UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

THE ABILITY CENTER OF GREATER )

TOLEDO, et al., )

)

Plaintiffs, ) No. 3:99CV7555

)

v\. ) Judge James G. Carr

)

THE CITY OF SANDUSKY, et al., ) UNITED STATES'

) MEMORANDUM OF LAW AS

Defendant ) [AMICUS CURIAE]{.underline}

)

UNITED STATES' MEMORANDUM

[OF LAW AS AMICUS CURIAE]{.underline}

The United States of America, by its undersigned counsel, submits this
Memorandum of Law as [amicus]{.underline} [curiae]{.underline}.

[TABLE OF CONTENTS]{.underline}

INTRODUCTION 1

ARGUMENT 3

> I. Overview of Title II of the ADA and the Title II Regulation 3
>
> II\. The Narrow Holding of the [Sandoval]{.underline} Decision Does
> Not Affect This Court's\
> Prior Ruling 4

A.  The Regulation At Issue In [Sandoval]{.underline} Was Outside The
    Scope of the Authorizing Statute 4

B.  The Curb Cut Regulation At Issue In This Case Falls Squarely Within
    the Scope of Title II of the ADA 6

    1.  The Statutory Language and Legislative History of the ADA
        Explicitly State Congress' Intent to Require the Removal of
        Architectural Barriers 6

    2.  The Title II Curb Cut Provision is Consistent with Section 504
        of the Rehabilitation Act, the Section 504 Regulations, and the
        Access Board Guidelines, All of Which Are Explicitly Referenced
        in Title II of the ADA 11

    3.  Titles I and III of the ADA Identify The Failure to Remove
        Architectural Barriers As Discrimination Prohibited By The\
        Statute 15

CONCLUSION 17

[TABLE OF AUTHORITIES]{.underline}

FEDERAL CASES

[Abbott v. Bragdon]{.underline}, 524 U.S. 624 (1998) 12

[Ability Center of Greater Toledo v. Sandusky]{.underline}, 133
F.Supp.2d 589 (N.D. Ohio 2001) 8

[Access Living of Metro. Chicago v. Chicago Transit Auth.]{.underline},
2001 WL 492473 (N.D. Ill. 2001)\
10

[Alexander v. Choate]{.underline}, 469 U.S. 287 (1985) 8

[Alexander v. Sandoval]{.underline}, 531 U.S. 1049, 121 S.Ct. 1511
(2001) passim

[Cincinnati Insurance Co. v. Byers]{.underline}, 151 F.3d 574 (6^th^
Cir. 1998) 1

[Deck v. City of Toledo]{.underline}, 56 F.Supp.2d 886 (N.D. Ohio 1999)
8

[Frederick L. v. Department of Public Welfare]{.underline}, 2001 WL
830480 (E.D. Pa. 2001) 10, 11

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993),
[cert.]{.underline} [denied]{.underline}, 511 U.S. 1033 (1994) 8, 15

[McConocha v. Blue Cross and Blue Shield Mutual of Ohio]{.underline},
930 F. Supp. 1182 (N.D. Ohio 1996) 1

[Olmstead v. L.C.]{.underline}, 527 U.S. 581 (1999) 9

[Thompson v. Colorado]{.underline}, 258 F.3d 1241 (10th Cir. 2001) 9

[Windsor v. United States Department of Justice]{.underline}, 740 F.2d 6
(6^th^ Cir. 1984) (per curium) 1

FEDERAL STATUTES

29 U.S.C. § 794 passim

42 U.S.C. § 4151 14

42 U.S.C. § 12101 7, 8

42 U.S.C. § 12112 16

42 U.S.C. § 12131 1, 7, 8

42 U.S.C. § 12132 3, 7

42 U.S.C. § 12134 passim

42 U.S.C. § 12182 16

42 U.S.C. § 12183 16

42 U.S.C. § 12186 16

42 U.S.C. § 12201 12

42 U.S.C. § 12204 14, 16

42 U.S.C. § 2000d 2, 4, 5

42 U.S.C. § 2000d-1 4, 5

42 U.S.C. § 2000d-7 15

FEDERAL REGULATIONS

28 C.F.R. § 39.150 13

28 C.F.R. § 39.151 3, 4, 17

28 C.F.R. § 39.159 14

28 C.F.R. § 39.160 14

28 C.F.R. § 41.1 12

28 C.F.R. § 41.4 12

28 C.F.R. § 41.53 14

28 C.F.R. § 41.56 14

28 C.F.R. § 41.58 12, 14

28 C.F.R. § 42.104 5

36 C.F.R. § 1190.31 14

36 C.F.R. § 1190.33 14

OTHER AUTHORITIES

Executive Order 12250 (1980) 12

H.Rep. No. 100-711, 2d Sess. (1988) 9

H.Rep. No. 101-485, 2d Sess. (1990) passim

S.Rep. No. 101-116, 1^st^ Sess. (1989) 12

Fed. R. Civ. P. 59(e) 1

Fed. R. Civ. P. 60(b)(6) 1

[INTRODUCTION]{.underline}

On September 8, 1999, the Ability Center of Greater Toledo and
individuals with mobility impairments (collectively, "the Plaintiffs")
filed the Complaint in this case. The Complaint alleges that the
Defendant City of Sandusky ("the City" or "the Defendant") failed to
install curb ramps on sidewalks as required by title II of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12131, [et seq]{.underline}.
(Compl. ¶ 1.) Plaintiffs allege that sidewalks throughout the City are
inaccessible or unsafe for people who use wheelchairs because there are
no curb cuts and ramps, or because curb cuts and ramps have been
improperly installed. [Id]{.underline}.

On February 16, 2001, this Court entered an order granting Plaintiff's
summary judgment motion in part and denying Plaintiffs' motion in part.
This Court ruled that the City's failure to install, or properly
install, curb cuts and ramps when resurfacing streets and altering or
installing city sidewalks violated the ADA. The Court denied Plaintiffs'
claim for compensatory and punitive damages.

On April 25, 2001, the City filed a Motion for Reconsideration based
upon the Supreme Court's decision in [Alexander v.
Sandoval]{.underline}, 531 U.S. 1049, 121 S.Ct. 1511 (2001).[^1] In
[Sandoval]{.underline}, the Supreme Court held that, under title VI of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d [et]{.underline}
[seq.]{.underline}, there is no implied right of action to enforce
implementing regulations that prohibit the use of criteria or methods of
administration with respect to a program or activity that have a
discriminatory effect. The City does not challenge the validity of the
curb cut provision of the title II regulation. Instead, relying on the
Supreme Court's decision in [Sandoval]{.underline}, it asserts that
private plaintiffs have no right of action to enforce this provision of
the title II regulations. (City's Mot. for Recons., at 2.) On August 13,
2001, the Court granted the United States leave to participate in this
case as an [amicus curiae]{.underline}. On September 12, 2001, the City
filed its Reply to Plaintiffs' Response, further clarifying its position
that, without an explicit congressional grant of such a right, the
plaintiffs cannot bring an action to enforce the regulations promulgated
pursuant to 42 U.S.C. §12134.

As set forth below, the City's motion for reconsideration should be
denied because the Supreme Court's decision in [Sandoval]{.underline}
does not affect this Court's prior ruling. Unlike the regulations at
issue in [Sandoval]{.underline}, the curb cut regulation at issue here
falls squarely within the scope of the ADA and is merely an
interpretation of that statute. Since there is no dispute that there is
a private cause of action to enforce title II of the ADA, these
interpretative regulations may also be enforced in such an action.
[Sandoval]{.underline}, 121 S.Ct. at 1518 ("A Congress that intends the
statute to be enforced through a private cause of action intends the
authoritative interpretation of the statute to be so enforced as
well.").

[ARGUMENT]{.underline}

**I. Overview of Title II of the ADA** **and the Title II Regulation**

The ADA was intended to bring people with disabilities into the
mainstream of American society. Title II of the ADA is intended to
assure people with disabilities access to the services, programs, and
benefits offered by the state and local governments. A critical, but
often overlooked, benefit provided by governments is the provision of
public streets and sidewalks, so that persons can travel from place to
place to take advantage of economic and social opportunities.

Title II of the ADA provides:

> no qualified individual with a disability shall, by reason of such
> disability, be excluded from participation in or be denied the
> benefits of the services, programs, or activities of a public entity,
> or be subjected to discrimination by any such entity.

§ 202 of title II, 42 U.S.C. § 12132. Title II further directs the
Department of Justice to promulgate regulations to implement this
prohibition against discrimination. 42 U.S.C. § 12134.

Consistent with the statute and congressional intent, the Department of
Justice title II regulation requires that newly constructed or altered
facilities be accessible, 28 C.F.R. § 35.151, and specifically requires
that curb cuts be included in new construction or alteration of streets
and pedestrian walkways:

(1) Newly constructed or altered streets, roads, and highways must
    contain curb ramps or other sloped areas at any intersection having
    curbs or other barriers to entry from a street level pedestrian
    walkway.

> \(2\) Newly constructed or altered street level pedestrian walkways
> must contain curb ramps or other sloped areas at intersections to
> streets, roads, or highways.

28 C.F.R. §§ 35.151(e)(1) & (2).[^2]

**II. The Narrow Holding of the [Sandoval]{.underline} Decision Does Not
Affect This\
Court's Prior Ruling**

A.  **The Regulation At Issue In [Sandoval]{.underline} Was Outside The
    Scope\
    of the Authorizing Statute**

The City does not challenge the validity of the curb cut provision.
(City's Mot. for Recons.) Nor, at this point, does it argue that it has
not violated that provision. [Id.]{.underline} Instead, relying on the
Supreme Court's recent decision in [Sandoval]{.underline}, it asserts
that private plaintiffs have no right of action to enforce this
provision of the title II regulation. [Id.]{.underline} at 2. Before we
discuss the impact of the [Sandoval]{.underline} decision on this case,
the limited holding of [Sandoval]{.underline} must first be examined.

Sandoval involved a class action claim brought by non-English speaking
residents against the State of Alabama, alleging that the state's
practice of administering driver's licensing exams only in English had a
discriminatory impact on the class in violation of disparate impact
regulations promulgated pursuant to § 602 of title VI.
[Sandoval]{.underline}, 121 S. Ct. at 1515. Section 601 of title VI
provides that no person shall, "on the ground of race, color, or
national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity." 42 U.S.C. § 2000d. Section 602 authorizes federal agencies to
"effectuate the provisions of \[§ 601\] . . . by issuing rules,
regulations, or orders of general applicability." 42 U.S.C. § 2000d-1.
The disparate impact regulations promulgated by federal agencies
pursuant to § 602 prohibit recipients of federal funds from "utilizing
criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color,
or national origin." [See]{.underline} [e.g.]{.underline} 28 C.F.R. §
42.104(b)(2) (DOJ regulations).

Based on case law interpreting title VI, the Court observed that
Congress intended to create an implied private cause of action to
enforce § 601. [Sandoval]{.underline}, 121 S.Ct. at 1515-1516, 1518. The
question was whether Congress had also intended the disparate impact
regulations to be privately enforced. The Court noted that there were
two types of regulations. Regulations that simply "apply," "construe,"
or "clarify\[\]" a statute can be privately enforced through the
existing cause of action to enforce the statute because a "Congress that
intends the statute to be enforced through a private cause of action
intends the authoritative interpretation of a statute to be so enforced
as well." [Id.]{.underline} at 1518. But regulations that go beyond the
statute require a separate cause of action. [Id.]{.underline} at 1519.
In applying this dichotomy, the Court held that title VI only prohibits
disparate treatment discrimination. [Id.]{.underline} at 1516. Since the
title VI regulations expanded the § 601 definition of discrimination to
include disparate impact discrimination, they could not be viewed merely
as an interpretation or application of § 601. Accordingly, the Court
concluded that Congress had to have created (either explicitly or
implicitly) a separate private cause of action to enforce such
regulations. [Id.]{.underline} Assessing the text and structure of the
statute, the Court concluded that Congress had intended only agency
enforcement of the disparate impact regulations and had not intended to
create a private right of action to enforce those regulations that went
beyond the statute. [Id.]{.underline} at 1522-23.

Relying on [Sandoval]{.underline}, the City argues that, since title II
of the ADA incorporates the remedies, procedures, and rights set forth
in title VI, the private plaintiffs in this case have no right of action
to enforce the title II regulations, including the curb cut provision.
(City's Mot. for Recons., at 2; City's Reply Br., at 4, 5-6.) The City
further argues that Congress did not grant individuals the express right
of action to enforce the title II regulation. (City's Reply Br. at 3.)

The City's simplistic argument ignores the analytical framework set
forth by the Supreme Court in [Sandoval]{.underline}. The proper inquiry
is whether the implementing regulation at issue is an application or
interpretation of title II's statutory language or whether it goes
beyond the statute. Plaintiffs would only need a cause of action that is
distinct from their right to enforce title II if the curb cut regulation
falls outside the scope of title II. As discussed below, Congress
clearly intended title II to require the removal of architectural
barriers and the title II curb cut regulation at issue merely
interprets, applies, and clarifies Congress' definition of
discrimination, exclusion, and denial of benefits.

> **B. The Curb Cut Regulation At Issue In This Case Falls Squarely
> Within the Scope of Title II of the ADA**

1.  **The Statutory Language and Legislative History of the ADA
    Explicitly State Congress' Intent to Require the Removal of
    Architectural Barriers**

In enacting the ADA, Congress made findings applicable to the entire
Act. These findings expressly determined that people with disabilities
were subjected to "various forms of discrimination," including the
obstacles posed by architectural barriers:

(5) individuals with disabilities continually encounter various forms of
    discrimination, including [outright intentional
    exclusion]{.underline}, [the discriminatory effects of
    architectural]{.underline}, transportation, and communication
    [barriers]{.underline}, overprotective rules and policies, [failure
    to make modifications to existing facilities]{.underline} and
    practices, exclusionary qualification standards and criteria,
    segregation and relegation to lesser services, programs, activities,
    benefits, jobs or other opportunities.

42 U.S.C. §§ 12101(a)(2), (3), (5) (emphasis added). As Congress stated,
one of the purposes of the ADA was to "eliminat\[e\]" this
discrimination. 42 U.S.C. § 12101(b)(1).

Congress' intent to address a wide variety of discrimination is codified
in the language of § 202, the operative section of title II:

> Subject to the provisions of this title, no qualified individual with
> a disability shall, by reason of such disability, be excluded from
> participation in or be denied the benefits of the services, programs,
> or activities of a public entity, or be subjected to discrimination by
> any such entity.

42 U.S.C. § 12132. Similarly, Congress\' intent to prohibit more than
disparate treatment is reflected in title II\'s definition of "qualified
individual with a disability:"

> an individual with a disability who, with or without [reasonable
> modifications]{.underline} to rules, policies, or practices, [the
> removal of architectural]{.underline}, communication, or
> transportation [barriers]{.underline}, or the provision of auxiliary
> aids and services, meets the essential eligibility requirements for
> the receipt of services or the participation in programs or activities
> provided by a public entity.

42 U.S.C. § 12131(2) (emphasis added). Thus, by definition,
discrimination against a "qualified individual with a disability" is
assessed in conjunction with, among other things, the "removal of
architectural . . . barriers."

The legislative history of the ADA further confirms that the removal of
architectural barriers -- specifically the installation of curb cuts --
was a key objective of the legislation. Congress highlighted the
importance of curb cuts in a House report, which provides:

> \[U\]nder \[title II\], local and state governments are required to
> provide curb cuts on public streets. The employment, transportation,
> and public accommodation sections of this Act would be meaningless if
> people who use wheelchairs were not afforded the opportunity to travel
> on and between the streets.

H.Rep. No. 101-485, 2d Sess., pt. 2, at 84 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303, 367. In fact, consistent with
every other court to address the issue, the district court in this case
has found, citing this legislative history, that ". . . Congress
specifically required local and state governments to provide curb cuts
on public streets." [Ability Center of Greater Toledo v.
Sandusky]{.underline}, 133 F.Supp.2d 589, 591 (N.D. Ohio 2001)
(citations omitted); [accord]{.underline}, [Kinney v.
Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993), [cert.]{.underline}
[denied]{.underline}, 511 U.S. 1033 (1994); [Deck v. City of
Toledo]{.underline}, 56 F.Supp.2d 886 (N.D. Ohio 1999).

The City's argument ignores the fact that, unlike title VI, the ADA
prohibits more than just disparate treatment of individuals on the basis
of their disabilities. It also requires that certain accommodations be
made for them. Simply prohibiting disparate treatment could not redress
the problem Congress intended to address: "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 the Supreme Court explained
with reference to title II's predecessor, the Rehabilitation Act of
1973, "much of the conduct that Congress sought to alter . . . would be
difficult if not impossible to reach were the Act construed to proscribe
only conduct fueled by a discriminatory intent. For example, elimination
of architectural barriers was one of the central aims of the Act \...
yet such barriers were clearly not erected with the aim or intent of
excluding the handicapped." [Alexander v. Choate]{.underline}, 469 U.S.
287, 297-98 (1985).[^3] The legislative history of the ADA underscores
Congress' recognition that discrimination against the disabled is often
the product of indifference rather than animosity. [See]{.underline}
H.R. Rep. No. 101-485, 2d Sess., pt. 2, at 29 (1990). Congress
emphasized that the effect of discrimination against disabled
individuals is the same, however, whether the motivation is malicious or
benign. [See]{.underline} H.R. Rep. No. 100-711, 2d Sess., at 25 (1988)
("\[a\]cts that have the effect of causing discrimination \[against
persons with disabilities\] can be just as devastating as intentional
discrimination").

The case law confirms that Congress addressed more than prohibitions
against disparate treatment in title II of the ADA. The Supreme Court
recently expressly rejected the argument that title II's prohibition on
"discrimination" encompassed only "uneven treatment of similarly
situated individuals," explaining that the structure of the statute and
administrative interpretations indicated that "Congress had a more
comprehensive view of the concept of discrimination." [Olmstead v.
L.C.]{.underline}, 527 U.S. 581, 598 (1999). The Tenth Circuit later
reconfirmed this view, while recognizing that "\[a\] cursory reading of
the statutory language can leave the impression that title II simply
prohibits intentional exclusion against the disabled." [Thompson v.
Colorado]{.underline}, 258 F.3d 1241, 1249 (10th Cir. 2001). The court
explained that "\[a\] more thorough review, however, reveals that,
rather than preventing public entities from treating the disabled
differently than the nondisabled, title II requires that public entities
make certain accommodations for the disabled in order to ensure their
access to government programs." [Id.]{.underline} The court then
concluded that "from the language of the statute it is clear title II
requires public entities to make accommodations for the disabled. The
regulations issued by the Department of Justice implementing title II
confirm this reading of the statute." [Id.]{.underline} at 1250.

Two cases have considered the validity of a private right of action to
enforce title II as interpreted by implementing regulations in light of
[Sandoval]{.underline}. In [Access Living of Metro. Chicago v. Chicago
Transit Auth.]{.underline}, 2001 WL 492473 (N.D. Ill. 2001), the court
held that [Sandoval]{.underline} did not abrogate a private plaintiff's
right to sue under title II because:

> the regulations implementing Title II of the ADA do not, as the Court
> found regarding Title VI's regulations in [Sandoval]{.underline},
> expand the meaning of discrimination. Rather, the regulations \[\]
> simply clarify the definition of discrimination ([i.e.]{.underline}
> what \[modifications\] are reasonable), and therefore are not an
> invalid basis under which to bring suit under [Sandoval]{.underline}.

[Id.]{.underline} at \*6.

Similarly, in [Frederick L. v. Department of Public
Welfare]{.underline}, 2001 WL 830480 (E.D. Pa. 2001), the court stated
that the [Sandoval]{.underline} decision did not preclude plaintiffs'
ADA claim. Plaintiffs alleged that the defendants violated provisions of
the title II regulation, which prohibit methods of administration having
a discriminatory effect, and require administration of programs in the
most integrated setting appropriate. [Id]{.underline}. at 27. In denying
defendants' motion to dismiss plaintiffs' ADA claim, the court held that
"\[t\]he ADA, like section 504 and unlike title VI, prohibits
disparate-impact discrimination." [Id]{.underline}. The ADA regulation's
provisions at issue in [Frederick L]{.underline}. were merely rules for
implementation of the statutory directives and did not prohibit
otherwise permissible conduct. [Id]{.underline}. As support for this
conclusion, the court noted that Congress enacted the ADA with the goal
of ensuring equality of opportunity, full participation, independent
living and economic self-sufficiency. Congress intentionally chose not
to list every type of action that constitutes discrimination because
title II simply extends the anti-discrimination prohibitions embodied in
§ 504. [Id]{.underline}. Analogous to the provisions at issue in

[Frederick L]{.underline}., the curb cut provision simply implements the
title II statutory directives. The lack of curb cuts is a tremendous
obstacle to the smooth integration of those with disabilities into the
commerce of daily life. Significantly, the installation of curb cuts
ensures that individuals with disabilities have access to programs,
services, and facilities, and are able to perform the essential task of
crossing the street. Without the ability to travel on and between the
streets, the opportunities afforded by the ADA are of little benefit to
individuals who use wheelchairs.

Thus, the text and legislative history of title II as well as the
relevant case law reflect Congress' intent that title II proscribe more
than just disparate treatment discrimination. Unlike the title VI
regulations at issue in [Sandoval]{.underline}, and contrary to the
city\'s argument that the regulation forbids conduct permitted by the
statute (City's Reply Br. at 3.), the curb cut provision does not expand
the meaning of discrimination under title II. Therefore, the City's
Motion for Reconsideration should be denied.

> **2.** **The Title II Curb Cut Provision is Consistent with Section\
> 504 of the Rehabilitation Act, the Section 504 Regulations,\
> and the Access Board Guidelines, All of Which Are\
> Explicitly Referenced in Title II of the ADA**

Since title II encompasses the perpetuation of architectural barriers
and the failure to make new and altered facilities accessible as forms
of discrimination, the question becomes what types of barriers will
violate title II's prohibition of "discrimination." As discussed below,
Congress pointed to § 504 of the Rehabilitation Act, to § 504\'s
preexisting implementing regulations, and to other titles of the ADA for
guidance. Congress also instructed DOJ to issue regulations that reflect
the standards contained in regulations implementing § 504, which were to
serve as a substantive floor for determining compliance with title II.
The title II curb cut provision is consistent with § 504 and its
implementing regulations, and with titles I and III of the ADA.

Sections 501 and 204 of the ADA express Congress' intent that title II
be construed consistently with § 504 of the Rehabilitation Act and its
implementing regulations. In § 501(a) of the ADA, Congress instructed
that:

> \(a\) \... Except as otherwise provided in this Act, nothing in this
> Act shall be construed to apply a lesser standard than the standards
> applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790
> [et seq.]{.underline}) or the regulations issued by Federal agencies
> pursuant to such title.

42 U.S.C. § 12201(a). This provision requires that the "Act" (including
title II) not be construed to apply "a lesser standard" than
"regulations" previously issued under 29 U.S.C. § 794. [See]{.underline}
[Abbott v. Bragdon]{.underline}, 524 U.S. 624, 631-32 (1998) (citing to
§ 501(a) of the ADA in construing the ADA to "grant at least as much
protection as the regulations implementing the Rehabilitation Act").
Particularly relevant to the City's motion, the Rehabilitation Act
regulations included -- in a subpart entitled "Guidelines for
Determining Discriminatory Practices" -- the requirement that new
facilities and alterations to existing facilities shall "be designed and
constructed to be readily accessible to and usable by \[persons with
disabilities\]." 28 C.F.R. § 41.58(a).[^4] This phrase, a term of art,
is understood to incorporate one of the various government standards for
accessible design (such as the Minimum Guidelines and Requirements for
Accessible Design and the Uniform Federal Accessibility Standards).
[See]{.underline} H.Rep. No. 101-485, 2d Sess., pt. 2, at 117-118
(1990); S.Rep. No. 101-116, 1st Sess. at 69-70 (1989).

In addition, in § 204(b) of the ADA, Congress directed that regulations
implementing title II (except for subtitle B, over which the Secretary
of Transportation has authority) shall be consistent with specific § 504
regulations which prohibit more than just disparate treatment:

> \(b\) Relationship to other Regulations. Except for "program
> accessibility, existing facilities", and "communications", regulations
> under subsection (a) shall be consistent with \... the coordination
> regulations under \[28 C.F.R. part 41\], applicable to recipients of
> Federal financial assistance under § 504 of the Rehabilitation Act of
> 1973 (29 U.S.C. § 794). With respect to 'program accessibility,
> existing facilities', and 'communications', such regulations shall be
> consistent with regulations and analysis as in \[28 C.F.R. part 39\],
> applicable to federally conducted activities under such § 504.

42 U.S.C. § 12134(b). In discussing § 204(b), Congress stated that it:

> has chosen not to list all the types of actions that are included
> within the term 'discrimination', as was done in titles I and III,
> because this title essentially simply extends the anti-discrimination
> prohibition embodied in section 504 to all actions of state and local
> government \.... In addition, however, section 204 also requires that
> regulations issued to implement this section be consistent with
> regulations issued under section 504 \.... In addition, activities
> which do not fit into the employment or public accommodations context
> are governed by the analogous section 504 regulations.

H.Rep. No. 101-485, 2d Sess., pt. 2, at 84 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303, 367.

The § 504 regulations referenced by Congress, at 28 C.F.R. Parts 39 and
41, uniformly prohibit various actions and inactions in addition to
disparate treatment, all described as forms of discrimination.
[See]{.underline} [generally]{.underline} 28 C.F.R. §§ 41.51-41.58.
These include the failure to operate programs or activities in existing
facilities so that, when viewed in their entirety, they are readily
accessible and usable by persons with disabilities (28 C.F.R. §
39.150(a)); the failure to design and construct new facilities or
alterations to existing facilities so that they are accessible (28
C.F.R. § 41.58);[^5] the failure to furnish appropriate auxiliary aids
where necessary to allow persons with disabilities an equal opportunity
to participate (28 C.F.R. § 39.160(a)); and the failure to make
reasonable accommodations (28 C.F.R. § 41.53).

Also, § 204(c) requires that the Attorney General's title II regulations
include standards applicable to facilities that are consistent with the
architectural guidelines issued by the Architectural and Transportation
Barriers Compliance Board ("Access Board"). 42 U.S.C. § 12134(c). The
Board, in turn, was instructed to issue guidelines that would
"supplement the existing Minimum Guidelines and Requirements for
Accessible Design" to "ensure that buildings \[and\] facilities . . .
are accessible . . . to individuals with disabilities," 42 U.S.C. §
12204(a), and to "establish additional requirements, consistent with
\[the ADA\], to ensure" accessibility by persons with disabilities, 42
U.S.C. § 12204(b). The preexisting Minimum Guidelines and Requirements
for Accessible Design required access to newly constructed and altered
buildings and facilities. [See]{.underline} 36 C.F.R. §§ 1190.31,
1190.33.[^6]

In sum, Sections 501 and 204 of the ADA require that title II be
construed and implemented consistent with § 504 of the Rehabilitation
Act, certain implementing regulations, and the Access Board's
architectural guidelines. By its express references to these regulations
and guidelines, Congress intended that discrimination prohibited under
title II encompass more than disparate treatment, such as failure to
build and alter buildings and facilities in an accessible manner and
failure to provide access to existing facilities. The curb cut provision
contained in the title II regulation is consistent with these other
requirements. It does not expand the meaning of discrimination but
"essentially simply extends the anti-discrimination prohibition embodied
in section 504 to all actions of state and local government." H.Rep. No.
101-485, 2d Sess., pt. 2, at 84 (1990).[^7]

1.  **Titles I and III of the ADA Identify The Failure to Remove
    Architectural Barriers As Discrimination Prohibited By The Statute**

Similar to its requirement that title II regulations be consistent with
certain regulations implementing § 504 of the Rehabilitation Act, §
204(b) also mandates that these title II regulations be consistent with
titles I and III of the ADA. 42 U.S.C. § 12134(b) ("regulations
\[implementing title II\] shall be consistent with this Act"). A House
Report states that "\[t\]he Committee intends \... that the forms of
discrimination prohibited by section 202 be identical to those set out
in the applicable provisions of titles I and III \...." and that the
implementing regulations include "any requirements \[of the section 504
regulations\] such as program access that go beyond titles I and III."
H.Rep. No. 101-485, 2d Sess., pt. 2, at 84 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303, 367. [See also]{.underline}
H.Rep. No. 101-485, 2d Sess., pt. 3, at 51 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 445, 474. [See]{.underline} [Kinney v.
Yerusalim]{.underline}, 9 F.3d 1067, 1073 n. 6 (3d Cir. 1993),
[cert.]{.underline} [denied]{.underline}, 511 U.S. 1033 (1994) (in case
holding that alterations to streets required installation of curb cuts,
court found that titles II and III should be read consistently).

Titles I and III of the ADA proscribe more than simply disparate
treatment. For example, title I prohibits covered employers from
outright exclusion of people with disabilities, 42 U.S.C. §§ 12112(a)
and (b)(4), as well as from discriminating against them by utilizing
criteria that have the effect of discrimination on the basis of
disability, and not making reasonable accommodation. 42 U.S.C. §§
12112(b)(3)(A) and (b)(5)(A). Similarly, title III prohibits disparate
treatment by places of public accommodation, 42 U.S.C. §§ 12182(a), as
well as other forms of discrimination, including failure to make
reasonable modifications and failure to remove architectural barriers.
42 U.S.C. §§ 12182(b)(2)(A)(ii) and (iv). It specifically requires that
newly constructed or altered facilities be accessible, 42 U.S.C. §
12183.

Congress also specified that the title II and III accessibility
guidelines be consistent with the Access Board's guidelines, which, as
we noted above, were required to be consistent with and supplement
existing guidelines. § 204(c) of the ADA, 42 U.S.C. § 12134(c) (title
II); § 306(c) of the ADA, 42 U.S.C. § 12186(c) (title III); § 504(a) of
the ADA, 42 U.S.C. § 12204(a) (titles II and III).

Given the detailed instructions by Congress as to which regulations to
follow for various provisions (including regulations that specifically
involve program accessibility and architectural barriers), it is clear
that Congress was aware of the content of these regulations, including
that they defined discrimination broadly to include more than just
disparate treatment, unlike title VI.

In order to avoid rendering all of the statutory provisions discussed
above nullities, title II's prohibition on exclusion, denial, and
discrimination must be read to encompass the DOJ curb cut provision that
the City contests in this case. This provision does not expand the
definition of discrimination beyond what the statute provides, but
instead merely interprets the broad statutory definition of
discrimination intended by Congress. After all, consistent with § 504,
certain implementing regulations, and the Access Board's guidelines,
Congress intended title II to address a broad variety of prohibited
conduct. [See]{.underline} [Sandoval]{.underline}, 121 S.Ct. at 1518
(noting that regulations that "construe" or constitute "the
authoritative interpretation of the statute" are "covered by the cause
of action to enforce" the statute).

[CONCLUSION]{.underline}

In sum, the Supreme Court's decision in [Sandoval]{.underline} does not
affect this Court's prior decision. The statutory language, the
legislative history, and the case law interpreting title II establish
that Congress intended discrimination prohibited under title II to
encompass more than disparate treatment, such as the failure to engage
in barrier removal and the failure to provide program access. As such,
the curb cut provision at § 35.151(e) merely interprets title II. The
curb cut provision requires the City to make modifications to its newly
constructed or altered streets, roads, and highways by installing curb
ramps. The purpose of the curb cut provision is to ensure that
individuals with disabilities have access to services, programs, and
activities. Thus, the curb cut provision does not go beyond the scope of
discrimination as set forth in the ADA.

For these reasons, the United States respectfully submits that the Court
should deny the City's Motion for Reconsideration.

Respectfully submitted,

JOHN ASHCROFT

Attorney General of the United States

EMILY SWEENEY RALPH F. BOYD, JR

U.S. Attorney Assistant Attorney General

/s/ Holly Sydlow

HOLLY SYDLOW JOHN L. WODATCH, Chief

Assistant U.S. Attorney L. IRENE BOWEN, Deputy Chief

Northern District of Ohio PHILIP L. BREEN,

Four Seagate Ste. 308 Special Legal Counsel

Third Floor

Toledo, Ohio 43604 /s/ Margaret L. Baskette

\(419\) 259-6376

\(419\) 259-6360 (facsimile) MARGARET L. BASKETTE

JOSH MENDELSOHN

Trial Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 616-0330, (202) 307-9923

\(202\) 307-1197 (facsimile)

October 11, 2001

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that today I served copies of the foregoing [United
States' Memorandum of Law as Amicus Curiae]{.underline} upon counsel
listed below in the above matter, via first class mail to the following
addresses:

Counsel for the Defendant:

> William P. Lang
>
> 680 Moore Road, Suite 100
>
> P.O. Box 108
>
> Avon Lake, Ohio 44012-0108
>
> Tele: (440) 933-8938
>
> Fax: (440) 930-2084

Counsel for the Plaintiffs:

> Thomas J. Zraik
>
> Ron Nisch
>
> 5579 Monroe Street
>
> Sylvania, Ohio 43560
>
> Tele: (419) 882-2559
>
> Fax: (419) 882-1425

DATED: October 11, 2001
\_\_\_\_\_\_\_\_\_\_[/s/]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Josh Mendelsohn, Trial Attorney

Disability Rights Section

Civil Rights Division

U. S. Department of Justice

P. O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-9923

[^1]: The City does not identify a federal rule on which it bases its
    Motion for Reconsideration. (City's Mot. for Recons.) In general,
    motions for reconsideration of a judgment are construed as motions
    to alter or amend a judgment under Fed. R. Civ. P. 59(e). [McConocha
    v. Blue Cross and Blue Shield Mutual of Ohio]{.underline}, 930 F.
    Supp. 1182, 1184 (N.D. Ohio 1996). Such motions must be filed within
    ten days after the judgment. Fed. R. Civ. P. 59(e). The City filed
    its motion for reconsideration almost two months after this Court
    entered its order. Thus, the City's Rule 59(e) motion is untimely
    and should be denied. This Court may treat an untimely Rule 59(e)
    motion as a Rule 60(b) motion. [Windsor v. United States Department
    of Justice]{.underline}, 740 F.2d 6, 7 (6^th^ Cir. 1984) (per
    curium). Presumably, the City is seeking relief from the order
    pursuant to Rule 60(b)(6). Such relief is applied only in
    exceptional circumstances. [Cincinnati Insurance Co. v.
    Byers]{.underline}, 151 F.3d 574, 577 (6^th^ Cir. 1998) (a
    substantial change in decisional law governing the action
    constitutes an exceptional circumstance). As we establish
    [infra]{.underline}, the Supreme Court's decision in
    [Sandoval]{.underline} is distinguishable from the instant case and,
    therefore, does not represent a substantial change in the decisional
    law affecting this case. Accordingly, the [Sandoval]{.underline}
    decision does not constitute an exceptional circumstance, and the
    City's Motion for Reconsideration should be denied.

[^2]: The regulation also contains specific provisions requiring that
    transition plans for ensuring access to existing facilities include
    schedules for providing curb cuts at locations that are not
    otherwise being altered, 28 C.F.R. § 35.150(d)(1). These provisions
    are not at issue for purposes of the motion for reconsideration.

[^3]: In a parenthetical, the [Sandoval]{.underline} opinion
    characterizes the provisions at issue in [Choate]{.underline} as
    "regulations clarifying what sorts of disparate impacts upon the
    handicapped were covered by § 504 of the Rehabilitation Act of 1973,
    which the Court assumed included some such impacts."
    [Id.]{.underline} at 1518-19.

[^4]: The purpose of the regulation at 28 C.F.R. Part 41 was to
    implement Executive Order 12250 (1980), which required DOJ to
    coordinate the implementation of § 504 by the various federal
    agencies. 28 C.F.R. § 41.1; [see]{.underline} [also]{.underline}
    [id.]{.underline} § 41.4(a) (requiring each federal agency to issue
    regulations to implement 29 U.S.C. § 794 that are "consistent with
    this part").

[^5]: The requirements concerning existing facilities and new
    construction or alterations are specific applications of the more
    general "program accessibility" requirement, [i.e.]{.underline},
    that no person with a disability shall be subjected to
    discrimination under any program or activity because of inaccessible
    facilities. [See]{.underline} 28 C.F.R. §§ 39.159, 41.56.

[^6]: These guidelines were issued in 1982 for purposes of the
    Architectural Barriers Act, 42 U.S.C. §§ 4151 [et seq.]{.underline},
    which generally requires that federal agencies and recipients of
    certain types of federal funds ensure access to buildings and
    facilities that they design, construct, or alter.

[^7]: The City incorrectly relies on § 1003 of the Rehabilitation Act
    Amendments of 1986 for the proposition that the Rehabilitation Act
    of 1973 applies only to suits for a violation of a statute. (City's
    Reply Br. at 5.) Section 1003 provides that states are not immune
    from private suit in Federal court under § 504 of the Rehabilitation
    Act of 1973 and that remedies against the state are available to the
    same extent as those against any public or private entity other than
    a State. 42 U.S.C. § 2000d-7. The terms of § 1003 apply only to
    states, and in any event do not affect clear congressional intent
    that discrimination prohibited under § 504, and consequently title
    II, encompasses more than disparate treatment.