Number range CHAPTER

**IN THE UNITED STATES DISTRICT COURT**

**FOR THE EASTERN DISTRICT OF TENNESSEE**

**AT KNOXVILLE**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**SHEILA M. STEPHENS, )**

**) Civil Action No. 3:99-cv-217**

**Plaintiff )**

**)**

**v. )**

**)**

**UNIVERSITY OF TENNESSEE )**

**(KNOXVILLE), )**

**)**

**Defendant. )**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**UNITED STATES' BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS ON
ELEVENTH AMENDMENT IMMUNITY GROUNDS**

Bill Lann Lee

Acting Assistant Attorney General

Civil Rights Division

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Philip L. Breen, Special Legal Counsel

M. Christine Fotopulos, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-7475

Attorneys for United States

**TABLE OF CONTENTS**

**INTRODUCTION 1**

**ARGUMENT 2**

I.  **In Enacting the Americans with Disabilities Act, Congress Validly
    Abrogated\
    States' Sovereign Immunity Pursuant to its Power to Enforce the
    Equal\
    Protection Clause of the Fourteenth Amendment 2**

> **A. Congress Found That Discrimination Against People with
> Disabilities\
> Was Severe and Extended to Every Aspect of Society 3**
>
> **B. The ADA Was Enacted to Enforce the Equal Protection Clause and
> is\
> Plainly Adapted to That Purpose 7**
>
> **C. In Enacting the ADA, Congress Was Acting Within the
> Constitutional Framework Set down by the Supreme Court 10**
>
> **D. The ADA Is a Congruent and Proportionate Response to Remedy and\
> Prevent the Pervasive Discrimination Congress Found 14**

**II. The Two District Court Cases Relied upon by Defendant Do Not
Reflect the\
Current State of the Law and Have No Precedential Value to this Case
16**

A.  **Recent Rulings of the Sixth Circuit Support This Court's Finding
    That\
    the Abrogation of States' Sovereign Immunity in the ADA Is\
    Constitutional 16**

B.  **The Western District's Ruling in [Hedgepeth]{.underline} Does Not
    Support\
    Defendant's Claim in this Case 19**

C.  **This Court's Ruling in [Satterfield]{.underline} Has No
    Precedential Value in this\
    Case 21**

**CONCLUSION 22**

**INTRODUCTION**

The United States moves to intervene as of right in this action for the
purpose of defending the constitutionality of the abrogation of states'
Eleventh Amendment immunity in the Americans with Disabilities Act
(ADA). 42 U.S.C. § 12101 [et]{.underline} [seq]{.underline}. Plaintiff,
Sheila Stephens, who works in the audio/visual library at the University
of Tennessee at Knoxville, has filed suit in this Court alleging
[inter]{.underline} [alia]{.underline} that the University intentionally
discriminated against her in violation of the ADA when it passed her
over for a promotion to a supervisory position on the basis of her
disabilities, Graves Disease and Hepatitis C. Defendant University, an
instrumentality of the State of Tennessee, has moved to dismiss her
complaint, claiming that this Court does not have jurisdiction to hear
the claim because the ADA's abrogation of states' sovereign immunity is
unconstitutional, and, in the alternative, for summary judgment on the
merits.

The vast majority of federal courts that have addressed the issue of
states' Eleventh Amendment immunity to claims of unlawful discrimination
under the ADA, including six circuit courts of appeal, have upheld the
ADA's abrogation of that immunity.[^1] Although the Sixth Circuit has
yet to squarely address the issue, its rulings with respect to the same
provision in other federal civil rights statutes suggest that it is
likely to follow the majority rule. The United States respectfully urges
this Court to follow the majority of circuit courts in upholding the
ADA's abrogation of states' immunity and to deny Defendant's motion to
dismiss on that ground.

**ARGUMENT**

**I. In Enacting the Americans with Disabilities Act, Congress Validly
Abrogated States' Sovereign Immunity Pursuant to Its Power to Enforce
the Equal Protection Clause of the Fourteenth Amendment**

In the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101
[et]{.underline} [seq]{.underline}., Congress expressly provided that 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."
42 U.S.C. § 12202.[^2] The United States Supreme Court has not ruled on
the question of whether this abrogation of states' immunity was a valid
exercise of Congress' power. However, six circuit courts of appeals have
concluded that it is.[^3] The Sixth Circuit is currently considering
this issue in the appeals of six district court rulings, four of which
upheld the abrogation provision and two of which did not.[^4] All of
these cases were submitted to the Court for decision, either on briefs
or with argument, on October 26, 1999. This Court might consider staying
its ruling on the defendant's motion to dismiss until the Sixth Circuit
has ruled on the issue.

> **A. Congress Found That Discrimination Against People with
> Disabilities Was Severe and Extended to Every Aspect of Society**

When Congress enacted the ADA, it made explicit findings of pervasive,
nationwide discrimination against individuals with disabilities. Some of
those findings were included in the text of the statute itself, such as
the following:

> \[H\]istorically, 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;
>
> \[D\]iscrimination against individuals with disabilities persists in
> such crucial areas as employment, housing, public accommodations,
> education, transportation, communication, recreation,
> institutionalization, health services, voting, and access to public
> services\...

42 U.S.C. § 12101(a)(2), (3). Among the principal areas in which
Congress found a persistent pattern of discrimination on the basis of
disability were areas traditionally dominated by the state, such as
institutionalization, voting, education and transportation.

The ADA's legislative history is replete with findings of
unconstitutional exclusion of, and discrimination against, people with
disabilities.[^5] Among many other findings, the evidence before
Congress demonstrated that persons with disabilities were sometimes
excluded from public services and employment for no reason other than
distaste for or fear of their disabilities.[^6] The legislative record
contains documented instances of exclusion of persons with disabilities
from hospitals, theaters, restaurants, bookstores, and auction houses
simply because of prejudice.[^7] Indeed, the United States Commission on
Civil Rights, after conducting a thorough survey of the available data,
documented that prejudice against persons with disabilities manifested
itself in a variety of ways, including "reaction\[s\] of aversion,"
reliance on false stereotypes, and stigma associated with disabilities
that cause people with disabilities to be "thought of as not quite
human."[^8] The negative attitudes, in turn, produced fear and
reluctance on the part of people with disabilities to participate in
society.[^9] Congress thus concluded that persons with disabilities were
"faced with restrictions and limitations\...resulting from stereotypic
assumptions not truly indicative of the individual ability of such
individuals to participate in, and contribute to, society." 42 U.S.C. §
12101(a)(7).

The many decades of ignorance, fear and misunderstanding created a
tangled web of discrimination, which has resulted in, and has been
reinforced by, isolation and segregation. The evidence before Congress
demonstrated that these attitudes were linked more generally to the
segregation of people with disabilities.[^10] This segregation has
resulted in part from government policies and practices in the "critical
areas" listed by Congress in the statute. Together with private
discrimination, these government policies and practices have produced a
situation in which people with disabilities are largely poor, isolated
and segregated. These findings indicate that Congress specifically
considered the role of state and local governments in its assessment of
the evidence of unconstitutional discrimination against people with
disabilities.

Traditionally, people with disabilities have been excluded from
participation in public life by a series of unnecessary barriers, from
inaccessible public transportation to poorly designed government
buildings. Even when people with disabilities had access to generally
available goods and public services, often they could not afford them
due to poverty. Over twenty percent of people with disabilities of
working age live in poverty, more than twice the rate of other
Americans.[^11] Congress specifically found that this condition was
linked to the extremely high unemployment rate among people with
disabilities, which in turn was a result of discrimination in employment
combined with inadequate education and transportation.[^12]

This discrimination was clearly irrational, as people with disabilities
who were able to overcome these barriers proved to be excellent workers.

> \[T\]here is consistent\...empirical evidence to back up the
> claims\...that handicapped persons are more stable workers, with lower
> turnover, less absenteeism, lower risks of accident, and more loyalty
> to and satisfaction with their jobs and employers than other workers
> of similar characteristics in similar jobs.[^13]

Given these facts, it is not surprising that surveys of both people with
disabilities and employers revealed that discrimination was one of the
primary reasons many people with disabilities did not have jobs:[^14]

> \[R\]ecent studies suggest that prejudice against impaired persons is
> more intense than against other minorities. \[One study\] concludes
> that employer attitudes toward impaired workers are 'less favorable
> than those \... toward elderly individuals, minority group members,
> ex-convicts, and student radicals,' and \[another study\] finds that
> handicapped persons are victims of 'greater animosity and rejections
> than many other groups in society.'[^15]

In addition, even when employed, people with disabilities received lower
wages that could not be explained by any factor other than
discrimination.[^16]

Congress heard extensive testimony that employers irrationally and
arbitrarily denied employment to individuals with disabilities:

> As was made strikingly clear at the hearings on the ADA, stereotypes
> and misconceptions about the abilities, or more correctly the
> inabilities, of persons with disabilities are still pervasive today.
> Every government and private study on the issue has shown that
> employers disfavor hiring persons with disabilities because of
> stereotypes, discomfort, misconceptions, and unfounded fears about
> increased costs and decreased productivity.[^17]

There is no doubt that similar discrimination of a constitutional
magnitude existed in government employment.[^18] Nor is there any reason
to believe that governmental entities were immune from the unfortunate
reality that "\[f\]requently, employer prejudices exclude\[d\]
handicapped persons from jobs."[^19] Indeed, since many government
buildings were inaccessible, there may have been reduced opportunity for
such employment to begin with. Based on these studies, Congress could
reasonably have found that government discrimination, in its provision
of public services and employment, was a root cause of "people with
disabilities, as a group, occupy\[ing\] an inferior status in our
society, and \[being\] severely disadvantaged socially, vocationally,
economically, and educationally." 42 U.S.C. 12101(a)(6).

> B. **The ADA Was Enacted to Enforce the Equal Protection Clause and is
> Plainly Adapted to That Purpose**

As a general proposition, the Eleventh Amendment protects states from
being sued by individual citizens in federal court. However, this
immunity is not absolute, and can, in certain circumstances, be waived
by the state or abrogated by Congress. One such circumstance arises
pursuant to the Fourteenth Amendment, which vests Congress with the
power to enforce the Equal Protection Clause "by appropriate
legislation." U.S. Const. Amend. XIV, Section 5. In [Fitzpatrick v.
Bitzer]{.underline}, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976),
in which the United States Supreme Court upheld the abrogation of
states' immunity in Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, [et]{.underline} [seq]{.underline}., the Court held that

> Congress may, in determining what is 'appropriate legislation' for the
> purpose of enforcing the provisions of the Fourteenth Amendment,
> provide for private suits against States or state officials which are
> constitutionally impermissible in other contexts\...When 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}., 427 U.S. at 456.

In [Seminole Tribe of Florida v. Florida]{.underline}, 517 U.S. 44, 116
S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court reaffirmed the
holding in [Fitzpatrick]{.underline} and articulated a two-part test to
determine whether Congress has properly abrogated states' Eleventh
Amendment immunity from suit in federal court: "first, whether Congress
has unequivocally expressed its intent to abrogate the immunity; and
second, whether Congress has acted pursuant to a valid exercise of
power." [Id]{.underline}. 517 U.S. at 55 (citations, quotations and
brackets omitted). The explicit abrogation provision in the ADA is more
than a sufficient expression of Congress' intent. With respect to the
second element, Congress expressly provided that the ADA was intended
"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). The great majority of cases have held that the
goal of enforcing the Equal Protection Clause pursuant to Section 5
provides a sufficient constitutional basis for Congress' application of
the ADA to states.

Over a hundred years ago, the Supreme Court articulated its view of the
broad reach of Section 5 of the Equal Protection Clause:

> \[W\]hatever 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. 339 at 345-346, 10 Otto 339,
25 L.Ed. 676 (1879). Thus, in general, a statute will be "appropriate
legislation" under Section 5 of the Fourteenth Amendment if it is
"plainly adapted" to the goal of enforcing the Equal Protection Clause
and consistent with "the letter and spirit of the constitution."
[Katzenbach v. Morgan]{.underline}, 384 U.S. 641 at 651, 86 S.Ct. 1717,
16 L.Ed.2d 828 (1966).

After [Seminole Tribe]{.underline}, the Supreme Court held in [City of
Boerne v. Flores]{.underline}, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d
624 (1997), that in order for legislation to be "plainly adapted" to the
goal of enforcing the Fourteenth Amendment, it must be linked to
constitutional violations, and its remedies must be "congruent and
proportional" to the evils sought to be addressed. [Id]{.underline}.,
521 U.S. at 520. In that case, the Court confirmed that Congress has
broad discretion to enact legislation to redress what it rationally
perceives to be widespread constitutional injuries against individuals
with disabilities, and explained that the authority to enforce the
Fourteenth Amendment is a broad power to remedy past and present
discrimination and to prevent future discrimination. [Id]{.underline}.
at 517-518. Specifically, the Court held that Congress can prohibit
activities that are not themselves unconstitutional in furtherance of
its remedial scheme: "Legislation which deters or remedies
constitutuional violations can fall within the sweep of Congress'
enforcement power even if in the process it prohibits conduct which is
not itself unconstitutuional and intrudes into 'legislative spheres of
autonomy previously reserved to the States.'" [Id]{.underline}. at 518
(citing [Fitzpatrick]{.underline}, 427 U.S. at 455).

In [Boerne]{.underline}, the Supreme Court stressed that Congress\'
power had to be linked to constitutional injuries and that there must be
a "congruence and proportionality" between the identified harms and the
statutory remedy. [Id]{.underline}. at 520. The Court acknowledged that
"the line between measures that remedy or prevent unconstitutional
actions and measures that make a substantive change in the governing law
is not easy to discern, and Congress must have wide latitude in
determining where it lies." [Id]{.underline}. at 519-520.[^20] Under
this analysis, a majority of circuit courts of appeal have found the ADA
to be "congruent and proportional" to the pervasive discrimination on
the basis of disability which it seeks to remedy, and thus a valid
exercise of congressional power.[^21]

> **C. In Enacting the ADA, Congress Was Acting Within The
> Constitutional Framework Set Down By the Supreme Court**

The Equal Protection Clause prohibits invidious discrimination, that is
"a classification whose relationship to \[a legitimate\] goal is so
attenuated as to render the distinction arbitrary or irrational." [City
of Cleburne v. Cleburne Living Center]{.underline}, 473 U.S. 432 at 446,
105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In [Cleburne]{.underline}, the
Supreme Court unanimously declared unconstitutional as invidious
discrimination a decision by a city to deny a special use permit for the
operation of a group home for people with mental retardation. A majority
of the Court recognized that "through ignorance and prejudice \[persons
with disabilities\] 'have been subjected to a history of unfair and
often grotesque mistreatment.'" [Id]{.underline}. at 454 (Stevens, J.,
concurring); [see]{.underline} [id]{.underline}. at 461 (Marshall, J.,
concurring in the judgment in part). The Court acknowledged that
"irrational prejudice," [id]{.underline}. at 450, "irrational fears,"
[id]{.underline}. at 455 (Stevens, J.), and "impermissible assumptions
or outmoded and perhaps invidious stereotypes," [id]{.underline}. at 465
(Marshall, J.), existed against people with disabilities in society at
large and sometimes inappropriately infected government decision making.
As Justice Marshall explained, "lengthy and continuing isolation of
\[persons with disabilities has\] perpetuated the ignorance, irrational
fears, and stereotyping that long have plagued them." [Id]{.underline}.
at 464; [see]{.underline} [also]{.underline} U.S. Commission on Civil
Rights, [supra]{.underline} n. 7, at 43-45. Thus, the Equal Protection
Clause of its own force already proscribes treating persons with
disabilities differently when the government has not put forward
evidence justifying the difference or where the justification is based
on mere negative attitudes. In this respect, the ADA is part of a long
tradition of federal civil rights laws which prohibit arbitrary and
irrational discrimination.

The Supreme Court has also recognized that the principle of equality is
not an empty formalism divorced from the realities of day-to-day life,
and thus the Equal Protection Clause is not limited to prohibiting
unequal treatment of similarly situated persons. The Equal Protection
Clause also guarantees "that people of different circumstances will not
be treated as if they were the same." [United States v.
Horton]{.underline}, 601 F.2d 319, 324 (7th Cir. 1979),
[cert.]{.underline} [denied]{.underline}, 444 U.S. 937, 100 S.Ct. 287,
62 L.Ed.2d 197 (1979) (quoting Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law 520 (1978)). By definition, persons with
disabilities have "a physical or mental impairment that substantially
limits one or more\...major life activities." 42 U.S.C. 12102(2)(A).
Thus, as to that life activity, "the handicapped typically are not
similarly situated to the nonhandicapped." [Alexander v.
Choate]{.underline}, 469 U.S. 287 at 298, 105 S.Ct. 712, 83 L.Ed.2d 661
(1985). The Constitution is not blind to this reality and instead, in
certain circumstances, requires equal access rather than simply
identical treatment. For "\[s\]ometimes 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 at 442, 91 S.Ct.
1970, 29 L.Ed.2d 554 (1971).

Thus, there is a basis in constitutional law for recognition that
discrimination exists not only by treating people with disabilities
differently for no legitimate reason, but also by treating them
identically when they have recognizable differences. As the Sixth
Circuit has explained in a case involving gender classifications, "in
order to measure equal opportunity, present relevant differences cannot
be ignored. When males and females are not in fact similarly situated
and when the law is blind to those differences, there may be as much a
denial of equality as when a difference is created which does not
exist." [Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. Ohio
High Sch. Athletic Ass\'n]{.underline}, 647 F.2d 651, 657 (6th Cir.
1981); [see]{.underline} [also]{.underline} [Lau v.
Nichols]{.underline}, 483 F.2d 791, 806 (9th Cir. 1973) (Hufstedler, J.,
dissenting from the denial of rehearing en banc),
[reversed]{.underline}, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974).
Similarly, it is also a denial of equality when access to facilities,
benefits, services and employment is denied because the State refuses to
acknowledge the "real and undeniable differences between \[persons with
disabilities\] and others." [Cleburne]{.underline}, 473 U.S. at 444.

Bringing these principles together, the ADA seeks to make effective the
right to be free from invidious discrimination by establishing a
remedial scheme tailored to detecting and preventing those activities
most likely to be the result of past or present discrimination. Viewed
in light of the underlying Equal Protection principles, the ADA is
appropriate preventive and remedial legislation. First, it is preventive
in that it established a statutory scheme that attempts to detect
government activities likely tainted by discrimination. By requiring the
State to show on the record that distinctions it makes based on
disability, or refusals to provide meaningful access to facilities,
programs and services, are not the result of prejudice or stereotypes,
but rather based on legitimate governmental objectives, it attempts to
ensure that inaccurate stereotypes or irrational fear are not the true
cause of the decision.

For example, a survey of state officials by the Advisory Commission on
Intergovernmental Relations (ACIR) prior to the enactment of the ADA
reported that 35% identified "negative attitudes about persons with
disabilities" as a "serious impediment" to employing persons with
disabilities in state government, and another 48% described them as a
"moderate" impediment.[^22] But as the Court explained in
[Cleburne]{.underline}, "mere negative attitudes\...are

not permissible bases" for making legitimate government decisions.
[Id]{.underline}. at 448. Thus, with the extensive evidence of negative
employer attitudes in general, and government employer attitudes
specifically, Congress had a strong basis in fact for determining that
States were acting in an unconstitutional manner when it came to
employing persons with disabilities. Moreover, Congress determined that
a "clear and comprehensive national mandate for the elimination of
discrimination" was necessary, 42 U.S.C. 12101(b)(1), because there was
evidence that even when States had good policies on paper,
"implementation has sometimes been impeded by negative attitudes and
misconceptions about persons with disabilities and their performance
capabilities" by those mid-level managers "who actually make hiring and
promotion decisions."[^23] Moreover, Congress\' conclusion that public
employers engage in the same discrimination as private employers is
consistent with its coverage of public employers under Title VII of the
Civil Rights Act of 1964 and the Age Discrimination in Employment
Act.[^24]

Second, the ADA is remedial in that it attempts to ensure that the
interests of people with disabilities are given their due. Not
surprisingly, given their profound segregation from the rest of society,
[see]{.underline} 42 U.S.C. 12101(a)(2), the needs of persons with
disabilities were not taken into account when buildings were designed,
standards were set, and rules were promulgated. Even when considered,
their interests may not have been properly weighed, since \"irrational
fears or ignorance, traceable to the prolonged social and cultural
isolation of \[persons with disabilities\] continue to stymie
recognition of \[their\] dignity and individuality.\"
[Cleburne]{.underline}, 473 U.S. at 467 (Marshall, J.). Policies and
criteria restricting access to government programs, services and
employment are just as much a barrier to some as physical barriers are
to others.

As Congress and the Supreme Court recognized, many of the problems faced
today by persons with disabilities are a result of "thoughtlessness or
indifference \-- of benign neglect" to the interaction between those
purportedly "neutral" rules and persons with disabilities.[^25] As a
result, Congress determined that for an entity to treat persons with
disabilities as it did those without disabilities was not sufficient to
eliminate the effects of years of segregation and to give persons with
disabilities equally meaningful access to every aspect of society.[^26]
When persons with disabilities have been segregated, isolated, and
denied effective participation in society, it is within the scope of
Congress' remedial authority to conclude that affirmative measures are
necessary to bring them into the mainstream.

> **D. The ADA Is a Congruent and Proportionate Response to Remedy and
> Prevent\
> the Pervasive Discrimination Congress Found**

Pursuant to this constitutional framework, the vast majority of cases
have held that the ADA is a congruent and proportionate response to the
pervasive discrimination Congress discovered and is therefore
"appropriate" legislation to enforce the Equal Protection Clause. The
recent Ninth Circuit decision in [Dare]{.underline} upheld the ADA as
congruent and proportional, noting that "Congress' enforcement authority
is at its apex when fashioning remedies aimed at the core of the
Fourteenth Amendment guarantee of Equal Protection." [Id]{.underline},
[supra]{.underline} n. 1, at 1174. That court also "reiterated the
importance of deference to Congress in this analysis," because "\[t\]he
Supreme Court has specifically found protections for people with
disabilities to be an area in which

Congressional judgment should be given great deference."
[Id]{.underline}. at 1175 (citing [Cleburne]{.underline}, 473 U.S. at
442-43).

The Second Circuit held similarly in [Muller v. Costello]{.underline},
highlighting the comprehensiveness of Congress' findings of pervasive
discrimination against persons with disabilities and recognizing
[Boerne]{.underline}'s dictate to allow Congress "wide latitude" to
determine the extent of measures necessary to prevent and remedy such
discrimination:

> In light of Congress' findings of the extent of discrimination against
> people with disabilities, and with due regard to the deference owed to
> Congress in making such judgments, we will not second-guess Congress'
> judgment that the ADA was targeted to remedy and prevent irrational
> discrimination against people with disabilities.

[Muller]{.underline}, [supra]{.underline} n. 1, at 309 (citing
[Boerne]{.underline}, 521 U.S. at 519-20). Likewise, in
[Coolbaugh]{.underline}, the Fifth Circuit noted that the ADA was
accompanied by express factual findings by Congress, based on an
extensive legislative record, which were entitled to "substantial
deference" in determining the scope of the constitutional violations.
[Id]{.underline}., [supra]{.underline} n. 1, at 435. Given those
findings, the Fifth Circuit held:

> In sum, the ADA represents Congress' considered efforts to remedy and
> prevent what it perceived as serious, widespread discrimination
> against the disabled. We recognize that in some instances, the
> provisions of the ADA will "prohibit\[\] conduct which is not in
> itself unconstitutional and intrude\[\] into 'legislative spheres of
> autonomy previously reserved to the States.'" We cannot say, however,
> in light of the extensive findings of unconstitutional discrimination
> made by Congress, that these remedies are too sweeping to survive the
> \[[City of Boerne v.]{.underline}\] [Flores]{.underline}
> proportionality test for legislation that provides a remedy for
> unconstitutional discrimination or prevents threatened
> unconstitutional actions.

[Id]{.underline}. at 437-38 (footnote and citations omitted).

II. **The Two District Court Cases Relied Upon by Defendant Do Not
    Reflect the Current State of the Law and Have No Precedential Value
    to This Case**

The Sixth Circuit has not yet definitively ruled on the question of the
constitutionality of the ADA's abrogation of states' Eleventh Amendment
immunity. However, from its comments in several cases in which it has
been presented with the issue but has declined to reach it, as well as
its decisions in other cases in which the abrogation of states'
sovereign immunity has been challenged, a trend in the court's analysis
is suggested and it seems likely to join with the majority of the other
circuits in upholding the constitutionality of the ADA. That trend is
apparent at the district court level of this Circuit as well, where the
constitutionality of the ADA's abrogation provision as applied to states
has been upheld in twelve out of fifteen recent cases.[^27]

A.  **Recent Rulings of the Sixth Circuit Support This Court's Finding
    That the Abrogation of States' Sovereign Immunity in the ADA is
    Constitutional**

Despite the fact that it has never squarely decided the issue, the Sixth
Circuit seems to have always presumed that the ADA's abrogation of
states' immunity is constitutional.[^28] Most recently, after simply
noting the split in the circuits in [Nelson v. Miller]{.underline}, 170
F.3d 641, 649 n.7 (6^th^ Cir. 1999), the Sixth Circuit provided a hint
as to its inclination on this issue in [Key v. Grayson]{.underline}, 179
F.3d 996 (6^th^ Cir. 1999). In that case, the court stated that although
the question of the ADA's constitutionality "has yet to be conclusively
determined\...most courts that have discussed the issue have found that
Congress properly acted within its Section 5 power when it abrogated
states' immunity to suits under the ADA," citing the string of circuit
court decisions which have upheld the ADA. [Id]{.underline}. at 998 n.
1.

This is entirely consistent with the Sixth Circuit's recent decisions
with respect to abrogation of Eleventh Amendment immunity in the context
of other federal laws. In its pre-[Boerne]{.underline} decision in
[Wilson-Jones v. Caviness]{.underline}, 99 F.3d 203 (6^th^ Cir. 1996),
the Sixth Circuit held that the abrogation provision in the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 203(d) (1978), which Congress had
enacted pursuant to the Interstate Commerce Clause, could not be
judicially interpreted as an enactment to enforce the Equal Protection
Clause. In its holding that "there is no sufficiently strong logical
connection between the aim of the act --- to increase the wages and
shorten the hours of certain employees --- and central, obvious
Fourteenth Amendment concerns," the court made the following comment:

> We think it best to 'regard as an enactment to enforce' the Equal
> Protection Clause, in the absence of explicit comment by Congress,
> only efforts to remedy discrimination against a class of persons that
> Fourteenth Amendment jurisprudence has already identified as deserving
> special protection. \[Footnote:\] Our opinion might be different if
> Congress made findings that a particular group needed legal protection
> to remedy some sort of invidious discrimination not directly addressed
> by federal precedent.

[Id]{.underline}. at 209-210, 210 n. 4 (citing [Katzenbach]{.underline},
384 U.S. at 651.) In the context of the ADA, in sharp contrast to the
FLSA, all three factors identified by the Court are met: Congress
expressly enacted the ADA pursuant to the Equal Protection Clause of the
Fourteenth Amendment; the Supreme Court has identified the class of
disabled persons as one which is capable of suffering unconstitutional,
invidious discrimination in violation of the Equal Protection Clause,
[see]{.underline}, [e.g.]{.underline}, [Cleburne]{.underline},
[supra]{.underline}; and Congress made explicit and exhaustive findings
of this discrimination and determined that the ADA was necessary
preventative and remedial legislation.

However, the most instructive of the Sixth Circuit's recent rulings on
the question of states' Eleventh Amendment immunity from suit under
federal civil rights laws came in the age discrimination case of [Coger
v. Board of Regents]{.underline}, 154 F.3d 296 (6^th^ Cir. 1998),
petition for [cert.]{.underline} filed, 67 U.S.L.W. 3364 (Nov. 16, 1998)
(No. 98-821). In that case, faculty of Memphis State University sued the
state under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §
621, [et]{.underline} [seq]{.underline}. In upholding the
constitutionality of the ADEA's abrogation of states' immunity under the
Supreme Court's rulings in [Seminole Tribe]{.underline} and
[Boerne]{.underline}, the Sixth Circuit made at least three points which
are equally applicable in the ADA context. First, the court specifically
held that Congress\' power to enforce the Equal Protection Clause
extended to those classifications that are not otherwise subject to
heightened judicial scrutiny (such as age or disability). "\[T\]he fact
that age is not a suspect classification does not eliminate the Equal
Protection Clause as a source authorizing Congress to prohibit age-based
discrimination." [Id]{.underline}. at 305. Second, in applying the
[Boerne]{.underline} "congruence and proportionality" test, the Sixth
Circuit held that Congress\' findings (embodied in both the text of the
statute and the legislative history) cannot be ignored. To the contrary,
they are "helpful in determining the extent of the threatened
constitutional violations." [Id]{.underline}. at 306. Third, the Sixth
Circuit held that a statutory scheme that "attempts to prevent
discrimination" by requiring "case-by-case determinations based on
facts" is not a disproportionate remedy. [Id]{.underline}. at 307. Thus,
even though rational-basis review would permit the use of
generalizations, requiring individualized assessments "does not render
the statute so

disproportionate to its purpose that it represents an invalid exercise
of Congress\'s enforcement power." [Id]{.underline}.

> B. **The Western District's Ruling in [Hedgepeth]{.underline} Does Not
> Support Defendant's Claim in This Case**

The Western District of Tennessee has squarely addressed this issue only
once, in [Johnson v. State Technology Center at Memphis]{.underline}, 24
F.Supp.2d 833 (W.D. Tenn. 1998), and in that case it upheld the
constitutionality of the ADA's abrogation provision.[^29] In contrast,
the case principally relied upon by Defendant, [Hedgepeth v.
Tennessee]{.underline}, 33 F.Supp.2d 668 (W.D. Tenn. 1998), did not
reach the issue. In that case, disabled individuals challenged the
state's assessment of fees for disabled parking placards pursuant to a
Justice Department regulation that prohibits a state from imposing
surcharges on individuals to subsidize its compliance with the ADA's
requirements. The court determined that it could not reach the merits of
the ADA claim because the fees constituted a state tax under the Tax
Injunction Act, 28 U.S.C. § 1341, which divested the federal courts of
subject matter jurisdiction in such cases. However, although it was
"unnecessary to rule on defendants' argument that plaintiffs' claims
against Tennessee are barred by the Eleventh Amendment," the court
"address\[ed\] defendants' assertion for purposes of appellate review."
[Id]{.underline}. at 674. The court went on to discuss its views on the
ADA claim, and there expressed the opinion that "Congress did not have
the authority to enact the accommodation provisions of the ADA, and
\[therefore\] did not effectively abrogate the states' Eleventh
Amendment sovereign immunity with respect to those provisions."
[Id]{.underline}. at 677. The court reasoned that "since the
accommodation provisions of the ADA are not limited to the prevention of
discrimination and\...apply where no discrimination has been practiced,
they permit a remedy where there is no injury and are therefore
disproportionate," and, moreover, they "give disabled individuals a
preferential right\...not previously recognized under the Equal
Protection Clause, and thus exceed the scope of remedial legislation."
[Id.]{.underline} at 674-5.

However, the court specifically affirmed that, as distinguished from the
requirement to provide reasonable accommodations, the general
prohibition of discrimination on the basis of disability was properly
within the scope of Congress' legislative power: "To the extent the
disabled do not have equal access and opportunities because they are
suffering from discrimination, the ADA prohibits such discrimination
elsewhere in the Act. Equal protection mandates nothing further."
[Id]{.underline}. Plaintiff here is alleging that she was intentionally
discriminated against by her employer, who, she alleges, acting on the
basis of stereotypical beliefs and prejudices, erroneously concluded
that her disabilities precluded her advancement; she does not believe
that she requires, nor did she ever request, any kind of
accommodation.[^30] Therefore, far from supporting Defendant's position,
the discussion in [Hedgepeth]{.underline}, to the extent it carries any
persuasive weight at all, actually supports Plaintiff's claim by
reaffirming the validity of the ADA as applied to discrimination cases
such as this one.[^31]

Whereas [Hedgepeth]{.underline} did not actually reach the ADA issue,
another judge in the same district had earlier issued a more
comprehensive ruling in [Johnson]{.underline}, in which the court upheld
the constitutionality of the ADA's abrogation of states' immunity. In
[Johnson]{.underline}, the court relied upon the Sixth Circuit's
post-[Boerne]{.underline} ruling in [Coger]{.underline} to find it
"quite likely that the Sixth Circuit will adopt a similar position" with
respect to the ADA:

> Although [Coger]{.underline} was limited to the ADEA and did not
> address the provisions presently before this court, it seems clear
> that the analytical machinery applied by the Sixth Circuit to the ADEA
> question when applied to the ADA and Rehabilitation Act will produce a
> similar result --- validation of Congressional power to abrogate the
> Eleventh Amendment.

[Johnson]{.underline}, [supra]{.underline}, at 843. The
[Johnson]{.underline} court went on to agree with "the clear majority of
courts that have addressed this issue \[and\] have determined that
Congress properly exercised its Section 5 power in abrogating state
immunity under the ADA and the Rehabilitation Act." [Id]{.underline}. at
839.

> **C.** **This Court's Ruling in [Satterfield]{.underline} Has No
> Precedential Value In This Case**

Before the Sixth Circuit issued its decision in [Coger]{.underline},
another judge in this Court issued an unreported ruling in [Satterfield
v. Tennessee]{.underline}, 1998 U.S. Dist. LEXIS 21410 (E.D. Tenn. March
31, 1998) granting the defendant's motion to dismiss on the ground that
the ADA's abrogation provision was unconstitutional. The court reasoned
that because "the ADA protects a class of individuals \-- the disabled
\-- who enjoy no heightened constitutional protections" under the Equal
Protection Clause, it was "difficult to find that the ADA\...find\[s
its'\] constitutional authority in the Enforcement Clause of the
Fourteenth Amendment." [Satterfield]{.underline} at \*14-15. As noted
above, this reasoning was specifically rejected by the Sixth Circuit in
the later case of [Coger]{.underline}, which held that although a given
classification (like age, in the ADEA, or disability, in the ADA) is not
subject to heightened judicial scrutiny under the Equal Protection
Clause, Congress still retains the authority to prohibit age-based or
disability-based discrimination pursuant to the Fourteenth Amendment.
[Coger]{.underline}, [supra]{.underline}, at 305. In any case, as a
district court opinion (not to mention an unreported one),
[Satterfield]{.underline} has no precedential value in this case.

**CONCLUSION**

For the foregoing reasons, the United States respectfully urges this
Court to follow the majority of circuit courts in upholding the ADA's
abrogation of states' immunity and to deny Defendant's motion to dismiss
on this ground.

Dated: January 5, 2000

Respectfully submitted,

Bill Lann Lee

Acting Assistant Attorney General

Civil Rights Division

By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Philip L. Breen, Special Legal Counsel

M. Christine Fotopulos, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-7475

[^1]: [See]{.underline} [Garrett v. University of Alabama at Birmingham
    Board of Trustees]{.underline}, 193 F.3d 1214, 1218 (11^th^ Cir.
    1999); [Dare v. State of California]{.underline}, 191 F.3d 1167,
    1175 (9^th^ Cir. 1999); [Martin v. Kansas]{.underline}, 190 F.3d
    1120, 1128 (10^th^ Cir. 1999); [Muller v. Costello]{.underline}, 187
    F.3d 298, 310 (2^nd^ Cir. 1999); [Seaborn v. Florida]{.underline},
    143 F.3d 1405, 1406 (11th Cir. 1998), [cert. denied]{.underline},
    119 S.Ct. 1038, 143 L.Ed.2d 46 (1999); [Kimel v. Board of
    Regents]{.underline}, 139 F.3d 1426, 1433, 1442-1443 (11th Cir.
    1998), petition for [cert.]{.underline} pending as to the ADA issue,
    [cert. granted]{.underline} as to the Age Discrimination in
    Employment Act (ADEA) issue, 119 S.Ct. 901, 119 S.Ct. 902 (Jan. 25,
    1999); [Coolbaugh v. Louisiana]{.underline}, 136 F.3d 430, 438 (5th
    Cir. 1998), [cert. denied]{.underline}, 119 S.Ct. 58, 142 L.Ed.2d 45
    (1998); [Clark v. California]{.underline}, 123 F.3d 1267, 1270-1271
    (9th Cir. 1997), [cert. denied]{.underline}, 118 S.Ct. 2340, 141
    L.Ed.2d 711 (1998); and [Crawford v. Indiana Department of
    Corrections]{.underline}, 115 F.3d 481, 487 (7^th^ Cir. 1997).
    [See]{.underline} [also]{.underline} [Torres v. Puerto Rico Tourism
    Company]{.underline}, 175 F.3d 1, 6 n.7 (1^st^ Cir. 1999) (stating
    in dicta that "we have considered the issue of Congress' authority
    sufficiently to conclude that, were we to confront the question
    head-on, we almost certainly would join the majority of courts
    upholding the \[abrogation\] provision").

[^2]: The Eleventh Amendment states: "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 of Subjects of any Foreign
    State." U.S. Const. amend. XI. The United States Supreme Court has
    broadened the meaning of this amendment to preclude suits in federal
    court against a state by its own citizens. [See]{.underline} [Hans
    v. Louisiana]{.underline}, 134 U.S. 1, 10 Sup.Ct. 504, 33 L.Ed. 842
    (1890).

[^3]: [See]{.underline} cases listed at footnote 1, above.

[^4]: [See]{.underline} consolidated interlocutory appeals of district
    court denials of defendants' motions to dismiss: [Parr v. Middle
    Tennessee State University]{.underline}, No. 3:98-cv-865 (M.D.Tenn.
    Nov. 20, 1998), appeal docketed, No. 98-6701 (6^th^ Cir. Dec. 16,
    1998); and [Lane v. Tennessee]{.underline} No. 3:98-cv-865
    (M.D.Tenn. Nov. 12, 1998), appeal docketed, No. 98-6730 (6^th^ Cir.
    Dec. 18, 1998). Also consolidated for purposes of appeal are two
    cases dismissed on the defendant's motion, and two cases denying the
    defendant's motion to dismiss, respectively: [Satterfield v.
    Tennessee]{.underline}, No. 3:97-cv-0478 (E.D. Tenn., May 8, 1998),
    appeal docketed, No. 98-5765 (6^th^ Cir. June 9, 1998); [Nihiser v.
    Ohio Environmental Protection Agency]{.underline}, 979 F.Supp. 1168
    (S.D. Ohio Aug. 7, 1997), appeal docketed, No. 97-3933 (6^th^ Cir.
    Aug. 19, 1997); [Pomeroy v. Western Michigan
    University]{.underline}, No. 4:96-cv-135 (W.D. Mich. June 16, 1997),
    appeal docketed, No. 97-1751 (6^th^ Cir. July 17, 1997); and [Wright
    v. Luma Correctional Institution]{.underline}, No. 3:95-cv-7452
    (N.D. Ohio Apr. 17, 1997), appeal docketed, No. 97-3587 (6^th^ Cir.
    June 11, 1997).

[^5]: The limits of this brief prevent us from incorporating a complete
    summary of the 14 hearings held by Congress at the Capitol, the 63
    field hearings, the lengthy floor debates and the myriad reports
    submitted to Congress by the Executive Branch in the three years
    prior to the enactment of the ADA, as well as Congress' 30 years of
    experience with other statutes aimed at preventing discrimination
    against persons with disabilities. [See]{.underline} Timothy M.
    Cook, [The Americans with Disabilities Act: The Move to
    Integration]{.underline}, 64 Temp. L. Rev. 393, 393-94 nn. 1-4, 412
    n. 133 (1991) (collecting citations); and Lowell P. Weicker, Jr.,
    [Historical Background of the Americans with Disabilities
    Act]{.underline}, 64 Temp. L. Rev. 387, 387-89 (1991) (discussing
    other laws enacted to redress discrimination against persons with
    disabilities).

[^6]: [See]{.underline} S. Rep. No. 116, 101^st^ Cong., 1^st^ Sess. 6-8
    (1989) (Senate Report) (citing instances of discrimination based on
    negative reactions to sight of disability); H.R. Rep. No. 485, Pt.
    2, 101^st^ Cong., 2d Sess. 28-31 (1990) (same) (House Report).

[^7]: [See]{.underline} Cook, [supra]{.underline} n. 4, at 408-9.

[^8]: U.S. Commission on Civil Rights, [Accommodating the Spectrum of
    Individual Abilities]{.underline} at 23-26, 99 (1983);
    [see]{.underline} [also]{.underline} Senate Report,
    [supra]{.underline} n. 5, at 21.

[^9]: [See]{.underline} Senate Report, [supra]{.underline} n. 5, at 16;
    House Report, [supra]{.underline} n. 5, at 35, 41-43; Cook,
    [supra]{.underline} n. 4, at 411.

[^10]: [See]{.underline} Senate Report, [supra]{.underline} n. 5, at 11;
    U.S. Commission on Civil Rights, [supra]{.underline} n. 7, at 43-45.

[^11]: [See]{.underline} National Council on the Handicapped, [On the
    Threshold of Independence]{.underline} 13-14 (1988).

[^12]: [See]{.underline} Senate Report, [supra]{.underline} n. 5, at 47;
    House Report, [supra]{.underline} n. 5, at 37, 88; U.S. Commission
    on Civil Rights, [supra]{.underline} n. 7, at 80.

[^13]: Frederick C. Collignon, [The Role of Reasonable Accommodation in
    Employing Disabled Persons in Private Industry]{.underline}, in
    Disability and the Labor Market 196, 208 (Monroe Berkowitz & M. Anne
    Hill eds., 1986). [See]{.underline} [also]{.underline} Senate
    Report, [supra]{.underline} n. 5, at 28-29 (discussing studies that
    show job performance of employees with disabilities was as good as
    others); and House Report, [supra]{.underline} n. 5, at 58-59
    (same).

[^14]: [See]{.underline} Senate Report, [supra]{.underline} n. 5, at 9;
    House Report, [supra]{.underline} n. 5, at 33, 37; [On the Threshold
    of Independence]{.underline}, [supra]{.underline} n. 10, at 15.

[^15]: William G. Johnson, [The Rehabilitation Act and Discrimination
    Against Handicapped Workers]{.underline}, in Disability and the
    Labor Market 242, 245, [supra]{.underline} n. 12.

[^16]: [See]{.underline} U.S. Commission on Civil Rights,
    [supra]{.underline} n. 7, at 31-32; Equal Employment Opportunities
    for Individuals with Disabilities, 56 Fed. Reg. 8,581 (1991) (citing
    studies); and Johnson, [supra]{.underline} n. 14, at 245 (same).

[^17]: House Report, [supra]{.underline} n. 5 at 71; [see]{.underline}
    [also]{.underline} Americans with Disabilities Act: Hearing Before
    the House Comm. on Small Business, 101st Cong., 2d Sess. 128-134
    (1990) (testimony of Arlene Mayerson) (collecting studies showing
    that employers reacted in a stereotyped and prejudiced manner to
    applicants with disabilities); and Advisory Commission on
    Intergovernmental Relations (ACIR), Disability Rights Mandates:
    Federal and State Compliance with Employment Protections and
    Architectural Barrier Removal 21 (Apr. 1989) ("Researchers have
    shown that potential employers and coworkers have negative views and
    expectations about the productivity and reliance of workers with
    some form of mental or physical disability.").

[^18]: [See]{.underline} Stephen L. Mikochik, [The Constitution and the
    Americans with Disabilities Act: Some First
    Impressions]{.underline}, 64 Temp. L. Rev. 619, 624 n.33 (1991)
    (collecting relevant testimony).

[^19]: U.S. Commission on Civil Rights, [supra]{.underline} n. 7, at 29.

[^20]: This line of reasoning was expressly reaffirmed in the recent
    Supreme Court decision in [Florida Prepaid Postsecondary Education
    Expense Board v. College Savings Bank]{.underline}, 119 S.Ct. 2199,
    144 L.Ed.2d 575 (1999), which relied on [Boerne]{.underline} as the
    guide for its decision. [See also]{.underline} [Dare]{.underline},
    [supra]{.underline}, 191 F.3d at 1174 ("The Court's recent decision
    in [Florida Prepaid]{.underline} clarifies the congruence and
    proportionality test outlined in \[[Boerne]{.underline}\]").

[^21]: See cases listed at footnote 1, above. [Crawford]{.underline} was
    decided before the Supreme Court's decision in [Boerne]{.underline},
    but its reasoning is fully consistent with that case.

[^22]: ACIR, [supra]{.underline} n. 16, at 73.

[^23]: ACIR, [supra]{.underline} n .16, at 75.

[^24]: [See]{.underline}, [e.g.]{.underline}, [Muller]{.underline},
    [supra]{.underline}, n. 1, at 310 ("The ADA targets particular
    practices --- in this case, discrimination in employment --- and
    provides a remedy following the time-tested model provided by the
    anti-employment discrimination provisions of Title VII of the Civil
    Rights Act of 1964").

[^25]: S. Rep. No. 116, 101^st^ Cong., 1^st^ Sess. 7-8 at 6 (1989)
    (Senate Report); H.R. Rep. No. 485, Pt. 2, 101^st^ Cong., 2d Sess.
    28-31 at 29 (1990) (same) (House Report); 136 Cong. Rec. 10, 870
    (1990) (Rep. Fish); [id]{.underline}. at 11, 467 (Rep. Dullums).

[^26]: [See]{.underline} 42 U.S.C. 12101(a)(5); [see]{.underline}
    [also]{.underline} U.S. Commission on Civil Rights, [Accommodating
    the Spectrum of Individual Abilities]{.underline} 23-26 at 99
    (1983).

[^27]: In addition to four of the cases currently pending with the Sixth
    Circuit, [see]{.underline} footnote 4, above, the constitutionality
    of the ADA's abrogation provision has been upheld in at least eight
    other district court cases in this circuit: [Johnson v. State
    Technology Center at Memphis]{.underline}, 24 F.Supp.2d 833
    (W.D.Tenn. 1998); [Thrope v. State of Ohio]{.underline}, 19
    F.Supp.2d 816 (S.D.Ohio 1998); [Meekison v. Voinovich]{.underline},
    17 F.Supp.2d 725 (S.D. Ohio 1998); [Williams v. Ohio Department of
    Mental Health]{.underline}, 960 F.Supp. 1276 (S.D.Ohio 1997);
    [Kaufman v. Carter]{.underline}, 952 F.Supp. 520, 531 (W.D. Mich.
    1996); [Niece v. Fitzner]{.underline}, 941 F.Supp. 1497 (E.D. Mich.
    1996); [Eisfelder v. Michigan Department of Natural
    Resources]{.underline}, 847 F.Supp. 78, 83 (W.D. Mich. 1993); and
    [Martin v. Voinovich]{.underline}, 840 F.Supp. 1175, 1186-1187 (S.D.
    Ohio, 1993). [See also]{.underline} [People First of Tennessee v.
    Arlington Developmental Center]{.underline}, 878 F.Supp. 97, 101
    (W.D. Tenn. 1992) (dismissing the claim on its merits but noting the
    parties' agreement that "the Eleventh Amendment is not a bar to
    claims arising under\...the ADA").

[^28]: [See]{.underline}, [e.g.]{.underline}, the Court's unreported
    decisions in [Sears v. Commonwealth of Kentucky]{.underline}, 77
    F.3d 483, 1996 WL 67769 (6^th^ Cir., 1996) ("Congress abrogated
    states' Eleventh Amendment immunity in enacting the ADA\...");
    [Davila v. Ohio Department of Human Services]{.underline}, 106 F.3d
    400, 1997 WL 41198 (6^th^ Cir., 1997) ("With respect to all claims
    other than those claims brought under Title VII of the Civil Rights
    Act of 1964 and the Americans With Disabilities Act, the Eleventh
    Amendment bars the claims\..."); and [Martin v. Temple]{.underline},
    142 F.3d 435, 1998 WL 57303 (6^th^ Cir., 1998) ("\[T\]here is merit
    to Martin's argument that the defendants are not protected, under
    Eleventh Amendment immunity, from her claims under the ADA and under
    the Rehabilitation Act\..."). Copies of these rulings are attached
    to this brief.

[^29]: [Id]{.underline}. at 844. Most recently, the Western District
    discussed the issue at length without indicating its opinion in
    [Utilla v. City of Memphis]{.underline}, 40 F.Supp.2d 968 (W.D.
    Tenn. 1999) but found the question moot in that case.

[^30]: Although the United States disagrees with the
    [Hedgepeth]{.underline} court's distinction between the
    "accommodation provisions" and the other substantive requirements of
    the ADA, the fact that the court specifically distinguished the
    ADA's prohibition of the kind of intentional discrimination suffered
    by Plaintiff in this case certainly eliminates it as support for
    Defendant's position.

[^31]: The decision in [Hedgepeth]{.underline} was also appealed to the
    Sixth Circuit, [see]{.underline} No. 99-5166 (6^th^ Cir. February
    11, 1999), but as it was decided on other grounds, the Court is
    holding the ADA issue in abeyance pending its decision in the other
    six cases. [See]{.underline} footnote 4, above.