 2,000 letters" in support of the ADA, there was only "one letter in opposition"); S. Rep. No. 101-116, at 10 (summarizing testimony that many reasonable accommodations cost "less than $50," and the expense of others, such as hiring employees who can interpret for the deaf, is "frequently exaggerated"). In reviewing §5 legislation, we have never required the sort of extensive investigation of each piece of evidence that the Court appears to contemplate. Compare ante, at 12-13, with Katzenbach v. Morgan, 384 U. S. 641, 652-656 (1966) (asking whether Congress' likely conclusions were reasonable, not whether there was adequate evidentiary support in the record). Nor has the Court traditionally required Congress to make findings as to state discrimination, or to break down the record evidence, category by category. Compare ante, at 13 (noting statements in two congressional Reports that mentioned state discrimination in public services and transportation but not in employment), with Morgan, supra, at 654 (considering what Congress "might" have concluded); 384 U. S., at 652 (holding that likely discrimination against Puerto Ricans in areas other than voting supported statute abolishing literacy test as qualification for voting).


[84] Regardless, Congress expressly found substantial unjustified discrimination against persons with disabilities. 42 U. S. C. §12101(9) (finding a pattern of "unnecessary discrimination and prejudice" that "costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity" (emphasis added)). See also 2 Legislative History of the Americans with Disabilities Act (Leg. Hist.) (Committee Print compiled for the House Committee on Education and Labor), Ser. No. 102-B, p. 1620 (1990) (testimony of Arlene B. Mayerson) (describing "unjustifiable and discriminatory loss of job opportunities"); id., at 1623 (citing study showing " `strong evidence that employers' fears of low performance among disabled workers are unjustified' "). Moreover, it found that such discrimination typically reflects "stereotypic assumptions" or "purposeful unequal treatment." 42 U. S. C. §12101(7). See also 2 Leg. Hist. 1622 (testimony of Arlene B. Mayerson) ("Outmoded stereotypes whether manifested in medical or other job `requirements' that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified"). In making these findings, Congress followed our decision in Cleburne, which established that not only discrimination against persons with disabilities that rests upon "a bare ... desire to harm a politically unpopular group," 473 U. S., at 447 (quoting Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973) (omission in Cleburne)), violates the Fourteenth Amendment, but also discrimination that rests solely upon "negative attitude[s]," "fea[r]," 473 U. S., at 448, or "irrational prejudice," id., at 450. Adverse treatment that rests upon such motives is unjustified discrimination in Cleburne's terms.


[85] The evidence in the legislative record bears out Congress' finding that the adverse treatment of persons with disabilities was often arbitrary or invidious in this sense, and thus unjustified. For example, one study that was before Congress revealed that "most ... governmental agencies in [one State] discriminated in hiring against job applicants for an average period of five years after treatment for cancer," based in part on co-workers' misguided belief that "cancer is contagious." 2 Leg. Hist. 1619-1620 (testimony of Arlene B. Mayerson). A school inexplicably refused to exempt a deaf teacher, who taught at a school for the deaf, from a "listening skills" requirement. Government's Lodging 1503. A State refused to hire a blind employee as director of an agency for the blind -- even though he was the most qualified applicant. Id., at 974. Certain state agencies apparently had general policies against hiring or promoting persons with disabilities. Id., at 1159, 1577. A zoo turned away children with Downs Syndrome "because [the zookeeper] feared they would upset the chimpanzees." S. Rep. No. 101-116, at 7. There were reports of numerous zoning decisions based upon "negative attitudes" or "fear," Cleburne, supra, at 448, such as a zoning board that denied a permit for an obviously pretextual reason after hearing arguments that a facility would house " `deviants' " who needed " `room to roam,' " Government's Lodging 1068. A complete listing of the hundreds of examples of discrimination by state and local governments that were submitted to the task force is set forth in Appendix C, infra. Congress could have reasonably believed that these examples represented signs of a widespread problem of unconstitutional discrimination.


[86] II.


[87] The Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice Kennedy's empirical conclusion -- which rejects that of Congress --rests heavily upon his failure to find "extensive litigation and discussion of constitutional violations," in "the courts of the United States." Ante, at 2 (Kennedy, J., concurring) (emphasis added). And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification." Ante, at 9 (internal quotation marks omitted). Or as Justice Brandeis, writing for the Court, put the matter many years ago, " `if any state of facts reasonably can be conceived that would sustain' " challenged legislation, then " `there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing . . . that the action is arbitrary.' " Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185 (1935) (quoting Borden's Farm Products Co. v. Baldwin, 293 U. S. 194, 209 (1934)). Imposing this special "burden" upon Congress, the Court fails to find in the legislative record sufficient indication that Congress has "negative[d]" the presumption that state action is rationally related to a legitimate objective. Ante, at 9.


[88] The problem with the Court's approach is that neither the "burden of proof" that favors States nor any other rule of restraint applicable to judges applies to Congress when it exercises its §5 power. "Limitations stemming from the nature of the judicial process ... have no application to Congress." Oregon v. Mitchell, 400 U. S. 112, 248 (1970) (Brennan, White, and Marshall, JJ., concurring in part and dissenting in part). Rational-basis review -- with its presumptions favoring constitutionality -- is "a paradigm of judicial restraint." FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) (emphasis added). And the Congress of the United States is not a lower court.


[89] Indeed, the Court in Cleburne drew this very institutional distinction. We emphasized that "courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices." 473 U. S., at 441. Our invocation of judicial deference and respect for Congress was based on the fact that "[§]5 of the [Fourteenth] Amendment empowers Congress to enforce [the equal protection] mandate." Id., at 439 (emphasis added). Indeed, we made clear that the absence of a contrary congressional finding was critical to our decision to apply mere rational-basis review to disability discrimination claims -- a "congressional direction" to apply a more stringent standard would have been "controlling." Ibid. See also Washington v. Davis, 426 U. S. 229, 248 (1976) (refusing to invalidate a law based on the Equal Protection Clause because a disparate impact standard "should await legislative prescription"). Cf. Mitchell, supra, at 284 (Stewart, J., concurring in part and dissenting in part) ("Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records"). In short, the Court's claim that "to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne," ante, at 16, is repudiated by Cleburne itself.


[90] There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its §5 authority, to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. Cf. Cleburne, supra, at 442-443 (addressing the problems of the "large and diversified group" of persons with disabilities "is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary"). Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have first-hand experience with discrimination and related issues.


[91] Moreover, unlike judges, Members of Congress are elected. When the Court has applied the majority's burden of proof rule, it has explained that we, i.e., the courts, do not " `sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.' " Heller, 509 U. S., at 319 (quoting New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam)). To apply a rule designed to restrict courts as if it restricted Congress' legislative power is to stand the underlying principle -- a principle of judicial restraint -- on its head. But without the use of this burden of proof rule or some other unusually stringent standard of review, it is difficult to see how the Court can find the legislative record here inadequate. Read with a reasonably favorable eye, the record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment. And Congress could have found, in a significant number of instances, that this treatment violated the substantive principles of justification -- shorn of their judicial-restraint-related presumptions --that this Court recognized in Cleburne.


[92] III.


[93] The Court argues in the alternative that the statute's damage remedy is not "congruent" with and "proportional" to the equal protection problem that Congress found. Ante, at 14 (citing City of Boerne v. Flores, 521 U. S. 507, 520 (1997)). The Court suggests that the Act's "reasonable accommodation" requirement, 42 U. S. C. §12112(b)(5)(A), and disparate impact standard, §12112(b)(3)(A), "far excee[d] what is constitutionally required." Ante, at 14. But we have upheld disparate impact standards in contexts where they were not "constitutionally required." Compare Griggs v. Duke Power Co., 401 U. S. 424, 432 (1971), with Washington, supra, at 239, and City of Rome v. United States, 446 U. S. 156, 172-173 (1980), with Mobile v. Bolden, 446 U. S. 55, 62 (1980) (plurality opinion).


[94] And what is wrong with a remedy that, in response to unreasonable employer behavior, requires an employer to make accommodations that are reasonable? Of course, what is "reasonable" in the statutory sense and what is "unreasonable" in the constitutional sense might differ. In other words, the requirement may exceed what is necessary to avoid a constitutional violation. But it is just that power -- the power to require more than the minimum- that §5 grants to Congress, as this Court has repeatedly confirmed. As long ago as 1880, the Court wrote that §5 "brought within the domain of congressional power" whatever "tends to enforce submission" to its "prohibitions" and "to secure to all persons ... the equal protection of the laws." Ex parte Virginia, 100 U. S. 339, 346 (1880). More recently, the Court added that §5's "draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, §8, cl. 18." Morgan, 384 U. S., at 650 (citing McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)).


[95] In keeping with these principles, the Court has said that "[i]t is not for us to review the congressional resolution of "the various conflicting considerations -- the risk or pervasiveness of the discrimination in governmental services ... , the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected." 384 U. S., at 653. "It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did." Ibid. See also South Carolina v. Katzenbach, 383 U. S. 301, 324 (1966) (interpreting the similarly worded enforcement Clause of the Fifteenth Amendment to permit Congress to use "any rational means to effectuate the constitutional prohibition"). Nothing in the words "reasonable accommodation" suggests that the requirement has no "tend[ency] to enforce" the Equal Protection Clause, Ex parte Virginia, supra, at 346, that it is an irrational way to achieve the objective, Katzenbach, 383 U. S., at 324, that it would fall outside the scope of the Necessary and Proper Clause, Morgan, supra, at 650, or that it somehow otherwise exceeds the bounds of the "appropriate," U. S. Const., Amdt. 14, §5.


[96] The Court's more recent cases have professed to follow the longstanding principle of deference to Congress. See Kimel v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) ("Congress' §5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment." Rather, Congress can prohibit a "somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text"); Florida Prepaid Post-secondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999) (" `Congress must have wide latitude' ") (quoting City of Boerne, supra, at 519-520); City of Boerne, 521 U. S., at 528 (reaffirming Morgan); 521 U. S., at 536 (Congress' "conclusions are entitled to much deference"). And even today, the Court purports to apply, not to depart from, these standards. Ante, at 7. But the Court's analysis and ultimate conclusion deprive its declarations of practical significance. The Court `sounds the word of promise to the ear but breaks it to the hope.'


[97] IV.


[98] The Court's harsh review of Congress' use of its §5 power is reminiscent of the similar (now-discredited) limitation that it once imposed upon Congress' Commerce Clause power. Compare Carter v. Carter Coal Co., 298 U. S. 238 (1936), with United States v. Darby, 312 U. S. 100, 123 (1941) (rejecting Carter Coal's rationale). I could understand the legal basis for such review were we judging a statute that discriminated against those of a particular race or gender, see United States v. Virginia, 518 U. S. 515 (1996), or a statute that threatened a basic constitutionally protected liberty such as free speech, see Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); see also Post & Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L. J. 441, 477 (2000) (stating that the Court's recent review of §5 legislation appears to approach strict scrutiny); 1 L. Tribe, American Constitutional Law §5-16, p. 959 (3d ed. 2000) (same). The legislation before us, however, does not discriminate against anyone, nor does it pose any threat to basic liberty. And it is difficult to understand why the Court, which applies "minimum `rational-basis' review" to statutes that burden persons with disabilities, ante, at 7-8, subjects to far stricter scrutiny a statute that seeks to help those same individuals.


[99] I recognize nonetheless that this statute imposes a burden upon States in that it removes their Eleventh Amendment protection from suit, thereby subjecting them to potential monetary liability. Rules for interpreting §5 that would provide States with special protection, however, run counter to the very object of the Fourteenth Amendment. By its terms, that Amendment prohibits States from denying their citizens equal protection of the laws. U. S. Const., Amdt. 14, §1. Hence "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments `by appropriate legislation.' Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome, 446 U. S., at 179. See also Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976); Ex parte Virginia, supra, at 345. And, ironically, the greater the obstacle the Eleventh Amendment poses to the creation by Congress of the kind of remedy at issue here -- the decentralized remedy of private damage actions -- the more Congress, seeking to cure important national problems, such as the problem of disability discrimination before us, will have to rely on more uniform remedies, such as federal standards and court injunctions, 42 U. S. C. §12188(a)(2), which are sometimes draconian and typically more intrusive. See College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U. S. 666, 704-705 (1999) (Breyer, J., dissenting). Cf. ante, at 15, n. 8. For these reasons, I doubt that today's decision serves any constitutionally based federalism interest.


[100] The Court, through its evidentiary demands, its non-deferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress. Morgan, 384 U. S., at 648, n. 7 (The "sponsors and supporters of the [Fourteenth] Amendment were primarily interested in augmenting the power of Congress"). Its decision saps §5 of independent force, effectively "confin[ing] the legislative power ... to the insignificant role of abrogating only those state laws that the judicial branch [is] prepared to adjudge unconstitutional." Id., at 648-649. Whether the Commerce Clause does or does not enable Congress to enact this provision, see, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100-185 (1996) (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting); College Savings Bank, supra, at 699-700 (Breyer, J., dissenting), in my view, §5 gives Congress the necessary authority.


[101] For the reasons stated, I respectfully dissent.


[102] APPENDIX A TO OPINION OF BREYER, J.


[103] Congressional hearings on the Americans with Disabilities Act


[104] Americans with Disabilities Act of 1989: Hearings on H. R. 2273 before the House Committee on the Judiciary and the Subcommittee on Civil and Constitutional Rights, 101st Cong., 1st Sess. (1989).


[105] Americans with Disabilities Act: Hearing on H. R. 2273 and S. 933 before the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990).


[106] Americans with Disabilities Act: Hearings on H. R. 2273 before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation, 101st Cong., 1st Sess. (1990).


[107] Americans with Disabilities: Telecommunications Relay Services, Hearing on Title V of H. R. 2273 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990).


[108] Americans with Disabilities Act of 1989: Hearing on H. R. 2273 before the Subcommittee on Select Education of the House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).


[109] Field Hearing on Americans with Disabilities Act: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).


[110] Hearing on H. R. 2273, The Americans with Disabilities Act of 1989: Joint Hearing before the Subcommittee on Select Education and Employment Opportunities of the House Committee on Education and Labor, 101st Cong., 1st Sess. (July 18 & Sept. 13, 1989) (two hearings)


[111] Oversight Hearing on H. R. 4498, Americans with Disabilities Act of 1988: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989)


[112] Americans with Disabilities Act: Hearing before the House Committee on Small Business, 101st Cong., 2d Sess. (1990); Americans with Disabilities Act of 1989: Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess. (1989) (May 1989 Hearings).


[113] Americans with Disabilities Act of 1988: Joint Hearing on S. 2345 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Human Resources and the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).


[114] APPENDIX B TO OPINION OF BREYER, J.


[115] Disability discrimination laws enacted by Congress prior to the Americans with Disabilities Act


[116] Act of June 10, 1948, ch. 434, 62 Stat. 351


[117] Architectural Barriers Act of 1968, 42 U. S. C. §4151 et seq.


[118] Rehabilitation Act of 1973, 29 U. S. C. §701 et seq.


[119] Education of the Handicapped Act, Pub. L. 91-230, Title VI, 84 Stat. 175 (reenacted in 1990 as the Individuals with Disabilities Education Act, 20 U. S. C. §1400 et seq.)


[120] Developmental Disabilities Assistance and Bill of Rights Act, 42 U. S. C. §6000 et seq.


[121] Voting Accessibility for the Elderly and Handicapped Act, 42 U. S. C. §1973ee et seq.


[122] Air Carrier Access Act of 1986, 49 U. S. C. §41705


[123] Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U. S. C. §10801


[124] Fair Housing Amendments of 1988, 42 U. S. C. §3604.


[125] APPENDIX C TO OPINION OF BREYER, J.


[126] Submissions made by individuals to the Task Force on Rights and Empowerment of Americans with Disabilities. See the Government's Lodging (available in Clerk of Court's case file).


[127] ALABAMA


[128] Page No.


[129] 00002discrimination against the mentally ill in city zoning process


[130] 00003inaccessible exercise equipment at University of Alabama


[131] 00004school failed to train teachers how to work with students with learning disabilities


[132] 00005courts failed to provide interpretive services for deaf people


[133] 00006lack of accessible police and court services for deaf people


[134] 00007inaccessible public transportation


[135] 00008child denied public education because of cerebral palsy


[136] 00009inaccessible public transportation, which prevented persons with disabilities from getting to work


[137] 00010inaccessible public buildings and services; inaccessible transportation


[138] 00011inaccessible public schools; inaccessible public transportation


[139] 00013inaccessible public schools; inaccessible public transportation


[140] 00014failure to enforce building codes requiring access for persons with disabilities


[141] 00015inaccessible courthouse


[142] 00017lack of instructions for use of voting machine by blind people; inaccessible restrooms in newly renovated State House


[143] 00021inaccessible public transportation


[144] 00023inaccessible public transportation


[145] 00024failure to enforce state and local laws protecting persons with disabilities


[146] 00025schools failed to provide an adequate education for children with disabilities


[147] 00026inaccessible public transportation


[148] 00027man denied vocational rehabilitation services based on his cerebral palsy; inaccessible public transportation


[149] 00031vocational rehabilitation agency failed to provide services for schizophrenics; zoning discrimination against group homes


[150] 00032school failed to provide an adequate education


[151] 00033school failed to provide an adequate education


[152] ALASKA


[153] Page No.


[154] 00038school placed child with cerebral palsy in special education classes


[155] 00041inaccessible restrooms in state legislature information office


[156] 00042inaccessible areas at new Alaska Performing Arts Center


[157] 00044inaccessible public transportation, which prevented persons with disabilities from getting to work


[158] 00046lack of curb cuts in sidewalks near apartment building for persons with disabilities


[159] 00048child erroneously placed in special education classes


[160] 00049inaccessible new performing arts center


[161] 00050Alaska Psychiatric Institute failed to provide interpretive services for deaf patients


[162] 00052state and local agencies disregarded laws requiring accessibility


[163] 00055jail failed to provide person with disability medical treatment


[164] 00056inaccessible government buildings in Seward


[165] 00057inaccessible public transportation


[166] 00058city failed to train employees how to communicate with people with hearing impairments


[167] 00059segregated seating and inaccessibility at new performing arts center


[168] 00061inaccessibility of State Ferry Columbia and Alaska Railroad; denial of job interview because person was in a wheelchair


[169] 00062inaccessible new performing arts center


[170] 00063person using a respirator denied access to Alaska State Division of Medical Assistance


[171] 00065inaccessible city hall


[172] 00067school district retaliated against teacher for asking to be assigned to an accessible classroom


[173] 00069inaccessible public transportation


[174] 00070lack of curb cuts; inaccessible public transportation


[175] 00071state agencies failed to provide interpretive services for deaf people


[176] 00072department of motor vehicles failed to provide interpretive services


[177] 00073inaccessibility of Seward City Hall and other state and local buildings


[178] 00075state university failed to assist in covering expense of interpretive services for deaf graduate student


[179] 00076inaccessible public buildings


[180] 00077inaccessible public school


[181] ARIZONA


[182] Page No.


[183] 00090survey showing inaccessibility problems in city of Phoenix's public services


[184] 00110inaccessible public transportation


[185] 00112inaccessible restrooms at state recreation areas


[186] 00116department of motor vehicles failed to provide visual signs or other assistance for people with hearing impairments


[187] 00117person with disability denied police officer job


[188] 00119Arizona Department of Economic Security took 3½ to 4 years to fix unsafe van lift


[189] 00121county paratransit refused to provide transportation to college


[190] 00124department of motor vehicles placed restrictions on driver's license because of deafness


[191] 00125teacher with hearing impairment denied numerous jobs


[192] 00127department of motor vehicles failed to assist deaf people


[193] 00129inaccessible entrance, restroom, water fountain, and office at building leased by State


[194] 00130woman injured trying to use inaccessible restroom at roadside rest stop; lack of curb cuts


[195] 00131inaccessible social service agencies


[196] ARKANSAS


[197] Page No.


[198] 00136public school failed to enforce accommodations for student


[199] 00138public school teacher refused to allow student with disability to use authorized calculator


[200] 00139state university failed to inform student with hearing impairment about activities and rules


[201] 00140lack of curb cuts


[202] 00141inaccessible public transportation


[203] 00143inaccessible office area at public housing for persons with disabilities


[204] 00144inaccessible public transportation


[205] 00145inaccessible state office of human services; state agencies failed to hire persons with disabilities


[206] 00146failure to enforce handicapped parking law


[207] 00147school erroneously placed child with mobility impairment in special education classes


[208] 00149public schools failed to provide interpretive services for deaf people


[209] 00150inaccessible public transportation


[210] 00153person with disability forced to resign employment because of architectural barriers


[211] 00154public school held meetings and conferences at inaccessible locations


[212] 00155physical barriers prevented citizens from voting


[213] 00156rehabilitation services failed to assist people with all kinds of disabilities


[214] 00159inaccessible city and county buildings


[215] 00161human services office relocated to inaccessible building


[216] 00163lack of curb cuts


[217] CALIFORNIA


[218] Page No.


[219] 00166inaccessible public recreation sites


[220] 00168California Relay System failed to provide telephone access to other States for deaf people


[221] 00180public transit failed to provide visual signs for deaf people


[222] 00181inaccessible public transportation


[223] 00202California Children's Services refused to help with cost of caring for child with head injury at home


[224] 00206inaccessible county buildings


[225] 00208deaf people denied access to state agencies that lacked TDD's


[226] 00210deaf people denied access to state agencies that lacked TDD's


[227] 00211public transit failed to provide visual signs for deaf people


[228] 00212public transit failed to provide visual signs for deaf people


[229] 00213limited out-of-state telephone relay services


[230] 00214inaccessible public transportation limited access to community college


[231] 00215inaccessible public transportation


[232] 00218deaf people denied access to state agencies that lacked TDD's


[233] 00219state mental health services failed to provide access for deaf people


[234] 00220government failed to provide interpretive services for deaf people


[235] 00221inaccessible public transportation; lack of curb cuts


[236] 00222inaccessible public transportation


[237] 00223inaccessible airport; inaccessible public transportation


[238] 00224California Relay Service failed to enable deaf people to make interstate calls


[239] 00225California Relay Service failed to enable deaf people to make interstate calls


[240] 00226inaccessible public transportation; inaccessible restrooms in public buildings


[241] 00227University of California attempted to terminate employees with disabilities for taking medical leave


[242] 00231state agencies failed to provide TDD's


[243] 00232person denied opportunity to serve on jury because county failed to provide interpretive services for deaf people


[244] 00236public school district failed to provide TTD for deaf parents


[245] 00237California Relay Service failed to enable deaf people to make interstate calls


[246] 00240lack of curb cuts; inaccessible public transportation


[247] 00241inaccessible public transportation


[248] 00244inaccessible public transportation


[249] 00245California Civil Service Exam held at high school with inaccessible restrooms


[250] 00246inaccessible restrooms in county administration building; lack of curb cuts


[251] 00247inaccessible public transportation prevented persons with disabilities from getting to work; States failed to enforce laws requiring accessibility


[252] 00248inaccessible public transportation


[253] 00249California Relay Service failed to enable deaf people to make interstate calls


[254] 00250inaccessible public transportation


[255] 00252inaccessible public transportation


[256] 00253inaccessible public transportation


[257] 00254inaccessible county courthouse; street signals too fast for safe crossing by wheelchair


[258] 00255public functions failed to provide interpretive services for deaf people


[259] 00258deaf people denied access to state agencies that lacked TDD's


[260] 00261California Basic Educational Skills Test discriminated against deaf adults who wanted to become teachers of deaf students


[261] 00262department of motor vehicles required doctors to report patients with seizure disorders and revoked such patients' licenses, but did not require reporting of other conditions that could cause erratic driving


[262] COLORADO


[263] Page No.


[264] 00266person in wheelchair passed by five bus drivers, all of whom claimed that lifts were broken


[265] 00267lack of curb cuts and ramps; inaccessible public transportation


[266] 00268inaccessible public transportation


[267] 00269inaccessible public transportation


[268] 00270persons with disabilities placed in segregated public housing


[269] 00271inaccessible public transportation


[270] 00272lack of curb cuts forced person in wheelchair to use street


[271] 00273inaccessible county courthouse


[272] 00274inaccessible public transportation


[273] 00275inaccessible public transportation in small cities; public schools failed to assist students with disabilities


[274] 00276inaccessible public transportation; inaccessible public facilities and recreation sites


[275] 00277political parties held caucuses at inaccessible private home


[276] 00280children with developmental disabilities required to attend segregated schools


[277] 00281public school system refused to transfer student with disabilities from special to regular school until she brought suit


[278] 00283vocational rehabilitation agency refused to take referrals from psychiatric halfway house; person denied driver's license in Virginia because of mental illness


[279] CONNECTICUT


[280] Page No.


[281] 00285public school inaccessible to parent with disability


[282] 00289state university denied renewal of contract for graduate assistantship because of age and disability


[283] DELAWARE


[284] Page No.


[285] 00301inaccessible public high school; inaccessible public transportation


[286] 00302inaccessible public schools; inaccessible public transportation


[287] 00303inaccessible voting machines; inadequate handicapped parking


[288] 00308man with physical disability spent 45 minutes crawling into polling place because it was inaccessible to wheelchairs


[289] 00310inaccessible public transportation; public ceremony held at inaccessible building


[290] 00314failure to enforce laws requiring handicapped parking spaces, which were usually occupied by police cars


[291] 00315high percentage of children with disabilities placed in segregated schools


[292] 00317restrictive zoning limited reintegration of institutionalized people into community


[293] 00319inaccessible voting system


[294] 00323inaccessible public transportation


[295] 00325inaccessible public transportation made person with disability late for work; inaccessible library and other public buildings


[296] 00329State refused to fund services for people with mental illness


[297] 00330state transit system provided special vouchers for persons with physical disabilities, but not for mentally ill


[298] 00331state criminal justice system failed to provide psychiatric treatment


[299] 00333State kept child with schizophrenia in Delaware State Hospital because it lacked services for people who could be released


[300] 00335state labor department's restrictive policies prevented persons with disabilities from applying for employment


[301] 00336failure to enforce laws requiring handicapped parking spaces, which were usually occupied by police cars


[302] 00337public transportation refused to transport person carrying oxygen


[303] 00338staff and patients at Delaware State Hospital sexually abused women patients


[304] 00343inaccessible public transportation


[305] 00345state police interrogated deaf citizens without providing interpretive services


[306] 00347vocational high school sought to transfer student back to special segregated school


[307] GEORGIA


[308] Page No.


[309] 00362public colleges failed to provide assistance for students with learning disabilities


[310] 00365University of Georgia students with disabilities faced architectural barriers, inaccessible public transportation, lack of housing, and failure to enforce handicapped parking laws


[311] 00366inaccessible classrooms at University of Georgia


[312] 00367University of Georgia located its office of handicapped services in inaccessible second floor office


[313] 00370University of Georgia charged students with learning disabilities $600 per quarter for services that other students with disabilities received at no cost


[314] 00371Learning Disability Adult Clinic at University of Georgia charged unreasonable fees


[315] 00372inaccessible public transportation


[316] 00374traffic court failed to provide interpretive services for deaf person


[317] HAWAII


[318] Page No.


[319] 00444inaccessible public transportation


[320] 00446inaccessible public transportation


[321] 00448state university failed to enforce handicapped parking laws


[322] 00451state employee in wheelchair forced to resign job because frequently unable to get to office due to broken elevator in state building; State Commission on the Handicapped refused employee's request for reasonable accommodation


[323] 00452state university failed to provide blind student with timely or adequate books on tape for coursework; lack of signs or information for blind people using public transit


[324] 00455person with disability denied opportunity to testify because department of labor held hearing in an inaccessible room


[325] 00456state employment agency refused to provide interpretive services for deaf people


[326] 00457public school put three-year-old deaf child in same class as fourth graders


[327] 00458quadriplegic person who had California driver's license denied license by Hawaii


[328] 00460state government office refused to interview persons with emotional disorder or history of alcoholism


[329] 00461inaccessible state buildings


[330] 00462person with mobility impairment denied serious consideration for state job due to unreliability of accessible public transportation


[331] 00463inaccessible public transportation prevented person with disability from getting to work; inaccessible public buildings


[332] 00464lack of curb cuts forced person in wheelchair to use street


[333] 00467elevators in public buildings not marked for blind people; bus drivers failed to announce stops for blind people


[334] 00468inaccessible public transportation; bus drivers harassed mentally retarded passengers


[335] 00469inaccessible public transportation


[336] 00472state mental health system had restrictive institutional policies


[337] 00473state social service employees placed limits on opportunities for persons with disabilities based on stereotypical assumptions


[338] 00474lack of curb cuts and ramps


[339] 00475inaccessible public transportation


[340] 00476inaccessible public transportation


[341] 00477inaccessible public library


[342] 00479denial of certain licenses to persons with mental disabilities


[343] 00480inaccessible restroom in state park; lack of curb cuts


[344] 00484state and local government meetings failed to provide interpretive services for deaf people


[345] 00485students with disabilities unable to participate in school interscholastic sports


[346] 00486blind people prevented from traveling outside State because quarantine laws permitted no exemption for their guide dogs


[347] 00487state mental health services unavailable for deaf people due to failure to train staff


[348] 00488inaccessible public transportation; inaccessible city and county buildings


[349] 00490handi-van refused service to person paralyzed from waist down


[350] 00491inaccessible public transportation


[351] 00492state agencies failed to monitor conditions in community residential facilities for persons with disabilities


[352] 00494inaccessible public transportation


[353] 00495inaccessible public transportation


[354] 00496inadequate assistance for deaf person at court appearance


[355] IDAHO


[356] Page No.


[357] 00502inaccessible public transportation


[358] 00505inaccessible public transportation


[359] 00506adult victims of abuse with developmental disabilities denied equal rights to testify in court


[360] 00507inaccessible public recreation activities


[361] 00508inaccessible public transportation


[362] 00509lack of curb cuts


[363] 00510inaccessible public transportation


[364] 00511city and county failed to provide assistance for deaf people at public meetings


[365] 00514inaccessible public transportation


[366] 00515public school failed to provide adequate assistance for students with disabilities


[367] 00516inaccessible public transportation


[368] 00517public defenders' offices and public meetings failed to provide interpretive services for deaf people; police harassed persons with disabilities who appeared to be intoxicated


[369] 00518vocational rehabilitation agency lacked TTY service


[370] 00521government agencies lacked staff to assist people with head injuries


[371] 00522inaccessible public transportation


[372] 00523inaccessible public transportation


[373] 00524inaccessible public transportation; inaccessible public buildings


[374] 00528limited access at new county courthouse, library, and city hall


[375] 00531school district refused to hire licensed teacher because of speech impediment


[376] 00533public school failed to provide assistance for deaf student


[377] 00537public school failed to provide interpretive services for deaf student


[378] 00540Idaho lacked statewide telephone relay service for deaf people


[379] 00541department of employment and department of health and welfare lacked telephone access for deaf people


[380] 00543inaccessible restrooms at public high school; student in wheelchair denied admission to regular classes


[381] ILLINOIS


[382] Page No.


[383] 00546state system for providing ballots to people unable to enter polling place and special bus service caused long wait outside in cold weather


[384] 00548schools that mainstream deaf children refused to hire deaf teacher


[385] 00553government failed to provide interpretive services for deaf people at public hearing on school budget


[386] 00554lack of curb cuts; inaccessible public transportation


[387] 00559department of rehabilitation limited services to persons with disabilities by threatening placement in nursing home


[388] 00569police stations lacked TTY service


[389] 00572deaf people arrested and held in jail overnight without explanation because of failure to provide interpretive services


[390] 00573inaccessible polling place


[391] 00574inaccessible public schools prevented attendance at PTA meetings


[392] 00575inaccessible public transportation


[393] 00576inaccessible public transportation


[394] 00578lack of curb cuts and ramps for wheelchairs


[395] 00579most state housing agencies lacked telecommunications devices or interpretive services for deaf people


[396] 00581state and local government agencies lacked telecommunications devices for deaf people


[397] 00583emergency medical, police, and fire services lacked TDD's or personnel trained to receive TDD calls


[398] 00585inaccessible public pools; inaccessible restrooms in municipal building


[399] 00586inaccessible public transportation


[400] 00587inaccessible polling place


[401] 00588inaccessible polling place


[402] 00589inaccessible public transportation


[403] 00590inaccessible public transportation


[404] 00591inaccessible library


[405] 00592inaccessible voting system


[406] 00594inaccessible polling place


[407] 00595lack of curb cuts


[408] 00596inaccessible public transportation


[409] 00597inaccessible public transportation


[410] 00600inaccessible public transportation


[411] 00603inaccessible public transportation


[412] 00605lack of curb cuts; inaccessible public buildings; inaccessible public transportation; inaccessible polling place


[413] INDIANA


[414] Page No.


[415] 00608state vocational rehabilitation agency refused to help personit classified as severely disabled


[416] 00609for five years, state vocational rehabilitation agency failed to provide assistance


[417] 00612inadequate curb cuts


[418] 00613inaccessible public transportation


[419] 00616inaccessible public transportation


[420] 00618inadequate curb cuts


[421] 00619inaccessible public transportation; inaccessible public facilities


[422] 00621inaccessible public transportation


[423] 00622government agencies failed to provide interpretive services and TTY/TDD's for deaf people


[424] 00629deaf counselors discouraged from applying for jobs as rehabilitation counselors for deaf people


[425] 00637staff at state psychiatric facilities abused and physically dragged patients


[426] 00644person with disability dismissed as director of deaf unit at Central State Hospital


[427] 00651public meetings held at inaccessible locations


[428] 00653inaccessible polling place


[429] 00655state counselors failed to provide rehabilitation assistance to person with head injury


[430] IOWA


[431] Page No.


[432] 00659person dismissed as city bus operator after seeking treatment for mental illness


[433] 00664state commission failed to supply necessary equipment for deaf and blind employee


[434] 00665high school limited opportunities for mentally retarded student to be integrated


[435] KANSAS


[436] Page No.


[437] 00670Kansas Commission of Civil Rights denied legally blind person job as investigator because of limited ability to drive and refused to allow accommodation that would have permitted use of public transportation


[438] 00673police failed to provide interpretive services after arresting deaf man


[439] 00676Kansas Department of Transportation fired person because she had epilepsy


[440] 00679state investigator failed to examine employment discrimination claims


[441] 00685inaccessible public transportation


[442] 00695county failed to assist mentally ill with housing and vocational opportunities


[443] 00696damaged sidewalks and poor street lighting posed risk to persons with disabilities


[444] 00704inaccessible city-owned arena


[445] KENTUCKY


[446] Page No.


[447] 00706bus driver bypassed person standing at stop with guide dog


[448] 00709inaccessible public transportation


[449] 00712department of employment services failed to make reasonable accommodations for persons with disabilities


[450] 00717lack of curb cuts; inaccessible public transportation


[451] 00720inaccessible public transportation


[452] 00723state employment service refused to place person in wheelchair


[453] 00724inaccessible public buildings


[454] 00729public library, police department, and state university library lacked personnel trained to use TTY devices


[455] 00731state university failed to provide assistance to parttime teacher with a disability


[456] 00732State prevented deaf teachers from teaching deaf students by requiring courses such as music education


[457] 00733inaccessible public transportation


[458] 00736inaccessible public transportation


[459] 00740Kentucky School for the Deaf preferred hiring hearing teachers rather than deaf teachers


[460] LOUISIANA


[461] Page No.


[462] 00743inaccessible housing for graduate students at Louisiana State University


[463] 00745inaccessible public transportation


[464] 00748police assumed person with coordination problems was drunk


[465] 00751inaccessible public transportation


[466] 00752vocational rehabilitation program failed to provide services for person with head injury


[467] 00753inaccessible public transportation prevented persons with disabilities from getting to work


[468] 00758inaccessible voting machine


[469] 00759Louisiana Sheriffs Pension and Relief Fund denied membership to person with disability


[470] 00773inaccessible public transportation; lack of curb cuts


[471] 00776inaccessible buildings at Louisiana State University


[472] MAINE


[473] Page No.


[474] 00778inadequate sidewalk ramps; failure to enforce handicapped parking laws


[475] 00780failure to enforce state regulations requiring accessibility in public buildings


[476] 00782town refused request for interpretive services for deaf people at town meeting


[477] MARYLAND


[478] Page No.


[479] 00785public transportation unsafe for persons with disabilities


[480] 00787public libraries, state prison and other state offices lacked TDD's


[481] 00788department of human relations failed to provide interpretive services for deaf people and did not answer TTY calls


[482] 00789vocational rehabilitation counselors failed to help deaf people find jobs


[483] 00797inaccessible public transportation


[484] 00798state hospital refused to provide interpretive services for deaf people


[485] MASSACHUSETTS


[486] Page No.


[487] 00808Office for Children refused to license blind person as day care assistant


[488] 00812inaccessible courthouse


[489] 00813inaccessible restrooms in state building and state armory


[490] 00816state college threatened to terminate employee because of blindness


[491] 00829Massachusetts Adoption Exchange refused to let family with mother who had muscular dystrophy adopt child


[492] 00835department of vocational rehabilitation hired able-bodied person instead of qualified person in wheelchair


[493] MICHIGAN


[494] Page No.


[495] 00920person denied admission to University of Michigan Medical School because of speech impediment


[496] 00921inaccessible state university campuses


[497] 0092265 percent of voting precincts in Detroit inaccessible


[498] 00923buses with lifts often failed to stop for people in wheelchairs or their lifts did not work


[499] 00924state employee threatened with discipline for serving on and attending meetings of Equal Employment Opportunity Commission advisory committee


[500] 00925state university stadium lacked accessible restrooms, water fountains, and telephones


[501] 00926inaccessible public transportation


[502] 00928school system failed to hire teachers who could communicate with deaf students


[503] 00932state university denied interpretive services to part-time deaf student


[504] 00933public transportation refused to serve persons in wheelchairs; public agency refused to provide interpretive services for deaf people


[505] 00939state university had transportation system for students with disabilities but not for faculty and staff


[506] 00947state university lacked adequate curb ramps


[507] 00950state denied driver's license to person with epilepsy


[508] 00958inaccessible public recreation facilities


[509] 00960inaccessible government buildings


[510] 00961state university denied sabbatical proposal of faculty member with disability


[511] 00963Michigan Rehabilitation Services placed people in inappropriate positions


[512] 00964Michigan Rehabilitation Services failed to accommodate mentally ill persons


[513] 00968inaccessible public transportation


[514] 00969man with disability forced to use girls' restroom at state job


[515] 00970person with disability terminated from county job and banned from future county employment


[516] MINNESOTA


[517] Page No.


[518] 00974person with disability and score of 100 was finalist for job as director of agency for the blind, but able-bodied person with score of 70 was hired


[519] 00980person with cerebral palsy humiliated at interview for job with state department of education


[520] MISSISSIPPI


[521] Page No.


[522] 00853inaccessible public transportation


[523] 00855inaccessible beaches, pools, and parks


[524] 00984inaccessible classrooms and library at Mississippi School for the Deaf


[525] 00985no state agency to provide or coordinate community service programs for deaf adults


[526] 00986inaccessible classrooms at Mississippi School for the Deaf


[527] 00987public programs failed to provide interpretive services for deaf people; government failed to post caution signs warning drivers of deaf children


[528] 00988inaccessible polling places and voting booths


[529] 00989inaccessible public buildings


[530] 00990courts refused to pay for qualified interpretive services for deaf people


[531] 00992inaccessible state university building


[532] 00993teacher denied position at public elementary school because of need for braces and a cane to walk


[533] 00994lack of curb cuts; inaccessible public school rooms; inaccessible public transportation


[534] 00996inaccessible department of motor vehicles


[535] 00997inaccessible public transportation; inaccessible public facilities


[536] 00998inaccessible courthouses


[537] 00999state university instructor refused to teach blind person


[538] 01000inaccessible public transportation


[539] 01001inaccessible polling place; city employee required to go outside to get to restroom


[540] MISSOURI


[541] Page No.


[542] 01003lack of curb cuts


[543] 01004inaccessible restrooms in public buildings; lack of curb cuts


[544] 01006public schools segregated children with disabilities; inaccessible school buildings


[545] 01009inaccessible public transportation and public buildings such as post offices, libraries, schools, and polling places


[546] 01010state university tried to discourage blind person's chosen field of study


[547] 01013inaccessible public transportation


[548] 01015courthouse failed to provide amplified sound system in courtrooms


[549] MONTANA


[550] Page No.


[551] 01017inadequate curb cuts


[552] 01022inadequate curb cuts in downtown area


[553] 01023state agencies refused to make reasonable accommodations to paraplegics seeking employment


[554] 01024inaccessible polling place


[555] 01026person in wheelchair forced to vote in street


[556] 01027inaccessible polling place


[557] NEBRASKA


[558] Page No.


[559] 01029government failed to provide interpretive services for deaf people serving on juries, commissions, and committees


[560] 01031local school district failed to provide interpretive services for deaf child


[561] 01034inaccessible entrance at office of county assistance


[562] NEVADA


[563] Page No.


[564] 01038local government failed to provide assistance for people with head injuries


[565] 01043inaccessible government buildings and public facilities


[566] 01044person with disability denied access to public transportation because it took too long to get on and off bus


[567] 01046community college refused to provide interpretive services for deaf people


[568] 01050city ordinance prevented mentally ill from living in residential areas


[569] 01051inaccessible public transportation; inadequate curb cuts and ramps


[570] 01053failure to enforce handicapped parking laws


[571] 01054lack of sidewalk and crosswalk accommodations for persons inwheelchairs


[572] NEW HAMPSHIRE


[573] Page No.


[574] 01057state agency failed to assist persons with head injuries despite availability of state surplus funds


[575] 01061vocational rehabilitation counselor tried to cut off funds and assistance to person with disability


[576] NEW JERSEY


[577] Page No.


[578] 01067commission for the blind and visually impaired demoted visually impaired person


[579] 01068zoning commission denied permission to open home for persons with head injuries


[580] 01069architectural barriers on Cumberland County College campus


[581] 01072inadequate curb cuts


[582] NEW MEXICO


[583] Page No.


[584] 01080state university denied entry into school of social work to blind person but admitted partially sighted person with lower grades


[585] 01083New Mexico lacked statewide TDD relay service


[586] 01091prisoners with developmental disabilities subjected to longer terms and abused by other prisoners in state correctional system


[587] 01092inaccessible public transportation


[588] 01095University of New Mexico failed to provide assistance for blind student


[589] 01097city and county government offices lacked TDD's


[590] 01098University of New Mexico hospital failed to provide interpretive services for deaf patients


[591] 01099University of New Mexico failed to provide interpretive services for deaf students


[592] 01100inaccessible buildings on University of New Mexico campus


[593] NEW YORK


[594] Page No.


[595] 01109state agencies failed to hire persons with disabilities


[596] 01114custodian in public high school denied request of person with disability to use locked elevator


[597] 01119at state legislature, person in wheelchair had to wait 45 minutes to use freight elevator


[598] 01129public village meetings held in second floor meeting room with no elevator; many polling places inaccessible


[599] 01130lack of curb cuts; failure to enforce handicapped parking laws


[600] 01134inaccessible state parks and public beaches


[601] NORTH CAROLINA


[602] Page No.


[603] 01144public elementary school initially denied admission and then charged extra fee for child with Down's Syndrome to attend afterschool day care program


[604] 01155blind people told not to participate in regular public parks and recreation programs


[605] 01158state agencies, other than services for the blind and vocational rehabilitation, employed few persons with disabilities


[606] 01161police arrested and jailed deaf person without providing interpretive services


[607] NORTH DAKOTA


[608] Page No.


[609] 01170person with disability denied access to driver's license exam because held in inaccessible room


[610] 01172inaccessible polling places


[611] 01175lack of curb cuts; failure to enforce handicapped parking laws; inaccessible polling places; inaccessible city government meetings


[612] 01178failure to enforce handicapped parking laws


[613] 01183inaccessible polling places; inaccessible state and local government buildings


[614] 01185government agencies failed to enforce policies regarding hiring persons with disabilities; inaccessible polling places; inaccessible public buildings


[615] 01186state and local government failed to hire persons with disabilities; inaccessible polling places


[616] 01187failure to enforce handicapped parking laws


[617] 01196person with head-injury disability denied consideration for position of election polls inspector


[618] OHIO


[619] Page No.


[620] 01215city failed to trim trees regularly, which posed a hazard to blind people


[621] 01216inaccessible state, county, and city buildings


[622] 01218inaccessible social service agency offices; inaccessible public transportation


[623] 01221vocational rehabilitation agency denied assistance to person with disability


[624] 01224rehabilitation services agency failed to assist paranoid schizophrenic


[625] 01229vocational rehabilitation agency discouraged person with disability from being a nurse


[626] 01230persons with disabilities denied jobs because of inaccessible public transportation


[627] 01231blind person denied driver's license though legally eligible


[628] 01234inaccessible public transportation; lack of curb cuts


[629] 01235public paratransit system often left passengers stranded


[630] 01236vocational rehabilitation agency steered person with mental disability to menial job, despite his Ph. D. degree


[631] 01239police failed to provide interpretive services for deaf person who was arrested


[632] 01241Cleveland State University lacked wheelchair ramps


[633] 01242inaccessible public transportation


[634] OKLAHOMA


[635] Page No.


[636] 01251Tulsa Housing Authority failed to communicate with and provide information to tenants with disabilities


[637] 01258state employment office lacked TDD or workers with interpretive skills; state university paid deaf employees less than hearing employees; state agencies made no effort to hire deaf applicants


[638] 01265police officer pointed gun at person with disability who could not get out of car quickly


[639] 01266inaccessible public transportation


[640] 01269person with speech impediment denied numerous state jobs


[641] 01271inaccessible restrooms at city parks


[642] 01275state government held meeting at hotel with inaccessible restrooms


[643] 01278person in wheelchair worked at polling place with inaccessible restrooms


[644] 01280inaccessible polling places


[645] 01286qualified blind person who offered to provide own driver denied job as state social worker


[646] OREGON


[647] Page No.


[648] 01370blind people unable to access printed material from state government


[649] 01375school system barred child with cerebral palsy from physical education class and gave her cleaning job instead


[650] 01377person with two college degrees and extensive professional experience turned down for appropriate state government jobs and advised to seek entry-level jobs because of his disability


[651] 01378commission for the handicapped lacked funds to enforce laws


[652] PENNSYLVANIA


[653] Page No.


[654] 01391public library had restrictive policy regarding issuance of library cards to residents of group homes


[655] 01397government failed to provide interpretive services for deaf people at school budget hearing


[656] 01399inaccessible public transportation


[657] 01407inaccessible polling places


[658] 01408inaccessible public transportation


[659] 01409inaccessible polling places


[660] 01410inaccessible polling place


[661] 01413inaccessible public transportation; lack of curb cuts


[662] 01421inaccessible public library


[663] 01423inaccessible automatic ticket dispensers on Pennsylvania Turnpike


[664] 01425bus drivers refused to transport person in wheelchair


[665] 01427inaccessible county offices


[666] 01429lack of curb cuts


[667] 01430GED programs offered at inaccessible public schools; bus drivers unwilling or unable to use wheelchair lifts


[668] 01432child unable to enroll in first grade because of inaccessible classroom


[669] 01434lack of curb cuts; inaccessible public transportation


[670] 01435lack of curb cuts in rural areas


[671] 01436inaccessible polling place


[672] 01439unsafe curb cuts


[673] 01441inaccessible state office building


[674] SOUTH CAROLINA


[675] Page No.


[676] 01454government failed to provide 911 emergency service for deaf people


[677] 01457state and local agencies, library, and police and fire departments lacked TDD's; government failed to provide interpretive services for deaf people at meetings


[678] SOUTH DAKOTA


[679] Page No.


[680] 01466school district failed to provide adequate services to child with disability


[681] 01467traffic light and fire hydrant placed where they posed obstacle to blind pedestrians and those in wheelchairs who needed to use curb cuts


[682] 01469inaccessible polling places


[683] 01470inaccessible public transportation


[684] 01472State failed to hire persons with disabilities without giving a reason


[685] 01475criminal court failed to provide interpretive services for deaf people


[686] 01476state university denied blind student opportunity to practice teach as required for teaching certificate


[687] TEXAS


[688] Page No.


[689] 01483poles obstructed sidewalks; lack of curb cuts; inaccessible public transportation


[690] 01503state teachers' exam required deaf teachers who wanted to teach deaf children to pass section on speech assessment and listening


[691] 01514medical examination required for renewal of driver's license despite unblemished 20-year driving record


[692] 01520inadequate handicapped parking spaces


[693] 01521state vocational rehabilitation agency refused to assist college student who chose to major in political science


[694] 01522employee of county human services agency denied handicapped parking place


[695] 01526failure to enforce handicapped parking laws


[696] 01527inaccessible state university transportation system


[697] 01529denial of driver's licenses or accommodations to take driver's test


[698] 01531inaccessible buildings at state university


[699] 01536state hospital sought to discharge mentally ill boy with HIV


[700] 01540special transit system refused to transport man with mental retardation though he could not use regular bus


[701] 01542deaf man not permitted to take state cosmetology exam with assistance from interpreter


[702] 01543blind man not permitted to take state chiropractic exam because he could not read x-rays alone


[703] 01549deaf instructors unable to pass state teachers' exam for teachers of deaf students that assessed speech and language skills


[704] 01551inadequate handicapped parking and enforcement


[705] UTAH


[706] Page No.


[707] 01554state rehabilitation service had never hired deaf counselor or administrator


[708] 01556child denied admission to public school because first-grade teacher refused to teach him


[709] 01563public school failed to implement state review panel findings regarding accommodation for child with disability


[710] 01576state office for persons with disabilities failed to hire such persons; inaccessible public transportation


[711] 01577state government denied persons with disabilities upper level management jobs


[712] 01580rehabilitation services agency discriminated against employee with reading disability


[713] 01581qualified blind teacher denied job and told that school needed teacher who could also coach football, but school hired sighted person who wasnot a coach


[714] 01584inaccessible public transportation


[715] 01586inaccessible government office


[716] 01587public school teacher refused to give child with learning disability his grades and said he did not belong in public school


[717] 01592Utah denied mainstream education to child with Down's Syndrome, though child had been mainstreamed in another State


[718] 01595person with disability involuntarily hospitalized and abused by state university hospital


[719] 01613inaccessible public high school facilities


[720] VERMONT


[721] Page No.


[722] 01634zoning board denied use permit for community mental health center


[723] VIRGINIA


[724] Page No.


[725] 01642student with learning disability misclassified as mentally retarded and deemed ineligible to take drama class at public school


[726] 01646inaccessible buildings at state school for blind and deaf youth


[727] 01647failure to enforce handicapped parking laws


[728] 01654inaccessible restrooms in government buildings; failure to enforce handicapped parking laws


[729] 01656state programs for persons with disabilities failed to communicate with deaf people


[730] 01660lack of state institutional care to rehabilitate people with head injuries


[731] 01663inaccessible traffic court


[732] 01664inaccessible public transportation


[733] 01667lack of curb cuts


[734] 01668inaccessible public transportation prevented persons with disabilities from voting


[735] 01671state and local government failed to provide interpretive services for deaf people at meetings


[736] 01674lack of curb cuts outside county courthouse


[737] 01675deaf people denied access to 911 emergency services


[738] 01676inaccessible courthouse


[739] 01677inaccessible public transportation


[740] 01678lack of curb cuts and ramp for access to courthouse


[741] 01679inaccessible county courthouse


[742] 01680inaccessible courthouse and library


[743] 01682inaccessible high school


[744] 01683lack of curb cuts at city's main intersection


[745] 01684person in wheelchair received ticket for obstructing street traffic even though sidewalks not accessible


[746] 01686inaccessible transportation on state university campus


[747] WASHINGTON


[748] Page No.


[749] 01690deaf people required to pay for interpretive services in court


[750] 01692state government's lack of TDD deterred deaf people from applying for employment


[751] 01694government office lacked TDD and interpretive services for deaf people


[752] 01696state human rights commission lacked staff to pursue case of discrimination against blind person


[753] 01706community college failed to provide interpretive services for deaf students or to assist students with disabilities in other ways


[754] 01716local sheriff 's department discontinued TDD


[755] 01717inaccessible restroom at state ferry terminal


[756] WEST VIRGINIA


[757] Page No.


[758] 01742inaccessible public transportation


[759] 01745sheriff denied person with disability use of elevator in courthouse


[760] 01746law enforcement agencies lacked ability to communicate with deaf people


[761] WISCONSIN


[762] Page No.


[763] 01752public school recreation program refused to provide interpretive services for deaf child


[764] 01755state university hospital and sheriff 's office failed to provide TDD's or trained personnel


[765] 01756inaccessible polling places


[766] 01767person with disabilities denied admission to graduate study at state university


[767] 01758inaccessible city hall


[768] 01759state offices lacked TDD's and failed to provide material in braille or on tape


[769] 01760department of motor vehicles revoked person with diabetes' driver's license despite doctor's report


[770] 01761inaccessible public transportation; lack of curb cuts or ramps


[771] 01766department of motor vehicles tried to revoke license of person who used hand controls in car


[772] 01767inaccessible polling places


[773] 01771blind and deaf people denied equal access to jury service


[774] WYOMING


[775] Page No.


[776] 01773State lacked telephone relay system for deaf people


[777] 01775inaccessible state buildings


[778] 01777department of motor vehicles denied driver's license to person with epilepsy


[779] 01780inaccessible buildings at state university


[780] 01781zoning board denied permit for group home for persons with disabilities


[781] 01786person in wheelchair denied marriage license because courthouse was inaccessible



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[782] *fn1 Respondents' complaints in the United States District Court alleged violations of both Title I and Title II of the ADA, and petitioners' "Question Presented" can be read to apply to both sections. See Brief for Petitioners i; Brief for United States I. Though the briefs of the parties discuss both sections in their constitutional arguments, no party has briefed the question whether Title II of the ADA, dealing with the "services, programs, or activities of a public entity," 42 U. S. C. §12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e.g., Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion") (internal quotation marks omitted). The Courts of Appeals are divided on this issue, compare Zimmerman v. Oregon Dept. of Justice, 170 F. 3d 1169 (CA9 1999), with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F. 3d 816 (CA11 1998). We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under §5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question. To the extent the Court granted certiorari on the question whether respondents may sue their state employers for damages under Title II of the ADA, see this Court's Rule 24.1(a), that portion of the writ is dismissed as improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).


[783] *fn2 Garrett raised other claims, but those are not presently before the Court.


[784] *fn3 It is clear that Congress intended to invoke §5 as one of its bases for enacting the ADA. See 42 U. S. C. §12101(b)(4).


[785] *fn4 Applying the basic principles of rationality review, Cleburne struck down the city ordinance in question. 473 U. S., at 447-450. The Court's reasoning was that the city's purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects. Although the group home for the mentally retarded was required to obtain a special use permit, apartment houses, other multiple-family dwellings, retirement homes, nursing homes, sanitariums, hospitals, boarding houses, fraternity and sorority houses, and dormitories were not subject to the ordinance. See ibid.


[786] *fn5 It is worth noting that by the time that Congress enacted the ADA in 1990, every State in the Union had enacted such measures. At least one Member of Congress remarked that "this is probably one of the few times where the States are so far out in front of the Federal Government, it's not funny." Hearing on Discrimination Against Cancer Victims and the Handicapped before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, 100th Cong., 1st Sess., 5 (1987). A number of these provisions, however, did not go as far as the ADA did in requiring accommodation.


[787] *fn6 The record does show that some States, adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell, 274 U. S. 200 (1927). But there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.


[788] *fn7 Only a small fraction of the anecdotes Justice Breyer identifies in his Appendix C relate to state discrimination against the disabled in employment. At most, somewhere around 50 of these allegations describe conduct that could conceivably amount to constitutional violations by the States, and most of them are so general and brief that no firm conclusion can be drawn. The overwhelming majority of these accounts 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.


[789] *fn8 Section 2 of the Fifteenth Amendment is virtually identical to §5 of the Fourteenth Amendment.


[790] *fn9 Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U. S. 123 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. See n. 5, supra.

ROBERT BANE, Plaintiff, v. VIRGINIA DEPT. OF CORRECTIONS, Defendant.



Civil Action No. 7:00cv00052



UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, ROANOKE DIVISION



110 F. Supp. 2d 469; 2000 U.S. Dist. LEXIS 12223



August 14, 2000, Decided







PRIOR HISTORY: Bane v. Va. Dep't of Corr., 2000 U.S. Dist. LEXIS 22433 (W.D. Va., Apr. 19, 2000)



DISPOSITION: [**1] Defendant's motions to dismiss pursuant to 12(b)(1) granted.









COUNSEL: ROBERT ALLEN BANE, plaintiff, Pro se, Big Stone Gap, VA.


For VA DEPARTMENT OF CORRECTIONS, defendant: Pamela Anne Sargent, OFFICE OF THE ATTORNEY GENERAL, RICHMOND, VA.



JUDGES: By: Hon. James C. Turk, United States District Judge.



OPINIONBY: James C. Turk



OPINION: [*470]

Memorandum Opinion

By: Hon. James C. Turk

United States District Judge

This matter is before the Court on defendant, Virginia Department of Corrections' ("VDOC") motion to dismiss and supplemental motion to dismiss. Plaintiff Robert Bane ("Bane"), proceeding pro se, filed this suit against VDOC alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § § 12131-12165. n1 Plaintiff responded to defendant's motions to dismiss. Upon consideration of the record, briefs submitted by both sides, and the applicable law, the Court will grant defendant's motions to dismiss.



n1 Plaintiff's complaint did not explicitly allege an action under 42 U.S.C. § 1983, however VDOC, in its first motion to dismiss, identifies Plaintiff's causes of actions as arising under the ADA and § 1983. VDOC, as an agency of the state, is an improper defendant in a § 1983 action. Will v. Michigan Dep't of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) (The Commonwealth, like any state, is not a "person" within the meaning of § 1983). Therefore, to the extent that Plaintiff's claim can be construed as a § 1983 action, it is dismissed for failure to state a claim.


[**2]

I.

Bane is a Virginia prisoner currently incarcerated at Wallens Ridge State Prison in Big Stone Gap, Virginia. Bane suffers from a variety of ailments including nerve damage and scar tissue in his right leg and shoulder and mental illness. Bane alleges that due to the physical injury to his leg and shoulder, he is, inter alia, unable to comply with the prison's shackling policy and needs a shower chair to safely shower. Bane also has requested a single cell at the prison because of his history of mental illness. The prison administration has refused to grant any of Bane's requests on the grounds that do to so would pose a security risk or the request is not medically indicated. Bane alleges this failure by the prison to accommodate his physical and mental disabilities is in violation of the ADA.

VDOC has moved to dismiss Bane's complaint for lack of jurisdiction on two related grounds: (1) Virginia is immune from this suit under the Eleventh Amendment; and (2) Congress exceeded its Fourteen Amendment § 5 powers when it attempted to abrogate the States' immunity in enacting the ADA. Bane has responded to the motions to dismiss and the case is now ripe for disposition. Appropriate [**3] notice pursuant to Federal Rule of Civil Procedure 24(c) of VDOC's constitutional challenge to the ADA was given to the United States Attorney General on April 28, 2000.

II.

The government has moved to dismiss this action for lack of subject matter jurisdiction. When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the court should consider "whether plaintiff'[s] allegations, standing alone and taken as true pleaded jurisdiction and a meritorious cause of action." Dickey v. Greene, 729 F.2d 957, 958 (4th Cir. 1984). Once subject matter jurisdiction is challenged, the burden of establishing [*471] its existence always rests upon the party asserting jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. (RF & P R.R.) v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 984, 118 L. Ed. 2d 388, 112 S. Ct. 1667 (1992). The court should regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id. (citing Adams v. Bain, 697 F.2d 1213, 1216 (4th Cir. 1982)). [**4] In a Rule 12(b)(1) case, the court must give the plaintiff the same procedural protections provided under Rule 12(b)(6); thus, all the facts alleged in the complaint are assumed true and all factual inferences are drawn in the plaintiff's favor. Adams, 697 F.2d at 1219.

III.

The Eleventh Amendment to the United States Constitution provides that:


The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State.

This amendment provides immunity to a State "from suits brought in federal courts by her own citizens as well as by citizens of another state." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984). State agencies, as arms of the state, are also entitled to assert immunity under the Eleventh Amendment. Id.

There are two ways a state may be divested of its Eleventh Amendment immunity: (1) waiver of that immunity; and (2) abrogation of that immunity by Congress through a statutory enactment. Litman v. George Mason University, 186 F.3d 544, 550 (4th Cir. 1999), [**5] cert. denied, 145 L. Ed. 2d 1120, 120 S. Ct. 1220 (2000). Because VDOC has not waived its sovereign immunity in this case, the question before this Court is whether Congress properly abrogated the States' immunity to claims brought pursuant to the ADA. n2



n2 Bane relies principally on the Fourth Circuit's panel opinion in Amos II to support his position that the States' Eleventh Amendment immunity was properly abrogated with respect to Title II of the ADA. Amos v. Md. Dept. of Pub. Safety, 178 F.3d 212 (4th Cir. 1999). However, in that case, a rehearing was granting en banc and the judgment was vacated on December 28, 1999. No rehearing was subsequently held because the parties reached a settlement. See Amos v. Md. Dept of Pub. Safety, 205 F.3d 687 (4th Cir. 2000). Therefore, Amos is not controlling precedent in this Circuit.


Congress' power to abrogate a state's immunity is derived from its enforcement powers under Section 5 of the Fourteenth Amendment. [**6] See Seminole Tribe of Fl. v. Florida, 517 U.S. 44, 65-66, 116 S. Ct. 1114, 1128-29, 134 L. Ed. 2d 252 (1996) (holding inter alia that Congress lacks authority to abrogate state sovereign immunity pursuant to the Commerce Clause and affirming Congress' power to do so under the Fourteenth Amendment). Congress explicitly relied on its Fourteenth Amendment enforcement power in enacting the ADA. See 42 U.S.C. § 12101(b)(4) (stating that "it is the purpose of this chapter . . . to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by peoples with disabilities."). The Fourteenth Amendment provides, in relevant part,


Section 1. . . .No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Section 5. Congress shall have power to enforce, by appropriate [**7] legislation, the provisions of this article.

[*472]

However, Congress is not unlimited in its power to abrogate state immunity. The Supreme Court in Seminole Tribe articulated a two part test to determine the validity of Congress' abrogation of a state's immunity from suit. First, it must be determined "whether Congress has unequivocally expressed its intent to abrogate the immunity." Seminole Tribe, 517 U.S. at 55 (citation omitted).

Second, a court must determine "whether Congress has acted pursuant to a valid exercise of power." Id.

Here, the first prong of the test is easily addressed. Section 12202 of the ADA states, "[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." Clearly, Congress has expressed its intent to abrogate the State's immunity under the ADA.

Determining whether Congress acted pursuant to a valid exercise of power is a tougher proposition. Because Congress' power to abrogate the States' immunity lies only in § 5 of the Fourteenth Amendment, Congress is constrained by the language of that [**8] section. The Supreme Court has held that,


Congress' power under § 5 . . .extends only to 'enforcing' the provisions of the Fourteenth Amendment. The Court has described this power as 'remedial.' The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States . . . Congress does not enforce a constitutional right by changing what the right is.

City of Boerne v. Flores, 521 U.S. 507, 519, 117 S. Ct. 2157, 2164, 138 L. Ed. 2d 624 (1997) (citation omitted).

"In other words, Congress has the power to remedy violations of constitutional rights, not [the power] to define the substance of those rights." Brown v. N.C. Div. of Motor Vehicles, 166 F.3d 698, 705 (4th Cir. 1999). However, determining whether Congress has exceeded its enforcement powers and has substantially defined a constitutional right by enacting the ADA has proven to be a difficult task. Compare Muller v. Costello, 187 F.3d 298 (2nd Cir. 1999); Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999); Garrett v. University of Ala. at Birmingham Bd. of Trustees, 193 F.3d 1214 (11th Cir. 1999), [**9] cert. granted, 120 S. Ct. 1669 (2000); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998), cert. denied, 525 U.S. 819, 119 S. Ct. 58, 142 L. Ed. 2d 45 (1998); Clark v. California, 123 F.3d 1267 (9th Cir. 1997), with Erickson v. Bd. Of Govs., 207 F.3d 945 (7th Cir. 2000), petition for cert. filed, (U.S. June 26, 2000) (No. 99-2077); Brown v. N.C. Div. Of Motor Vehicles, 166 F.3d 698 (4th Cir. 1999); and Alsbrook v. Maumelle, 184 F.3d 999 (8th Cir. 1999). However, it is generally agreed that the "congruence and proportionality" standard articulated by the Supreme Court in Boerne is the bedrock upon which the § 5 powers analysis depends. In Boerne, the Court stated, "there must be a congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect." Boerne, 521 U.S. at 520. "If the [legislation] at issue exceeds [Congress'] Section 5 powers, 'it is without jurisdictional effect and cannot [**10] constitutionally abrogate immunity.'" Alsbrook, 184 F.3d at 1006 (1999) (quoting Brown, 166 F.3d at 703).

In Boerne, the Supreme Court applied the "congruence and proportionality" test to the Religious Freedom Restoration Act of 1993 (RFRA) and determined RFRA was not a valid enactment by Congress under its § 5 powers. The Court first considered the legislation's congruence [*473] with the constitutional violations it was drafted to prohibit. In doing so, the Court reviewed the factual findings made by Congress in support of RFRA's passage and noted that the record was devoid of references to the type of conduct RFRA was designed to remedy or prevent. Because of this lack of documentation, the Court concluded that RFRA had not been designed to address unconstitutional conduct and could not be considered a remedial or preventive statute, "if those terms are to have any meaning." Boerne, 521 U.S. at 532.

The Court next considered the "proportionality" of RFRA in light of the constitutional injury it was designed to remedy. The Court noted that "sweeping coverage ensures [RFRA's] intrusion at every level of government, displacing laws [**11] and prohibiting official actions of almost every description and regardless of subject matter." Id. The Court found that the Act was "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. Id. The Court also rejected RFRA because the Act could not be understood as enforcing the provisions of Fourteenth Amendment. The Court concluded that RFRA attempted to expand the substantive meaning of the Fourteenth Amendment by requiring more stringent judicial scrutiny of laws burdening free exercise of religion in contradiction to the standard previously articulated by the Court in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). 521 U.S. at 536.

In its most recent consideration of the scope of Congress' § 5 powers, the Supreme Court applied the "congruence and proportionality" standard articulated in Boerne to the Age Discrimination in Employment Act (ADEA) and concluded that Congress again had exceeded its § 5 powers. See Kimel v. Fl. Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000). [**12] The Court first considered the proportionality of the ADEA in light of any unconstitutional conduct the statute was designed to address. Second, the Court reviewed the legislative record of the statute to see if it reflected either: (1) a pattern of age discrimination by state actors; or (2) any unconstitutional age discrimination. 120 S. Ct. at 649. The Court found that the ADEA was a significantly disproportionate remedy to the problem of unconstitutional age discrimination. The Court noted that discrimination based on age was subject only to rational basis review and that most discrimination based on age would be found constitutional under this low standard. The Court concluded that the ADEA targeted "very little conduct likely to be held unconstitutional." Id. at 648. With regard to the legislative record, the Court found the record did not reflect any unconstitutional discrimination by the states, and clearly was deficient of a pattern of age discrimination committed by the states. In conclusion, the Court stated, "the indiscriminate scope of the Act's substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States" rendered [**13] the ADEA an invalid exercise of Congress' § 5 powers. Id. at 650.

The Fourth Circuit also has had an opportunity to issue an opinion regarding the appropriateness of legislation enacted pursuant to Congress' § 5 powers. Last year, the Court determined that a regulation promulgated under the ADA was not adopted pursuant to a valid exercise of Congress' § 5 power. See Brown, 166 F.3d at 698. In Brown, the plaintiffs were purchasers of North Carolina handicapped parking permits, who challenged North Carolina's attempt to charge a fee for the permits. Plaintiffs claimed the fee violated a regulation promulgated under the ADA which prohibited public entities from charging fees for programs implemented by the entity to comply with the ADA. The Court began its analysis by finding that physical disability was not a suspect class [*474] and that the "constitutionality of state laws affecting the disabled must thus be measured by rational basis review." Brown, 166 F.3d at 706. Continuing, the Court found that only arbitrary state action or state action motivated by animus would fail the rational basis test. The Court found that the legislative record supporting [**14] the ADA and the regulation at issue contained only generalized findings of discrimination and failed to indicate the ADA or the regulation were designed to target unconstitutional state action. The Court concluded that the fee charged by North Carolina was constitutional under rational basis review and that the regulation forbidding it could not be considered as remedying a constitutional violation. The Court also addressed the potential prophylactic aspect of the regulation and concluded because the scope and duration of the regulation was so broad, it was out of proportion to its supposed remedial or preventive objective as to be beyond Congress' § 5 powers. Id. at 707.

The analysis employed by the Supreme Court in Boerne and Kimel and the Fourth Circuit's directive in Brown, compels this Court's conclusion that Title II of the ADA is not appropriate legislation under Congress' § 5 powers and that Congress' attempt to abrogate States' immunity must fail. With an eye toward brevity and a desire to avoid repeating what has been said most competently by other courts on this topic, what follows is a truncated analysis from this Court's perspective.

In [**15] determining whether Title II of the ADA is a valid exercise of Congress' § 5 power, this Court must determine whether the ADA is a "congruent and proportional" legislative reaction to violations of the Fourteenth Amendment rights enjoyed by persons with disabilities. In doing so, I will rely on the Supreme Court's recent clarification of the "congruence and proportionality" test originally set forth in Boerne. See Florida Prepaid PostSecondary v. College Sav., 527 U.S. 627, 119 S. Ct. 2199, 144 L. Ed. 2d 575 (1999). "Congruence" requires an identification of the "'evil' or 'wrong' that Congress intended to remedy, guided by the principle that the propriety of any § 5 legislation 'must be judged with reference to the historical experience . . . it reflects." 119 S. Ct. at 2207 (quoting Boerne, 521 U.S. at 525). "Proportionality" considers whether the provisions of the statute are proportional to their remedial or preventive object. Boerne, 521 U.S. at 532.

In enacting the ADA, the evil Congress sought to target was discrimination against persons with physical and mental disabilities. See 42 U.S.C. § 12101(a)(7) (finding that [**16] disabled individuals are a "discrete and insular minority who have been . . . subjected to a history of purposeful unequal treatment . . . based on characteristics that are beyond the control of such individuals."). In order for Congress to validly enact legislation to remedy this history of inequality, the discrimination must "give rise to the Fourteenth Amendment violation that Congress sought to redress in the [ADA]." Florida Prepaid, 119 S. Ct. at 2207. In other words, there must be a connection between the constitutional injury complained of and the statute designed to address it.

The Supreme Court in Boerne remained unconvinced that there was such a connection between RFRA and the unconstitutional religious discrimination it was designed to remedy. Boerne, 521 U.S. at 531. The Court found that RFRA's legislative record lacked much evidence of recent examples of the type of unconstitutional conduct the Act was drafted to prohibit, suggesting that such discrimination was not such a widespread problem as to warrant federal legislation. In light of this meager record, the Court concluded the argument that RFRA was necessary legislation to remedy [**17] widespread unconstitutional religious discrimination lacked merit. Id. [*475]

A review of the legislative record makes clear that the ADA, like RFRA, is not particularly closely connected to the unconstitutional discrimination it was designed to remedy.

In support of the ADA's passage, Congress made extensive and detailed findings of past discrimination against persons with physical and mental disabilities. These findings have been recounted at length in various other cases that have considered this issue. See e.g. Coolbaugh, 136 F.3d at 435; Martin, 190 F.3d at 1127 n. 6. However, the factual findings underlying the ADA do not specify the type of discrimination persons with disabilities have suffered; rational discrimination which would be constitutional under Cleburne or unconstitutional irrational discrimination. "Instead, Congress used the word 'discrimination' in § 12101, and Committees in Congress used that word in the legislative history, to refer to any disadvantage that accompanies a disability." Erickson, 207 F.3d at 951. As such, the record does not support the position that the ADA was solely enacted to remedy violations [**18] of constitutional rights of disabled persons. The record is also deficient in instances of unconstitutional state discrimination against the disabled. There is no finding that states, prior to the ADA, engaged in widespread arbitrary or intentional discrimination against the disabled. It therefore cannot be said that Congress was primarily concerned with prohibiting unconstitutional discrimination on the basis of disability when it enacted the ADA or that the ADA has particular congruence with the unconstitutional conduct it was designed to prohibit.

The second prong of the inquiry focuses on the proportionality of the statute in light of its stated preventive or remedial goal. It is worth noting here that Congress, pursuant to its § 5 powers, is limited to enforcing the provisions of the Fourteenth Amendment.

The constitutional rights of the disabled under the Equal Protection Clause were defined by the Supreme Court in City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). In that case, the Court held that state action involving persons with mental disabilities was subject only to rational basis review. Id. at 446. [**19] Subsequent cases have held that the standard established in Cleburne is applicable to all state action involving persons with both mental and physical disabilities. See Brown, 166 F.3d at 706 (citing Coolbaugh, 136 F.3d at 433 n.1; Clark, 123 F.3d at 1270). Under this standard, state action involving persons with disabilities will only be held violative of the Equal Protection Clause "if it is [not] rationally related to a legitimate state interest." Cleburne, 473 U.S. at 446. The result of this lower standard of review is that the right of persons with disabilities guaranteed under the Equal Protection Clause is simply the right to be free of government action which is not rationally related to any legitimate government purpose. See Erickson, 207 F.3d at 949-50; Alsbrook, 184 F.3d at 1008. Because Congress is limited by § 5 to enforcement of the other provisions of the Fourteenth Amendment, Congress' power under § 5 is limited to enacting legislation which enforces the rational basis standard articulated by the Supreme Court in Cleburne.

The question becomes, then, does [**20] the ADA enforce the Fourteenth Amendment? As the following discussion illustrates, the question must be answered in the negative because the ADA creates new substantive rights and clearly exceeds the scope of the Fourteenth Amendment.

Discrimination on the basis of disability is subject only to a rational basis review under current Equal Protection jurisprudence. However, the ADA requires states to "reasonably modify" state programs or to "reasonably accommodate" disabled employees above and beyond any obligations placed on them by the Constitution. Section 12132 of the ADA places a duty on states to "reasonably modify" their programs, [*476] services and activities to ensure that persons with disabilities will not be excluded. A state is relieved of its obligation to provide "reasonable modifications" of its programs only if such modifications would "fundamentally alter" the nature of the program or activity. See Alsbrook, 184 F.3d at 1009 (citing 28 C.F.R. § 35.130(b)(7)). "Reasonable modification" is not defined in Title II and raises the question as to how fundamentally a state must alter its program, activity or service to comply with the ADA. Under this section, a [**21] state's program, service or activity which passes constitutional review under the rational basis test, could be invalidated under the ADA.

Further, the mandates of Title I of the ADA regarding "reasonable accommodation" are also beyond the scope of protections afforded disabled employees under the Fourteenth Amendment. Section 12112 (applicable to public employers pursuant to C.F.R. § 35.140(b)(1)) requires employers to make "reasonable accommodation" to the known disability of an applicant or an employee, unless to do so would impose an "undue hardship" on the employer. Again, this affirmative duty to accommodate may be beyond the scope of a public employer's obligation under the Equal Protection Clause.

The "reasonable modification" and "reasonable accommodation" requirements transform the ADA from a remedial statute "into a charter for positive rights." Brown, 166 F.3d at 707. Although the Act ostensibly was passed with the goal of eradicating unequal treatment for persons with disabilities, the Act's substantive provisions demand not equal treatment, but treatment which specially considers the claimed disability. In this respect, the ADA differs significantly [**22] from other anti-discrimination laws which prohibit unequal treatment and advocate neutral treatment of individuals without regard to the specified characteristic. Unlike these laws, the ADA demands consideration and unequal treatment solely on the basis of disability.

Additionally, the affirmative obligations on the state to either accommodate or proffer a reason for failure to accommodate, result in a heightened judicial scrutiny for laws that affect those with disabilities. Under the ADA's substantive clauses, employment decisions and state programs affecting the disabled persons are subjected to a higher standard of judicial review than rational basis. "The ADA . . . specifically takes issue with the [Supreme] Court's definitional choice [that the mentally disabled were a large and diversified group] and declares that 'individuals with disabilities are a discrete and insular minority.' (citation omitted) This declaration evinces an intent not to remedy violations of the standard of Cleburne, but rather to effect a 'substantive alternation of its holding.' In striking state legislation that is clearly rationally grounded, Congress sought to do what Cleburne said it may [**23] not do--establish a new suspect or quasi-suspect equal protection classification." Brown, 166 F.3d at 708. Thus, this Court concludes, because the ADA creates new substantive rights and affords greater protections to disabled persons than those available under the Equal Protection Clause, it cannot be said that the ADA "enforces" the Fourteenth Amendment.

The ADA is also out of proportion with the unconstitutional behavior it was designed to prohibit. The Supreme Court in Kimel, noting that the ADEA prohibited "substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard," concluded that the ADEA failed the Boerne "proportionality" test. Kimel, 120 S. Ct. at 647. In Boerne itself, in concluding that RFRA lacked proportionality with its targeted unconstitutional conduct, the Court stated, RFRA's "sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and [*477] regardless of subject matter." Boerne, 521 U.S. at 532.

The same can be [**24] said of the ADA. Like the ADEA and RFRA, the ADA is unlimited in its scope, has the potential to affect all state employers and programs, and in fact, is likely to prohibit significantly more employment decisions and programs than would be found unconstitutional. The ADA was not drafted to prohibit only unconstitutional discrimination, and in practice, may invalidate constitutional employment decisions made by public employers and state sponsored programs and services. As such, I must conclude that the ADA is also "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent unconstitutional behavior." Kimel, 120 S. Ct. at 647 (quoting Boerne, 521 U.S. at 532).

As a final concern, in the light of the above discussion suggesting that the ADA is not appropriate remedial legislative, could the ADA be considered prophylactic legislation? Again, this Court must turn to the legislative record to determine whether the ADA is an appropriate response to unconstitutional state discrimination against those with disabilities. "The sort of findings that would permit adoption of the ADA as [**25] a precautionary measure . . . must establish that states have been able to disguise forbidden discrimination as the permissible kind." Erickson, 207 F.3d at 952. Although the record is replete with instances of discrimination against persons with disabilities, it is devoid of findings suggesting that states engaged in covert unconstitutional discrimination. In fact, states were not even identified as a primary source of unconstitutional discrimination in the legislative record. The ADA, then, cannot appropriately be considered preventive legislation.

In sum, it follows that the ADA does not enforce the Fourteenth Amendment and that Congress exceeded its § 5 powers when it attempted to apply Title II of the ADA to the states. As such, Congress' attempted abrogation of Virginia's Eleventh Amendment immunity is not valid and this Court lacks jurisdiction over plaintiff's ADA claim.

III.

For the reasons stated above, the Court finds that defendant's motions to dismiss pursuant to 12(b)(1) are granted.

The Clerk is directed to send certified copies of this Opinion and the accompanying Order to all parties of record.

ENTER: This 14th day of August, 2000. [**26]

James C. Turk

UNITED STATES DISTRICT JUDGE

FINAL ORDER

By: Hon. James C. Turk

United States District Judge

For the reasons stated in the accompanying Memorandum Opinion, it is hereby

ADJUDGED AND ORDERED that defendant's motions to dismiss are GRANTED.

The Clerk is directed to strike this matter from the active docket of the Court and to send certified copies of this Order and the accompanying Memorandum Opinion to all pro se parties and counsel of record.

The plaintiff is advised that he may appeal this decision pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal with this court within 30 days of the date of entry of this Order, or within such extended period as the court may grant pursuant to Rule 4(a)(5).

ENTER: This 14th day of August, 2000.

James C. Turk

UNITED STATES DISTRICT JUDGE