**Number range CHAPTERUNITED STATES DISTRICT COURT**

**DISTRICT OF MINNESOTA**

**THIRD DIVISION**

# Jock Orville Autio, Court File No. 3-96-383

#  The Honorable Paul A. Magnuson

**Plaintiff,**

**v.**

**MEMORANDUM OF THE UNITED STATES,**

# State of Minnesota, AS INTERVENOR, IN OPPOSITION

#  TO DEFENDANT STATE OF

**and MINNESOTA\'S MOTION TO DISMISS**

**AFSCME/Local \# 3139,**

**Defendants.**

## INTRODUCTION

Plaintiff Jock Autio (\"Autio\") is an employee of Defendant State of
Minnesota (\"Minnesota\").[^1] In his Amended Complaint, Autio has
alleged, [inter]{.underline} [alia]{.underline}, that Minnesota violated
Title I of the Americans with Disabilities Act[^2] (the \"ADA\") by
subjecting him to discriminatory employment practices because he is
disabled and by retaliating against him for exercising his rights under
the ADA.[^3] Minnesota has moved to dismiss Autio\'s Amended Complaint
under Rule 12(b)(1) of the Federal Rules of Civil Procedure, contending
that the Court lacks subject matter jurisdiction of this action.[^4]
Specifically, Minnesota argues that, under the Supreme Court\'s ruling
in [Seminole Tribe of Florida v. Florida]{.underline}, 116 S. Ct. 1114
(1996), the Eleventh Amendment bars Autio from suing Minnesota in
federal court for violation of the ADA because Section 502 of the ADA,
42 U.S.C. § 12202, is not a valid exercise of Congress\' power to
abrogate States\' Eleventh Amendment rights.

The United States has intervened in this action for the sole purpose of
defending the constitutionality of Section 502\'s abrogation of States\'
Eleventh Amendment immunity. Minnesota\'s arguments to the contrary
notwithstanding, States are **not** immune from citizens\' lawsuits
alleging violations of the ADA because the ADA \-- which Congress
enacted, [inter]{.underline} [alia]{.underline}, to promote equal
protection of the laws for persons with disabilities \-- is a proper
exercise of Congress\' power under Section 5 of the Fourteenth
Amendment. Thus, contrary to Minnesota\'s arguments, Section 502\'s
unequivocal abrogation of States\' Eleventh Amendment immunity is
constitutionally valid under the Supreme Court\'s ruling in [Seminole
Tribe]{.underline}.

**ARGUMENT**

**MINNESOTA IS NOT IMMUNE**

**FROM LAWSUITS ALLEGING VIOLATION OF THE ADA.**

The Eleventh Amendment generally bars private citizens from suing States
and their agencies and instrumentalities in federal courts. [Seminole
Tribe]{.underline}, 116 S. Ct. 1114, 1124-25, 1127-28 (1996); [Papasan
v. Alain]{.underline}, 478 U.S. 265, 276 (1986); [Pennhurst State Sch.
and Hosp. v. Halderman]{.underline}, 465 U.S. 89, 100 (1984). But
Eleventh Amendment immunity is not absolute. Congress has the power to
abrogate States\' Eleventh Amendment immunity by statute.[^5]
[Atascadero State Hosp.]{.underline}, 473 U.S. at 241-42. [Fitzpatrick
v. Bitzer]{.underline}, 427 U.S. 445 (1976); [Seminole
Tribe]{.underline}, 116 S. Ct. at 1125.

In [Seminole Tribe]{.underline}, the Supreme Court held that Congress
can lawfully abrogate States\' Eleventh Amendment immunity by statute if
the statute passes two tests: (1) Congress must have \"unequivocally
expressed its intent to abrogate immunity\" in the language of the
statute, and (2) in enacting the statute, Congress must have \"acted
pursuant to a valid exercise of power.\" [Seminole Tribe]{.underline},
116 S. Ct. at 1123. As is shown below, Congress\' abrogation of States\'
Eleventh Amendment immunity in Section 502 of the ADA passes both tests.

> **A. Congress Unequivocally Expressed its Intent to Abrogate States\'
> Eleventh Amendment Immunity in Section 502 of the ADA.**

Under [Seminole Tribe]{.underline}, Congress cannot abrogate States\'
Eleventh Amendment immunity unless it has \"unequivocally expressed\"
its intent to do so in the statute at issue. [Seminole
Tribe]{.underline}, 116 S. Ct. at 1123. As Minnesota concedes,
Congress\' abrogation of immunity in Section 502 of the ADA passes this
test.[^6] Section 502 of the ADA expressly provides that \"**\[a\] State
shall not be immune under the eleventh amendment to the Constitution of
the United States** from an action in Federal or State court of
competent jurisdiction for a violation of this chapter.\" 42 U.S.C. §
12202 (emphasis added). Thus, Congress\' intent to abrogate States\'
Eleventh Amendment immunity for suits under the ADA could not be
plainer.[^7]

B. Congress\' Abrogation of the States\' Eleventh Amendment Rights in
Section 502 of the ADA Was a Valid Exercise of its Powers Under Section
5 of the Fourteenth Amendment.

Under [Seminole Tribe]{.underline}, Congress has lawfully abrogated
States\' Eleventh Amendment rights by statute if the statute in question
\"\[w\]as \... passed pursuant to a constitutional provision granting
Congress the power to abrogate.\" [Seminole Tribe]{.underline}, 116 S.
Ct. at 1125. In its motion to dismiss,[^8] Minnesota concedes that
Congress has the power to abrogate States\' Eleventh Amendment rights
when it is legislating pursuant to Section 5 of the Fourteenth Amendment
(\"Section 5\").[^9] Thus, under [Seminole Tribe]{.underline}, the
abrogation of States\' Eleventh Amendment immunity in the ADA is
constitutionally valid if the ADA is a proper exercise of Congress\'
power under Section 5.

> **1. Congress Expressly Invoked Its Powers Under Section 5 of the
> Fourteenth Amendment When It Enacted the ADA.**

Minnesota contends that, since Title I of the ADA is applicable to
private entities as well as States, the Court cannot properly conclude
that Congress enacted Title I pursuant to Section 5 without an express
statement by Congress that it did so.[^10] This argument suggests that
Congress must expressly state that it is acting pursuant to Section 5
with respect to each and every statutory provision that applies to a
State in order for the Court to conclude that those statutory provisions
are constitutional. But the Supreme Court does not follow this approach.
\"The \... constitutionality of action taken by Congress does not depend
on recitals of the power which it undertakes to exercise.\" [Woods v.
Cloyd W. Miller Co.]{.underline}, 333 U.S. 138, 144 (1948). Congress
does not need to state that it is acting pursuant to Section 5 in order
to enact legislation that is a constitutionally valid exercise of its
Section 5 powers. As the Supreme Court noted,

> \[i\]t is in the nature of \[the Court\'s\] review of congressional
> legislation defended on the basis of Congress\' powers under § 5 of
> the Fourteenth Amendment that \[the Court\] be able to discern some
> legislative purpose or factual predicate that supports the exercise of
> that power. **That does not mean, however, that Congress need anywhere
> recite the words \"section 5\" or \"Fourteenth Amendment\" or \"equal
> protection\"**\....

[EEOC. v. Wyoming]{.underline}, 460 U.S. 226, 243 n.18 (1983) (emphasis
added).

Moreover, there is no need for this Court to draw any inferences
whatsoever in order to conclude that Congress was invoking its powers
under Section 5 because Congress expressly invoked its Fourteenth
Amendment power. In Section 2(b) of the ADA, Congress stated: \"It is
the purpose of this Act \... to invoke the sweep of congressional
authority, including the power to enforce the fourteenth amendment \...,
in order to address the major areas of discrimination faced day-to-day
by people with disabilities.\" 42 U.S.C. § 12101(b)(4).[^11] Since the
Fourteenth Amendment governs only State actors, Congress need not have
invoked its Fourteenth Amendment powers except insofar as it intended
the ADA to apply to States. Thus, contrary to Minnesota\'s argument,
there is no reason to presume that Congress was not invoking these
powers for the purpose of enacting Title I of the ADA.

> **2. The ADA Is Appropriate Legislation to Enforce the Equal
> Protection Guarantees of the Fourteenth Amendment.**

Minnesota contends that the ADA is not \"appropriate legislation\" under
Section 5.[^12] But a statute is \"appropriate legislation\" under
Section 5 if the statute \"may be regarded as an enactment to enforce
the Equal Protection Clause, \[if\] it is \'plainly adapted to that
end\' and \[if\] it is not prohibited by but is consistent with \'the
letter and spirit of the constitution.\'\" [Katzenbach v.
Morgan]{.underline}, 384 U.S. 641, 651 (1966). The ADA satisfies each of
these requirements.

The ADA is \"appropriate legislation\" to enforce the Equal Protection
Clause for three separate reasons. [Katzenbach]{.underline}, 384 U.S. at
649-50. First, the ADA prohibits discrimination on the basis of
disability by government actors. Indeed, the ADA was enacted \"to
provide a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.\" 42 U.S.C. §
12101(b)(1). And, as Congress has found, individuals with disabilities
comprise:

> a discrete and insular minority who have been faced with restrictions
> and limitations, subjected to a history of purposeful unequal
> treatment, and relegated to a position of political powerlessness in
> our society, based on characteristics that are beyond the control of
> such individuals and resulting from stereotypic assumptions . . .

42 U.S.C. § 12101(a)(7). The ADA is, therefore, an enactment to enforce
the protections of the Fourteenth Amendment. [Morgan]{.underline}, 384
U.S. at 651.[^13] Second, the substantive provisions of the ADA are
\"plainly adapted to that end \[[i.e.]{.underline}, enforcing the Equal
Protection Clause\],\" [see]{.underline} [id]{.underline}. \-- they are
designed to ensure that persons with disabilities are protected from
discriminatory State conduct and are provided with employment
opportunities that are equal to those enjoyed by non-disabled
individuals. Third and finally, the ADA is \"consistent with \'the
letter and spirit of the constitution.\'\" [Id]{.underline}. (quoting
[McCulloch v. Maryland]{.underline}, 17 U.S. 316, 421 (1819));
[see]{.underline} [id]{.underline}. at 648-49 (Section 5 authorizes
Congress not only to provide remedies for violations of the Fourteenth
Amendment but also to amplify its substantive protections).[^14]

> **3. Contrary to Minnesota\'s Assertions, the Fourteenth Amendment
> Does Protect Persons with Disabilities from Discrimination.**

Minnesota contends that the ADA is not \"appropriate legislation\" to
enforce the Equal Protection Clause because it creates a new
classification of persons \-- [i.e.]{.underline}, persons with
disabilities \-- whom the Fourteenth Amendment was not designed to
protect.[^15] But discrimination on the basis of disability is
prohibited by the Equal Protection Clause. In [City of Cleburne v.
Cleburne Living Center, Inc.]{.underline}, 473 U.S. 432 (1985), the
Supreme Court unanimously declared unconstitutional a decision by a city
to deny a special use permit for the operation of a group home for
people with mental retardation. Although a majority declined to deem
classifications on the basis of mental retardation as \"quasi-suspect,\"
it held that this did not leave persons with such disabilities
\"entirely unprotected from invidious discrimination.\"
[Id]{.underline}. at 446. Instead, the majority found a violation of the
Equal Protection Clause because \"the record \[did\] not reveal any
rational basis\" for the decision to deny a special use permit \-- it
revealed, instead, \"an irrational prejudice\" against persons with
mental retardation. [Id]{.underline}. at 447, 450.

Minnesota argues that the ADA cannot be regarded as a statute to enforce
the Equal Protection Clause because classifications on the basis of
disability are not \"suspect\" or \"quasi-suspect.\" But the terms
\"suspect\" and \"quasi-suspect\" describe the degree of scrutiny that a
court uses to examine legislative actions. It does not govern the power
of Congress to legislate pursuant to its plenary power under Section 5.
As another judge of this court explained in [Mayer v. University of
Minnesota]{.underline}, 940 F. Supp. 1474, 1479 (D. Minn. 1996),

> \[t\]he fact that the Supreme Court has subjected governmental
> classifications involving suspect classes to a higher level of
> scrutiny than other classifications does not prevent Congress from
> finding that another class of persons has been subjected to a history
> of unequal treatment and legislating pursuant to its enforcement
> powers under the Fourteenth Amendment to protect that class of persons
> from arbitrary discrimination.

Moreover, the Supreme Court explained that the rational-basis standard
for evaluating most equal protection claims \"reflect\[s\] the Court\'s
awareness that the drawing of lines that create distinctions is
peculiarly a legislative task and an unavoidable one.\" [Massachusetts
Bd. of Retirement v. Murgia]{.underline}, 427 U.S. 307, 314 (1976).
Thus, the question whether \"the line might have been drawn differently
\... is a matter for legislative, rather than judicial, consideration.\"
[United States R.R. Retirement Bd. v. Fritz]{.underline}, 449 U.S. 166,
179 (1980). The institutional limitations that generally constrain the
judiciary to employ a standard of rational review in evaluating claims
based on the Equal Protection Clause are, by definition, inapplicable to
Congress. They provide no basis for restricting Congress\' power to
legislate to enforce the rights created by the Equal Protection Clause
of the Fourteenth Amendment under Section 5. [Ex parte
Virginia]{.underline}, 100 U.S. (10 Otto) 339, 346 (1879) (holding that
Congress is authorized by the Fourteenth Amendment to enact whatever
legislation [it]{.underline} determines is appropriate to secure to all
persons \"the enjoyment of perfect equality of civil rights and the
equal protection of the laws\"); [Fullilove v. Klutznick]{.underline},
448 U.S. 448 (1980) (when legislating under § 5, \"\[i\]t is fundamental
that in no organ of government, state or federal, does there repose a
more comprehensive remedial power than in the Congress\").[^16] As
Representative Dellums explained during the enactment of the ADA,
Congress is \"empowered with a special responsibility by the 14th
amendment to the Constitution to ensure that every citizen, not just
those of particular ethnic groups, not just those who arguably are
\'able-bodied,\' not just those who own property \-- but every citizen
shall enjoy the equal protection of the laws.\" 136 Cong. Rec. 11,467
(1990); [see]{.underline} [also]{.underline} [id]{.underline}. at 11,468
(remarks of Rep. Hoyer).

Minnesota cites [Oregon v. Mitchell]{.underline}, 400 U.S. at 112, for
the proposition that the Equal Protection Clause affords no protection
to persons who are not members of a suspect or quasi-suspect class. But
[Oregon]{.underline} is not relevant to the issues before this Court. In
[Oregon]{.underline}, a majority of the Court voted to invalidate
Congress\' attempt to lower the voting age in State elections from 21 to
18. The statute at issue in [Oregon]{.underline} was not struck down
because it involved age \-- a non-suspect characteristic. Rather, it was
invalidated because it imposed a nationwide voting age by altering
qualifications for State elections \-- a power committed to the States
by the express language of the Constitution \-- and because it did not
purport to remedy discrimination of any kind.[^17] Moreover, any
implication in [Oregon]{.underline} that Congress was limited in
exercising its Section 5 authority to legislate only with regard to
suspect classifications was repudiated by the Supreme Court in [Maher v.
Gagne]{.underline}, 448 U.S. 122 (1980). In [Maher]{.underline}, the
plaintiff brought a suit under 42 U.S.C. § 1983 against a State official
alleging that certain State Aid to Families with Dependent Children
(\"AFDC\") regulations violated the Fourteenth Amendment\'s Equal
Protection and Due Process Clauses by creating arbitrary, but
non-suspect, classifications. [Id]{.underline}. at 124-125 & n.5. After
the parties entered into a consent decree, the plaintiff sought
attorney\'s fees pursuant to 42 U.S.C. § 1988. The State official argued
that such an award was barred by the Eleventh Amendment. The Supreme
Court disagreed, holding that \"\[u\]nder § 5 Congress may pass any
legislation that is appropriate to enforce the guarantees of the
Fourteenth Amendment. A statute awarding attorney\'s fees to a person
who prevails on a Fourteenth Amendment claim falls within the category
of \'appropriate\' legislation.\" [Id]{.underline}. at 132. The Court
specifically declined to limit Congress\' Section 5 authority to certain
types of Fourteenth Amendment claims. [See]{.underline}
[id]{.underline}. at 133 n.16; [see]{.underline} [also]{.underline}
[id]{.underline}. at 134-135 (Powell, J., concurring in part).

We are aware of no court of appeals decision that has adopted the
approach advocated by Minnesota in this case and limited Congress\'
Section 5 authority to legislation regarding \"suspect\" or
\"quasi-suspect\" classifications. To the contrary, the courts of
appeals have unanimously upheld the Age Discrimination in Employment Act
(\"ADEA\") as a valid exercise of Congress\' Section 5 authority,
despite the fact that age is not a suspect classification.[^18] [^19]
Courts of Appeals have also been unanimous in upholding the
constitutionality of the Religious Freedom Restoration Act (\"RFRA\") as
legislation promulgated pursuant to Congress\' Section 5 powers.[^20]

> **4. Congress\' Power Under the Fourteenth Amendment Is Not Limited to
> Prescriptive Legislation.**

Minnesota contends that the ADA is not appropriate legislation under
Section 5 because it requires States to take affirmative acts
([i.e.]{.underline}, make reasonable accommodations) instead of simply
prohibiting discriminatory conduct.[^21] But Supreme Court jurisprudence
does not suggest that Congress\' power under Section 5 is limited to
prescriptive measures.

Section 5 of the Fourteenth Amendment empowers Congress to enact
\"appropriate legislation\" to \"enforce\" the Equal Protection Clause.
As the Supreme Court explained over a hundred years ago:

> Whatever legislation is appropriate, that is, adapted to carry out the
> objects the amendments have in view, whatever tends to enforce
> submission to the prohibitions they contain, and to secure to all
> persons the enjoyment of perfect equality of civil rights and the
> equal protection of the laws against State denial or invasion, if not
> prohibited, is brought within the domain of congressional power.

[Ex parte Virginia]{.underline}, 100 U.S. (10 Otto) 339, 345-346 (1879).
In recent years, the Supreme Court has reiterated this expansive view of
Congress\' Section 5 powers. In [Katzenbach]{.underline}, 384 U.S. at
651, the Supreme Court made clear that Congress\' power under Section 5
is not merely prescriptive: \"Correctly viewed, § 5 is a positive grant
of legislative power authorizing Congress to exercise its discretion in
determining whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment.\" Similarly, in [Fitzpatrick v.
Bitzer]{.underline}, 427 U.S. 445 (1976), the Supreme Court upheld the
abrogation of States\' Eleventh Amendment immunity in Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, as \"appropriate\"
legislation under Section 5. It explained that \"\[w\]hen Congress acts
pursuant to § 5, not only is it exercising legislative **authority that
is plenary** within the terms of the constitutional grant, it is
exercising that authority under one section of a constitutional
Amendment whose other sections by their own terms embody limitations on
state authority.\" [Id]{.underline}. at 456 (emphasis added). Since the
Supreme Court reaffirmed the holding of [Fitzpatrick]{.underline} just
last year in [Seminole Tribe]{.underline}, there is simply no reason to
believe that it would reverse that holding and limit Congress\' plenary
authority under Section 5. [See]{.underline} 116 S. Ct. at 1125, 1128,
1131 n.15. [See]{.underline} [also]{.underline} [City of Richmond v.
J.A. Croson Co.]{.underline}, 488 U.S. 469, 489 (1989) (opinion of
O\'Connor, J.) (Congress\' power to enforce the Fourteenth Amendment
includes the power \"to adopt prophylactic rules\....\")

Moreover, Courts have not limited Congressional authority under Section
5 to prescriptive measures in cases involving the Individuals with
Disabilities Education Act (\"IDEA\"), 20 U.S.C. 1400 [et]{.underline}
[seq]{.underline}., a statute which requires States to take affirmative
steps to guarantee \"access to specialized instruction and related
services which are individually designed to provide educational benefit
to the handicapped child.\" [Board of Educ. v. Rowley]{.underline}, 458
U.S. 176, 201 (1982). The four courts of appeals to address the question
have held that Congress validly exercised its Section 5 authority to
abrogate States\' Eleventh Amendment immunity for suits alleging that
children with disabilities had been deprived of rights guaranteed by the
IDEA. [See]{.underline} [Mitten v. Muscogee County Sch.
Dist.]{.underline}, 877 F.2d 932, 937 (11th Cir. 1989),
[cert]{.underline}. [denied]{.underline}, 493 U.S. 1072 (1990); [Counsel
v.Dow]{.underline}, 849 F.2d 731, 737 (2d Cir.), [cert]{.underline}.
[denied]{.underline}, 488 U.S. 955 (1988); [David D. v. Dartmouth Sch.
Comm.]{.underline}, 775 F.2d 411, 421 n.7 (1st Cir. 1985),
[cert]{.underline}. [denied]{.underline}, 475 U.S. 1140 (1986);
[Crawford v. Pittman]{.underline}, 708 F.2d 1028, 1036-1038 (5th Cir.
1983).

> **5. The Fourteenth Amendment Can Require Dissimilarly Situated
> Individuals to Be Treated Differently.**

Relying on [Pierce v.King]{.underline}, 918 F. Supp. 932 (E.D.N.C.
1996), Minnesota argues that the reasonable accommodation provisions of
the ADA are not appropriate legislation to enforce the Equal Protection
Clause because they require \"different treatment of
dissimilarly-situated individuals.\"[^22] But Congress is not limited to
prohibiting unequal treatment of similarly situated individuals when it
exercises its broad plenary power under Section 5. \"Sometimes the
grossest discrimination can lie in treating things that are different as
though they were exactly alike.\" [Jenness v. Fortson]{.underline}, 403
U.S. 431, 442 (1971); [see]{.underline} [also]{.underline} [United
States v. Horton]{.underline}, 601 F.2d 319, 324 (7th Cir.),
[cert]{.underline}. [denied]{.underline}, 444 U.S. 937 (1979). The
Fourteenth Amendment grants Congress \"discretion in determining whether
and what legislation is needed\" to address such discrimination.
[Katzenbach v. Morgan]{.underline}, 384 U.S. at 651.

After extensive investigation (and long experience with the analogous
non-discrimination requirements contained in Section 504), Congress
found that the exclusion of persons with disabilities from employment
was not just a result of discriminatory animus; it was also a result of
\"thoughtlessness

or indifference \-- of benign neglect\" to the interaction between
\"neutral\" rules and persons with disabilities.[^23] As a result,
Congress determined that treating persons with disabilities the same as
persons without disabilities was not always sufficient to eliminate
discrimination and give persons with disabilities equally meaningful
access to employment opportunities. [See]{.underline} 42 U.S.C. §
12101(a)(5).[^24] Such access is denied when the State refuses to
acknowledge the \"real and undeniable differences between \[persons with
disabilities\] and others.\" [Cleburne]{.underline}, 473 U.S. at 444.

By definition, persons with disabilities have \"a physical or mental
impairment that substantially limits one or more \... major life
activities.\" 42 U.S.C. § 12103(2)(A). Thus, as to that life activity,
\"the handicapped typically are not similarly situated to the
nonhandicapped.\" [Alexander]{.underline}, 469 U.S. at 298. Congress is
not required to ignore this reality and be satisfied with nominal
equality. \"The power to \'enforce\' \[the Equal Protection Clause\] may
at times also include the power to define

situations which [Congress]{.underline} determines threaten principles
of equality and to adopt prophylactic rules to deal with those
situations.\" [City of Richmond v. J.A. Croson Co.]{.underline}, 488
U.S. at 489 (opinion of O\'Connor, J.).

The ADA\'s requirement that States make \"reasonable accommodations\"
for a \"qualified individual with a disability\" is a thoughtful
prophylactic rule designed to level the playing field in employment
situations where persons with disabilities are dissimilarly situated
from persons without disabilities. 42 U.S.C. § 12201(b)(5). This
approach is consistent with Congress\' findings that: \"discrimination
against individuals with disabilities persists in such critical areas as
employment \...;\" \"individuals with disabilities continually encounter
various forms of discrimination, including outright intentional
exclusion, the discriminatory effects of architectural, transportation,
and communication barriers, overprotective rules and policies, failure
to make modifications to existing facilities and practices, exclusionary
qualification standards and criteria, \... and relegation to lesser \...
jobs, or other opportunities;\" and \"the Nation\'s proper goals
regarding individuals with disabilities are to ensure equality of
opportunity, full participation, independent living, and economic
self-sufficiency for such individuals.\" 42 U.S.C. § 12102(a).
Congress\' approach also comports with the ADA\'s stated purpose of
providing \"a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities,\"
42 U.S.C. § 12102(b), and with the Fourteenth Amendment\'s goal of
ensuring that \"\[n\]o State shall \... deny to any person within its
jurisdiction the equal protection of its laws.\" U.S. Const., amend.
XIV, sec. 1.

Minnesota suggests that the Equal Protection Clause does not permit
dissimilarly situated persons to be treated differently. But, in a
series of cases beginning with [Griffin v.Illinois]{.underline}, 351
U.S. 12 (1956), and culminating in [M.L.B. v. S.L.J.]{.underline}, 117
S. Ct. 555 (1996), the Supreme Court has recognized that principles of
equality are sometimes violated by treating unlike persons alike. In
these cases, the Supreme Court has held that a State violates the Equal
Protection Clause in treating indigent parties appealing from certain
court proceedings as if they were not indigent. Central to these
holdings is the acknowledgement that \"a law nondiscriminatory on its
face may be grossly discriminatory in its operation.\" 117 S. Ct. at 569
(quoting [Griffin]{.underline}, 351 U.S. at 17 n.11). The Court held in
these cases that even though States are applying a facially neutral
policy by charging all litigants equal fees for an appeal, the Equal
Protection Clause requires States to waive such fees in order to ensure
equal \"access\" to appeal. [Id]{.underline}. at 560. Nor is it
sufficient if a State permits an indigent person to appeal without
charge, but does not provide free trial transcripts. The Court has
declared that the State cannot \"extend to such indigent defendants
merely a \'meaningless ritual\' while others in better economic
circumstances have a \'meaningful appeal.\'\" [Id]{.underline}. at 569
n.16 (quoting [Ross v. Moffitt]{.underline}, 417 U.S. 600, 612 (1974)).

Moreover, in [Lau v. Nichols]{.underline}, 414 U.S. 563 (1974), a case
involving statutory construction, the Supreme Court again rejected the
notion that equality is always realized by treating everyone alike. In
that case, involving the education of students who did not speak
English, it explained that \"there is no equality of treatment merely by
providing students with the same facilities, textbooks, teachers and
curriculum; for students who do not understand English are effectively
foreclosed from any meaningful education.\" [Id]{.underline}. at 566.
[See]{.underline} [also]{.underline} [Lewis v. Casey]{.underline}, 116
S. Ct. 2174, 2182 (1996) (holding that State has not met its obligation
to provide illiterate prisoners with access to courts simply by
providing all prisoners access to a law library).

Thus, Minnesota\'s arguments that legislation to enforce the Equal
Protection Clause cannot require dissimilarly situated persons to be
treated differently is simply untrue. As the foregoing case law shows,
in some instances, equal protection guarantees cannot be enforced
without requiring different treatment for persons who are dissimilarly
situated.

**CONCLUSION**

Minnesota\'s arguments to the contrary notwithstanding, Section 502 of
the ADA is a constitutionally valid abrogation of States\' Eleventh
Amendment immunity. It passes both tests for constitutionality that the
Supreme Court established in [Seminole Tribe]{.underline}: (1) Congress
\"unequivocally expressed its intent to abrogate immunity\" in the
language of the ADA, and (2) the ADA \"was passed pursuant to a
constitutional provision granting Congress the power to abrogate.\"
[Seminole Tribe]{.underline}, 116 S. Ct. at 1125. For these reasons, the
United States respectfully requests that Minnesota\'s motion to dismiss
Autio\'s Amended Complaint be denied.

Respectfully submitted,

DAVID L. LILLEHAUG ISABELLE KATZ PINZLER

United States Attorney Acting Assistant Attorney General

District of Minnesota Civil Rights Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

ROBERT M. SMALL JOHN L. WODATCH

Civil Chief JOAN A. MAGAGNA

United States Attorney\'s Office JEANINE M. WORDEN

District of Minnesota Attorneys

234 U.S. Courthouse Disability Rights Section

110 S. 4th Street Civil Rights Division

Minneapolis, MN 55401 U.S. Department of Justice

\(612\) 348-1500 P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-6556

Dated: March 5, 1997

[^1]: Amended Complaint at ¶ 10.

[^2]: 42 U.S.C. § 12101, [et]{.underline} [seq]{.underline}.

[^3]: Amended Complaint at ¶¶ 27-34; 38-40.

[^4]: Autio\'s Amended Complaint consists of two claims under the ADA
    and three related claims that are based on Minnesota State law.
    Thus, Minnesota argues that this Court lacks jurisdiction of
    Autio\'s State law claims if it lacks subject matter jurisdiction of
    Autio\'s claims under the ADA.

[^5]: States can also waive their Eleventh Amendment immunity.
    [Atascadero State Hosp. v. Scanlon]{.underline}, 473 U.S. 234,
    241-42 (1985). But neither Autio nor the United States contends that
    Minnesota has done so. Thus, waiver is not an issue in this case.

[^6]: Defendant State of Minnesota\'s Memorandum in Support of Motion to
    Dismiss (\"Minnesota\'s Mem.\") at 4.

[^7]: All of the courts which have considered this question are
    unanimous in holding that the ADA contains Congress\' unequivocal
    expression of intent to abrogate States\' Eleventh Amendment
    immunity. [See]{.underline} [Duffy v. Riveland]{.underline}, 98 F.3d
    447, 452 (9th Cir. 1996); [Mayer v. University of
    Minnesota]{.underline}, 940 F. Supp. 1474, 1477 (D. Minn. 1996);
    [Hunter v. Chiles]{.underline}, 944 F. Supp. 914, 917 (S.D. Fla.
    1996); [Niece v. Fitzner]{.underline}, 941 F. Supp. 1497, 1500 (E.D.
    Mich. 1996); [Clark v. State of California]{.underline}, 1996 WL
    628221, \*5 (N.D. Cal. Oct. 1, 1996)(appeal pending on other
    grounds); [Ellen S. v. Florida Bd. of Bar Examiners]{.underline},
    859 F. Supp. 1489, 1494 (S.D. Fla. 1994); [Eisfelder v. Michigan
    Dep\'t of Natural Resources]{.underline}, 847 F. Supp. 78, 82-83
    (W.D. Mich. 1993); [Martin v. Voinovich]{.underline}, 840 F. Supp.
    1175, 1187 (S.D. Ohio 1993).

[^8]: Minnesota\'s Mem. at 5.

[^9]: [Fitzpatrick]{.underline}, 427 U.S. at 445 (upholding Congress\'
    abrogation of States\' Eleventh Amendment immunity in Title VII of
    the Civil Rights Act of 1964 as a valid exercise of Congress\'
    powers under Section 5 of the Fourteenth Amendment); [Seminole
    Tribe]{.underline}, 116 S. Ct. at 1125, 1128, 1131 n.15 (reaffirming
    the holding of [Fitzpatrick]{.underline} that Congress can abrogate
    States\' Eleventh Amendment immunity by a statute that is a valid
    exercise of Congress\' power under Section 5 of the Fourteenth
    Amendment).

[^10]: Minnesota\'s Mem. at 12-14.

[^11]: Minnesota\'s reliance on [Wilson-Jones v. Caviness]{.underline},
    99 F.3d 203 (6th Cir. 1996), is therefore inappropriate.
    [Wilson-Jones]{.underline} addressed the question whether the Fair
    Labor Standards Act (\"FLSA\"), a statute that was not directed at
    discrimination and expressly invoked only the Commerce Clause, could
    be regarded as an enactment to enforce the Equal Protection Clause.
    Unlike the FLSA, Congress expressly invoked the Fourteenth Amendment
    in the text of this anti-discrimination statute. Thus there can be
    no question that Congress intended the statute to be regarded as
    Section 5 legislation. [See]{.underline} [Timmer v. Michigan Dep\'t
    of Commerce]{.underline}, 104 F.3d 833 (6th Cir. 1997) (limiting
    [Wilson-Jones]{.underline}).

[^12]: Minnesota\'s Mem. at 5-12; Defendant State of Minnesota\'s Reply
    Memorandum Supporting its Motion to Dismiss (\"Minnesota\'s Reply
    Mem.\") at 2-6.

[^13]: [See]{.underline} [also]{.underline} [Niece v.
    Fitzner]{.underline}, 941 F. Supp. at 1497 (holding that the ADA has
    \"the purpose of furthering \'the traditional Equal Protection goal
    of protecting a discrete class of individuals from arbitrary and
    capricious actions\....\'\") (quoting [EEOC v. Calumet
    County]{.underline}, 686 F.2d 1249, 1252 (7th Cir. 1982)).

[^14]: [Cf]{.underline}. [City of Richmond v. J.A. Croson
    Co.]{.underline}, 488 U.S. 469, 490 (1989) (O\'Connor, J.,
    concurring and dissenting) (Congress\' power to enforce the
    Fourteenth Amendment includes \"the power to define situations which
    Congress determines threaten principles of equality and to adopt
    prophylactic rules to deal with those situations\").

[^15]: Minnesota\'s Mem. at 6-11; Minnesota\'s Reply Mem. at 2-5.

[^16]: [Accord]{.underline} [Katzenbach v. Morgan]{.underline}, 384 U.S.
    at 648; [Oregon v. Mitchell]{.underline}, 400 U.S. 112, 118 (1970);
    [Flores v. Boerne]{.underline}, 73 F.3d 1352 (5th Cir. 1996),
    [cert]{.underline}. [granted]{.underline}, 65 U.S.L.W. 3017 (U.S.,
    Oct. 15, 1996); [Martin v. Voinovich]{.underline}, 840 F. Supp.
    1175, 1187 (S.D. Ohio 1993).

    [See]{.underline} [also]{.underline} [City of Rome v. United
    States]{.underline}, 446 U.S. at 156, 175-78 (1980) (holding that,
    under the Fifteenth Amendment, Congress can ban state activities
    that, although constitutional, \"create the risk\" that
    constitutional rights will be infringed). Cases interpreting the
    enforcement clauses of the Thirteenth and Fifteenth Amendments
    inform the Court\'s reading of the Fourteenth Amendment.
    [See]{.underline}, [e.g.]{.underline}, [City of Rome]{.underline},
    446 U.S. at 207-08 n.1 (Rehnquist, J., dissenting) (citing cases);
    [South Carolina v. Katzenbach]{.underline}, 383 U.S. 301, 326-27
    (1966).

[^17]: Justice Black took the position that the Constitution reserved to
    the States the power to establish voter qualifications in State and
    local elections and, unless necessary to remedy racial
    discrimination, Congress could not interfere with the States\'
    exercise of that power. [See]{.underline} 400 U.S. at 130. Justice
    Harlan voted to invalidate the legislation because, in his view, the
    Fourteenth Amendment simply did not encompass \"political rights\"
    or, more specifically, the right to vote and, therefore, Congress
    had no power to legislate with respect to voter qualifications
    pursuant to Section 5. [See]{.underline} 400 U.S. at 140. Justice
    Stewart, writing for himself, Chief Justice Burger, and Justice
    Blackmun, agreed with Justice Black that the Constitution reserves
    to the States the power to set voter qualifications, including
    reasonable age limitations, and concluded that, unlike the situation
    presented in [Katzenbach v. Morgan]{.underline}, there was no basis
    for regarding reduction of the minimum voting age to 18 as necessary
    to prevent invidious discrimination of any sort. [See]{.underline}
    400 U.S. at 203-206.

[^18]: [See]{.underline}, [e.g.]{.underline}, [Ramirez v. Puerto Rico
    Fire Service]{.underline}, 715 F.2d 694, 698-700 (1st Cir. 1983);
    [EEOC v. County of Calumet]{.underline}, 686 F.2d at 1251-1252;
    [Arritt v. Grisell]{.underline}, 567 F.2d 1267, 1271 (4th Cir.
    1977). [See]{.underline} [also]{.underline} [Santiago v. New York
    State Dep\'t of Correctional Servs.]{.underline}, 945 F.2d 25, 30
    (2d Cir. 1991) (dictum), [cert]{.underline}. [denied]{.underline},
    502 U.S. 1094 (1992).

[^19]: Minnesota is incorrect in arguing that [EEOC v.
    Wyoming]{.underline}, 460 U.S. 226 (1983), provides a basis for
    concluding that the ADEA was not a valid exercise of Congress\'
    Section 5 authority. The Court held that the ADEA as applied to
    States was a valid exercise of Congress\' Commerce Clause authority
    and expressly left the Fourteenth Amendment question open.
    [See]{.underline} [id]{.underline}. at 243-244 & n.18.

[^20]: [Sasnett v. Sullivan]{.underline}, 91 F.3d 1018 (7th Cir. 1996);
    [EEOC v. Catholic Univ. of Am.]{.underline}, 83 F.3d 455, 469-70
    (D.C. Cir. 1996); [Flores v. City of Boerne]{.underline}, 73 F.3d at
    1352; [United States v. Bauer]{.underline}, 75 F.3d 1366, 1375 (9th
    Cir. 1996) (dictum suggesting that RFRA is constitutional). Although
    the Eighth Circuit has not directly addressed the issue, in
    [Hamilton v. Schriro]{.underline}. 74 F.3d 1545 (8th Cir. 1996),
    Judge McMillian, in a dissenting opinion, expressed the view that
    RFRA is unconstitutional. [Id.]{.underline} at 1559-70 (McMillian,
    J., dissenting). However, only four months later, in a case which,
    unlike [Hamilton]{.underline}, was decided after the Fifth
    Circuit\'s decision sustaining RFRA in [Flores]{.underline},
    [supra]{.underline}, Judge McMillian, writing for himself and Judge
    Magill, stated that the Eighth Circuit \"has at least implicitly
    held that RFRA is constitutional.\" [In re Young]{.underline}, 82
    F.3d 1407, 1417 (8th Cir. 1996).

[^21]: Minnesota\'s Mem. at 8-10; Minnesota\'s Reply Mem. at 4-5.

[^22]: Minnesota\'s Mem. at 8 (emphasis omitted).

[^23]: S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989) (quoting without
    attribution [Alexander v. Choate]{.underline}, 469 U.S. 287, 295
    (1985)); H.R. Rep. No. 485 pt. 2, 101st Cong., 2d Sess. 29 (1990)
    (same); 136 Cong. Rec. 10,870 (1990) (Rep. Fish); [id]{.underline}.
    at 11,467 (Rep. Dellums).

[^24]: [See]{.underline} [also]{.underline} U.S. Commission on Civil
    Rights, [Accommodating the Spectrum of Individual
    Abilities]{.underline} 99 (1983); [United States v. California
    Mobile Home Park Management]{.underline}, 29 F.3d 1413, 1417 (9th
    Cir. 1994); [Smith v. Barton]{.underline}, 914 F.2d 1330, 1339 &
    n.13 (9th Cir. 1990), [cert]{.underline}. [denied]{.underline}, 501
    U.S. 1217 (1991).