Number range CHAPTER

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

**UNITED STATES' MEMORANDUM REGARDING WHETHER THE ELEVENTH AMENDMENT
BARS THE PLAINTIFFS FROM SEEKING INJUNCTIVE RELIEF AND DAMAGES AGAINST
PUERTO RICO UNDER TITLE II OF THE AMERICANS WITH DISABILITIES ACT;
SECTION 504 OF THE REHABILITATION ACT OF 1973; INDIVIDUALS WITH
DISABILITIES IN EDUCATION ACT**

[INTRODUCTION]{.underline}

Plaintiffs brought this action seeking injunctive relief and damages for
the alleged failure of defendants to comply with an order by an
Administrative Judge to provide a sign language interpreter for the
student Betsy Y. Resto Ortiz. Although the Complaint is unclear, it
appears that plaintiffs seek monetary and injunctive relief pursuant to
three separate federal statutes: Title II of the Americans with
Disabilities Act, 42 U.S.C. 12131 *et seq*; Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794 \[Section 504\]; and the
Individuals with Disabilities in Education Act, 20 U.S.C.1400 *et seq*
\[IDEA\]. Defendants have moved to dismiss this action on the basis that
Puerto Rico's Eleventh Amendment immunity bars the plaintiffs' claims
under each of these statutes. The Court has requested the United States
to address defendants' claims.[^1] The United States asserts here, as it
has asserted in other Courts, that the Eleventh Amendment is not a bar
to an individual claim made pursuant to these three statutes, and this
case can go forward on the merits. However, before proceeding to our
arguments, we address a preliminary matter.

At the present time, pending before the Court of Appeals for the First
Circuit is the case *Badillo Santiago v. Andreu Garcia* (No. 01-2640),
which concerns one of the issues before this Court: whether the
statutory provision removing Eleventh Amendment immunity for suits under
Title II of the Americans with Disabilities Act, 42 U.S.C. 12131 *et*
*seq*., is a valid exercise of Congress's authority under Section 5 of
the Fourteenth Amendment. In as much as that question is now before the
Court of Appeals, we respectfully suggest that it would be appropriate
to wait until the Court of Appeals issues its decision in that case. If
the Court of Appeals holds that Title II contains a valid abrogation of
Eleventh Amendment immunity, this Court will not need

to consider plaintiffs' claims under the Rehabilitation Act and IDEA.
If, on the other hand, the Court holds that Title II of the ADA is not a
valid exercise of Congress's authority under Section 5 of the Fourteenth
Amendment, then this Court can determine whether plaintiffs may proceed
under the Rehabilitation Act and/or IDEA.

Because the validity of the Title II's abrogation will be resolved by
the Court of Appeals, in this brief we address first the question of
whether Puerto Rico has waived its Eleventh Amendment immunity to suits
brought under Section 504 and IDEA by accepting federal funds.

[ARGUMENT]{.underline}

I.  **THE REHABILITATION ACT AND IDEA ARE EACH A VALID EXERCISE OF
    CONGRESS'S AUTHORITY UNDER THE SPENDING CLAUSE OF THE
    CONSTITUTION**.

The Eleventh Amendment does not bar Plaintiffs' IDEA claims and
Rehabilitation Act claims because defendants have waived their sovereign
immunity by accepting federal funds. As demonstrated below, pursuant to
the Spending Clause of the Constitution, Art. I, § 8, Cl. 1, Congress
has the authority to condition its spending on a waiver of Eleventh
Amendment immunity; for both IDEA and the Rehabilitation Act, Congress
has enacted a clear statement that accepting federal funds would
constitute a waiver of Eleventh Amendment immunity; and the
Rehabilitation Act and IDEA are each a valid exercise of the Spending
Clause.[^2]

A.  Congress Has Authority to Condition the Receipt of Federal Financial
    Assistance on the State Waiving its Eleventh Amendment Immunity

A State can waive its immunity either by State statute or constitutional
provision or "by otherwise waiving its immunity to suit in the context
of a particular federal program." *Atascadero State Hosp. v. Scanlon*,
473 U.S. 234, 238 n.1 (1985). *Accord* *College Sav. Bank* v. *Florida
Prepaid Postsec. Educ. Expense Bd.*, 527 U.S. 666, 674 (1999) (States
are free to waive their Eleventh Amendment immunity). Under the second
method of waiver, a State may "by its participation in the program
authorized by Congress . . . in effect consent\[\] to the abrogation of
that immunity." *Edelman v. Jordan*, 415 U.S. 651, 672 (1974). The
Supreme Court recently restated this maxim in *Florida Prepaid*:

> \[W\]e have held . . .that Congress may, in the exercise of its
> spending power, condition its grant of funds to the States upon their
> taking certain actions that Congress could not require them to take,
> and that acceptance of the funds entails an agreement to the actions.
> . . . Congress has no obligation to use its Spending Clause power to
> disburse funds to the States; such funds are gifts.

527 U.S. at 686. *See also New York v. United States*, 505 U.S. 144, 168
(1992) (attachment of conditions to grants made under the Spending
Clause is a permissible method of encouraging a State to conform to
federal policy choices.")

"For a federal statute to produce a waiver of a State's immunity through
the State's participation in a federal spending program," however, "the
statute must provide a clear expression of Congress's 'intent to
condition participation in the program\[ \] . . . on a State's

consent to waive its constitutional immunity.'" *Bradley v. Arkansas
Dep't of Educ*., 189 F.3d 745, 753 (8th Cir. 1999) (upholding State's
waiver of Eleventh Amendment immunity under IDEA), *rev'd in part on
other grounds*, *Jim C. v. United States*, 235 F.3d 1079 (8th Cir. 2000)
(upholding waiver of State's Eleventh Amendment immunity under the
Rehabilitation Act), *cert. denied sub nom. Arkansas Dep't of Educ. v.
Jim C*., 121 S. Ct. 2591 (June 29, 2001).

Thus, Congress may condition (and in this case has conditioned) the
receipt of federal funds on defendants' waiver of Eleventh Amendment
immunity to Section 504 claims and IDEA claims.

B.  **42 U.S.C. 2000d-7 Validly Removes Eleventh Amendment Immunity for
    Private Claims under Section 504 of the Rehabilitation Act of 1973**

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a),
prohibits discrimination against persons with disabilities under "any
program or activity receiving Federal financial assistance." Section
2000d-7 of Title 42 abrogates the states' Eleventh Amendment immunity to
suits brought under Section 504. Section 2000d-7 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 of the Rehabilitation Act of 1973 \[29 U.S.C. 794\], title IX of the
Education Amendments of 1972 \* \* \* \[and\] title VI of the Civil
Rights Act of 1964." Section 2000d-7 is a valid exercise of Congress's
power under the Spending Clause, Art. I, § 8, Cl. 1, to prescribe
conditions for state agencies that voluntarily accept federal financial
assistance.[^3]

> 1\. *Section 2000d-7 Is A Clear Statement That Accepting Federal
> Financial Assistance Would Constitute A Waiver To Private Suits
> Brought Under Section 504*

Section 2000d-7 was enacted in response to the Supreme Court's decision
in *Atascadero State Hospital* v. *Scanlon*, 473 U.S. 234. In
*Atascadero*, the Court held that Congress had not provided sufficiently
clear statutory language to remove States' Eleventh Amendment immunity
for Section 504 claims and reaffirmed that "mere receipt of federal
funds" was insufficient to constitute a waiver. 473 U.S. at 246. But the
Court stated that if a statute "manifest\[ed\] a clear intent to
condition participation in the programs funded under the Act on a
State's waiver of its constitutional immunity," the federal courts would
have jurisdiction over States that accepted federal funds. *Id*. at 247.

Section 2000d-7 makes unambiguously clear that Congress intended States
to be amenable to suit in federal court under Section 504 (and the other
federal non-discrimination statutes tied to federal financial
assistance) if they accepted federal funds.[^4] Any state agency reading
the U.S. Code would have known that after the effective date of Section
2000d-7 it could be sued in federal court for violations of Section 504
if it accepted federal funds. Section 2000d-7 thus embodies exactly the
type of unambiguous condition discussed by the Court in

*Atascadero*, putting States on express notice that part of the
"contract" for receiving federal funds was the condition that they
consent to suit in federal court for alleged violations of Section 504
for those agencies that received any financial assistance.[^5]

State defendants suggest, without elaboration or support, that the
waiver language in Section 2000d-7 is not a "clear declaration." *See*
Defendants' Motion to Show Cause, filed April 3, 2002, at 27-28
\[hereinafter, "Def. Mot"\]. This suggestion is belied by the Supreme
Court in *Lane* v. *Peña*, 518 U.S. 187, 200 (1996), where the Court
acknowledged "the care with which Congress responded to our decision in
*Atascadero* by crafting an unambiguous waiver of the States' Eleventh
Amendment immunity" in Section 2000d-7. Likewise, the Fourth Circuit,
after an extensive analysis of the text and structure of the Act, held
in *Litman v. George Mason Univ*, 186 F.3d 544 554 (4^th^ Cir. 1999)
*cert denied* 528 U.S. 1181 (2000), that "Congress succeeded in its
effort to codify a clear, unambiguous, and unequivocal condition of
waiver of Eleventh Amendment immunity in 42 U.S.C. § 2000d-7(a)(1)." Six
other courts of appeals agree that the Section 2000d-7 language clearly
manifests an intent to condition receipt of federal financial assistance
on consent to waive Eleventh Amendment immunity. See *Douglas* v.
*California Dep't of Youth Auth.*, 271 F.3d 812, 820, *opinion amended*,
271 F.3d 910 (9th Cir. 2001) (Section 504); *Nihiser* v. *Ohio E.P.A.*,
269 F.3d 626 (6th Cir. 2001) (Section 504), *petition for cert.
pending,* No. 01-1357; *Jim C.* v. *Arkansas Dep't of Educ.*, 235 F.3d
1079, 1081-1082 (8th Cir. 2000) (en banc) (Section 504), *cert. denied*,
533 U.S. 949 (2001); *Stanley* v. *Litscher*, 213 F.3d 340, 344 (7th
Cir. 2000) (Section 504); *Pederson* v. *Louisiana State Univ.*, 213
F.3d 858, 875-876 (5th Cir. 2000) (Title IX); *Sandoval* v. *Hagan*, 197
F.3d 484, 493-494 (11th Cir. 1999) (Title VI), *rev'd on other grounds*,
532 U.S. 275 (2001); *Clark* v. *California*, 123 F.3d 1267, 1271 (9th
Cir. 1997) (Section 504), *cert. denied*, 524 U.S. 937 (1998).[^6]

Defendants appear to suggest their waiver was not knowing and voluntary,
relying on an isolated decision in *Garcia* v. *SUNY Health Sciences
Center*, 280 F.3d 98, 113 (2d Cir. 2001). Def. Mot. at 31. In *Garcia*,
the Second Circuit agreed with the other courts of appeals that Section
2000d-7 "constitutes a clear expression of Congress\'s intent to
condition acceptance of federal funds on a state's waiver of its
Eleventh Amendment immunity." *Id.* at 113. And it further agreed that,
under normal circumstances, "the acceptance of funds conditioned on the
waiver might properly reveal a knowing relinquishment of sovereign
immunity." *Id*. at 114 n.4. However, *Garcia* held that the waiver was
not knowing because the state agency did not "know" in 1995 (the latest
point the alleged discrimination had occurred) that the abrogation in
Title II of the Disabilities Act was not effective and thus would have
thought (wrongly, in the view of the Second Circuit) that Title II's
abrogation for Title II claims made the waiver for Section 504
redundant. *Id*. at 114. This conclusion about a knowing waiver is, in
our view, incorrect. It is wrong because every state agency did know
from the plain text of Section 2000d-7 from the time it was enacted in
1986 that acceptance of federal funds constituted a waiver of immunity
to suit for violations of Section 504. Section 504 was not amended or
altered by the enactment of Title II in 1990 and it was clear that
plaintiffs could sue under either statute. See 42 U.S.C. 12201(b)
(preserving existing causes of action). It is simply untenable to
suggest that abrogation for suits under one statute is relevant to
whether an entity waived its immunity to suits brought to enforce a
distinct, albeit substantively similar, statute. *Garcia's* holding --
that the waiver for Section 504 claims was effective until Title II went
into effect and then lost its effectiveness until some point in the late
1990's and has now regained its full effectiveness -- creates an
unprecedented patchwork of effective coverage.[^7]

Moreover, the Second Circuit's opinion makes clear that at the point
when there is a "colorable basis for a state to suspect" that it had
retained its immunity to suit, the waiver for Section 504 would be
effective "because a state deciding to accept the funds would not be
ignorant of the fact that it was waiving its possible claim to sovereign
immunity." *Id*. at 114 n.4. The courts of appeals are thus in accord on
this issue. Defendants do not deny -- nor could they -- that the Puerto
Rico Department of Education accepted federal funds in 2001 -- which is
the time period when plaintiffs allege that it failed to comply with the
Administrative Order in this case. *See* FN 3, supra at 5. Nor, given
that Defendants were arguing to this very Court in *Badillo-Santiago* in
March, 2001 that Title II exceeds Congress's Section 5 powers, can they
now argue that they were unaware in 2001 that Puerto Rico might be
immune to suits under Title II of the ADA. *Badillo-Santiago v.
Andreu-Garcia*, 167 F. Supp. 194, 196 (D. PR 2001). In sum, even if

this Court adopted the minority holding in *Garcia,* which it should
not, it would not be applicable in the instant case.

Finally, State defendants suggest, again without elaboration, that the
Supreme Court's decisions in *Kimel v. Florida Board of Regents*, 528
U.S. 62 (2000) and *Board of Trustees of the Univ. of Ala. v. Garrett*,
531 U.S. 356 (2001), "change" the way this Court should evaluate whether
Puerto Rico has waived its immunity in accepting Section 504 and IDEA
funds. Def. Mot. at 30. This suggestion is misplaced because it ignores
the obvious fact that those cases involved Congress' authority under
Section 5, not, as here, the Spending Clause. Thus, the Court's analysis
of Congress's authority under Section 5, is a separate and unrelated
question from Congress's authority under the Spending Clause. As the
Court in *Litman* recognized,

> We do not read *Seminole Tribe* and its progeny, including the Supreme
> Court's recent Eleventh Amendment decisions, to preclude Congress from
> conditioning federal grants on a state's consent to be sued in federal
> court to enforce the substantive conditions of the federal spending
> program. Indeed, to do so would affront the Court's acknowledgment in
> *Seminole Tribe* of the "unremarkable\... proposition that States may
> waive their sovereign immunity."

186 F.3d at 556 (quoting *Seminole Tribe*, 517 U.S. at 65). *See also
Pederson*, 213 F.3d at 876 (same; decided after *Garrett* and *Kimel*);
*Douglas*, 271 F.3d at 820 (same).

> 2\. *Section 504 Is A Valid Exercise Of The Spending Power*

The Supreme Court in *South Dakota* v. *Dole*, 483 U.S. 203, 210 (1987)
identified four limitations on Congress's Spending Power. First, the
Spending Clause by its terms requires that Congress legislate in pursuit
of "the general welfare." 483 U.S. at 207. Second, if Congress
conditions the States' receipt of federal funds, it "'must do so
unambiguously \* \* \*, enabling the States to exercise their choice
knowingly, cognizant of the consequence of their participation.'"
*Ibid*. (quoting *Pennhurst State Sch. & Hosp.* v. *Halderman*, 451 U.S.
1, 17 (1981)). Third, the Supreme Court's cases "have suggested (without
significant elaboration) that conditions on federal grants might be
illegitimate if they are unrelated 'to the federal interest in
particular national projects or programs.'" *Ibid*. And fourth, the
obligations imposed by Congress may not violate any independent
constitutional provisions. *Id*. at 208. None of these limitations apply
in this case.

1\. First, the general welfare is served by prohibiting discrimination
against persons with disabilities. *See City of Cleburne v. Cleburne
Living Ctr*., 473 U.S. 432, 443-444 (1985) (discussing Section 504 with
approval). Indeed, *Dole* noted that the judicial deference to Congress
is so substantial that there is some question \"whether \'general
welfare\' is a judicially

enforceable restriction at all.\" 483 U.S. at 207 n.2.

2\. The language of Section 2000d-7 and Section 504 alone make clear
that the obligations it imposes are a condition on the receipt of
federal financial assistance. *See, e.g., Litman*, 186 F.3d at 553-54.
*See* discussion, supra at 6-8. Thus, the second *Dole* requirement is
met. Moreover, Department of Education implementing regulations for
Section 504 require that "an applicant for Federal financial assistance
to which this part applies shall submit an assurance, on a form
specified by the Assistant Secretary, that the program or activity will
be operated in compliance with this part." 34 CFR 104.5

3\. Section 504 meets the third *Dole* requirement as well. Section 504
furthers the federal interest in assuring that no federal funds are used
to support, directly or indirectly, programs that discriminate or
otherwise deny benefits and services on the basis of disability to
qualified persons. Here, federal money that went to the Puerto Rico
Department of Education was specifically for the free and appropriate
education of children with disabilities. Thus, there can be no basis for
defendants' suggestion that the federal grants are not related to the
federal purpose.

Section 504\'s nondiscrimination requirement is patterned on Title VI
and Title IX, which prohibit race and sex discrimination by \"programs\"
that receive federal funds. *See NCAA v. Smith*, 525 U.S. 459, 466 n.3
(1999); *Arline*, 480 U.S. at 278 n.2. Both Title VI and Title IX have
been upheld as valid Spending Clause legislation. In *Lau v. Nichols*,
414 U.S. 563 (1974), the Supreme Court held that Title VI, which the
Court interpreted to prohibit a school district from ignoring the
disparate impact its policies had on limited-English proficiency
students, was a valid exercise of the Spending Power. \"The Federal
Government has power to fix the terms on which its money allotments to
the States shall be disbursed. Whatever may be the limits of that power,
they have not been reached here.\" *Id.* at 569 (citations omitted). The
Court made a similar holding in *Grove City College v. Bell*, 465 U.S.
555 (1984). In *Grove City*, the Court addressed whether Title IX, which
prohibits education programs or activities receiving federal financial
assistance from discriminating on the basis of sex, infringed on the
college\'s First Amendment rights. The Court rejected that claim,
holding that \"Congress is free to attach reasonable and unambiguous
conditions to federal financial assistance that educational institutions
are not obligated to accept.\" *Id.* at 575. These cases stand for the
proposition that Congress has an interest in preventing the use of its
funds to support, directly or indirectly, programs that discriminate or
otherwise deny benefits and services to qualified persons because of
race, gender, and disability. Thus, compliance with Section 504 is a
valid condition on the receipt of all federal financial assistance.

Because the interest in preventing discrimination extends to all federal
funds, Congress drafted Title VI, Title IX, and Section 504 to apply
across-the-board to all federal financial assistance. The purposes
articulated by Congress in enacting Title VI, purposes equally
attributable to Title IX and Section 504, were to avoid the need to
attach nondiscrimination provisions each time a federal assistance
program was before Congress, and to avoid \"piecemeal\" application of
the nondiscrimination requirement if Congress failed to place the
provision in each grant statute. *See* 110 Cong. Rec. 6544 (1964) (Sen.
Humphrey); *id.* at 7061-7062 (Sen. Pastore); *id.* at 2468 (Rep.
Celler); *id.* at 2465 (Rep. Powell). Certainly, there is no distinction
of constitutional magnitude between a nondiscrimination provision
attached to each appropriation and a single provision applying to all
federal spending. Thus, a challenge to such a cross-cutting
non-discrimination statute would fail.

4\. Section 504 does not \"induce the States to engage in activities
that would themselves be unconstitutional.\" *Dole*, 483 U.S. at 210.
Neither providing meaningful access to people with disabilities nor
waiving sovereign immunity violates anyone\'s constitutional rights. The
relevant state agency incurs these obligations only because it applies
for and receives federal funds. \"\[T\]he powers of the State are not
invaded, since the statute imposes no obligation \[to accept the funds\]
but simply extends an option which the State is free to accept or
reject.\" *Massachusetts v. Mellon*, 262 U.S. 447, 480 (1923). [^8]

> **B. Sections 1403 and 1415 of the IDEA Validly Remove Eleventh
> Amendment Immunity for Private Claims under IDEA.**

The IDEA, originally enacted in 1970 as the Education of the Handicapped
Act (EHA), Pub.L. No. 91-230, §§ 601-662, 84 Stat. 175, confers on
disabled children a substantive right to a \"free appropriate public
education.\" 20 U.S.C. § 1400(c); *see Honig v. Doe*, 484 U.S. 305, 308-
10, (1988). A free appropriate education \"consists of educational
instruction specially designed to meet the unique needs of the
\[disabled\] child, supported by such services as are necessary to
permit the child \'to benefit\' from the instruction.\" *Board of Educ.
v. Rowley*, 458 U.S. 176, 188-89 (1982). IDEA places on the states the
primary responsibility for satisfying the goals of the statute. IDEA,
described by several courts as a model of \"cooperative federalism,\"
*see, e.g., Bernardsville Bd. of Educ. v. J.H.*, 42 F.3d 149, 151 (3d
Cir.1994); *Town of Burlington v. Dep\'t of Educ*., 736 F.2d 773, 783
(1st Cir.1984), aff\'d, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385
(1985), authorizes federal funding for states providing the special
education that the statute requires, but funding is contingent on state
compliance with its array of substantive and procedural requirements, 20
U.S.C. § 1412.

Under IDEA, Puerto Rico receives federal funds for education. By
accepting these funds, Puerto Rico consents to be sued for violations of
the IDEA. Section 1403 of the IDEA,

20 U.S.C. § 1403 (Section 1403), specifically conditions receipt of
federal funds on a waiver of state sovereign immunity.[^9] Section 1403
reads in part: "A State shall not be immune under the eleventh amendment
to the Constitution of the United States from suit in Federal Court for
a violation of this chapter." *Id*. Section 1415(a) of the IDEA, 42
U.S.C. § 1415(a) provides that any state that receives financial
assistance under the IDEA "shall establish and maintain certain
procedures to ensure that children with disabilities and their parents
are guaranteed procedural safeguards with respect to the provision of
free appropriate public education." Specifically included among these
procedures is the right to bring a civil action in federal court. 20
U.S.C. 1415 (i)(2). Sections 1403 and 1415 unequivocally and
unambiguously condition receipt of Federal financial assistance under
the IDEA on recipient States' waiver of Eleventh Amendment immunity from
IDEA suits. *See Board of Educ. of Oak Park v. Kelly E*., 207 F.3d 931,
935 (7th Cir. 1999), cert denied, 531 U.S. 824 (2000); *Beth V. v.
Carroll*, 87 F.3d 80 (3d. Cir. 1996). By accepting federal IDEA funds,
Puerto Rico has adopted this waiver of Eleventh Amendment immunity.

> *1. Sections 1403 and 1415 of the IDEA Constitute a Clear Statement
> That By Accepting Federal Financial Assistance Under IDEA, Puerto Rico
> has Waived Immunity to Private Suits Brought Under IDEA.*

Section 1403 was enacted in response to the Supreme Court's holding in
*Muth v. Dellmuth*, 491 U.S. 223 (1989). In *Muth*, the Court concluded
that the predecessor to the IDEA did not contain an adequately clear and
unambiguous statement of Congress's intent to require a waiver of State
sovereign immunity. *Id.* at 232. The following year, Congress responded
by adopting 20 U.S.C. § 1403, "which makes express" its intent that
State recipients of IDEA funding surrender their Eleventh Amendment
immunity from suit. *Beth V.*, 87 F.3d at 88. *See also Lane v. Pena*,
518 U.S. at 200 (1996) and supra at 7 (interpreting almost identical
statutory language that was added to the Rehabilitation Act pursuant to
the Rehabilitation Act Amendments of 1986, codified at 42 U.S.C. §
2000d-7).

Since IDEA was amended, the circuit courts of appeal that have addressed
this issue have held that States which accept funds pursuant to IDEA
have waived their immunity to suit in federal court. *See Board of Educ.
of Oak Park v. Kelly E*., 207 F.3d at 935. ("Although \[IDEA\] does not
use words such as 'consent' or 'waiver,' it is hard to see why that
should matter. Congress did what it could to ensure that States
participating in the IDEA are amenable to suit in federal court.");
*Little Rock Sch. Dist. v. Mauney*, 183 F.3d 816, 832 (8th Cir. 1999)
(characterizing 20 U.S.C. § 1403 as "an unambiguous waiver of the
States' Eleventh Amendment immunity").

In addition to § 1403, section 1415(i)(2) of the IDEA includes a
provision explicitly authorizing lawsuits to enforce its provisions in
State and federal court, further evidencing "Congress' view that private
suits are integral to enforcement of IDEA."[^10] *Beth V*., 87 F.3d at
88 (authorizing suit against Pennsylvania Department of Education and
citing 20 U.S.C. § 1415). Read in conjunction with § 1403, this explicit
reference to private rights of action in the federal courts provides
additional, explicit notice that Congress intended to provide IDEA
monies only to States that waived their sovereign immunity. *See
Bradley*, 189 F.3d at 753 ("When it enacted \[20 U.S.C.\] §§ 1403 and
1415, Congress provided a clear, unambiguous warning of its intent to
condition State's participation in the IDEA program and its receipt of
federal IDEA funds on the State's waiver of its immunity from suit in
federal court on claims made under the IDEA").

IDEA is effective only when the State elects to receive federal funds.
*See Beth V*., 87 F.3d at 82 (noting that IDEA has "been described by
several courts as a model of 'cooperative federalism'" and recognizing
that IDEA funding "is contingent on State compliance with its array of
substantive and procedural requirements"); *see also Bernardsville Bd.
of Educ. v. J.H.*, 42 F.3d 149, 151 (3d Cir. 1994) (recognizing that it
is only when an education agency "receives an allocation of funds under"
IDEA that it "incurs the responsibility" to comply with IDEA's terms).
Thus, "the powers of the State are not invaded, since the statute
imposes no obligation \[to accept the funds\] but simply extends an
option which the State is free to accept or reject." *Massachusetts v.
Mellon*, 262 U.S. 447, 480 (1923). The documents from the U.S.
Department of Education prove that Defendants have accepted federal
funds for special education (IDEA funds) after the effective date of
Section 1403. *See* FN 3, supra at 5. Accordingly, defendants have
waived their Eleventh Amendment immunity to a suit under the IDEA. *See
Kelly E*., 207 F.3d at 935 ("States that accept federal money \[under
the IDEA\] . . . must respect the terms and conditions of the grant").
"Requiring States to honor the obligations voluntarily assumed as a
condition of federal funding . . . simply does not intrude on their
sovereignty." *Bell v. New Jersey*, 461 U.S. 773, 790 (1983).

The IDEA presented Puerto Rico with a clear choice: Either agree to
waive Eleventh Amendment immunity for suits enforcing the IDEA's
provisions, or forego Federal financial assistance for educational
programs for students with disabilities. Having accepted the federal
funds, Puerto is bound by the IDEA's valid waiver provisions.
[See]{.underline} 20 U.S.C. §§ 1403, 1415.

2\. IDEA's Waiver Requirement is a Valid Exercise of Congress's Spending
Clause Authority

The IDEA is a valid exercise of Congress's Spending Clause authority and
meets the criteria set out in *South Dakota v. Dole*, *see* discussion
of Dole, [supra]{.underline} at 10-11. There can be no dispute that (1)
the general welfare is served by the IDEA which provides for free
appropriate education for students with disabilities; (2) the IDEA
clearly conditions the acceptance of federal funds on Puerto Rico's
waiver of its Eleventh Amendment immunity; and (3) federal funds
received by the State pursuant to the IDEA are expressly tied to
implementing the provisions of that statute, and therefore the condition
of waiving Eleventh Amendment immunity is directly related to Congress'
interest in implementing the IDEA and providing for the education of
children with disabilities. Finally, the obligations imposed by Congress
may not violate any independent constitutional provisions. *Id*. at 208.
The IDEA does not "induce the States to engage in activities that would
themselves be unconstitutional." *Id.* at 210.

> **C. STATE DEFENDANTS HAVE NOT BEEN COERCED INTO ACCEPTING FEDERAL
> FUNDS.**

Defendants also argue, Def. Mot. at 27, that the nondiscrimination
conditions in the Rehabilitation Act and IDEA are coercive, and
therefore, not voluntary.

While the Supreme Court in *Dole* recognized that the financial
inducement of federal funds "might be so coercive as to pass the point
at which 'pressure turns into compulsion,'" 483 U.S. at 211 (quoting
*Steward Mach. Co.* v. *Davis*, 301 U.S. 548, 590 (1937)), it saw no
reason generally to inquire into whether a State was coerced. Noting
that every congressional spending statute "is in some measure a
temptation," the Court recognized that "to hold that motive or
temptation is equivalent to coercion is to plunge the law in endless
difficulties." *Ibid*. The Court in *Dole* thus reaffirmed the
assumption, founded on "a robust common sense," that the States are
voluntarily exercising their power of choice in accepting the conditions
attached to the receipt of federal funds. *Ibid*. (quoting *Steward
Mach.*, 301 U.S. at 590). Accordingly, the Ninth Circuit has properly
recognized "that it would only find Congress' use of its spending power
impermissibly coercive, if ever, in the most extraordinary
circumstances." *California* v. *United States*, 104 F.3d 1086, 1092
(9th Cir.), *cert. denied*, 522 U.S. 806 (1997).

Any argument that either of these statutes is coercive would be
inconsistent with Supreme Court decisions that demonstrate that States
may be put to difficult or even "unrealistic" choices about whether to
take federal benefits without the conditions becoming unconstitutionally
"coercive." In *North Carolina ex rel. Morrow* v. *Califano*, 445 F.
Supp. 532 (E.D.N.C. 1977) (three-judge court), aff'd mem., 435 U.S. 962
(1978), a State challenged a federal law that conditioned the right to
participate in "some forty-odd federal financial assistance health
programs" on the creation of a "State Health Planning and Development
Agency" that would regulate health services within the State. *Id*. at
533. The State argued that the Act was a coercive exercise of the
Spending Clause because it conditioned money for multiple pre-existing
programs on compliance with a new condition. The three-judge court
rejected that claim, holding that the condition "does not impose a
mandatory requirement \* \* \* on the State; it gives to the states an
*option* to enact such legislation and, in order to induce that
enactment, offers financial assistance. Such legislation conforms to the
pattern generally of federal grants to the states and is not 'coercive'
in the constitutional sense." *Id*. at 535-536 (footnote omitted). The
Supreme Court summarily affirmed, thus making the holding binding on
this Court.[^11]

Similarly, in *Board of Education* v. *Mergens*, 496 U.S. 226 (1990),
the Court interpreted the scope of the Equal Access Act, 20 U.S.C. 4071
*et* *seq*., which conditions federal financial assistance for those
public secondary schools that maintain a "limited open forum" on the
schools not denying "equal access" to students based on the content of
their speech. In rejecting the school's argument that the Act as
interpreted unduly hindered local control, the Court noted that "because
the Act applies only to public secondary schools that receive federal
financial assistance, a school district seeking to escape the statute's
obligations could simply forgo federal funding.

Although we do not doubt that in some cases this *may be an unrealistic
option*, \[complying with the Act\] is the price a federally funded
school must pay if it opens its facilities to noncurriculum-related
student groups." 496 U.S. at 241 (emphasis added, citation
omitted).[^12]

These cases demonstrate that the federal government can place conditions
on federal. funding that require States to make the difficult choice of
losing federal funds from many different longstanding programs (*North
Carolina*), or even losing all federal funds (*Mergens*), without
crossing the line to coercion. Thus, the choice imposed by Section 504
is not "coercive" in the constitutional sense. *See* *Jim C.*, 235 F.3d
at 1081-1082 (en banc). *Accord* *New Hampshire Dep't of Employment Sec.
v. Marshall*, 616 F.2d 240, 246 (1^st^ Cir. 1980) ("We do not agree that
the carrot has become a club because rewards for conforming have
increased. It is not the size of the stake that controls, but the rules
of the game").

State officials are constantly forced to make difficult decisions
regarding competing needs for limited funds. While it may not always be
easy to decline federal funds, each department or agency of the State,
under the control of state officials, is free to decide whether it will
accept the federal funds with the Section 504 and waiver "string"
attached, or simply decline

the funds. See *Grove City Coll.*, 465 U.S. at 575; *Kansas* v. *United
States*, 214 F.3d at 1202 ("In this context, a difficult choice remains
a choice, and a tempting offer is still but an offer. If Kansas finds
the \* \* \* requirements so disagreeable, it is ultimately free to
reject both the conditions and the funding, no matter how hard that
choice may be." (citation omitted))

Because one of the critical purposes of the Eleventh Amendment is to
protect the "financial integrity of the States," *Alden*, 527 U.S. at
750, it is perfectly appropriate to permit each State to make its own
cost-benefit analysis and determine whether it will, for any given state
agency, accept the federal money with the condition that that agency can
be sued in federal court, or forgo the federal funds available to that
agency. See *New York*, 505 U.S. at 168. But once defendants have
accepted federal financial assistance, "\[r\]equiring States to honor
the obligations voluntarily assumed as a condition of federal funding \*
\* \* simply does not intrude on their sovereignty." *Bell* v. *New
Jersey*, 461 U.S. 773, 790 (1983).

For all these reasons, Section 504 and Section 2000d-7, and IDEA, can be
upheld under the Spending Clause.

**II. CONGRESS'S ENACTMENT OF TITLE II OF THE ADA IS A VALID ABROGATION
OF PUERTO RICO'S ELEVENTH AMENDMENT IMMUNITY**.

In *University of Alabama* v. *Garrett*, 531 U.S. 356, 363 (2001), the
Supreme Court reaffirmed that Section 5 of the Fourteenth Amendment
grants Congress the power to abrogate the States' Eleventh Amendment
immunity to private damage suits. In assessing the validity of "§ 5
legislation reaching beyond the scope of § 1's actual guarantees," the
legislation "must exhibit 'congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.'"
*Garrett*, 531 U.S. at 365 (quoting *City of Boerne* v. *Flores*, 521
U.S. 507, 520 (1997)). This requires a three-step analysis: first, a
court must "identify with some precision the scope of the constitutional
right at issue," *ibid*.; second, the court must "examine whether
Congress identified a history and pattern of unconstitutional \* \* \*
discrimination by the States against the disabled," *id*. at 368;
finally, the Court must assess whether the "rights and remedies created"
by the statute were "designed to guarantee meaningful enforcement" of
the constitutional rights that Congress determined the States were
violating, *id*. at 372, 373.

Applying these "now familiar principles," *id*. at 365, the Court in
*Garrett* held that Congress did not validly abrogate States' Eleventh
Amendment immunity to suits by private individuals for money damages
under Title I of the ADA. The Court concluded that Congress had
identified only "half a dozen" incidents of relevant conduct (*i.e.*,
potentially unconstitutional discrimination by States as *employers*
against people with disabilities), *id*. at 369, and had not made a
specific finding that discrimination in public sector employment was
pervasive, *id*. at 371-372. Thus, the Court held, Congress did not
assemble a sufficient basis to justify Title I's abrogation of Eleventh
Amendment immunity for its prophylactic statutory remedies. *Id*. at
372.

The Supreme Court specifically reserved the question that the district
court seeks to have the United States address: whether Title II's
abrogation can be upheld as valid Section 5 legislation. The Supreme
Court noted that Title II "has somewhat different remedial provisions
from Title I," *id*. at 360 n.1, and that the legislative record for
those activities governed by Title II was more extensive, see *id*. at
372 n.7. Less than a week after deciding *Garrett*, the Supreme Court
denied a petition for certiorari filed by California and let stand the
Ninth Circuit's holding that Title II's abrogation was valid Section 5
legislation. See *Dare* v. *California*, 191 F.3d 1167 (1999), cert.
denied, 121 S. Ct. 1187 (2001).

As the Court's disposition of *Dare* indicates, *Garrett* does not imply
that Title II's abrogation exceeds Congress's power under Section 5. For
Title II differs from Title I in four significant respects. First,
unlike Title I, which was intended simply to redress violations of the
Equal Protection Clause as applied to a non-suspect class in an area
(employment) not otherwise subject to heightened scrutiny, the range of
constitutional violations implicated by Title II extends to areas where
heightened judicial scrutiny is appropriate and where even policies
subject to rational-basis review cannot always be justified by cost or
administrative efficiency alone. Second, Congress made express findings
of persistent discrimination in "public services" generally, including
services provided by States, as well as specific areas of traditional
state concern, such as voting, education, and institutionalization.
Third, Congress's findings were based on an extensive record of
unconstitutional state conduct regarding people with disabilities in the
areas covered by Title II, a record more extensive than existed for
employment alone. Finally, the remedy enacted by Congress is more
proportional and congruent to this record of violations than the record
discussed in *Garrett*. We address each point in turn.

A. The Actions Covered By Title II Implicate Both Equal Protection And
Other Substantive Constitutional Rights

*Garrett* instructs that in assessing the validity of Congress's Section
5 legislation, it is important to identify the constitutional rights at
stake. See 531 U.S. at 365. Since there is no constitutional right to
state employment, the Court looked to the Equal Protection Clause as the
sole constitutional provision that Congress sought to enforce. *Ibid*.
And because classifications based on disability are not subject to
heightened scrutiny, the Court faulted Congress for failing to identify
incidents when state action did not satisfy the "minimum
'rational-basis' review applicable to general social and economic
legislation." *Ibid*.

By contrast, Title II governs all the operations of a State, which
plainly encompasses state conduct subject to a number of other
constitutional limitations embodied in the First, Fourth, Fifth, Sixth,
Seventh, and Eighth Amendments and incorporated and applied to the
States through the Fourteenth Amendment. Those rights include the right
to vote, to access the courts, to petition officials for redress of
grievances, to receive due process from law enforcement officials, and
to be confined where conditions are humane. To the extent that Title II
enforces the Fourteenth Amendment by remedying and preventing government
conduct that burdens these constitutional provisions and discriminates
against persons with disabilities in their exercise of these rights,
Congress did not need to identify *irrational* government action in
order to identify and address *unconstitutional* government action. See
*Popovich* v. *Cuyahoga County Court of Common Pleas*, 276 F.3d 808,
813-814 (6th Cir. 2002) (en banc); *id*. at 820 (Moore, J., concurring)
("The fact that Title II implicates constitutional violations in areas
ranging from education to voting also suggests that heightened judicial
scrutiny under both the Due Process and Equal Protection Clauses is
appropriate.")

Moreover, where a State is providing generally-available public
services, justifications that would be sufficient to uphold policies in
an employment setting often will not suffice to justify exclusion from
government services. When a government interacts with its citizens as
sovereign, the core purpose of the Constitution in protecting its
citizens *qua* citizens is implicated in a way that it is not where the
government is acting as employer. Thus, as the Supreme Court has
explained in the First Amendment context, "\[t\]he government's interest
in achieving its goals as effectively and efficiently as possible is
elevated from a relatively subordinate interest when it acts as
sovereign to a significant one when it acts as employer." *Board of
County Comm'rs* v. *Umbehr*, 518 U.S. 668, 676 (1996); cf. *O'Connor* v.
*Ortega*, 480 U.S. 709, 724 (1987) (holding that Fourth Amendment
protects government employees, but declining to impose "probable cause"
requirement on searches because of special needs of government as
employer).

Therefore, the Supreme Court's statement in *Garrett* that the Equal
Protection Clause does not require States to accommodate people with
disabilities if it involves additional expenditures of funds, see 531
U.S. at 372, is best understood as limited to government actions in its
capacity as an employer. That statement certainly would not permit
States to deny persons with disabilities their right to vote on the
ground that providing access to the polling place is costly. Even
outside the arena of fundamental rights, the Supreme Court has made
clear that a "State may not rely on a classification whose relationship
to an asserted goal is so attenuated as to render the distinction
arbitrary or irrational." *City of Cleburne* v. *Cleburne Living Ctr.*,
473 U.S. 432, 446 (1985). Under this standard, reducing costs or
increasing administrative efficiency will not always suffice as
justification outside the employment context. See, *e.g.*, *Plyler* v.
*Doe*, 457 U.S. 202, 229 (1982); *Jimenez* v. *Weinberger*, 417 U.S.
628, 636-637 (1974). Indeed, the Supreme Court has held that in order to
comply with the Equal Protection Clause a State may be required to
provide costly services free of charge where necessary to provide a
class of persons meaningful access to important services offered to the
public at-large. See *M.L.B.* v. *S.L.J.*, 519 U.S. 102, 110, 127 n.16
(1996).

In addition, courts have found unconstitutional treatment of persons
with disabilities in a wide variety of public services, including
violations of the Equal Protection Clause, the Due Process Clause, and
the Eighth Amendment, as incorporated into Section 1 of the Fourteenth
Amendment.[^13] These cases provide the "confirming judicial
documentation," *Garrett*, 531 U.S. at 376 (Kennedy, J., concurring), of
unconstitutional disability discrimination by States that the Court
found lacking in the employment context.

B.  Congress Identified Ample Evidence Of A Long History And A
    Continuing Problem Of Unconstitutional Treatment Of Persons With
    Disabilities By States And Made Express Findings On The Subject

Congress engaged in extensive study and fact-finding concerning the
problem of unconstitutional discrimination against persons with
disabilities, holding 13 hearings devoted

specifically to the consideration of the ADA.[^14] In addition, a
congressionally designated Task Force held 63 public forums across the
country, which were attended by more than 7,000 individuals. Task Force
on the Rights and Empowerment of Americans with Disabilities, *From ADA
to Empowerment* 18 (1990) (Task Force Report). The Task Force also
presented to Congress evidence submitted by nearly 5,000 individuals
documenting the problems with discrimination faced daily by persons with
disabilities -- often at the hands of state governments. See 2 Staff of
the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., *Legis. Hist.
of Pub. L. No. 101-336: The Americans with Disabilities Act*, 100th
Cong., 2d Sess. 1040 (Comm. Print 1990) (*Leg. Hist.*); Task Force
Report 16. Congress also considered several reports and surveys.

See S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989); H.R. Rep. No. 485,
Pt. 2, 101st Cong., 2d Sess. 28 (1990); Task Force Report 16.[^15]

1\. *Congressional Findings*: As the Supreme Court in *Garrett*
acknowledged, 531 U.S. at 372 n.7, the record of adverse conduct by
States toward people with disabilities was both broader and deeper than
the six incidents Congress identified with regard to state employment.
Equally important, after amassing the record we discuss below, Congress
brought its legislative judgment

to bear on the issue and expressly found that discrimination was
pervasive in these areas. In the area of employment, Congress made a
finding about discrimination in private employment, but no analogous
finding for public employment. *Id*. at 371-372. In contrast, Congress
made express findings in the text of the statute itself of persisting
discrimination in "education, \* \* \* institutionalization, \* \* \*
voting, and access to public services." 42 U.S.C. 12101(a)(3). The first
three areas are fields predominately operated by States and the last is,
under the terms of the statute, the exclusive domain of state and local
governments. See 104 Stat. 337 (title of Title II is "Public Services");
42 U.S.C. 12131(1) (limiting term "public entity" to state and local
governments, and Amtrak).

Again, the same Committee Reports that the Court in *Garrett* found
lacking with regard to public employment are directly on point with
regard to public services, declaring that "there exists a compelling
need to establish a clear and comprehensive Federal prohibition of
discrimination on the basis of disability in the areas of employment in
the private sector, public accommodations, *public services*,
transportation, and telecommunications." H.R. Rep. No. 485, *supra*, Pt.
2, at 28 (emphasis added); see also S. Rep. No. 116, *supra*, at 6
("Discrimination still persists in such critical areas as employment in
the private sector, public accommodations, *public services*,
transportation, and telecommunications." (emphasis added)). The judgment
of a co-equal branch of government -- embodied in the text of the
statute and its committee reports -- that a pattern of State
discrimination persists and requires a federal remedy is entitled to "a
great deal of deference, inasmuch as Congress is an institution better
equipped to amass and evaluate the vast amounts of data bearing on such
an issue." *Walters* v. *National Ass'n of Radiation Survivors*, 473
U.S. 305, 331 n.12 (1985); see also *Board of Educ.* v. *Mergens*, 496
U.S. 226, 251 (1990). This judgment was supported by ample evidence.

2\. *Historic Discrimination*: The "propriety of any § 5 legislation
'must be judged with reference to the historical experience . . . it
reflects.'" *Florida Prepaid Postsec. Educ. Expense Bd.* v. *College
Sav. Bank*, 527 U.S. 627, 640 (1999). Congress and the Supreme Court
have long acknowledged the Nation's "history of unfair and often
grotesque mistreatment" of persons with disabilities. *City of Cleburne*
v. *Cleburne Living Ctr.*, 473 U.S. 432, 454 (1985) (Stevens, J.,
concurring); see *id*. at 461 (Marshall, J., concurring in the judgment
in part); see also *Olmstead* v. *L.C.*, 527 U.S. 581, 608 (Kennedy, J.,
concurring) ("\[O\]f course, persons with mental disabilities have been
subject to historic mistreatment, indifference, and hostility.");
*Alexander* v. *Choate*, 469 U.S. 287, 295 n.12 (1985) ("well-cataloged
instances of invidious discrimination against the handicapped do
exist").

That "lengthy and tragic history," *Cleburne*, 473 U.S. at 461
(Marshall, J.), of discrimination, segregation, and denial of basic
civil and constitutional rights for persons with disabilities assumed an
especially pernicious form in the early 1900s, when the eugenics
movement and Social Darwinism labeled persons with mental and physical
disabilities "a menace to society and civilization . . . responsible in
a large degree for many, if not all, of our social problems." *Id*. at
462 (Marshall, J.); see also Civil Rights Comm'n, *Accommodating the
Spectrum of Individual Abilities* 19 (1983) (*Spectrum*). Persons with
disabilities were

portrayed as "sub-human creatures" and "waste products" responsible for
poverty and crime. *Spectrum* 20. "A regime of state-mandated
segregation and degradation soon emerged that in its virulence and
bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow."
*Cleburne*, 473 U.S. at 462 (Marshall, J.). Every single State, by law,
provided for the segregation of persons with mental disabilities and,
frequently, epilepsy, and excluded them from public schools and other
state services and privileges of citizenship.[^16] States also fueled
the fear and isolation of persons with disabilities by requiring public
officials and parents, sometimes at risk of criminal prosecution, to
report and segregate into institutions the "feeble-minded." *Spectrum*
20, 33-34. With the aim of halting reproduction and "nearly
extinguish\[ing\] their race," *Cleburne*, 473 U.S. at 462 (Marshall,
J.), almost every State accompanied forced segregation with compulsory
sterilization and prohibitions of marriage, see *id*. at 463; see also
*Buck* v. *Bell*, 274 U.S. 200, 207 (1927) (upholding state compulsory
sterilization law "in order to prevent our being swamped with
incompetence"); 3 *Leg. Hist.* 2242 (James Ellis).

Children with mental disabilities were labeled "ineducable" and
categorically excluded from public schools to "protect nonretarded
children from them." *Cleburne*, 473 U.S. at 463 (Marshall, J.); see
also *Board of Educ.* v.*Rowley*, 458 U.S. 176, 191 (1982) ("many of
these children were excluded completely from any form of public
education").[^17] Numerous States also restricted the rights of
physically disabled people to enter into contracts. See *Spectrum* 40.

3\. *The Enduring Legacy of Governmental Discrimination*: "Prejudice,
once let loose, is not easily cabined." *Cleburne*, 473 U.S. at 464
(Marshall, J.). "\[O\]ut-dated statutes are still on the books, and
irrational fears or ignorance, *traceable to the prolonged social and
cultural isolation*" of those with disabilities "continue to stymie
recognition of the\[ir\] dignity and individuality." *Id*. at 467
(emphasis added).[^18] Consequently, "our society is still infected by
the ancient, now almost subconscious assumption that people with
disabilities are less than fully human and therefore are not fully
eligible for the opportunities, services, and support systems which are
available to other people as a matter of right. The result is massive,
society-wide discrimination." S. Rep. No. 116, *supra*, at 8-9.[^19]

Moreover, as we detail below based on the testimony of hundreds of
witnesses before Congress and at the Task Force's forums,[^20] Congress
found, as a matter of present reality and historical fact, that
discrimination pervaded state governmental operations and that persons
with disabilities have been and are subjected to "widespread and
persisting deprivation of \[their\] constitutional rights." *Florida
Prepaid*, 527 U.S. at 645; see 42 U.S.C. 12101(a)(2) and (a)(3).

In particular, Congress reasonably discerned a substantial risk that
persons with disabilities will be subjected to unconstitutional
discrimination by state governments in the form of "arbitrary or
irrational" distinctions and exclusions, *Cleburne*, 473 U.S. at 446. In
addition, the evidence before Congress established that States structure
governmental programs and operations in a manner that has the effect of
denying persons with disabilities the equal opportunity to obtain vital
services and to exercise fundamental rights (such as the rights to vote,
to petition government officials, to contract, to receive adequate
custodial treatment, and to achieve equal access to the courts and
public education) protected by the First, Fourth, Fifth, Sixth, Seventh,
Eighth, and Fourteenth Amendments. The scope of the testimony offered to

Congress regarding unconstitutional treatment swept so broadly, touching
virtually every aspect of individuals' encounters with their government,
as to defy isolating the problem into select categories of state action.
For ease of understanding, we have organized the evidence into sections
touching on various areas of constitutional import.

\(a\) *Voting, Petitioning, and Access to Courts*: Voting is the right
that is "preservative of all rights," *Katzenbach* v. *Morgan*, 384 U.S.
641, 652 (1966), and the Equal Protection Clause subjects voting
classifications to strict scrutiny to guarantee "the opportunity for
equal participation by all voters" in elections, *Harper* v. *Virginia
Bd. of Elections*, 383 U.S. 663, 670 (1966).

Congress heard that "in the past years people with disabilities have
been turned away from the polling places after they have been registered
to vote because they did not look competent." 2 *Leg. Hist.* 1220 (Nancy
Husted-Jensen). When one witness turned in the registration card of a
voter who has cerebral palsy and is blind, the "clerk of the board of
canvassers looked aghast \* \* \* and said to me, 'Is that person
competent? Look at that signature.'" The clerk then arbitrarily invented
a reason to reject the registration. *Id*. at 1219. Congress was also
aware that a deaf voter was told that "you have to be able to use your
voice" to vote. *Equal Access to Voting for Elderly and Disabled
Persons: Hearings Before the Task Force on Elections of the House Comm.
on House Admin.*, 98th Cong., 1st Sess. 94 (1984) (*Equal Access to
Voting Hearings*). "How can disabled people have clout with our elected
officials when they are aware that many of us are prevented from
voting?" Ark. 155.[^21]

The denial of access to political officials and vital governmental
services also featured prominently in the testimony. For example,
"\[t\]he courthouse door is still closed to Americans with disabilities"
-- literally. 2 *Leg. Hist.* 936 (Sen. Harkin).

I went to the courtroom one day and \* \* \* I could not get into the
building because there were about 500 steps to get in there. Then I
called for the security guard to help me, who \* \* \* told me there was
an entrance at the back door for the handicapped people. \* \* \* I went
to the back door and there were three more stairs for me to get over to
be able to ring a bell to announce my arrival so that somebody would
come and open the door and maybe let me in. I was not able to do that.
\* \* \* This is the court system that is supposed to give me a fair
hearing. It took me 2 hours to get in. \* \* \* And when \[the judge\]
finally saw me in the courtroom, he could not look at me because of my
wheelchair. \* \* \* The employees of the courtroom came back to me and
told me, "You are not the norm. You are not the normal person we see
every day."

*Id*. at 1071 (Emeka Nwojke).

Numerous other witnesses explained that access to the courts[^22] and
other important government buildings and officials[^23] depended upon
their willingness to crawl or be carried. And Congress was told that
state officials *themselves* had "pointed to negative attitudes and
misconceptions as potent impediments to \[their own\] barrier removal
policies." Advisory Comm'n on Intergovernmental Relations, *Disability
Rights Mandates: Federal and State Compliance with Employment
Protections and Architectural Barrier Removal* 87 (Apr. 1989).

The physical exclusion of people with disabilities from public buildings
has special constitutional import when court proceedings are taking
place inside. For criminal defendants, the Due Process Clause has been
interpreted to provide that "an accused has a right to be present at all
stages of the trial where his absence might frustrate the fairness of
the proceedings." *Faretta* v. *California*, 422 U.S. 806, 819 n.15
(1975). The Sixth Amendment "grants to the accused personally the right
to make his defense. It is the accused, not counsel, who must be
'informed of the nature and cause of the accusation,' who must be
'confronted with the witnesses against him,' and who must be accorded
'compulsory process for obtaining witnesses in his favor.'" *Id*. at
819. Parties in civil litigation have an analogous Due Process right to
be present in the courtroom and to meaningfully participate unless their
exclusion furthers important government interests. See, *e.g.*,
*Popovich*, 276 F.3d at 813-814 (en banc); *Helminski* v. *Ayerst
Labs.*, 766 F.2d 208, 213 (6th Cir.), cert. denied, 474 U.S. 981 (1985).

\(b\) *Education:* "\[E\]ducation is perhaps the most important function
of state and local governments" because "it is doubtful that any child
may reasonably be expected to succeed in life if he is denied the
opportunity of an education." *Brown* v. *Board of Educ.*, 347 U.S. 483,
493 (1954). Accordingly, where the State undertakes to provide a public
education, that right "must be made available to all on equal terms."
*Ibid*. But Congress learned that irrational prejudices, fears,
ignorance, and animus still operate to deny persons with disabilities an
equal opportunity for public education. For example, California reported
that in its school districts (which are covered by the Eleventh
Amendment, see n.28, *infra*), "\[a\] bright child with cerebral palsy
is assigned to a class with mentally retarded and other developmentally
disabled children solely because of her physical disability" and that in
one California town, all disabled children are grouped into a single
classroom regardless of individual ability. Calif. Att'y Gen.,
*Commission*

*on Disability: Final Report* 17, 81 (Dec. 1989) (*Calif. Report*).
"When I was 5," a witness testified to Congress, "my mother proudly
pushed my wheelchair to our local public school, where I was promptly
refused admission because the principal ruled that I was a fire hazard."
S. Rep. No. 116, *supra*, at 7.[^24]

State institutions of higher education also demonstrated prejudices and
stereotypical thinking. A person with epilepsy was asked to leave a
state college because her seizures were "disrupt\[ive\]" and, officials
said, created a risk of liability. 2 *Leg. Hist.* 1162 (Barbara Waters).

A doctor with multiple sclerosis was denied admission to a psychiatric
residency program because the state admissions committee "feared the
negative reactions of patients to his disability." *Id*. at 1617 (Arlene
Mayerson). Another witness explained that, "when I was first injured, my
college refused to readmit me" because "it would be 'disgusting' to my
roommates to have to live with a woman with a disability." Wash.
1733.[^25] This evidence is consistent with the finding of the
Commission on Civil Rights, also before Congress, that the "higher one
goes on the education scale, the lower the proportion of handicapped
people one finds." *Spectrum* 28; see also National Council on the
Handicapped, *On the Threshold of Independence* 14 (1988) (29% of
disabled persons had attended college, compared to 48% of the
non-disabled population). Although such a finding does not indicate what
percentage of the population have conditions such as mental retardation
that might affect skills required for higher education, "they
nonetheless are evidence of a substantial disparity." *Spectrum* 28.

\(c\) *Law Enforcement*: Persons with disabilities have also been
victimized

in their dealings with law enforcement. When police in Kentucky learned
that a man they arrested had AIDS, "\[i\]nstead of putting the man in
jail, the officers locked him inside his car to spend the night." 2
*Leg. Hist.* 1005 (Belinda Mason). Police refused to accept a rape
complaint

from a blind woman because she could not make a visual identification,
ignoring the possibility of alternative means of identifying the
perpetrator. N.M. 1081. A person in a wheelchair was given a ticket and
six-months probation for obstructing traffic on the street, even though
the person could not use the sidewalk because it lacked curb cuts. Va.
1684. Task Force Chairman Justin Dart testified, moreover, that persons
with hearing impairments "have been arrested and held in jail over night
without ever knowing their rights nor what they are being held for." 2
*Leg. Hist.* 1331.[^26] The discrimination continues in correctional
institutions. "I have witnessed their jailers rational\[ize\] taking
away their wheelchairs as a form of punishment as if that is different
than punishing prisoners by breaking their legs." 2 *Leg. Hist.* 1190
(Cindy Miller).[^27] These problems implicate the entire array of
constitutional protections for those in state custody for alleged or
proven criminal behavior (including the Fourth Amendment right to be
free from

unreasonable seizures, the substantive due process rights of pre-trial
detainees, the procedural due process and Sixth Amendment rights to fair
and open criminal proceedings, and the Eighth Amendment right to be free
from cruel and unusual punishment upon conviction).

\(d\) *Institutionalization*: Unconstitutional denials of appropriate
treatment and unreasonable institutionalization of persons in state
mental hospitals were also catalogued. See 2 *Leg. Hist.* 1203 (Lelia
Batten) (state law ineffective; state hospitals are "notorious for using
medication for controlling the behavior of clients and not for treatment
alone. Seclusion rooms and restraints are used to punish clients.");
*id*. at 1262-1263 (Eleanor C. Blake) (detailing the "minimal,
custodial, neglectful, abusive" care received at state mental hospital,
and willful indifference resulting in rape); *Spectrum* 34-35.[^28]
Unnecessary institutionalization and mistreatment within state-run
facilities may violate substantive due process. See *Youngberg* v.
*Romeo*, 457 U.S. 307 (1982) (unconstitutional conditions of
confinement); *O'Connor* v. *Donaldson*, 422 U.S. 563 (1975)
(impermissible confinement); *Thomas S. by Brooks* v. *Flaherty*, 902
F.2d 250 (4th Cir.) (confinement when appropriate community placement
available), cert. denied, 498 U.S. 951 (1990); *Clark* v. *Cohen*, 794
F.2d 79 (3d Cir.) (same), cert. denied, 479 U.S. 962 (1986) .

\(e\) *Other Public Services*: Congress heard evidence that irrational
discrimination permeated the entire range of services offered by
governments. Programs as varied as zoning[^29]; the operation of
zoos,[^30] public libraries,[^31] public swimming pools and park
programs[^32]; and child

custody proceedings[^33] exposed the discriminatory actions and
attitudes of officials.[^34]

C. Title II Is Reasonably Tailored To Remedying And Preventing
Unconstitutional Discrimination Against Persons With Disabilities

When enacting Section 5 legislation, Congress "must tailor its
legislative scheme to remedying or preventing" the unconstitutional
conduct it has identified. *Florida Prepaid Postsec. Educ. Expense Bd.
v. College Sav. Bank*, 527 U.S. 627, 639 (1999). Congress, however, may
"paint with a much broader brush than may this Court, which must confine
itself to the judicial function of deciding individual cases and
controversies upon individual records." *Fullilove* v. *Klutznick*, 448
U.S. 448, 501-502 n.3 (1980) (Powell, J., concurring). Accordingly, in
exercising its power, "Congress is not limited to mere legislative
repetition of \[the\] Court's constitutional jurisprudence." *Garrett*,
531 U.S. at 365. Rather, "\[l\]egislation which deters or remedies
constitutional violations can fall within the sweep of Congress'
enforcement power even if in the process it prohibits conduct which is
not itself unconstitutional." *Lopez* v. *Monterey County*, 525 U.S.
266, 282-283 (1999). The operative question thus is not whether Title II
"prohibit\[s\] a somewhat broader swath of conduct," *Garrett*, 531 U.S.
at 365, than would the courts, but whether in response to the historic
and enduring legacy of discrimination, segregation, and isolation faced
by persons with disabilities at the hands of States, Title II was
"designed to guarantee meaningful enforcement" of their constitutional
rights, *id*. at 373.

Title II fits this description. Title II targets discrimination that is
unreasonable. The States retain their discretion to exclude persons from
programs, services, or benefits for any lawful reason unconnected with
their disability or for no reason at all.[^35] Title II also permits
exclusion if a person cannot "meet\[\] the essential eligibility
requirements" of the governmental program or service. 42 U.S.C.
12131(2). But once an individual proves that she can meet all but the
non-essential eligibility requirements of a program or service, the
government's interest in excluding that individual "by reason of such
disability," 42 U.S.C. 12132, is both minimal and, in light of history,
constitutionally problematic. At the same time, permitting the States to
retain and enforce their essential eligibility requirements protects
their legitimate interests in selecting and structuring governmental
activities. Title II thus carefully balances a State's legitimate
operational interests against the right of a person with a disability to
be judged "by his or her own merit and essential qualities." *Rice* v.
*Cayetano*, 528 U.S. 495, 517 (2000).

Title II thus requires more than the Constitution only to the extent
that some disability discrimination may be rational for constitutional
purposes, but unreasonable under the statute. That margin of statutory
protection does not redefine the constitutional right at issue. Instead,
the statutory protection is necessary to enforce the courts'
constitutional standard by reaching unconstitutional conduct that would
otherwise escape detection in court, remedying the continuing effects of
prior unconstitutional discrimination, and deterring future
constitutional violations. "While 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," *City of Boerne* v.
*Flores*, 521 U.S. 507, 519 (1997), Title II is on the remedial and
prophylactic side of that line.

Title II requires "reasonable modifications" in public services. 42
U.S.C. 12131(2). That requirement, however, is carefully tailored to the
unique features of disability discrimination that Congress found
persisted in public services in two ways. First, given the history of
segregation and isolation and the resulting entrenched stereotypes,
fear, prejudices, and ignorance about persons with disabilities,
Congress reasonably determined that a simple ban on discrimination would
be insufficient to erase the stain of discrimination. Cf. *Green* v.
*County Sch. Bd.*, 391 U.S. 430, 437-438 (1968) (after unconstitutional
segregation, government is "charged with the affirmative duty to take
whatever steps might be necessary" to eliminate discrimination "root and
branch"). Therefore, Title II affirmatively promotes the integration of
individuals with disabilities -- both in order to remedy past
unconstitutional conduct and to prevent future

discrimination. Congress could reasonably conclude that if it did not
intercede the demonstrated failure of state governments to undertake
reasonable efforts to accommodate and integrate persons with
disabilities within their programs, services, and operations, would
freeze in place the effects of their prior exclusion and isolation of
individuals with disabilities, creating a self-perpetuating spiral of
segregation, stigma, ill treatment, neglect, and degradation. Congress
also correctly concluded that, by reducing stereotypes and
misconceptions, integration reduces the likelihood that constitutional
violations will recur. Cf. *Olmstead*, 527 U.S. at 600 (segregation
"perpetuates unwarranted assumptions that persons so isolated are
incapable or unworthy of participating in community life").

Moreover, failure to accommodate the needs of qualified persons with
disabilities may often result directly from hidden unconstitutional
animus and false stereotypes. Title II simply makes certain that the
refusal to accommodate an individual with a disability is genuinely
based on unreasonable cost or actual inability to accommodate, rather
than on nothing but the discomfort with the disability or unfounded
concern about the costs of accommodation. Such a prophylactic response
is commensurate with the problem of irrational state discrimination that
denies access to benefits and services for which the State has otherwise
determined individuals with disabilities to be qualified or which the
State provides to all its citizens (such as education, police
protection, and civil courts). It makes particular sense in the context
of public services, where a *post hoc* judicial remedy may be of limited
utility to an individual given the difficulty

in remedying unconstitutional denials of intangible but important
rights, such as

the right to vote, to a fair trial, or to educational opportunity. By
establishing prophylactic requirements, Congress provided additional
mechanisms for individuals to avoid irreparable injuries and to ensure
that constitutional rights were fully vindicated.

Further, Congress tailored the modification requirement to the
unconstitutional governmental conduct it seeks to repair and prevent.
The statute requires modifications only where "reasonable." 42 U.S.C.
12131(2). Governments need not make modifications that require
"fundamental alterations in the nature of a service, program, or
activity," in light of their nature or cost, agency resources, and the
operational practices and structure of the position. 28 C.F.R.
35.130(b)(7), 35.150(a)(3), 35.164; *Olmstead*, 527 U.S. at 606 n.16.
And Congress determined, based on the consistent testimony of witnesses
and expert studies, that contrary to the misconceptions of many, the
vast majority of accommodations entail little or no cost.[^36] And any
costs are further diminished when measured against the financial and
human costs of denying persons with disabilities an education or
excluding them from needed government services or the equal exercise of
fundamental rights, thereby rendering them a permanent underclass. See
*Plyler*, 457 U.S. at 223-224, 227.

Title II's elevated burden of justification is not an impermissible
effort to redefine constitutional rights; it is, instead, an appropriate
means of rooting out hidden animus and remedying and preventing
pervasive discrimination that is unconstitutional under judicially
defined standards. In short, "\[a\] proper remedy for an
unconstitutional exclusion \* \* \* aims to eliminate so far as possible
the discriminatory effects of the past and to bar like discrimination in
the future." *United States* v. *Virginia*, 518 U.S. 515, 547 (1996).
Section 5 thus empowers Congress to do more than simply prohibit the
creation of new barriers to equality; it can require States to tear down
the walls they erected during decades of discrimination and exclusion.
See *id*. at 550 n.19 (Equal Protection Clause itself can require
modification of facilities and programs to ensure equal access).

D. In Light Of The Legislative Record And Findings And The Tailored
Statutory Scheme, Title II And Its Abrogation Are Appropriate Section 5
Legislation

The record Congress compiled and the findings it made suffice to support
Title II's substantive standard as appropriate Fourteenth Amendment
legislation applicable to States and localities.[^37] As such, it is one
in a line of civil rights statutes, authorized by Civil War Amendments,
that apply to States *and* local governments. See, *e.g.*, Titles III,
IV, VI and VII of the Civil Rights Act of 1964,42 U.S.C. 2000b-2000e
*et* *seq*.; Voting Rights Act of 1965, 42 U.S.C. 1973 *et* *seq*.;
Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 *et*
*seq*.; Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997
*et* *seq.*

Aside from the substantive provisions of Title II, *Garrett* held that
to sustain an *abrogation* of Eleventh Amendment immunity as appropriate
Section 5 legislation, only constitutional misconduct committed by those
who are "beneficiaries" of the Eleventh Amendment can be relied upon.
521 U.S. at 369. The line between those government entities entitled to
Eleventh Amendment immunity and those which are not is not always easy
to identify. For example, while school districts are generally found not
to be "arms of the state" protected by the Eleventh Amendment, see *Mt.
Healthy City Sch. Dist. Bd.* v. *Doyle*, 429 U.S. 274, 280--281 (1977),
there are some significant exceptions to this rule.[^38] Similar
state-by-state inquiries are required in the law enforcement arena. See
*McMillian* v. *Monroe County*, 520 U.S. 781, 795 (1997) (holding that
county sheriff in Alabama is a state official and noting "there is no
inconsistency created by court decisions that declare sheriffs to be
county officers in one State, and not in another"). In other situations,
such as voting, local officials are simply administering state policies
and programs. While nominally the action of a local government, the
discrimination individuals with disabilities endure is directly
attributable to the State. Cf. *Railroad Co.* v. *County of Otoe*, 83
U.S. 667, 676 (1872) ("Counties, cities, and towns exist only for the
convenient administration of the government. Such organizations are
instruments of the State, created to carry out its will. When they are
authorized or directed to levy a tax, or to appropriate its proceeds,
the State through them is doing indirectly what it might do directly.").
Thus, as *Garrett* makes clear, actions of such local officials can be
attributed to the States for purposes of the "congruence and
proportionality" inquiry. See 531 U.S. at 373 (attributing to "States"
and "State officials" conduct regarding voting that was done by county
"registrar\[s\]" and "voting officials" in *South Carolina* v.
*Katzenbach*, 383 U.S. at 312).

Given the fact that some school districts and law enforcement officials
are "beneficiaries of the Eleventh Amendment," *Garrett*, 531 U.S. at
369, and that some local practices are done at the States' behest, the
evidence before Congress regarding the treatment of people with
disabilities by education, law enforcement, voting, and other officials
is relevant in assessing Congress's legislative record about State
violations. Because the demarcation is unclear at the margins, we have
in this brief provided the evidence before Congress concerning both
state and local governments. But even limited to the evidence concerning
States acting through their own agencies, there was a sufficient basis
to sustain Congress's determination that States engaged in a pattern of
unconstitutional conduct.

We acknowledge that the Tenth Circuit in *Thompson* v. *Colorado*, No.
99-1045, 2001 WL 1705488 (10th Cir. Oct. 9, 2001), reached the contrary
conclusion. After surveying the record before Congress, *Thompson*
concluded that there *was* "some evidence in the congressional record
that unconstitutional discrimination against the disabled exists in
government 'services, programs, or activities.'" *Id*. at \*10. The
panel found even a larger number of incidents involved "refusals by
public entities to make accommodations," *ibid*., which would be
unconstitutional if invidiously motivated and, the court determined,
could also sometimes rise to the level of constitutional violations
regardless of intent. Nonetheless, the panel determined that it could
not sustain Title II's abrogation as valid Fourteenth Amendment
legislation because "\[b\]ased on the 'minimal evidence of
unconstitutional state discrimination' against the disabled, Title II's
accommodation requirement appears to be an attempt to prescribe a new
federal standard for the treatment of the disabled rather than an
attempt to combat unconstitutional discrimination." *Id*. at \*11
(citation omitted). The Fifth Circuit appears to have reached a similar
conclusion in *Reickenbacker* v. *Foster*, 274 F.3d 974, 981-983 (2001).

*Thompson* and *Reickenbacker* were based on the legal misapprehension
that the burden is on the United States to prove that the statute was
constitutional and that Congress was obligated to compile a detailed
record to support its findings. To the contrary, it is well-established
that Congressional legislation is entitled to a strong presumption of
constitutionality. See *United States* v. *Morrison*, 529 U.S. 598, 607
(2000); *Reno* v. *Condon*, 528 U.S. 141, 147 (2000). Thus, a court
should declare a statute beyond Congress's authority "only upon a *plain
showing* that Congress has exceeded its constitutional bounds."
*Morrison*, 529 U.S. at 607 (emphasis added). This is particularly true
when the constitutional question is predicated on empirical questions
regarding the existence and scope of a problem. "We owe Congress'
findings deference in part because the institution is far better
equipped than the judiciary to amass and evaluate the vast amounts of
data bearing upon legislative questions." *Turner Broad. Sys., Inc.* v.
*FCC*, 520 U.S. 180, 195 (1997) (*Turner II*) (collecting cases)
(internal quotation marks omitted).

Of course, when heightened scrutiny is involved, a legislature may be
required to point to some factual predicate indicating that its
determination that there is a problem meriting infringement on
constitutional rights is reasonable. But even then a legislature need
not show that it reached the correct conclusion, see *Turner II*, 520
U.S. at 211, and may rely on facts outside the "record" in making its
determination, see *id*. at 212-213 (relying on post-enactment
evidence); cf. *Erie* v. *Pap's A.M.*, 529 U.S. 277, 297-298 (2000)
("The city council members, familiar with commercial downtown Erie, are
the individuals who would likely have had firsthand knowledge of what
took place \* \* \* and can make particularized, expert judgments about
the resulting harmful secondary effects \[of the expressive
conduct\].").

Indeed, when the Supreme Court has reviewed legislation under a
heightened scrutiny standard and required some evidence to sustain
legislation, it has permitted a statute to be upheld on the basis of
less persuasive and voluminous evidence than was before Congress. In
*Nixon* v. *Shrink Missouri Government PAC*, 528 U.S. 377 (2000), for
example, the Court held that it was not even "a close call" that the
State had sustained its burden of showing that "sometimes

large contributions will work actual corruption of our political
system," thus justifying infringement on First Amendment rights, by
pointing to an affidavit by a state legislator, two newspaper articles,
and four incidents discussed in another judicial opinion. *Id*. at 393,
395. In *Burson* v. *Freeman*, 504 U.S. 191 (1992), likewise, the Court
held that a statute prohibiting campaigning near polling places survived
strict scrutiny analysis based on history, consensus, and "simple common
sense." *Id*. at 211; see also *Florida Bar* v. *Went for It, Inc.*, 515
U.S. 618, 628 (1995) (upholding regulation of commercial speech based on
a single study and noting that "we do not read our case law to require
that empirical data come to us accompanied by a surfeit of background
information"). Thus, *Thompson* and *Reickenbacker* held Congress to an
improper standard of proof.

In assessing Congress's exercise of its power to enforce the Fourteenth
Amendment, the Supreme Court has reiterated that the volume of evidence
in the record is "not determinative." *Kimel* v. *Florida Bd. of
Regents*, 528 U.S. 62, 91 (2000); *Florida Prepaid*, 527 U.S. at 646;
see also *Boerne*, 521 U.S. at 531 ("Judicial deference, in most cases,
is based not on the state of the legislative record Congress compiles
but 'on due regard for the decision of the body constitutionally
appointed to decide.'"). It is true that the Supreme Court in *Garrett*
looked to the underlying legislative record in an effort to determine
whether there was a basis for upholding the legislation as an
appropriate prophylactic remedy. But in that case the Court found
(contrary to the situation here) that Congress had made *no* relevant
findings regarding States and further determined (again, contrary to the
situation here) that the only relevant evidence in the legislative
record, involving six examples of unconstitutional conduct, was
equivalent to no record at all.

But here there are findings reflecting Congress's determination that
States engaged in forms of discrimination that can rise to the level of
unconstitutional conduct: "outright intentional exclusion, \* \* \*
failure to make modifications to existing facilities and practices,
exclusionary qualification standards and criteria, segregation, and
relegation to lesser services." 42 U.S.C. 12101(a)(5). Given the
deference to Congress's preeminent fact-finding role, the evidence in
the "record" mandates a judicial holding that Congress could have
reasonably reached the conclusion (expressed in statutory findings) that
States were unconstitutionally discriminating against persons with
disabilities. See *Popovich*, 276 F.3d at 820 (Moore, J., concurring).
While the record may not have been as extensive as the courts in
*Thompson* and *Reickenbacker* would have liked, it was constitutionally
sufficient.

Congress's finding, in turn, is sufficient to support the statute as
valid Fourteenth Amendment legislation. Once Congress's determination
regarding the existence of constitutional violations has been confirmed,
the scope of the remedy is purely a matter of legislative choice. Cf.
*M'Culloch* v. *Maryland*, 17 U.S. 316, 423 (1819) ("But where the law
is not prohibited, and is really calculated to effect any of the objects
intrusted to the government, to undertake here to inquire into the
decree of its necessity, would be to pass the line which circumscribes
the judicial department, and to tread on legislative ground."). There is
no requirement that the solution Congress adopts be the
least-restrictive legislation to remedy and prevent the unconstitutional
state conduct it has identified. Instead, as the Supreme Court explained
in *City of Boerne* v. *Flores*, 521 U.S. at 536*,* and reiterated in
*Kimel*, 528 U.S. at 80-81: "It is for Congress in the first instance to
'determin\[e\] whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment,' and its conclusions are
entitled to much deference." But see *Garcia* v. *SUNY Health Sciences
Ctr.*, No. 00-9223, 2001 WL 1159970, at \*6-\*7 (2d Cir. Sept. 26, 2001)
(holding, without discussing the constitutional violations or findings,
that Title II's reasonable modification requirement was not valid
Section 5 legislation); cf. *Popovich*, 276 F.3d at 812 (holding that
Title II's obligations could not be upheld in their entirety under the
Equal Protection Clause).

It is true that Title II's broad coverage contrasts with that of Section
5 of the Voting Rights Act of 1965, which the Court noted approvingly in
*Garrett*, 531 U.S. at 373-374. The operative question, however, is not
whether Title II is broad, but whether it is broader than necessary. It
is not. The history of unconstitutional treatment and the risk of future
discrimination found by Congress pertained to all aspects of
governmental operations. Only a comprehensive effort to integrate
persons with disabilities would end the cycle of isolation, segregation,
and second-class citizenship, and deter further discrimination.
Integration in education alone, for example, would not suffice if
persons with disabilities were relegated to institutions or trapped in
their homes by lack of transportation or inaccessible sidewalks. Ending
unnecessary institutionalization is of little gain if neither government
services nor the social activities of public life (libraries, museums,
parks, and recreation services) are accessible to bring persons with
disabilities into the life of the community. And none of those efforts
would suffice if persons with disabilities continued to lack equivalent
access to government officials, courthouses, and polling places. In
short, Congress chose a comprehensive remedy because it confronted an
all-encompassing, inter-connected problem; to do less would be as
ineffectual as "throwing an 11-foot rope to a drowning man 20 feet
offshore and then proclaiming you are going more than halfway," S. Rep.
No. 116, *supra*, at 13. "Difficult and intractable problems often
require powerful remedies \* \* \* ." *Kimel*, 528 U.S. at 88. It is in
such cases that Congress is empowered by Section 5 to enact "reasonably
prophylactic legislation." *Ibid*. Title II is just such a powerful
remedy for a problem which Congress found to be intractable. Title II's
abrogation is thus effective in removing defendants' immunity from suit.

**III. PLAINTIFFS' MAY PROCEED AGAINST A STATE OFFICIAL ACTING IN HIS
OFFICIAL CAPACITY UNDER THE PRINCIPLES IN *EX PARTE YOUNG****.*

Even if this Court ultimately finds the Eleventh Amendment bars private
suits under the ADA, Rehabilitation Act and IDEA against a State sued in
its own name, plaintiffs may still proceed in this action in order to
obtain prospective injunctive relief. See *University of Alabama* v.
*Garrett*, 531 U.S. 356, 374 n.9 (2001) ( although the State was immune
from suit under Title I of the ADA, Title I's "standards can be enforced
\* \* \* by private individuals in actions for injunctive relief under
*Ex parte Young*.").

The Supreme Court in *Garrett* reaffirmed the well established principle
that the Eleventh Amendment immunity does not authorize States to
violate federal law. Thus, a holding that "Congress did not validly
abrogate the States' sovereign immunity from suit by private individuals
for money damages \* \* \* does not mean that persons with disabilities
have no federal recourse against discrimination." 531 U.S. at 374 n.9;
see also *Alden* v. *Maine*, 527 U.S. 706, 754-55 (1999) ("The
constitutional privilege of a State to assert its sovereign immunity \*
\* \* does not confer upon the State a concomitant right to disregard
the Constitution or valid federal law.").

It was to reconcile these very principles --- that States have Eleventh
Amendment immunity from private suits, but that they are still bound by
federal law --- that the Supreme Court adopted the rule of *Ex parte
Young*. See *Alden*, 527 U.S. at 756.[^39] *Ex parte Young*, 209 U.S.
123 (1908), held that when a state official acts in violation of the
Constitution or federal law (which the Constitution's Supremacy Clause
makes the "supreme Law of the Land"), he is acting *ultra* *vires* and
is no longer entitled to the State's immunity from suit. The doctrine
permits only prospective relief, see *Edelman* v. *Jordan*, 415 U.S.
651, 664, 667-668 (1974), against an official in his or her official
capacity, see *Kentucky* v. *Graham*, 473 U.S. 159, 167 n.14 (1985). By
limiting relief to prospective injunctions of officials, the Court
avoids courts entering judgments directly against the State but, at the
same time, prevents the State (through its officials) from continuing
illegal action.

The *Ex parte Young* doctrine has been described as a legal fiction, but
it was adopted by the Supreme Court almost a century ago to serve a
critical function in permitting federal courts to

bring state policies and practices into compliance with federal law.
"Both prospective and retrospective relief implicate Eleventh Amendment
concerns, but the availability of prospective relief of the sort awarded
in *Ex parte Young* gives life to the Supremacy Clause. Remedies
designed to end a continuing violation of federal law are necessary to
vindicate the federal interest in assuring the supremacy of that law."
*Green* v. *Mansour*, 474 U.S. 64, 68 (1985); see also *Alden*, 527 U.S.
at 757 ("Established rules provide ample means to correct ongoing
violations of law and to vindicate the interests which animate the
Supremacy Clause."). *See also Rhode Island Department of Environmental
Management v. United States*, 286 F.3d 27, 45 (1^st^ Cir. 2002)
(recognizes *Ex Parte Young* doctrine).

In addition to compensatory damages that would be barred by the Eleventh
Amendment absent abrogation or waiver, plaintiff's complaint seeks an
order for the Commonwealth of Puerto Rico to comply with the order of
the Administrative Judge, and provide a qualified sign language
interpreter. This is clearly the type of forward-looking relief
permissible under *Ex parte Young*. See *Melo* v. *Hafer*, 912 F.2d 628,
635-636 (3d Cir. 1990), aff'd on other grounds, 502 U.S. 21 (1991).
Thus, the Eleventh Amendment is no bar to a suit proceeding against
defendant Cesar Rey in his official capacity for such relief. *See e,g,
Bradley*, 189 F.3d at 753-54 *(Ex Parte Young* allows plaintiffs to
enjoin Department of Education officials to provide prospective relief
under IDEA).

[CONCLUSION]{.underline}

For the foregoing reasons, the Eleventh Amendment does not bar this
lawsuit against Puerto Rico. However, even if this Court finds that
Puerto Rico cannot be sued, plaintiffs may proceed against defendant
Cesar Rey in his official capacity to obtain prospective relief.

+-----------------------------------------------------------------------+
| Dated this \_\_ day of May, 2002                                      |
|                                                                       |
| Respectfully submitted,                                               |
|                                                                       |
| John Ashcroft                                                         |
|                                                                       |
| Attorney General of the United States                                 |
|                                                                       |
| Ralph F. Boyd, Jr.                                                    |
|                                                                       |
| Assistant Attorney General, Civil Rights                              |
|                                                                       |
| Division                                                              |
|                                                                       |
| \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_                |
|                                                                       |
| John Wodatch                                                          |
|                                                                       |
| Philip L. Breen                                                       |
|                                                                       |
| Allison Nichol                                                        |
|                                                                       |
| Laura F. Einstein                                                     |
|                                                                       |
| United States Department of Justice                                   |
|                                                                       |
| Civil Rights Division/Disability Rights Section - NYA                 |
|                                                                       |
| 950 Pennsylvania Avenue NW                                            |
|                                                                       |
| Washington, Dc 20530                                                  |
|                                                                       |
| 202-514-9583; 202-616-6862 (fax)                                      |
|                                                                       |
| Lisa E. Bhatia Gautier                                                |
|                                                                       |
| Assistant U.S. Attorney #206014                                       |
|                                                                       |
| Room 452, Federal Building                                            |
|                                                                       |
| 150 Chardon Street                                                    |
|                                                                       |
| Hato Rey, Puerto Rico 00918                                           |
|                                                                       |
| Tel. (787)766-5656 Fax (787)766-6219                                  |
+-----------------------------------------------------------------------+

[^1]: ^?^ Regardless of the validity of the abrogation as legislation to
    enforce the Fourteenth Amendment, Congress could remove Puerto
    Rico's sovereign immunity pursuant to its Article IV authority to
    "make all needful rules and regulations respecting the territory or
    other property belonging to the United States." U.S. Const. Art. IV,
    § 3; see *National Bank* v. *County of Yankton*, 101 U.S. 129, 133
    (1880) (Congress "has full and complete legislative authority over
    the people of the Territories and all the departments of the
    territorial governments"). However, this Court has adopted a
    presumption that Congress would not have intended to remove Puerto
    Rico's immunity to suit if Congress did not have the power to
    abrogate States' Eleventh Amendment immunity, at least so long as a
    statute (like the ADA, see 42 U.S.C. 12102(3) or IDEA, 21 U.S.C.
    1401(a)(6)) defines Puerto Rico as a State. See *Jusino Mercado* v.
    *Puerto Rico*, 214 F.3d 34, 40-44 (1st Cir. 2000); see also *Acevedo
    Lopez* v. *Police Dep't of Puerto Rico*, 247 F.3d 26 (1st Cir. 2001)
    (dismissing suit under Title I of ADA against Puerto Rico in light
    of *Garrett*). We question the validity of that presumption. We
    acknowledge, however, that this Court is bound by those cases, and
    provide the analysis in the brief on the assumption that this Court
    will reach the issue whether States can be subjected to private suit
    under Title II, Section 504 or IDEA in assessing whether Puerto Rico
    is subject to such suits.

[^2]: ^?^ In their Motion to Show Cause, defendants devote a large
    portion of their argument to challenging the abrogations of Eleventh
    Amendment immunity in Title II, the IDEA and Rehabilitation Act,
    contending that Congress exceeded its Section 5 authority. Because
    Puerto Rico knowingly and voluntarily waived its immunity to suit in
    federal court under Section 504 and IDEA by accepting federal funds,
    the Court need not reach the question of whether Congress has the
    constitutional authority to abrogate Puerto Rico's sovereign
    immunity pursuant to § 5 of the Fourteenth Amendment. *See Litman v.
    George Mason University*, 186 F.3d 544, 557 (4^th^ Cir. 1999) *cert.
    denied*, 528 U.S. 1181 (2000) (declining to address the question of
    whether Congress had constitutionally abrogated Eleventh Amendment
    immunity pursuant to Title IX because the State-operated university
    "through its acceptance of \[federal\] funding, waived its Eleventh
    Amendment immunity"); *cf. Spector Motor Serv., Inc. v. McLaughlin*,
    323 U.S. 101, 105 (1944) (reciting rule that courts "should not pass
    on questions of constitutionality . . . unless such adjudication is
    unavoidable").

[^3]: ^?^ Defendants do not dispute that the Puerto Rico Department of
    Education, received federal funds when the alleged violation
    occurred, and continue to receive federal funds. We are informed
    that the Puerto Rico Department of Education has been awarded
    federal funds from the United States Department of Education for FY
    2001, including approximately \$60,000,000 for special education.
    See Documents at Exhibit 1.

[^4]: ^?^ Congress recognized that the holding of *Atascadero* had
    implications for not only Section 504, but also Title VI of the
    Civil Rights Act of 1964 and Title IX of the Education Amendments of
    1972, which prohibit race and sex discrimination in "program\[s\] or
    activit\[ies\] receiving Federal financial assistance." See S. Rep.
    No. 388, 99th Cong., 2d Sess. 28 (1986); 131 Cong. Rec. 22,346
    (1985) (Sen. Cranston); see also *United States Dep't of Transp.* v.
    *Paralyzed Veterans of Am.*, 477 U.S. 597, 605 (1986) ("Under \* \*
    \* Title VI, Title IX, and § 504, Congress enters into an
    arrangement in the nature of a contract with the recipients of the
    funds: the recipient's acceptance of the funds triggers coverage
    under the nondiscrimination provision.").

[^5]: ^?^ The Department of Justice explained to Congress while the
    legislation was under consideration, "\[t\]o the extent that the
    proposed amendment is grounded on congressional spending powers,
    \[it\] makes it clear to \[S\]tates that their receipt of Federal
    funds constitutes a waiver of their \[E\]leventh \[A\]mendment
    immunity." 132 Cong. Rec. 28,624 (1986). On signing the bill into
    law, President Reagan similarly explained that the Act "subjects
    States, as a condition of their receipt of Federal financial
    assistance, to suits for violation of Federal laws prohibiting
    discrimination on the basis of handicap, race, age, or sex to the
    same extent as any other public or private entities." 22 Weekly
    Comp. Pres. Doc. 1421 (Oct. 27, 1986), reprinted in 1986
    U.S.C.C.A.N. 3554.

[^6]: ^?^ State defendants ignore this precedent. Instead, they refer
    the Court to the *dissenting* opinions of Courts in the 4^th^ and
    8^th^ Circuits. Def. Mot. at 29-30. These dissenting opinions have
    no weight.

[^7]: ^?^ It is clear that a waiver can be knowing and voluntary even if
    it was based on an incorrect understanding of the law. *See Brady v.
    United States*, 397 U.S. 742, 757 (1970) ("a voluntary plea of
    guilty intelligently made in the light of the then applicable law
    does not become vulnerable because later judicial decisions indicate
    that the plea rested on a faulty premise"); cf. *Newton v. Rumery*,
    480 U.S. 386 (1987) (plaintiff may waive the right to bring a 42
    U.S.C. 1983 action for unknown constitutional violations).

[^8]: ^?^ Because of the close identity between the substantive
    obligations of Title II and Section 504, whether Section 2000d-7 is
    valid Section 5 legislation for Section 504 claims will be governed
    by the First Court\'s determination regarding Title II\'s
    abrogation. *See Kilcullen v. New York State Dep\'t of Labor*, 205
    F.3d 77, 79-80 (2d Cir.2000); *Clark v. California*, 123 F.3d 1267,
    1271 (9th Cir. 1997), *cert. denied*, 524 U.S. 937 (1998).

[^9]: ^?^ The United States maintains in the alternative that Section
    1403 is a valid exercise of its authority under Section 5 of the
    Fourteenth Amendment. *See David D. v. Dartmouth Sch. Comm*., 775
    F.2d 411, 421-22 (1st Cir. 1985), cert. denied, 475 U.S. 1140
    (1986); *Crawford v. Pittman*, 708 F.2d 1028, 1037-38 (5th Cir.
    1983); *Mitten v. Muscogee County Sch. Dist*., 877 F.2d 932, 937
    (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990); *Counsel v.
    Dow*, 849 F.2d 731, 737 (2d Cir.), cert. denied, 488 U.S. 955
    (1988); *Board of Educ. v. Illinois State Bd. of Educ*., 979 F.
    Supp. 1203, 1208 (N.D. Ill. 1997); *Emma C. v. Eastin*, 985 F. Supp.
    940, 947 (N.D. Cal. 1997).

[^10]: ^?^ Defendants read Section 1415 too narrowly when they describe
    the IDEA as limiting suits to "issues of identification, evaluation,
    or educational placement of the child." (Def. Mot. at 32.) The Third
    Circuit rejected such a limited construction of Section 1415 in
    *Beth V*., noting that the IDEA authorizes suits "*with respect to
    any matter relating to*" the provision of a free appropriate public
    education. *Beth V*., 87 F.3d at 86 (emphasis in original). Even
    those Courts that agree with defendants, have permitted parties to
    enforce the administrative rulings in Federal court. *See Jeremy H.
    by Hunter v. Mount Lebanon School District*, 95 F.3d 272, 278 (3d
    Cir.1996); *Robinson v. Pinderhughes*, 810 F.2d at 1273-75; *Mrs. W.
    v. Tirozzi*, 832 F.2d 748, 755 (2d Cir.1987); *Hoekstra v.
    Independent School District No. 283*, 916 F. Supp. 941, 945 (D.
    Minn.), *aff\'d*, 103 F.3d 624 (8th Cir.1996), *cert. denied*, 520
    U.S. 1244, 117 S.Ct. 1852, 137 L.Ed.2d 1054 (1997); *Slack v. State
    of Delaware Department of Public Instruction*, 826 F. Supp. 115, 120
    (D. Del.1993); *Reid v. Board of Education, Lincolnshire-Prairie
    View School District* 103, 765 F. Supp. 965, 969 (N.D. Ill.1991);
    *Grace B. v. Lexington School Committee*, 762 F. Supp. 416, 418 (D.
    Mass.1991).

[^11]: ^?^ The State's appeal to the Supreme Court presented the
    questions: "Whether an Act of Congress requiring a state to enact
    legislation \* \* \* under penalty of forfeiture of all benefits
    under approximately fifty long-standing health care programs
    essential to the welfare of the state's citizens, violates the Tenth
    Amendment and fundamental principles of federalism;" and "Whether
    use of the Congressional spending power to coerce states into
    enacting legislation and surrendering control over their public
    health agencies is inconsistent with the guarantee to every state of
    a republican form of government set forth in Article IV, § 4 of the
    Constitution and with fundamental principles of federalism." 77-971
    Jurisdictional Statement at 2-3. Because the "correctness of that
    holding was placed squarely before \[the Court\] by the
    Jurisdictional Statement that the appellants filed \* \* \* \[the
    Supreme\] Court's affirmance of the District Court's judgment is
    therefore a controlling precedent, unless and until re-examined by
    \[the Supreme\] Court." *Tully* v. *Griffin, Inc.*, 429 U.S. 68, 74
    (1976).

[^12]: ^?^ The Supreme Court has also upheld the denial of all welfare
    benefits to individuals who refused to permit in-home inspections.
    See *Wyman* v. *James*, 400 U.S. 309, 317-318 (1971) ("We note, too,
    that the visitation in itself is not forced or compelled, and that
    the beneficiary's denial of permission is not a criminal act. If
    consent to the visitation is withheld, no visitation takes place.
    The aid then never begins or merely ceases, as the case may be.").
    Similarly, in cases involving challenges by private groups claiming
    that federal funding conditions limited their First Amendment
    rights, the Court has held that where Congress did not preclude an
    entity from restructuring its operations to separate its
    federally-supported activities from other activities, Congress may
    constitutionally condition the federal funds to a recipient on the
    recipient's agreement not to engage in conduct Congress does not
    wish to subsidize. See *Rust* v. *Sullivan*, 500 U.S. 173, 197-199
    (1991); *Regan* v. *Taxation with Representation*, 461 U.S. 540,
    544-545 (1983).

[^13]: ^?^ See, *e.g.*, *Youngberg* v. *Romeo*, 457 U.S. 307 (1982)
    (unconstitutional conditions of confinement); *O'Connor* v.
    *Donaldson*, 422 U.S. 563, 567-575 (1975) (impermissible
    confinement); *LaFaut* v. *Smith*, 834 F.2d 389 (4th Cir. 1987)
    (Powell, J.) (failure to provide paraplegic inmate with an
    accessible toilet is cruel and unusual punishment); *Garrity* v.
    *Gallen*, 522 F. Supp. 171, 214 (D.N.H. 1981) ("blanket
    discrimination against the handicapped \* \* \* is unfortunately
    firmly rooted in the history of our country"); *Flakes* v. *Percy*,
    511 F. Supp. 1325 (W.D. Wis. 1981)*; New York State Ass'n for
    Retarded Children* v. *Carey*, 466 F. Supp. 487 (E.D.N.Y. 1979);
    *Lora* v. *Board of Educ.*, 456 F. Supp. 1211, 1275 (E.D.N.Y. 1978);
    *Hairston* v. *Drosick*, 423 F. Supp. 180 (S.D. W. Va. 1976);
    *Frederick L.* v. *Thomas*, 408 F. Supp. 832, 836 (E.D. Pa. 1976);
    *Panitch* v. *Wisconsin*, 444 F. Supp. 320 (E.D. Wis. 1977); *Aden*
    v. *Younger*, 129 Cal. Rptr. 535 (Ct. App. 1976); *In re Downey*,
    340 N.Y.S.2d 687 (Fam. Ct. 1973); *Fialkowski* v. *Shapp*, 405 F.
    Supp. 946, 958-959 (E.D. Pa. 1975); *In re G.H.*, 218 N.W.2d 441,
    447 (N.D. 1974); *Stoner* v. *Miller*, 377 F. Supp. 177, 180
    (E.D.N.Y. 1974); *Vecchione* v. *Wohlgemuth*, 377 F. Supp. 1361,
    1368 (E.D. Pa. 1974), aff'd, 558 F.2d 150 (3d Cir.), cert. denied,
    434 U.S. 943 (1977); *Welsch* v. *Likins*, 373 F. Supp. 487 (D.
    Minn. 1974), aff'd in part, 550 F.2d 1122 (8th Cir. 1977); *Mills*
    v. *Board of Educ.*, 348 F. Supp. 866 (D.D.C. 1972); *Pennsylvania
    Ass'n for Retarded Children* v. *Pennsylvania*, 334 F. Supp. 1257
    (E.D. Pa. 1971); *Wyatt* v. *Stickney*, 325 F. Supp. 781 (M.D. Ala.
    1971), aff'd in part, 503 F.2d 1305 (5th Cir. 1974).

[^14]: ^?^ See *Americans with Disabilities Act of 1989: Hearings on
    H.R. 2273 Before the House Comm. on the Judiciary and the Subcomm.
    on Civil and Const. Rights*,

    101st Cong., 1st Sess. (1989); *Americans with Disabilities Act:
    Hearing on H.R. 2273 and S. 933 Before the Subcomm. on Transp. and
    Haz. Materials of the House Comm. on Energy and Commerce*, 101st
    Cong., 1st Sess. (1990); *Americans with Disabilities Act: Hearings
    on H.R. 2273 Before the Subcomm. on Surface Transp. of the House
    Comm. on Pub. Works and Transp.*, 101st Cong., 1st Sess. (1990);
    *Americans with Disabilities: Telecomm. Relay Servs., Hearing on
    Title V of H.R. 2273 Before the Subcomm. on Telecomm. and Fin. of
    the House Comm. on Energy and Commerce*, 101st Cong., 1st Sess.
    (1990); *Americans with Disabilities Act of 1989: Hearing on H.R.
    2273 Before the Subcomm. on Select Educ. of the House Comm. on Educ.
    and Labor*, 101st Cong., 1st Sess. (1989); *Field Hearing on
    Americans with Disabilities Act: Hearing Before the Subcomm. on
    Select Educ. of the House Comm. on Educ. and Labor*, 101st Cong.,
    1st Sess. (1989); *Hearing on H.R. 2273, The Americans with
    Disabilities Act of 1989: Joint Hearing Before the Subcomm. on
    Employment Opps. and Select Educ. of the House Comm. on Educ. and
    Labor*, 101st Cong., 1st Sess. (July 18 & Sept. 13, 1989);
    *Oversight Hearing on H.R. 4498, Americans with Disabilities Act of
    1988: Hearing Before the Subcomm. on Select Educ. of the House Comm.
    on Educ. and Labor*, 100th Cong., 2d Sess. (1989); *Americans with
    Disabilities Act: Hearing Before the House Comm. on Small Bus.*,
    101st Cong., 2d Sess. (1990); *Americans with Disabilities Act of
    1989: Hearings on S. 933 Before the Senate Comm. on Labor and Human
    Res. and the Subcomm. on the Handicapped*, 101st Cong., 1st Sess.
    (1989) (*May 1989 Hearings*); *Americans with Disabilities Act of
    1988: Joint Hearing on S. 2345 Before the Subcomm. on the
    Handicapped of the Senate Comm. on Labor*

    *and Human Res. and the Subcomm. on Select Educ. of the House Comm.
    on Educ. and Labor*, 100th Cong., 2nd Sess. (1989).

[^15]: ^?^ These included the two reports of the National Council on the
    Handicapped; the Civil Rights Commission's *Accommodating the
    Spectrum of Individual Abilities* (1983) (*Spectrum*); two polls
    conducted by Louis Harris & Assoc., *The ICD Survey of Disabled
    Americans: Bringing Disabled Americans into the Mainstream* (1986),
    and *The ICD Survey II: Employing Disabled Americans* (1987); a
    report by the Presidential Commission on the Human Immunodeficiency
    Virus Epidemic (1988); and eleven interim reports submitted by the
    Task Force.

[^16]: ^?^ See also *Cleburne*, 473 U.S. at 463 (Marshall, J.) (state
    laws deemed persons with mental disorders "unfit for citizenship");
    Note, *Mental Disability and the Right to Vote*, 88 Yale L.J. 1644
    (1979).

[^17]: ^?^ See also *State ex rel. Beattie* v. *Board of Educ.*, 172
    N.W. 153, 153 (Wis. 1919) (approving exclusion of a boy with
    cerebral palsy from public school because he "produces a depressing
    and nauseating effect upon the teachers and school children") (noted
    at 2 *Leg. Hist.* 2243); see generally T. Cook, *The Americans with
    Disabilities Act: The Move to Integration*, 64 Temp. L. Rev. 393,
    399-407 (1991) .

[^18]: ^?^ For example, as recently as 1983, 15 States continued to have
    compulsory sterilization laws on the books, four of which included
    persons with epilepsy. *Spectrum* 37; see also *Stump* v.
    *Sparkman*, 435 U.S. 349, 351 (1978) (Indiana judge ordered the
    sterilization of a "somewhat retarded" 15-year-old girl).

[^19]: ^?^ See also 3 *Leg. Hist.* 2020 (Att'y Gen. Thornburgh) ("But
    persons with disabilities are all too often not allowed to
    participate because of stereotypical notions held by others in
    society -- notions that have, in large measure, been created by
    ignorance and maintained by fear."); 2 *Leg. Hist.* 1606 (Arlene
    Mayerson) ("Most people assume that disabled children are excluded
    from school or segregated from their non-disabled peers because they
    cannot learn or because they need special protection. Likewise, the
    absence of disabled co-workers is simply considered confirmation of
    the obvious fact that disabled people can't work. These assumptions
    are deeply rooted in history."); 134 Cong. Rec. E1311 (daily ed.
    1988) (Rep. Owens) ("The invisibility of disabled Americans was
    simply taken for granted. Disabled people were out of sight and out
    of mind.").

[^20]: ^?^ The Task Force submitted to Congress "several thousand
    documents" evidencing "massive discrimination and segregation in all
    aspects of life" and "the most extreme isolation, unemployment,
    poverty, psychological abuse and physical deprivation experienced by
    any segment of our society." 2 *Leg. Hist.* 1324-1325. Those
    documents -- mostly handwritten letters and commentaries collected
    during the Task Force's forums -- were part of the official
    legislative history of the ADA. See *id*. at 1336, 1389. Both the
    majority and dissent in *Garrett* relied on these documents, see 531
    U.S. at 369-370, with the dissent citing to them by State and Bates
    stamp number, *id*. at 389-424 (Breyer, J., dissenting), a practice
    we follow.

[^21]: ^?^ A blind woman, a new resident of Alabama, went to vote and
    was refused instructions on the operation of the voting machine."
    Ala. 16. Another voter with a disability was "told to go home once
    when I came to the poll and found the voting machines down a flight
    of stairs with no paper ballots available"; on another occasion that
    voter "had to shout my choice of candidates over the noise of a
    crowd to a precinct judge who pushed the levers of the machine for
    me, feeling all the while as if I had to offer an explanation for my
    decisions." *Equal Access to Voting Hearings* 45. The legislative
    record also documented that many persons with disabilities "cannot
    exercise one of your most basic rights as an American" because
    polling places were frequently inaccessible. S. Rep. No. 116,
    *supra*, at 12. As a consequence, persons with disabilities "were
    forced to vote by absentee ballot before key debates by the
    candidates were held." *Ibid*.; see also *May 1989 Hearings* 76
    (Ill. Att'y Gen. Hartigan) (similar). And even when persons with
    disabilities have voted absentee, they have been treated differently
    from other absentee voters. See 2 *Leg. Hist.* 1745 (Nanette
    Bowling) ("\[S\]ome jurisdictions merely encouraged persons with
    disabilities to vote by absentee ballot \* \* \* \[which\] deprives
    the disabled voter of an option available to other absentee voters,
    the right to change their vote by appearing personally at the polls
    on election day."); *Equal Access to Voting Hearings* 17, 461
    (criticizing States' imposition of special certification
    requirements on persons with disabilities for absentee voting); see
    generally FEC, *Polling Place Accessibility in the 1988 General
    Election* 7 (1989) (21% of polling places inaccessible; 27% were
    inaccessible in 1986 elections).

[^22]: ^?^ See, *e.g.*, Ala. 15 ("A man, called to testify in court, had
    to get out of his wheelchair and physically pull himself up three
    flights of stairs to reach the courtroom."); W. Va. 1745 (witness in
    court case had to be carried up two flights of stairs because the
    sheriff would not let him use the elevator).

[^23]: ^?^ See, *e.g.*, H.R. Rep. No. 485, *supra*, Pt. 2, at 40 (town
    hall and public schools inaccessible); 2 *Leg. Hist.* 1331 (Justin
    Dart) ("We have clients whose children have been taken away from
    them and told to get parent information, but have no place to go
    because the services are not accessible. What chance do they ever
    have to get their children back?"); *Spectrum* 39 (76% of
    State-owned buildings offering services and programs for the general
    public are inaccessible and unusable for persons with disabilities);
    *May 1989 Hearings* 488, 491 (Ill. Att'y Gen. Hartigan) ("I have had
    innumerable complaints regarding lack of access to public services
    -- people unable to meet with their elected representatives because
    their district office buildings were not accessible or unable to
    attend public meetings because they are held in an inaccessible
    building"; "individuals who are deaf or hearing impaired call\[\]
    our office for assistance because the arm of government they need to
    reach is not accessible to them"); *id*. at 76 ("\[Y\]ou cannot
    attend town council meetings on the second story of a building that
    does not have an elevator."); *id*. at 663 (Dr. Mary Lynn Fletcher)
    (to attend town meetings, "I (or anyone with a severe mobility
    impairment) must crawl up three flights of circular stairs to the
    'Court Room.' In this room all public business is conducted by the
    county government whether on taxes, zoning, schools or any type of
    public business."); Ala. 17 (every day at her job, the Director of
    Alabama's Disabled Persons Protection Commission "ha\[d\] to drive
    home to use the bathroom or call my husband to drive in and help me
    because the newly renovated State House" lacked accessible
    bathrooms); Alaska 73 ("We have major problems in Seward, regarding
    accessibility to City and State buildings for the handicapped." City
    Manager responded that "\[H\]e runs this town \* \* \* and no one is
    going to tell him what to do."); Ind. 626 ("Raney, who has been in a
    wheelchair for 12 years, tried three times last year to testify
    before state legislative committees. And three times, he was
    thwarted by a narrow set of Statehouse stairs, the only route to the
    small hearing room."); Ind. 651 (person with disabilities could not
    attend government meetings or court proceedings because entrances
    and locations were inaccessible); Wis. 1758 (lack of access to City
    Hall); Wyo. 1786 (individual unable to get a marriage license
    because the county courthouse was not wheelchair accessible); Calif.
    Att'y Gen., *Commission on Disability: Final Report* 70 (Dec. 1989)
    ("People with disabilities are often unable to gain access to public
    meetings of governmental and quasi-governmental agencies to exercise
    their legal right to comment on issues that impact their lives.").

[^24]: ^?^ See also 136 Cong. Rec. H2480 (daily ed. May 17, 1990) (Rep.
    McDermott) (school board excluded Ryan White, who had AIDS, not
    because the board "thought Ryan would infect others" but because
    "some parents were afraid he would"); 2 *Leg. Hist.* 989 (Mary Ella
    Linden) ("I was considered too crippled to compete by both the
    school and my parents. In fact, the \[segregated\] school never even
    took the time to teach me to write! \* \* \* The effects of the
    school's failure to teach me are still evident today."); Alaska 38
    (school district labeled child with cerebral palsy who subsequently
    obtained a Masters Degree as mentally retarded); Neb. 1031 (school
    district labeled as mentally retarded a blind child); Or. 1375
    (child with cerebral palsy was "given cleaning jobs while other\[\]
    \[non-disabled students\] played sports"); Vt. 1635 (quadriplegic
    woman with cerebral palsy and a high intellect, who scored well in
    school, was branded "retarded" by educators, denied placement in a
    regular school setting, and placed with emotionally disturbed
    children, where she was told she was "not college material");
    *Spectrum* 28, 29 ("a great many handicapped children" are "excluded
    from the public schools" or denied "recreational, athletic, and
    extracurricular activities provided for non-handicapped students");
    see also *Education for All Handicapped Children, 1973-1974:
    Hearings Before the Subcomm. on the Handicapped of the Senate Comm.
    on Labor and Pub. Welfare*, 93d Cong., 1st Sess. 384 (1973) (Peter
    Hickey) (student in Vermont was forced to attend classes with
    students two years behind him because he could not climb staircase
    to attend classes with his peers); *id*. at 793 (Christine Griffith)
    (first-grade student "was spanked every day" because her deafness
    prevented her from following instructions); *id*. at 400 (Mrs.
    Richard Walbridge) (student with spina bifida barred from the school
    library for two years "because her braces and crutches made too much
    noise").

[^25]: ^?^ See also 2 *Leg. Hist.* 1224 (Denise Karuth) (state
    university professor asked a blind student enrolled in his music
    class "What are you doing in this program if you can't see"; student
    was forced to drop class); *id*. at 1225 (state commission refuses
    to sponsor legally blind student for masters degree in
    rehabilitation counseling because "the State would not hire blind
    rehabilitation counselors, '\[s\]ince,' and this is a quote: 'they
    could not drive to see their clients'"); Wis. 1757 (a doctoral
    program would not accept a person with a disability because "it
    never worked out well"); S.D. 1476 (University of South Dakota dean
    and his successor were convinced that blind people could not teach
    in the public schools); *Calif. Report* 138; J. Shapiro, *No Pity*
    45 (1994) (Dean of the University of California at Berkeley told a
    prospective student that "\[w\]e've tried cripples before and it
    didn't work").

[^26]: ^?^ See also 2 *Leg. Hist.* 1115 (Paul Zapun) (sheriff threatens
    persons with disabilities who stop in town due to car trouble);
    *id*. at 1196 (Cindy Miller) (police "do not provide crime
    prevention, apprehension or prosecution because they see it as fate
    that Americans with disabilities will be victims"); *id*. at 1197
    (police officer taunted witness by putting a gun to her head and
    pulling the trigger on an empty barrel, "because he thought it would
    be 'funny' since I have quadraparesis and couldn't flee or fight");
    Tex. 1541 (police refused to take an assault complaint from a person
    with a disability); *Calif. Report* 101-104 (additional examples).
    In addition, persons with disabilities, such as epilepsy, are
    "frequently inappropriately arrested and jailed" and "deprived of
    medications while in jail." H.R. Rep. No. 485, *supra*, Pt. 3, at
    50; see also 136 Cong. Rec. H2633 (daily ed. May 22, 1990) (Rep.
    Levine); Wyo. 1777; Idaho 517.

[^27]: ^?^ See also *Spectrum* 168 (noting discrimination in treatment
    and rehabilitation programs available to inmates with disabilities
    and inaccessible jail cells and toilet facilities); *Parrish* v.
    *Johnson*, 800 F.2d 600, 603, 605 (6th Cir. 1986) (prison guard
    repeatedly assaulted paraplegic inmates with knife, forced them to
    sit in own feces, and taunted them with remarks like "crippled
    bastard" and "\[you\] should be dead"); *Harrelson* v. *Elmore
    County*, 859 F. Supp. 1465, 1466 (M.D. Ala. 1994) (paraplegic
    prisoner denied use of a wheelchair and forced to crawl around his
    cell); *Calif. Report* 103 ("\[A\] parole agent sent a man who uses
    a wheelchair back to prison since he did not show up for his
    appointments even though he explained that he could not make the
    appointments because he was unable to get accessible
    transportation.").

[^28]: ^?^ See also *Calif. Report* 114. Congress also brought to bear
    the knowledge it had acquired of this problem in enacting the Civil
    Rights of Institutionalized Persons Act, Pub. L. No. 96-247, 94
    Stat. 349, codified at 42 U.S.C. 1997 *et* *seq.*, and the
    Developmental Disabilities Act of 1984, 42 U.S.C. 6000 *et* *seq.*
    See, *e.g.*, 132 Cong. Rec. S5914-01 (daily ed. May 14, 1986) (Sen.
    Kerry) (findings of investigation of State-run mental health
    facilities "were appalling. The extent of neglect and abuse
    uncovered in their facilities was beyond belief.").

[^29]: ^?^ Congress knew that *Cleburne* was not an isolated incident.
    See 2 *Leg. Hist.* 1230 (Larry Urban); Wyo. 1781 (zoning board
    declined to authorize group home because of "local residents'
    unfounded fears that the residents would be a danger to the children
    in a nearby school"); Nev. 1050 (Las Vegas has passed an ordinance
    that disallows the mentally ill from living in residential areas);
    N.J. 1068 (group home for those with head injuries barred because
    public perceived such persons as "totally incompetent, sexual
    deviants, and that they needed 'room to roam'"; "Officially, the
    application was turned down due to lack of parking spaces, even
    though it was early established that the residents would not have
    automobiles.").

[^30]: ^?^ A zoo keeper refused to admit children with Down Syndrome
    "because he feared they would upset the chimpanzees." S. Rep. No.
    116, *supra*, at 7; H.R. Rep. No. 485, *supra*, Pt. 2, at 30.

[^31]: ^?^ See 2 *Leg. Hist.* 1100 (Shelley Teed-Wargo) (town library
    refused to let person with mental retardation check out a video
    "because he lives in a group home," unless he was accompanied by a
    staff person or had a written permission slip); Pa. 1391 (public
    library will not issue library cards to residents of group homes
    without the countersignature of a staff member -- this rule applies
    to "those having physical as well as mental disabilities").

[^32]: ^?^ A paraplegic Vietnam veteran was forbidden to use a public
    pool in New York; the park commissioner explained that "\[i\]t's not
    my fault you went to Vietnam and got crippled." 3 *Leg. Hist.* 1872
    (Peter Addesso); see also *id*. at 1995 (Rev. Scott Allen) (woman
    with AIDS and her children denied entry to a public swimming pool);
    *May 1989 Hearings* 76 (Ill. Att'y Gen. Hartigan) (visually impaired
    children with guide dogs "cannot participate in park district
    programs when the park has a 'no dogs' rule").

[^33]: ^?^ See H.R. Rep. No. 485, *supra*, Pt. 3, at 25 ("These
    discriminatory policies and practices affect people with
    disabilities in every aspect of their lives \* \* \* \[including\]
    securing custody of their children."); *id*., Pt. 2, at 41
    ("\[B\]eing paralyzed has meant far more than being unable to walk
    -- it has meant being excluded from public schools \* \* \* and
    being deemed an 'unfit parent'" in custody proceedings.); 2 *Leg.
    Hist.* 1611 n.10 (Arlene Mayerson) ("Historically, child-custody
    suits almost always have ended with custody being awarded to the
    non-disabled parent."); Mass. 829 (government refuses to authorize
    couple's adoption solely because woman had muscular dystrophy);
    *Spectrum* 40; *No Pity*, *supra*, at 26 (woman with cerebral palsy
    denied custody of her two sons; children placed in foster care
    instead); *Carney* v. *Carney*, 598 P.2d 36, 42 (Cal. 1979) (lower
    court "stereotype\[d\] William as a person deemed forever unable to
    be a good parent simply because he is physically handicapped").

[^34]: ^?^ See also H.R. Rep. No. 485, *supra*, Pt. 2, at 46 ("How many
    well educated and highly capable people with disabilities must sit
    down at home every day, not because of their lack of ability, but
    because of the attitudes of employers, service providers, and
    government officials?"); 2 *Leg. Hist.* 1061 (Eric Griffin) ("I come
    to you as one of those \* \* \* who was denied a public education
    until age 18, one who has been put through the back door, and kept
    out of the front door and segregated even if you could get in.");
    *id*. at 1078 (Ellen Telker) ("State and local municipalities do not
    make many materials available to a person who is unable to read
    print."); *id*. at 1116 (Virginia Domini) (persons with disabilities
    "must fight to function in a society where busdrivers start moving
    before I have my balance or State human resources \[sic\] yell 'I
    can't understand you,' to justify leaving a man without food or
    access to food over the weekend."); *id*. at 1017 (Judith Heumann)
    ("Some of these people are in very high places. In fact, one of our
    categories of great opposition is local administrators, local
    elected officials."); 3 *Leg. Hist.* 2241 (James Ellis) ("Because of
    their disability, people with mental retardation have been denied
    the right to marry, the right to have children, the right to vote,
    the right to attend public school, and the right to live in their
    own community, with their own families and friends."); 2 *Leg.
    Hist.* 1768 (Rick Edwards) ("Why are the new drinking fountains in
    our State House erected out of reach of persons in wheelchairs? And
    why were curb cuts at the Indianapolis Airport filled in with
    concrete?"); Task Force Report 21 (six wheelchair users *arrested*
    for failing to leave restaurant after manager complained that "they
    took up too much space"); see generally *Spectrum* App. A
    (identifying 20 broad categories of state-provided or supported
    services and programs in which discrimination against persons with
    disabilities arises).

[^35]: ^?^ The types of disabilities covered by the Act, moreover, are
    generally confined to those substantially limiting conditions that
    have given rise to discriminatory treatment in the past. See
    *Sutton* v. *United Air Lines, Inc.*, 527 U.S. 471 (1999); *Murphy*
    v. *United Parcel Serv.*, 527 U.S. 516 (1999); *Albertsons, Inc.* v.
    *Kirkingburg*, 527 U.S. 555 (1999).

[^36]: ^?^ See S. Rep. No. 116, *supra*, at 10-12, 89, 92; H.R. Rep. No.
    485, *supra*, Pt. 2, at 34; 2 *Leg. Hist.* 1552 (EEOC Comm'r Evan
    Kemp); *id*. at 1077 (John Nelson); *id*. at 1388-1389 (Justin
    Dart); *id*. at 1456-1457; *id*. at 1560 (Jay Rochlin); 3 *Leg.*

    *Hist.* 2190-2191 (Robert Burgdorf); Task Force Report 27;
    *Spectrum* 2, 30, 70. The federal government, moreover, provides
    substantial funding to cover many of those costs.

[^37]: ^?^ The Interstate Commerce Clause is also the basis for these
    substantive obligations. See *Walker* v. *Snyder*, 213 F.3d 344, 346
    (7th Cir. 2000), cert. denied *sub nom. United States* v. *Snyder*,
    121 S. Ct. 1188 (2001). Under either basis, suits against state
    officials for prospective relief can proceed regardless of the
    validity of the abrogation. See *Garrett*, 531 U.S. at 374;
    *Randolph* v. *Rodgers*, 253 F.3d 342 (8th Cir. 2001); *Roe No. 2*
    v. *Ogden*, 253 F.3d 1225 (10th Cir. 2001).

[^38]: ^?^ See *Belanger* v. *Madera Unified Sch. Dist.*, 963 F.2d 248
    (9th Cir. 1992), cert. denied, 507 U.S. 919 (1993) (California
    school districts protected by Eleventh Amendment); *Rosenfeld* v.
    *Montgomery County Pub. Schs*., 41 F. Supp. 2d 581 (D. Md. 1999)
    (Maryland school districts protected by Eleventh Amendment). The law
    in other States remains in flux. Cf. *Martinez* v. *Board of Educ.
    of Taos Mun. Sch. Dist*., 748 F.2d 1393 (10th Cir. 1984) (New Mexico
    school districts protected by Eleventh Amendment), overruled, *Duke*
    v. *Grady Mun. Schs*., 127 F.3d 972 (10th Cir. 1997); *Harris* v.
    *Tooele County Sch. Dist.*, 471 F.2d 218 (10^th^ Cir. 1973) (Utah
    school districts protected by Eleventh Amendment), overruled,
    *Ambus* v. *Granite Bd. of Educ.*, 995 F.3d 992 (10th Cir. 1992) (en
    banc).

[^39]: ^?^ The Eleventh Amendment is also no bar to the United States
    suing the State. See *Garrett*, 531 U.S. at 374 n.9 (noting that
    United States could sue a State to recover damages under the ADA);
    *Alden*, 527 U.S. at 755 ("In ratifying the Constitution, the States
    consented to suits brought by other States or by the Federal
    Government.").