UNITED STATES DISTRICT COURT

NORTHEN DISTRICT OF NEW YORK

NAVELLA CONSTANCE AND

VERNAL CONSTANCE,

MEMORANDUM

Plaintiffs,

-against- 98-cv-1440

(FJS)(GJD)

STATE UNIVERSITY OF NEW YORK

HEALTH SCIENCE CENTER,

Defendant.

**UNITED STATES' MEMORANDUM OF LAW\
AS INTERVENOR AND *AMICUS CURIAE\
*IN RESPONSE TO\
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS**

THOMAS J. MARONEY BILL LANN LEE

United States Attorney Acting Assistant Attorney General

Northern District of Civil Rights Division

New York JOHN L. WODATCH

WILLIAM H. PEASE Chief

Civil Chief RENEE M. WOHLENHAUS

Assistant U.S. Attorney Deputy Chief

100 South Clinton Street ROBERT J. MATHER

Syracuse, NY 13261-7198 Trial Attorney

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-2236

April 27, 1999

**TABLE OF CONTENTS**

PRELIMINARY STATEMENT 2

ARGUMENT 3

> I. THE ADA AND THE REHABILITATION ACT WERE ENACTED PURSUANT TO THE
> FOURTEENTH AMENDMENT, AND VALIDLY ABROGATED STATES' SOVEREIGN IMMUNITY
> FROM DISABILITY DISCRIMINATION CLAIMS 3

II\. NEW YORK HAS WAIVED ITS SOVEREIGN IMMUNITY

FROM SECTION 504 CLAIMS 10

> III\. THIS CASE SHOULD NOT BE DISMISSED FOR

LACK OF STANDING 12

> 1\. Mr. Constance Has Standing To Sue\
> Even If He Is Not A Patient 14
>
> 2\. Both Plaintiffs Have Standing to Seek Injunctive and Declaratory
> Relief 16

IV\. PLAINTIFFS HAVE CLAIMS FOR DAMAGES UNDER

TITLE II AND SECTION 504 20

CONCLUSION 24

**PRELIMINARY STATEMENT**

The United States moves to intervene as of right in this action to
address the constitutionality of Title II of the Americans with
Disabilities Act ("ADA"),[^1] and Section 504 of the Rehabilitation Act
("Rehabilitation Act"),[^2] and moves simultaneously for leave to
address as *amicus curiae* the proper construction of these Acts.
Plaintiffs Navella and Vernal Constance, who are deaf and use sign
language for communication, brought this action for declaratory and
injunctive relief, and compensatory damages to remedy alleged violations
of Title II and Section 504. The Constances allege that a New York state
agency did not secure qualified interpreting services for effective
communication with plaintiffs \-- despite a hospital interpreter policy
and plaintiffs' repeated requests.[^3] Defendant in its motion for
judgment on the pleadings[^4] argues: 1) neither the ADA nor the
Rehabilitation Act waived the State\'s Eleventh Amendment immunity to
suit; 2) the Constances lack standing; and 3) plaintiffs fail to
sufficiently plead discriminatory intent to justify an award of damages.

The United States, as intervenor, demonstrates that Congress effectively
abrogated states\' Eleventh Amendment immunity under the ADA and the
Rehabilitation Act, and that the state\'s acceptance of Federal funds
effectively waived Eleventh Amendment immunity from Section 504 claims.
Also, the United States, as *amicus curiae*, urges the Court to rule
that both plaintiffs have standing to seek declaratory and injunctive
relief; and that, assuming *arguendo*, that discriminatory intent is a
prerequisite for a claim for compensatory damages, plaintiffs\'
complaint sufficiently alleges such intent.

# ARGUMENT

**I.** **THE ADA AND THE REHABILITATION ACT WERE ENACTED\
PURSUANT TO THE FOURTEENTH AMENDMENT, AND\
VALIDLY ABROGATED STATES' SOVEREIGN IMMUNITY\
FROM DISABILITY DISCRIMINATION CLAIMS**

As defendant acknowledges, Congress unequivocally expressed its intent
to abrogate states' immunity in both 42 U.S.C § 12202 (Title II)[^5] and
42 U.S.C. § 2000d-7 (Section 504).[^6] Def. Mem. at 22. As defendant
also notes, this Court, in a related ADA title I challenge, has already
upheld the ADA's abrogation of the state's sovereign immunity.
[See]{.underline} [Muller]{.underline} v. [Costello]{.underline}, 977 F.
Supp. 299 (N.D.N.Y. 1998), appeal docketed, No. 98-7729 (2d Cir. June
26, 1998). Def. Mem. at 22-23. Defendant, however, contends that the ADA
and the Rehabilitation Act are unconstitutional because Congress did not

exercise proper constitutional authority when it passed the ADA pursuant
to the Commerce Clause of the Constitution, citing [Seminole Tribe of
Florida]{.underline} v. [Florida]{.underline}, 517 U.S. 44 (1996).
[Id]{.underline}. at 22.

For the reasons explained below, the Eleventh Amendment is no bar to
such actions because the abrogations in the ADA and the Rehabilitation
Act are constitutional exercises of Congress\' power under Section 5 of
the Fourteenth Amendment. In [Seminole Tribe]{.underline}, the Supreme
Court reiterated that Congress can abrogate a State's sovereign immunity
if Congress,: (1) has "unequivocally expressed its intent to abrogate
the immunity"; and (2)"has acted pursuant to a valid exercise of power."
517 U.S. at 55 (citations, quotations, and brackets omitted).
[See]{.underline} [Cooper]{.underline} v. [New York State Office of
Mental Health]{.underline}, 162 F. 3d 770, 773 (2d Cir.1998)(validating
that the Age Discrimination in Employment Act (ADEA) is within
enforcement power under Section 5). As stated earlier, defendant
concedes that Section 12202 and Section 2000d-7 satisfy the first
requirement.

The second inquiry under [Seminole Tribe]{.underline} is whether
"Congress has the power to abrogate unilaterally the States\' immunity
from suit." 517 U.S. at 59. Here, the Fourteenth Amendment provides that
authority. 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).
The ADA and Rehabilitation Act, which permit suits against States for
disability discrimination, should be sustained under Section 5 as
appropriate legislation to protect equal protection. The Supreme Court's
test in [Katzenbach]{.underline} v. [Morgan]{.underline}, 384 U.S. 641
(1966) is commonly applied to determine whether legislation is
appropriate under Section 5:

> \[1\] whether \[the statute\] may be regarded as an enactment to
> enforce the Equal Protection Clause, \[2\] whether it is "plainly
> adapted to that end" and \[3\] whether it is not prohibited by but is
> consistent with "the letter and spirit of the constitution."

[Morgan]{.underline}, 384 U.S. at 651 (quoting [McCulloch]{.underline}
v. [Maryland]{.underline}, 17 U.S. 316, 421 (1919)). Each element of the
[Morgan]{.underline} test is satisfied here. As recently affirmed by the
Supreme Court, the Fourteenth Amendment extends to [all]{.underline}
Fourteenth Amendment rights. [City of Boerne]{.underline} v.
[Flores]{.underline} 117 S.Ct. 2157, 2164 (1997).

In [Fitzpatrick]{.underline} v. [Bitzer]{.underline}, 427 U.S. 445
(1976), the Court upheld the abrogation of States\' Eleventh Amendment
immunity in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e
[et]{.underline} [seq]{.underline}., 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. In [Seminole Tribe]{.underline}, the Court
reaffirmed the holding of [Fitzpatrick]{.underline}. See 517 U.S. at 59,
65, 71 n.15. Thus, even after [Seminole Tribe]{.underline}, "Congress
has the power under § 5 of the Fourteenth Amendment to eliminate a
state\'s Eleventh Amendment immunity in order to permit the enforcement
against state defendants of rights guaranteed by the Fourteenth
Amendment." [Lipofsky]{.underline} v. [Steingut]{.underline}, 86 F.3d
15, 17-18 (2d Cir.), cert. denied, 117 S. Ct. 401 (1996).

In [Boerne]{.underline}, the Supreme Court confirmed that Congress has
broad discretion to enact legislation to redress what it rationally
perceived to be widespread constitutional injuries against individuals
with disabilities. The Court 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 2163, 2172. And it reaffirmed that Congress can prohibit activities
that themselves were not unconstitutional in furtherance of its remedial
scheme. [Id]{.underline}. at 2163, 2167, 2169.

The Supreme Court stressed, however, 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 2164. 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." [Ibid]{.underline}.

In enacting Title II, Congress reasonably concluded that "appropriate
legislation" under Section 5 of the Fourteenth Amendment was necessary
to remedy and deter unconstitutional discrimination against persons with
disabilities. First, the legislative record amply demonstrated
pervasive, "society-wide discrimination" against persons with
disabilities based on fear and stigma that infects both public and
private services. [See]{.underline} S. Rep. No. 116, 101^st^ Cong.,
1^st^ Sess. 8-9 (1989) ("Senate Report"); 42 U.S.C. § 12101(a)(2)
(discrimination a "serious and pervasive" problem).[^7] After 14
congressional hearings, 63 field hearings, the submission of myriad
reports by the Executive Branch and interested groups, and lengthy floor
debates, Congress found that persons with disabilities have been subject
to "a history of purposeful unequal treatment," 42 U.S.C. § 12101(a)(7),
and that this discrimination "persists" in many areas, including
"communication" and "public services," 42 U.S.C. § 12101(a)(3). Congress
also found that this discrimination includes "outright intentional
exclusion, . . . the discriminatory effects of . . . communication
barriers, overprotective rules and policies, \[and\] segregation." 42
U.S.C. § 12101(a)(5). As a result of discrimination, Congress found,
"people with disabilities, as a group, occupy an inferior status in our
society, and are severely disadvantaged socially, vocationally,
economically, and educationally." 42 U.S.C. § 12101(a)(6).

All but one of the circuits that have decided the issue have found that
the ADA is a "congruent and proportional" response to the pervasive
discrimination Congress discovered, and thus was "appropriate" Section 5
legislation. [Compare]{.underline} [Clark]{.underline} v.
[California]{.underline}, 123 F.3d 1267, 1270-1271 (9th Cir.), cert.
denied, 118 S.Ct. 2340 (1998); [Coolbaugh]{.underline} v.
[Louisiana]{.underline}, 136 F.3d 430, 438 (5th Cir.), cert. denied, 119
S. Ct. 58 (1998); [Seaborn]{.underline} v. [Florida]{.underline}, 143
F.3d 1405 (11th Cir.), cert. denied, 119 S. Ct. 1038 (1999);
[Kimel]{.underline} v. [Board of Regents]{.underline}, 139 F.3d 1426,
1433, 1442-1443 (11th Cir.), cert. granted on ADEA issue, cert. on ADA
issue still pending, 119 S. Ct. 901, 902 (1999); [Crawford]{.underline}
v. [Indiana Dept. of Corrections]{.underline}, 115 F.3d 481, 487 (7th
Cir. 1997); with [Brown]{.underline} v. [North Carolina Div. Of Motor
Vehicles]{.underline}, 166 F.3d 698 704-705, 708 (4th Cir. 1999),
petition for reh'g en banc filed (March 29, 1999) \[finding that the
ADA's abrogation was unconstitutional as applied to a specific
regulatory provision (not at issue in this case) that prohibited
imposing surcharges for parking placards required to park in accessible
spaces, but expressly disclaiming the intent to opine about the ADA as a
whole\].[^8]

The Second Circuit's post-[Boerne]{.underline} decisions in
[Cooper]{.underline} v. [New York State Office of Mental
Health]{.underline}, 162 F.3d 770 (2d. Cir. 1998), petition for cert.
filed (Mar. 23, 1999) (No. 98-1524), and [Anderson]{.underline} v.
[State University of New York]{.underline}, 169 F.3d 117 (2d. Cr. 1999),
demonstrate that

it will join the majority of the circuits in upholding the ADA's
constitutionality.

First, the Court specifically held that Congress\' power to enforce the
Equal Protection Clause extended to those classifications that are not
subject to heightened scrutiny (such as age or disability). "Congress
has the power to prohibit arbitrary age-based discrimination even though
age is not a suspect classification." [Cooper]{.underline}, 162 F.3d at
777. Second, in applying the [Boerne]{.underline} "congruence and
proportionality" test, the Court reaffirmed that statutes that exceed
the protections of the Constitution are appropriate Section 5
legislation. [See]{.underline} [Anderson]{.underline}, 169 F.3d at 121
(Congress may prohibit practices that have discriminatory effects).[^9]

A statute may be enacted pursuant to more than one congressional power.
[Counsel]{.underline} v. [Dow]{.underline}, 849 F.2d 731, 736 (2d Cir.),
cert. denied, 488 U.S. 955 (1988) (Handicapped Children's Protection Act
enacted under Spending Clause and Fourteenth Amendment). Like the ADA,
Section 2000d-7 is also a valid exercise of Congress\' authority under
Section 5 of the Fourteenth Amendment to permit private suits against
States for discriminating against individuals with disabilities in
violation of federal law. [Accord]{.underline} [Clark]{.underline}, 123
F.3d at 1269-1271 (Section 504); [Lesage]{.underline} v.
[Texas]{.underline}, 158 F.3d 213, 217-219 (5^th^ Cir. 1998), petition
for cert. filed, 67 U.S.L.W. 3469 (Jan. 11, 1999) (No. 98-1111) (Title
VI); [Doe]{.underline} v. [University of Ill.]{.underline}, 138 F.3d
653, 660 (7th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3083
(July 13, 1998) (No. 98-126) (Title IX); [see]{.underline}
[also]{.underline} [Welch]{.underline} v. [Texas Dep\'t of Highways &
Pub. Transp.]{.underline}, 483 U.S. 468, 472 n.2 (1987) (stating in
dictum that "\[the Rehabilitation Act\] was passed pursuant to § 5 of
the Fourteenth Amendment."); [Franks]{.underline} v. [Kentucky School
for the Deaf]{.underline}, 142 F.3d 360, 363 (6^th^ Cir. 1998)(so
holding as to Section 2000d-7\'s application to Title IX);
[Crawford]{.underline} v. [Davis]{.underline}, 109 F.3d 1281 (8^th^ Cir.
1997)(Title IX).

II\. NEW YORK HAS WAIVED ITS SOVEREIGN IMMUNITY\
FROM SECTION 504 CLAIMS

The complaint alleges, but defendant denies, that SUNY HSC has accepted
federal funds. Complaint at ¶ 9; Answer at ¶ 7. However, as explained
below at p. 12, [infra]{.underline}, for the purposes of addressing the
challenge at the general stage of pleadings, we must accept as true all
material allegations of the complaint. Thus, we should assume that
defendant has accepted federal funds after the effective date of Section
2000d-7. Accordingly, by voluntarily choosing to receive Federal funds,
New York waived any Eleventh Amendment immunity it may have had from
being sued for disability discrimination under Section 504. See
[Clark]{.underline}, 123 F.3d at 1271; [Beasley]{.underline} v. [Alabama
State Univ.]{.underline}, 3 F. Supp.2d 1304, 1311-1315 (M.D. Ala. 1998);
[Litman]{.underline} v. [George Mason Univ.]{.underline}, 5 F. Supp.2d
366, 375-376 (E.D. Va. 1998). "Requiring States to honor the obligations
voluntarily assumed as a condition of federal funding . . . simply does
not intrude on their sovereignty." [Bell]{.underline} v. [New
Jersey]{.underline}, 461 U.S. 773, 790 (1983).

New York had clear notice that its actions here would subject it to
possible suit in federal courts. Congress may condition the receipt of
federal funds on a waiver of Eleventh Amendment immunity when, as here,
the statute provides unequivocal notice to the States of this condition.
See [Seminole Tribe]{.underline}, 517 U.S. at 54; [Petty]{.underline} v.
[Tennessee-Missouri Bridge Comm\'n]{.underline}, 359 U.S. 275, 276
(1959); [Close]{.underline} v. [New York]{.underline}, 125 F.3d 31, 39
(2d Cir. 1997); [In re 995 Fifth Ave. Assocs.]{.underline}, 963 F.2d
503, 508-509 (2d Cir.), cert. denied, 506 U.S. 947 (1992); [County of
Monroe]{.underline} v. [Florida]{.underline}, 678 F.2d 1124, 1133-1135
(2d Cir. 1982), cert. denied, 459 U.S. 1104 (1983). It is well-settled
that a State may "by its participation in the program authorized by
Congress . . . in effect consent\[\] to the abrogation of that
immunity." [Edelman]{.underline} v. [Jordan]{.underline}, 415 U.S. 651,
672 (1974); see also [Atascadero]{.underline}, 473 U.S. 234, 238 n.1
(1985) ("\[a\] State may effectuate a waiver of its constitutional
immunity by . . . waiving its immunity to suit in the context of a
particular federal program").

Section 2000d-7 thus embodies exactly the type of unambiguous condition
discussed by the Court in [Atascadero]{.underline}, by putting States on
express notice that part of the "contract" for receiving federal funds
was the requirement that they consent to suit in federal court for
alleged violations of Section 504. As the Ninth Circuit held in a case
involving Section 2000d-7\'s abrogation for Section 504 claims, Section
2000d-7 "manifests a clear intent to condition a state\'s participation
on its consent to waive its Eleventh Amendment immunity."
[Clark]{.underline}, 123 F.3d at 1271. In conclusion, the state waived
its immunity from suit by accepting federal funds, and at the same time,
Congress exercised its proper authority to abrogate state immunity from
suits brought under the Rehabilitation Act.

III\. THIS CASE SHOULD NOT BE DISMISSED FOR\
LACK OF STANDING

To establish standing, a plaintiff must prove three elements: (1)
"injury in fact" --- an invasion of a legally protected interest which
is concrete and particularized, and actual or imminent, not conjectural
or hypothetical\[;\] (2) "a casual connection between the injury and the
conduct complained of\[;\]" and (3) a likelihood, as opposed to mere
speculation, "that the injury will be redressed by a favorable
decision." [United States]{.underline} v. [Hays]{.underline}, 515 U.S.
737, 743 (1995), quoting [Lujan]{.underline} v. [Defenders of
Wildlife]{.underline}, 504 U.S. 555, 560-561 (1992) (citation and
internal quotations omitted).

When standing is challenged on the basis of the pleadings, we "accept as
true all material allegations of the complaint, and must construe the
complaint in favor of the complaining party." [United
States]{.underline} v. [Vazquez]{.underline}, 145 F.3d 74, 81 (2d Cir.
1998)(quoting [Warth]{.underline} v. [Seldin]{.underline}, 422 U.S. 490,
501 (1975). And "\[a\]t the pleading stage, general factual allegations
of injury resulting from the defendant's conduct may suffice, for a
motion to dismiss we presum\[e\] that general allegations embrace those
specific facts that are necessary to support the claim."
[Vazques]{.underline}, 145 F.3d at 81 (quoting [Lujan]{.underline}, 504
U.S. at 561 (internal quotation marks and citation omitted)(alterations
in original)). Furthermore, quoting [Lujan]{.underline}, 504 U.S. at
561-562, the Second Circuit stated that

> When the suit is one challenging the legality of government action or
> inaction, the nature and extent of facts that must be averred (at the
> stage) in order to establish standing depends considerably upon
> whether the plaintiff is himself an object of the action (or foregone
> action) at issue. If he is, there is ordinarily little question that
> the action or inaction has caused him injury, and that a judgment
> preventing or requiring the action will redress.

[Vazques]{.underline}, 145 F.3d at 81.

Vernal Constance satisfies the requirements to establish standing.
During his spouse's hospitalization, Mr. Constance repeatedly requested
the hospital for the services of a qualified sign language interpreter,
but was not provided with such services, and as a result, he was not
informed by hospital staff about his spouse's diagnosis and treatment,
nor was he able to participate in his spouse's care. In short, Mr.
Constance was "personally denied equal treatment by the challenged
discriminatory conduct." [Hays]{.underline}, 515 U.S. at 744.

It is clear that the second and third elements of the tests \--
causation and redressability \-- are also met here. The allegations show
that the hospital failed to provide the interpreters despite persistent
demands by Mr. Constance. The violation of the ADA and Rehabilitation
Act was caused by the hospital's failure to provide Mr. and Mrs.
Constance effective communication in direct violation of an explicit
statutory requirement. A favorable decision of this court would redress
any past injuries and any future violation of the statutes by awarding
damages, or injunctive and declaratory relief that Mr. Constance is
seeking. Complaint at ¶ 2.

> 1\. Mr. Constance Has Standing\
> [To Sue Even If He Is Not A Patient]{.underline}

Title II's enforcement provision provides a cause of action in federal
court for "any person alleging discrimination on the basis of
disability."[^10] Similarly, Section 504 provides a cause of action to
"any person aggrieved" by the discrimination of person on the basis of
his or her disability.[^11] 29 U.S.C. § 794(a)(2). The Second Circuit
found that "the use of such broad language in the enforcement provisions
of the statutes evinces a congressional intention to define standing to
bring a private action under 504 as broadly as is permitted by Article
III of the Constitution." [Innovative Health Systems, Inc. et
al.]{.underline} v. [City of White Plains, et al.]{.underline}, 117 F.3d
37 (2d Cir. 1997).

As the Department\'s commentary to its regulation makes clear,
\"\'\[t\]he \'essential eligibility requirements for participation in
some activities covered under this part may be minimal.\" 28 C.F.R. pt.
35, app. A. at 472. [See]{.underline} [Rothschild]{.underline} v.
[Grottenthaler]{.underline}, 907 F.2d 286, 290 (2d Cir. 1990) (deaf
parents are qualified to have interpreters in activities at hearing
child\'s school); [Raines]{.underline} v. [Florida]{.underline}, 983 F.
Supp. 1362, 1372 (N.D. Fla. 1997); [Niece]{.underline} v.
[Fitzner]{.underline}, 922 F. Supp. 1208, 1218 (E.D. Mich. 1996) (cause
of action under ADA for deaf fiancé of prison inmate);
[Aikins]{.underline} v. [Mt. Helena Hosp.]{.underline}, 843 F. Supp.
1329, 1337 (N.D Cal. 1994) (supporting a claim against the hospital on
behalf of the deaf wife of a patient at the hospital). [Cf]{.underline}.
Department of Justice, The Americans with Disabilities Act Title II
Technical Assistance Manual § II-7.1000 (Supp. 1994)(Attachment)(the
obligation to ensure effective communication is not limited to those who
have a \"direct interest\" in the program at issue; example is courtroom
spectators).

Both Vernal Constance and his wife are qualified individuals with a
disability who are guaranteed the protections of federal laws against
discrimination on the basis of disability. Both the ADA and
Rehabilitation Act protect "qualified individuals with disabilities"
from discrimination on the basis of disability.[^12] Mr. Constance, who
along with his wife who is deaf, is undeniably a "qualified" individual

with a disability. He was at the hospital to participate in various
hospital programs and services, including the provision of medical
treatment for his spouse; to provide assistance and information that
would aid the hospital in the delivery of services to his wife; to learn
from the hospital about the nature of her condition and to participate
in decisions about her treatment; to learn about her prognosis and the
type of care or assistance she may require in order to recover fully;
and to encourage and assist her in her care and treatment.

In addition, Vernal Constance is a person associated with a person with
a disability and thus Mr. Constance is separately protected under the
ADA provision prohibiting discrimination on the basis of association
with persons with disabilities. 28 C.F.R. § 35.130(g); TA Manual §
II-3.9000 ("A State . . . government may not discriminate against
individuals . . . because of their known relationship or association
with persons who have disabilities.").

> 2\. Both Plaintiffs Have Standing\
> to Seek Injunctive and Declaratory Relief

Defendant argues that plaintiffs have no standing to seek injunctive and
declaratory relief because there is "no extant case or controversy,"
because, defendant asserts, Ms. Constance has no further need for
defendant's services, and defendant claims that its hospital regulations
already provide for interpreter services for effective communication
with persons who are deaf. Def. Mem. at 9-11.[^13]

In seeking injunctive or declaratory relief, plaintiffs must demonstrate
a likelihood of imminent future injury. [See]{.underline} [City of Los
Angeles]{.underline} v. [Lyons]{.underline}, 461 U.S. 95, 105-106
(1983). What constitutes sufficient injury turns on the factual and
legal contexts presented in a given case. As the Supreme Court has
explained, standing does not lend itself to mathematically precise
evaluations, and is to be determined chiefly by comparing the facts and
allegations of the case at issue to prior standing cases.
[Allen]{.underline} v. [Wright]{.underline}, 468 U.S. 737, 751-752
(1984); [see]{.underline} [also]{.underline} [Foundation on Economic
Trends]{.underline} v. [Lyng]{.underline}, 943 F.2d 79, 82 (D.C. Cir.
1991).

The facts in the instant case show that plaintiffs are threatened with
an injury that is \"real and immediate,\" and impending. It is almost
certain that plaintiffs will again require the services of the SUNY HSC
as one of those hospitals nearest from their home, and as the only Level
One Trauma Center for an eleven-county region of Central New York. Any
emergency would necessarily require plaintiffs to return to SUNY HSC.

Defendant states that there is no likelihood that SUNY HSC will again
fail to provide interpreter services to plaintiffs, citing its existing
"regulations in place to protect the interests of deaf individuals."
Def. Mem. at 11. Defendant concludes that plaintiffs' claims may be
moot, and that it is unnecessary for the Court to order SUNY HSC to
establish regulations which already exist, or to order SUNY HSC to abide
by pre-existing regulations." [Id]{.underline}. at 12. The fact that
defendant ignored or violated its own regulation to provide interpreter
services for Mr. and Mrs. Constance clearly shows that the hospital has
not implemented and enforced that regulation.

Moreover, the record shows that SUNY HSC has continued its failure to
provide interpreter services in similar incidents. First, the New York
State Department of Health cited deficiencies in the Hospital's
interpreter services not only in this case, but also in two prior cases
in 1994. [See]{.underline} Attachment 1 to Plaintiff's Complaint.
Second, even after being cited for these deficiencies, SUNY HSC still
continued its failure to provide interpreter services [more than two
years]{.underline} after plaintiffs' experiences when the hospital
failed to provide interpreters for another deaf patient, Joan Emerick,
who repeatedly requested services during her four-day hospitalization in
August 1998. [See]{.underline} Attachment 3 to Plaintiff's Complaint.
The record clearly demonstrates that SUNY HSC likely will ignore or
violate its interpreter regulations again if plaintiffs were to return
to SUNY HSC.

Defendant relies heavily on [Aikins]{.underline} v. [St. Helena
Hosp.]{.underline}, 843 F. Supp. 1329 (N.D. Cal. 1994). In
[Aikins]{.underline}, the animating concern is geographic proximity. The
court dismissed for lack of standing the complaint of a deaf woman who
brought her dying husband to a hospital emergency room when the couple
was away from their primary residence on vacation. The woman alleged
that the hospital violated the ADA because it failed to provide her with
an interpreter. The court found the allegations in plaintiff\'s
complaint (stating that she owned a mobile home seven miles from the
hospital, and that she stays at the home only for [several
days]{.underline} each year), insufficient to show a real and immediate
threat of future injury at the hands of defendants. However, Aikins was
granted leave to amend her complaint and the court then reinstated her
ADA claim against the hospital, based on additional allegations that Ms.
Aikins visits the locale where the hospital is located [several
times]{.underline} a year, and that she considers it reasonably possible
that she might seek services at the hospital. [Aikins]{.underline} v.
[St. Helena Hosp.]{.underline}, No. C 93-3933-FMS, 1994 WL 794759, at
\*3 (N.D. Cal. April 4, 1994). Courts have also found standing in other
disability rights cases involving circumstances less immediate than
those presented in Constances\' case. [See]{.underline},
[supra]{.underline}, n.18.

In this case, SUNY HSC is the only Level One Trauma Center for the
region of Central New York, where plaintiffs reside. In addition to
geographic proximity, plaintiffs\' threat of injury is far more concrete
and direct than even these hypothetical factual situations where the
[Lujan]{.underline} Court suggested it [would]{.underline} find standing
-- the immediate injury is to plaintiffs, themselves.

Another district court case upon which defendant relies is clearly
distinguishable from the present case. In [Schroedel]{.underline} v.
[New York Univ. Med. Ctr.]{.underline}, 885 F. Supp. 594, 599 (S.D.N.Y.
1995), the district court concluded that plaintiff lacked standing to
sue because the defendant-hospital was not the nearest medical center to
plaintiff's residence and the plaintiff failed to allege that she
regularly used the hospital's services. In this case, however,
plaintiffs alleged that they would regularly use the services of SUNY
HSC as the Region's only Level One Trauma Center, and that SUNY HSC is
one of the nearest hospitals to Mr. and Mrs. Constance's residence.

Earlier Supreme Court cases on which defendant relies are also
inapposite. In [Lyons]{.underline}, [supra]{.underline}, the plaintiff
had been placed in a chokehold and rendered unconscious by Los Angeles
police officers. His standing \"depended on whether he was likely to
suffer future injury from the use of the chokeholds by police
officers\". [Id]{.underline}. at 105. The Court found that he \"ha\[d\]
made no showing that he is realistically threatened by a repetition of
his experience.\" [Id]{.underline}. at 109. The plaintiff in
[Lyons]{.underline}, like plaintiffs in similar cases preceding it,
failed to show a likelihood of recurrence in large part because the
Court would not assume that plaintiff would again break the law and be
subject to arrest by the police. [Id]{.underline}. at 102;
[see]{.underline} [id]{.underline}. at 109 (\"Lyons\' lack of standing
does not rest on the termination of the police practice but on the
speculative nature of his claim that he will again experience injury as
the result of that practice even if continued\"). In this case,
plaintiffs are not violating a law; they are seeking to exercise their
statutory right to accessible health care. Moreover, the injury in
[Lyons]{.underline} depended on the unauthorized conduct of all police
officers in Los Angeles. Mr. and Mrs. Constance's threat of future
injury depends upon one defendant: a defendant who has harmed them in
the past and who has evinced its standing practice to discriminate
against them in the future. [Id]{.underline}. at 102 (past wrongs are
evidence bearing on whether there is a real and immediate threat of
repeated injury.)

**IV. PLAINTIFFS HAVE CLAIMS FOR DAMAGES UNDER\
TITLE II AND SECTION 504**

It is settled in the Second Circuit that compensatory damages are
available to victims of discrimination under title II and § 504.
[Bartlett]{.underline} v. [New York State Board of Bar
Examiners]{.underline}, 156 F.3d 321, 330-331 (2d Cir. 1998), [petition
for cert. filed]{.underline}, 67 U.S.L.W. 3528 (U.S. Feb. 8, 1999)(No.
98-1285). "The law is well settled that intentional violations of title
VI, and thus the ADA and Rehabilitation Act, can call for the award of
money damages. [See]{.underline} [Franklin]{.underline} v. [Gwinnett
County Public Schools]{.underline}, 503 U.S. 60, 74 (1992)."
[Id]{.underline}.[^14]

In [Bartlett]{.underline}, a woman with a learning disability sued the
Board of Law Examiners for failing to provide her with requested
accommodations. The Board had repeatedly denied her request for
accommodations based on use of a diagnostic test that the Court found

to be an inaccurate indicator of the plaintiff's learning disability.
[Id]{.underline}. at 331. The Court found that by repeatedly using a
test that was inaccurate the defendants had exercised sufficient intent
for an award of damages to be appropriate under the ADA and
Rehabilitation Act. The Court found that "intentional discrimination may
be inferred when a policymaker acted with at least deliberate
indifference to the strong likelihood that a violation of federally
protected rights will result from the implementation of the
\[challenged\] policy\....\[or\] custom" [Id]{.underline}. at 331
[citing]{.underline} [Ferguson]{.underline} v. [City of
Phoenix]{.underline}, 931 F. Supp. 688, 697 (D. Ariz. 1996);
[Canton]{.underline} v. [Harris]{.underline}, 489 U.S. 378, 385
(1989).[^15] The "deliberate indifference" standard "does not require
personal animosity or ill will." [Bartlett]{.underline} at 331. That
standard is satisfied in this case where the hospital denied the
requests for sign language interpreters despite its claims that a policy
to provide sign language interpreters was in existence. The denial was
thus either a customary failure to provide interpreters notwithstanding
a policy to provide them, which satisfies the deliberate indifference
standard under [Bartlett]{.underline}, or an intentional denial of
interpreter services was intentional. In either case, damages are
appropriate.

The Supreme Court recently addressed the issue of the availability of
compensatory damages under Title IX of the Education Amendments of 1972,
20 U.S.C. §§ 1681-88 (Title IX) in [Gebser]{.underline} v. [Lago Vista
Ind. School Dist.]{.underline}, 524 U.S. 274, 118 S. Ct. 1989
(1998).[^16] In [Gebser]{.underline}, a high school student brought suit
against a school district under Title IX, claiming that she had been
sexually harassed by one of the school district's teachers. The Supreme
Court ruled that the school district was not liable for damages under
Title IX for actions about which it had no knowledge. In an opinion by
Justice O'Connor, the Court found that in cases that do not involve the
official policy of a recipient entity, damages would be available only
if the entity had notice of, and was deliberately indifferent to,
discrimination. 118 S. Ct. at 1999 ("an official who at a minimum has
authority to address the alleged discrimination and to institute
corrective measures on recipients' behalf has actual knowledge of the
discrimination . . and fails adequately to respond.").

[Gebser]{.underline} does not govern in this case because
[Gebser]{.underline} involved unauthorized conduct by a low-level
employee and in this case an agent of the hospital who was authorized to
act denied interpreter services. The hospital is liable for that act of
discrimination.

Even if [Gebser]{.underline} does apply, under the [Gebser]{.underline}
and [Bartlett]{.underline} standards, intent may be inferred when a
defendant has acted with "deliberate indifference" to the strong
likelihood that a violation of a federally protected right will result
from the challenged conduct. [Id]{.underline}.; [Bartlett]{.underline},
156 F.3d at 331. Here, plaintiffs in their complaint have alleged that
defendant knew of plaintiffs' disability and the need for qualified sign
language interpreter services in order to effectively communicate at the
hospital. Defendant has established a policy requiring the provision of
sign language interpreting services in hospital situations involving
persons who are deaf; however, despite the hospital policy and
plaintiffs' repeated requests for such interpreter services, the
hospital did not secure such services. Complaint at ¶¶ 11-27. By failing
to provide interpreter services after being put on notice that such
services were both appropriate and necessary in the circumstance, the
hospital failed to respond, and showed, at a minimum, "deliberate
disregard" for the rights of Mr. and Mrs. Constance to effective
communication guaranteed by the ADA and the Rehabilitation Act.

Finally, in [Proctor]{.underline} v. [Prince George's Hospital
Center]{.underline}, 1998 WL 931111 (D. Md. 1998), the District Court
for the District of Maryland looked at this same issue and arrived at a
similar conclusion. In [Proctor]{.underline}, a county hospital failed
to provide a patient who was deaf a sign language interpreter to explain
the effects of and to answer questions regarding his medical treatment.
The hospital argued that damages should not be available because the
discrimination was "'the result of thoughtlessness and indifference'
rather than because of any intent to deny Plaintiff's rights."
[Id]{.underline}. at 9. The Court disagreed. "\[I\]ntentional
discrimination is shown by an intentional, or willful violation of the
Act itself. . . \[even if the defendants\] believed themselves to be
within the confines of the law," [id]{.underline}. at 10 (quoting
[Bartlett]{.underline} v. [New York State Board of Law
Examiners]{.underline}, 970 F. Supp. At 1151)).

**CONCLUSION**

For the foregoing reasons, defendant's motion for judgment in the
pleadings should be denied in its entirety.Dated: Washington, D.C.

April 27, 1999

Respectfully Submitted,

THOMAS J. MARONEY BILL LANN LEE

United States Attorney Acting Assistant Attorney General

Northern District of Civil Rights Division

New York

WILLIAM H. PEASE By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Civil Chief JOHN L. WODATCH

Assistant U.S. Attorney Chief

100 South Clinton Street RENEE M. WOHLENHAUS

Syracuse, NY 13261-7198 Deputy Chief

\(315\) 448-0672 ROBERT J. MATHER

> Trial Attorney
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-2236

Attachment

[^1]: ^?^42 U.S.C. §§ 12131-34.

[^2]: ^?^29 U.S.C. § 794.

[^3]: ^?^For a complete statement of the factual background, the United
    States respectfully refers the Court to plaintiffs' statement of
    facts contained in the complaint and pleadings, which are adopted
    herein by reference.

[^4]: ^?^On January 13, 1999, the Attorney General of the State of New
    York filed a memorandum of law in support of a motion for judgment
    on the pleadings on behalf of defendant. (This memorandum is cited
    herein as "Def. Mem. \_\_.")

[^5]: ^?^"Section 12202 of Title 42 provides 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."

[^6]: ^?^Section 2000d-7 of Title 42 provides that a "State shall not be
    immune under the Eleventh Amendment of the Constitution of the
    United States from suit in Federal court for a violation of section
    504 . . .."

[^7]: ^?^The committee reports accompanying the ADA demonstrate that
    Congress found considerable need to prevent discrimination against
    persons with disabilities by public entities, in particular.
    [See]{.underline} Senate Report 7 (public schools), 12 (voting), 19,
    44 (citing need to extend protection to state agencies that do not
    receive federal aid), 45 (school bus operations); House Report,
    Pt.2, at 30 (zoos, public schools); 37, 84 (public services,
    generally); [id]{.underline}. Pt. 3, at 50 (jails).

[^8]: ^?^The conclusions of [Brown]{.underline} are plainly wrong for at
    least two reasons. First, the Fourth Circuit employed an improper
    standard in measuring the constitutionality of the ADA. The court
    demanded "support in the legislative record for the proposition that
    state surcharges for handicapped programs are motivated by animus
    toward the class." [Id]{.underline}. at 707. This insistence ignored
    the presumption of constitutionality that attaches to all federal
    statutes "unless the lack of constitutional authority to pass an act
    in question is clearly demonstrated." [United States]{.underline} v.
    [Harris]{.underline}, 106 U.S. 629, 635 (1883); see also
    [Walters]{.underline} v. [National Ass\'n of Radiation
    Survivors]{.underline}, 473 U.S. 305, 319 (1985). Second, the Fourth
    Circuit erred in demanding a record at all, much less at the level
    of specificity it demanded. "If evidence was required \[in order for
    a statute to be constitutional\], it must be supposed that it was
    before the legislature when the act was passed; and, if any special
    finding was required to warrant the passage of the act, it would
    seem that the passage of the act itself might be held to be
    equivalent to such a finding." [United States]{.underline} v. [Des
    Moines Nav. & Ry.]{.underline}, 142 U.S. 510 (1892) (quoting Thomas
    M. Cooley, [A Treatise on Constitutional Limitations]{.underline}
    (5th ed.)); see also [FCC]{.underline} v. [Beach Communications,
    Inc.]{.underline}, 508 U.S. 307, 315 (1993) ("a legislative choice
    is not subject to courtroom fact-finding and may be based on
    rational speculation unsupported by evidence or empirical data").

[^9]: ^?^Besides [Muller]{.underline}, another judge in the Northern
    District addressed the constitutionality of the ADA in
    [Kilcullen]{.underline} v. [New York State Department of
    Transportation]{.underline}, 33 F. Supp. 2d 133 (N.D.N.Y. 1999),
    appeal pending, No. 99-7209 (2d. Cir.) (invalidating the ADA's
    anti-discrimination employment as incongruent with the Equal
    Protection Clause).

[^10]: ^?^42 U.S.C. § 12133.

[^11]:

[^12]: ^?^42 U.S.C. § 12132; 29 U.S.C. § 794, respectively.

[^13]: ^?^While defendant's arguments as to the second issue of standing
    addressed only to Mrs. Constance, we assert that both plaintiffs
    have standing to bring claims for injunctive and declaratory relief.

[^14]: ^?^The remedies available for violations of title II of the ADA
    are coextensive with those available under § 504. Title II affords
    plaintiffs the "remedies, procedures, and rights" set forth in 29
    U.S.C. § 794a (which governs the relief available under § 504). 42
    U.S.C. § 12133. In turn, 29 U.S.C. § 794(a)(2) gives § 504
    plaintiffs the "remedies, procedures, and rights set forth in title
    VI of the Civil Rights Act of 1964," 42 U.S.C. § 2000d
    [et]{.underline} [seq.]{.underline} (title VI).

[^15]: ^?^[See]{.underline} [also]{.underline} [Naiman]{.underline} v.
    [New York Univ.]{.underline}, No.95 CIV. 6469 (LMM), 1997 WL 229970
    (S.D.N.Y. May 13, 1997)("Naiman's allegation that he requested a
    qualified interpreter . . . sufficiently alleges intent.");
    [Love]{.underline} v. [McBride]{.underline}, 896 F. Supp. 808, 810
    (N.D. Ind. 1995) (finding plaintiff's request to accommodate an
    important factor in establishing that discrimination was
    intentional), aff'd sub nom., [Love]{.underline} v. [Westville
    Correctional Ctr., 103 F.3d 558]{.underline} (7^th^ Cir. 1996).
    Pandazides v. [Virginia Board of Ed.]{.underline}, 13 F.3d 823,
    829-832 (4^th^ Cir. 1994); [W.B.]{.underline} v.
    [Matula]{.underline}, 67 F.3d 484, 494 (3d Cir. 1995);
    [Rodgers]{.underline} v. [Magnet Cove Public Schools]{.underline},
    34 F.3d 642, 644 (8^th^ Cir. 1994); [Waldrop]{.underline} v.
    [Southern Co. Services]{.underline}, 24 F.3d 152, 157 (11^th^ Cir.
    1994); [Greater Los Angeles Council on Deafness, Inc.]{.underline}
    v. [Zolin]{.underline}, 812 F.2d 1103, 1106-1111 (9^th^ Cir. 1987);
    [Saylor]{.underline} v. [Ridge]{.underline}, 989 F. Supp. 680,
    690-91 (E.D. Pa. 1998).

[^16]: ^?^Because Title IX borrows the remedial scheme of Title VI of
    the Civil Rights Act of 1964, the same remedial scheme incorporated
    into the Rehabilitation Act and Title II, decisions regarding
    damages interpreting one of the statutes often are used by courts to
    apply to all three.