Number range CHAPTER**UNITED STATES DISTRICT COURT**

**EASTERN DISTRICT OF PENNSYLVANIA**

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

**)**

**MICHAEL ANDERSON and JOSEPH )**

**GARRISON, DISABLED IN ACTION OF )**

**PENNSYLVANIA, individually and on )**

**behalf of all persons similarly )**

**situated, )**

**) Civil Action No. 97-VC-3808**

**Plaintiffs, )**

**) CLASS ACTION**

**v. )**

**)**

**PENNSYLVANIA DEPARTMENT OF PUBLIC )**

**WELFARE, )**

**)**

**Defendant. )**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)**

**[MEMORANDUM OF INTERVENOR UNITED STATES]{.underline}**

**[IN OPPOSITION TO DEFENDANT'S]{.underline}**

# CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT

INTEREST OF THE UNITED STATES

The United States appears as intervenor to defend the constitutionality
of Congress\' statutory abrogation of the states\' Eleventh Amendment
immunity for private suits under Title II of the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 [et]{.underline}
[seq]{.underline}. The United States has a statutory right to intervene
to defend the constitutionality of its statutes, 28 U.S.C. § 2403(a),
giving it an interest distinct from the private parties\' claims of
injury. [See]{.underline}, [e.g.]{.underline}, [Diamond]{.underline} v.
[Charles]{.underline}, 476 U.S. 54, 64-65 (1986). Moreover, because of
the inherent limitations on administrative enforcement mechanisms and on
the litigation resources of the United States, the United States has an
interest in ensuring that the intended scope of this statute may be
enforced against states by private parties acting as private attorneys
general

STATEMENT OF THE ISSUE

Whether the statutory abrogation of Eleventh Amendment immunity for
suits brought under the ADA is a valid exercise of Congress\' authority
under Section 5 of the Fourteenth Amendment, as applied to suits brought
under Title II of that Act in which the conduct alleged to be
discriminatory is not intentional.

STATEMENT OF THE CASE

1\. On June 3, 1997, the Plaintiffs filed suit in this Court alleging
that they and a class of similarly situated individuals with
disabilities have been discriminated against by the Defendant in
violation of Title II of the ADA. This suit alleges, in sum, that the
Defendant has violated Title II by: (1) failing to ensure that the
Health Maintenance Organizations ("HMOs") with whom it has contracted to
provide medical services for eligible citizens offer facilities that are
accessible to individuals with mobility impairments, Complaint at 9-10;
and (2) failing to ensure that, when rendering such services, necessary
medical information is provided by those HMOs to individuals with visual
impairments in appropriate alternative formats. Complaint at 10. In
response to the Complaint, the Defendant alleges that it has ensured
that there are a number of accessible medical providers available to
render services to eligible citizens, and that it already provides
necessary medical information to individuals with visual impairments,
sufficient to meet the requirements of Title II. Answer at 7-8.

2\. On September 4, 1997, the Defendant filed its Cross Motion for
Partial Summary Judgment, wherein it asserted, [inter]{.underline}
[alia]{.underline}, that Title II cannot be enforced against the
Defendant to the extent that the Complaint alleges that the Defendant
has engaged in discriminatory conduct that is neither "intentional" nor
the result of "deliberate indifference." Def.'s Brief at 22-25. The
Defendant argues that Congress did not have the constitutional authority
to legislate with regard to such conduct. For these reasons, the United
States moved to intervene pursuant to 28 U.S.C. § 2403(a) to defend the
constitutionality of the scope of this federal statute as it relates to
the challenges raised in this suit and to file this brief.

SUMMARY OF ARGUMENT

The Eleventh Amendment is no bar to this action brought by the
Plaintiffs under Title II of the ADA to remedy discrimination against
individuals with disabilities. The ADA's statutory abrogation of
Eleventh Amendment immunity is a valid exercise of Congress\' power
under Section 5 of the Fourteenth Amendment, which authorizes Congress
to enact "appropriate legislation" to "enforce" the Equal Protection
Clause.

In exercising its power under Section 5, Congress' remedial authority is
not limited to prohibiting discrimination against individuals with
disabilities that only is either "intentional" or the result of
"deliberate indifference." Congress found that the pervasiveness of
discriminatory exclusion of individuals with disabilities has resulted
from a history of discrimination based upon irrational fears and
inaccurate stereotypes as well as from purportedly "neutral" rules and
practices. The continuing effects of this past exclusion, combined with
present discrimination, has resulted in persons with disabilities being
excluded from full participation in society. In light of these findings,
Congress through Title II has required public entities to take
reasonable steps to modify their practices and physical facilities so
that individuals with disabilities would have meaningful access to all
the services, programs, or activities of those entities. This
finely-tuned mandate is plainly adapted to the underlying purpose of the
Equal Protection Clause: "the abolition of governmental barriers
presenting unreasonable obstacles to advancement on the basis of
individual merit." [Plyler]{.underline} v. [Doe]{.underline}, 457 U.S.
202, 222 (1982).

**[ARGUMENT]{.underline}**

**THE ABROGATION OF ELEVENTH AMENDMENT IMMUNITY CONTAINED\
IN THE AMERICANS WITH DISABILITIES ACT IS A VALID\
EXERCISE OF CONGRESS\' POWER UNDER SECTION 5 OF\
THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION**

In [Seminole Tribe]{.underline} v. [Florida]{.underline}, \_\_ U.S.
\_\_, 116 S.Ct 1114 (1996) the Supreme Court articulated a two-part test
to determine whether Congress has abrogated properly the states\'
Eleventh Amendment immunity:

> first, whether Congress has unequivocally expressed its intent to
> abrogate the immunity; and second, whether Congress has acted pursuant
> to a valid exercise of power.

[Id]{.underline}. at 1123 (citations, quotations, and brackets omitted).

With respect to the first inquiry under [Seminole Tribe]{.underline},
Section 502 of the ADA provides that "\[a\] state shall not be immune
under the eleventh amendment to the Constitution of the United States
from an action in \[a\] Federal or State court of competent jurisdiction
for a violation of this Act." 42 U.S.C. § 12202. This language clearly
exceeds that necessary to constitute an abrogation. [See]{.underline},
[e.g.]{.underline}, [Clark]{.underline} v. [California]{.underline}, 123
F.3d 1267, 1269 (9^th^ Cir, 1997)("\...Congress has unequivocally
expressed its intent to abrogate the State's immunity under both the ADA
and the Rehabilitation Act.")

The second inquiry is addressed by considering initially whether
"Congress has the power to abrogate unilaterally the States\' immunity
from suit." [Seminole Tribe]{.underline} at 1125. It is clear that the
Fourteenth Amendment provides that authority. Section 5 of the
Fourteenth Amendment empowers Congress to enact "appropriate
legislation" to "enforce" the Equal Protection Clause. As the Supreme
Court explained over one hundred years ago:

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

[Ex parte Virginia]{.underline}, 100 U.S. (10 Otto) 339, 345-346 (1879).
A statute is "appropriate legislation" to enforce the Equal Protection
Clause if the statute "may be regarded as an enactment to enforce the
Equal Protection Clause, \[if\] it is \'plainly adapted to that end\'
and \[if\] it is not prohibited by but is consistent with \'the letter
and spirit of the constitution.\'" [Katzenbach]{.underline} v.
[Morgan]{.underline}, 384 U.S. 641, 651 (1966).

In [Fitzpatrick]{.underline} v. [Bitzer]{.underline}, 427 U.S. 445
(1976), the Supreme Court upheld the abrogation of the states\' Eleventh
Amendment immunity in Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e [et]{.underline} [seq]{.underline}., as "appropriate"
legislation under Section 5 of the Fourteenth Amendment. It explained
that "\[w\]hen Congress acts pursuant to § 5, not only is it exercising
legislative authority that is plenary within the terms of the
constitutional grant, it is exercising that authority under one section
of a constitutional Amendment whose other sections by their own terms
embody limitations on state authority." [Id]{.underline}. at 456. In
[Seminole Tribe]{.underline}, the Court reaffirmed its holding in
[Fitzpatrick]{.underline}. [See]{.underline} [Seminole
Tribe]{.underline} at 1125, 1128, 1131 n.15. Therefore, the Fourteenth
Amendment continues to remain a provision that vests Congress with the
power to abrogate properly Eleventh Amendment immunity.

I. TITLE II OF THE ADA IS AN ENACTMENT TO ENFORCE THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT

Title II of the ADA provides that:

> \[N\]o qualified individual with a disability shall, by reason of such
> disability, be excluded from participation in or be denied the
> benefits of the services, programs, or activities of a public entity,
> or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Our analysis of the constitutionality of Title II
under the Fourteenth Amendment must begin by considering whether Title
II is properly "regarded as an enactment to enforce the Equal Protection
Clause." [Morgan]{.underline} at 651.

The simplest (but not the only) way for Congress to express its intent
is to declare explicitly that the legislation is passed to enforce
Fourteenth Amendment rights. [See]{.underline}, [e.g.]{.underline},
[Mills]{.underline} v. [Maine]{.underline}, 118 F.3d 37, 42 (1st Cir.
1997)(language of Fair Labor Standards Act includes a "\...necessary
clear statement of congressional intent to abrogate state sovereign
immunity."); [Muth]{.underline} v. [Central Bucks Sch.
Distr.]{.underline}, 839 F.2d 113, 128 (3^rd^ Cir. 1988),
[rev.]{.underline} [on]{.underline} [other]{.underline}
[grounds]{.underline}, 491 U.S. 223 (1989). Here Congress did just that,
declaring that its intent in enacting the ADA, including Title II, was
"to invoke the sweep of congressional authority, including the power to
enforce the fourteenth amendment\..., in order to address the major
areas of discrimination faced day-to-day by people with disabilities."
42 U.S.C. § 12101(b)(4). This is more than sufficient. Congress is not
required to incorporate a legal brief in a statute explaining its legal
theories. As one district court recently acknowledged,"\...the ADA may
be viewed as a measure to enforce the Equal Protection Clause by
securing non-discriminatory treatment for a discrete and identifiable
class of persons \-- individuals with disabilities \-- who have faced a
historical pattern of unequal treatment." [Autio]{.underline} v.
[Minnesota]{.underline}, 968 F.Supp. 1366, 1370 (D.Minn. 1997),
[appeal]{.underline} [pending]{.underline}, No. 97-3145 (8^th^
Cir.)(acknowledging constitutionality of Title I of the ADA).

The ADA in its entirety is legislation that enforces the Equal
Protection Clause of the Fourteenth Amendment. As Representative Dellums
explained during the enactment of the ADA, "we are empowered with a
special responsibility by the 14th amendment to the Constitution to
ensure that every citizen, not just those of particular ethnic groups,
not just those who arguably are \'able-bodied,\' not just those who own
property \-- but every citizen shall enjoy the equal protection of the
laws." 136 Cong. Rec. 11,467 (1990); [see]{.underline}
[also]{.underline} [id]{.underline}. at 11,468 (remarks of Rep. Hoyer).

II. **TITLE II OF THE ADA IS PLAINLY ADAPTED TO ENFORCING THE EQUAL
    PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT**

The Defendant's constitutional challenge lies in an assertion that
Section 5 of the Fourteenth Amendment does not provide to Congress the
authority to proscribe conduct that itself is not a direct violation of
that Amendment. In its brief, the Defendant states, "\[a\]s clarified by
the [City of Boerne]{.underline} \[v. [Flores]{.underline}, \_\_ U.S.
\_\_, 117 S.Ct. 2157 (1997)\] Court, Congress must confine its
enforcement of the protections of the equal protection clause to the
substance of those protections as interpreted by the Court\....the
contours of the equal protection clause must define the contours of
statutory provisions enacted to enforce the rights conferred by that
clause." Def.'s Brief at 19. In this regard, the Defendant cites the
Supreme Court case of [Washington]{.underline} v. [Davis]{.underline},
426 U.S. 229 (1976) which stands for the proposition that a valid cause
of action for a violation of the Equal Protection Clause must allege "a
purpose to discriminate\...." [Id]{.underline}. at 238
([quoting]{.underline} [Akins]{.underline} v. [Texas]{.underline}, 325
U.S. 393, 403-04 (1945)). The Defendant then makes its central argument
that, "\[i\]n order for the ADA to be an appropriate exercise of
congressional enforcement authority, therefore, it must be interpreted
to similarly require a showing of intentional discrimination." Def.'s
Brief at 20.

As will be explained [infra]{.underline}, there is no basis in
constitutional jurisprudence to assert that Congress' Section 5 powers
are limited in the manner suggested by the Defendant, and the Defendant
misapprehends the recent holding in [Flores]{.underline} as it relates
to those powers. The ADA is constitutional, in part, because it is
plainly adapted to addressing the discrimination that Congress found
existed against individuals with disabilities.

> A. [Under Its Section 5 Powers, Congress May\
> Proscribe Conduct That Is Not A Direct Violation Of The
> Constitution]{.underline}

In [Katzenbach]{.underline} v. [Morgan]{.underline}, 384 U.S. 641, 651
(1966), the Supreme Court explained that Congress' powers under Section
5 are not limited to proscribing only those instances of discrimination
that would constitute a direct violation of the Constitution. The Court
stated that:

> Correctly viewed, § 5 is a positive grant of legislative power
> authorizing Congress to exercise its discretion and determine whether
> and what legislation is needed to secure the guarantees of the
> Fourteenth Amendment\...a construction of § 5 that would require a
> judicial determination that the enforcement of the state law precluded
> by Congress violated the Amendment, as a condition of sustaining the
> Congressional enactment, would depreciate both Congressional resources
> and congressional responsibility for implementing the Amendment."

[Id]{.underline}. at 648-49, 651 (footnotes omitted). Thus, Section 5
grants to Congress the broad power to identify and to remedy the
discrimination it has determined has occurred in order to secure the
equal protections of the laws for all citizens as required by the
Fourteenth Amendment. The Court made it clear that this power allows
Congress to enact legislation appropriate to address such concerns,
including the power to proscribe certain conduct that on its own may not
give rise to a constitutional violation.

In this spirit, the Supreme Court\'s recent decision in
[Flores]{.underline} again addressed directly the question of the
purpose and extent of Congress' powers to legislate pursuant to Section
5, and it reaffirmed the reasoning of the Court in [Morgan]{.underline}.
The Court acknowledged settled jurisprudence in concluding that even
statutes that prohibit more than does the Equal Protection Clause on its
own can be "appropriate remedial measures" when there is "\...a
congruence between the means used and the ends to be achieved. The
appropriateness of remedial measures must be considered in light of the
evil presented." [Id]{.underline}. at 2169. The

Court further explained that:

> Legislation which deters or remedies constitutional violations can
> fall within the sweep of Congress' enforcement power [even
> if]{.underline} in the process it prohibits conduct which is not
> itself unconstitutional and intrudes into "legislative spheres of
> autonomy previously reserved to the States."

[Flores]{.underline} at 2163 (quoting [Fitzpatrick]{.underline} at
455)(emphasis added).

It is for this reason that the Defendant's reliance upon the Supreme
Court's decision in [Washington]{.underline} v. [Davis]{.underline}
confuses different legal standards. In [Davis]{.underline}, the Court
explained that an allegation of a direct violation of the equal
protection guarantees found in the Fifth and Fourteenth Amendments
generally requires a showing of a "purpose" or an intent to
discriminate. [Id]{.underline}. at 245. However, the Court had no
occasion to consider the different question of the extent to which
Congress may legislate under its powers arising from Section 5 of the
Equal Protection Clause. As highlighted [supra]{.underline}, the
standards governing what constitutes a direct violation of the Equal
Protection Clause of the Fourteenth Amendment giving rise to a
constitutionally-based cause of action do not govern Congress' broad
powers under Section 5 to enact appropriate legislation necessary to
address equal protection concerns. The standards governing the extent to
which Congress can legislate under Section 5 already are established in
settled jurisprudence and were clarified recently in
[Flores]{.underline}.[^1]

In [South Carolina]{.underline} v. [Katzenbach]{.underline}, 383 U.S.
301, 325-337 (1966), and again in [City of Rome]{.underline} v. [United
States]{.underline}, 446 U.S. 156, 177 (1980), both cited with approval
in [Flores]{.underline}, the Supreme Court upheld the constitutionality
of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, which
prohibits covered jurisdictions from implementing any electoral change
that is discriminatory in effect, regardless of an intent to
discriminate. Similarly, the courts of appeals have unanimously upheld
the application of Title VII's disparate impact standard to states as a
valid exercise of Congress' authority under Section 5 of the Fourteenth
Amendment. [See]{.underline}, [e.g.]{.underline}, [Grano]{.underline} v.
[Department of Dev.]{.underline}, 637 F.2d 1073, 1080 n.6 (6^th^ Cir.
1980); [United States]{.underline} v. [Comm. of Va.]{.underline}, 620
F.2d 1018 (4^th^ Cir. 1980); [DPOA]{.underline} v. [Young]{.underline},
608 F.2d 671, 689 n.7 (6^th^ Cir. 1979); [Scott]{.underline} v. [City of
Anniston]{.underline}, 597 F.2d 897, [cert.]{.underline}
[denied]{.underline}, 446 U.S. 917 (1979); [Blake]{.underline} v. [City
of Los Angeles]{.underline}, 595 F.2d 1367 (9^th^ Cir. 1979),
[cert.]{.underline} [denied]{.underline}, 446 U.S. 928 (1980); [United
States]{.underline} v. [City of Chicago]{.underline}, 573 F.2d 416
(7^th^ Cir. 1978); [see]{.underline} [also]{.underline}
[Flores]{.underline} at 2169 (agreeing that "Congress can prohibit laws
with discriminatory effects in order to prevent racial

discrimination in violation of the Equal Protection Clause");
[Muth]{.underline} v. [Central Bucks Sch. Distr.]{.underline}, 839 F.2d
113, 129 (3^rd^ Cir. 1988)(holding that the Education for the
Handicapped Act, which proscribes certain non-intentional
discrimination, abrogates states' immunity in federal court),
[rev.]{.underline} [on]{.underline} [other]{.underline}
[grounds]{.underline}, 491 U.S. 223 (1989); [United States]{.underline}
v. [City of Black Jack]{.underline}, 508 F.2d 1179, 1184-1185 (8^th^
Cir. 1974)(stating that the discriminatory effects standard of the Fair
Housing Act is a valid exercise of Congress' power under enforcement
provision of Thirteenth Amendment), [cert]{.underline}.
[denied]{.underline}, 422 U.S. 1042 (1975).

As one court of appeals recently acknowledged when called upon to
consider whether Title II is constitutional under Congress' Section 5
authority:

> The Fourteenth Amendment gives Congress the same broad powers as does
> the Necessary and Proper Clause\....Congress' powers under the
> Fourteenth Amendment extend beyond conduct which is unconstitutional,
> and Congress may create broader equal protection rights than the
> Constitution itself mandates.

[Clark]{.underline} v. [California]{.underline}, 123 F.3d 1267, 1270
(9^th^ Cir. 1997) (citations omitted). In light of settled
jurisprudence, there is no basis for the Defendant to assert that
Congress' Section 5 powers are restricted in such an unprecedented
manner.

> B. [Congress Found That Discrimination Against]{.underline}
> [Individuals With Disabilities Was Severe,]{.underline} [Extended To
> Every Aspect Of Society And Resulted From Both Intentional And
> Non-]{.underline} [Intentional Conduct]{.underline}

In exercising its authority under Section 5 when enacting the ADA,
Congress engaged in extensive fact-finding. The facts amassed by
Congress are replete with proof of the severe and systemic nature of
discrimination against individuals with disabilities, ranging from that
which is the result of facially neutral practices but discriminatory in
application to intentional and/or animus-based conduct.

In enacting the ADA, Congress found that individuals with disabilities
have been \"faced with restrictions and limitations resulting from
stereotypic assumptions not truly indicative of the individual ability
of such individuals to participate in, and contribute to, society,\" 42
U.S.C. § 12101(a)(7), and that such discrimination \"persists in such
critical areas as\...access to public services,\" [id]{.underline}. at
12101(a)(3). Congress also found that:

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

[Id]{.underline}. at 12101(a)(5).

The scope of the protections afforded by Title II is "plainly adapted"
to eliminating the many forms of discrimination that Congress determined
has been suffered by individuals with disabilities. Congress made
express findings about the status of individuals with disabilities in
our society, and determined that they were subject to continuing
"serious and pervasive" discrimination that "tended to isolate and
segregate individuals with disabilities." 42 U.S.C. § 12101(a)(2). We
need not repeat these findings here [in]{.underline} [toto]{.underline}.
(They are attached as an addendum to this brief.) Nor can we provide a
complete summary of the fourteen hearings held by Congress at the
Capitol, the sixty-three field hearings, the lengthy floor debates, and
the myriad of reports submitted to Congress by the Executive Branch in
the three years prior to the enactment of the ADA, [see]{.underline}
Timothy M. Cook, [The Americans with Disabilities Act: The Move to
Integration]{.underline}, 64 Temp.L.Rev. 393, 393-394 n. 1-4, 412 n.133
(1991)(collecting citations), as well as Congress\' thirty years of
experience with other statutes aimed at preventing discrimination
against individuals with disabilities. [See]{.underline} Lowell P.
Weicker, Jr., [Historical Background of the Americans with Disabilities
Act]{.underline}, 64 Temp.L.Rev. 387, 387-389 (1991)(discussing other
laws enacted to redress discrimination against individuals with
disabilities). However, we will sketch briefly some of the major areas
of discrimination that Congress uncovered and was endeavoring to redress
that are relevant to the constitutional challenge posed in the instant
case.

The evidence before Congress demonstrated that persons with disabilities
were sometimes excluded from public services for no reason other than a
distaste for or fear of their disabilities. [See]{.underline} S. Rep.
No. 116, 101st Cong., 1st Sess. 7-8 (1989)(citing instances of
discrimination based on negative reactions to sight of
disability)(Senate Report); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d
Sess. 28-31 (1990)(same)(House Report). The legislative record contained
documented instances of exclusion of individuals with disabilities from
hospitals, theaters, restaurants, bookstores, and auction houses simply
because of prejudice. [See]{.underline} [Cook]{.underline} at 408-409
(collecting citations). Indeed, the United States Commission on Civil
Rights, after a thorough survey of the available data, documented that
prejudice against individuals with disabilities manifested itself in a
variety of ways, including "reaction\[s\] of aversion," reliance on
"false" stereotypes, and stigma associated with disabilities that lead
to individuals with disabilities being "thought of as not quite human."
U.S. Commission on Civil Rights, [Accommodating the Spectrum of
Individual Abilities 23-26 (1983)]{.underline}; [see]{.underline}
[also]{.underline} Senate Report, [supra]{.underline}, at 21. The
negative attitudes, in turn, produced fear and reluctance on the part of
individuals with disabilities to participate in society.
[See]{.underline} Senate Report, [supra]{.underline}, at 16; House
Report, [supra]{.underline}, at 35, 41-43; [Cook]{.underline} at 411.
Congress thus concluded that individuals with disabilities were "faced
with restrictions and limitations\...resulting from stereotypic
assumptions not truly indicative of the individual ability of such
individuals to participate in, and contribute to, society." 42 U.S.C. §
12101(a)(7)

The decades of ignorance, fear and misunderstanding created a tangled
web of discrimination that resulted in and reinforced isolation and
segregation. The evidence before Congress demonstrated that these
attitudes were linked more generally to the segregation of individuals
with disabilities. [See]{.underline} Senate Report, [supra]{.underline},
at 11; U.S. Commission on Civil Rights, [supra]{.underline}, at 43-45.
This segregation was in part the result of seemingly neutral government
policies in "critical areas \[such\] as employment, housing, public
accommodations, education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public
services." 42 U.S.C. § 12101(a)(3).[^2] Congress found that the
exclusion of persons with disabilities from programs and benefits was
not just the result of discriminatory intent or animus; it was also a
result of \"thoughtlessness or indifference \-- of benign neglect\"
through the interaction between \"neutral\" rules and individuals with
disabilities.[^3] As a result, Congress determined that for an entity to
treat individuals with disabilities as it did those without disabilities
was not sufficient to eliminate discrimination. [See]{.underline} 42
U.S.C. § 12101(a)(5); [see]{.underline} [also]{.underline} U.S.
Commission on Civil Rights, [Accommodating the Spectrum of Individual
Abilities]{.underline} 99 (1983); [Helen L.]{.underline} v.
[Didario]{.underline}, 46 F.3d 325, 334 (3^rd^ Cir. 1995)("Because the
ADA evolved from an attempt to remedy the effects of 'benign neglect'
resulting from the "invisibility" of the disabled, Congress would not
have intended

to limit the Act's protections and prohibitions to circumstances
involving deliberate discrimination."), [cert.]{.underline}
[denied]{.underline}, 116 S.Ct. 64 (1995); [Crowder]{.underline} v.
[Kitagawa]{.underline}, 81 F.3d 1480, 1483-1484 (9^th^ Cir. 1996);
[United States]{.underline} v. [California Mobile Home Park Management
Co.]{.underline}, 29 F.3d 1413, 1417 (9th Cir. 1994);
[Smith]{.underline} v. [Barton]{.underline}, 914 F.2d 1330, 1339 & n.13
(9th Cir. 1990), [cert]{.underline}. [denied]{.underline}, 501 U.S. 1217
(1991).[^4]

For example, there was evidence before Congress that, like most public
accommodations, government buildings were not accessible to individuals
with disabilities. For example, a study conducted in 1980 of state-owned
buildings available to the general public found seventy-six percent of
them physically inaccessible and unusable for providing services to
individuals with disabilities. [See]{.underline} 135 Cong. Rec. 8,712
(1989)(remarks of Rep. Coelho); U.S. Commission on Civil Rights,
[supra]{.underline}, at 38-39. In another survey, forty percent of
individuals with disabilities

reported that an important reason for their segregation was the
inaccessibility of public buildings and restrooms. [See]{.underline}
[Americans with Disabilities Act of 1989: Hearings on H.R. 2273 before
the Subcomm. on Civil & Const. Rights of the House Comm. on the
Judiciary]{.underline}, 101st Cong., 1st Sess. 334 (1989)(House
Hearings).

Of course, even when the buildings were accessible, individuals with
disabilities were often excluded because they could not reach the
buildings. The evidence before Congress showed that, in fact, public
streets and sidewalks were not accessible. [See]{.underline} House
Report, [supra]{.underline}, at 84; House Hearings, [supra]{.underline},
at 248, 271. And even when they could navigate the streets, individuals
with disabilities still were shut out of most public transportation.
[See]{.underline} H.R. Rep. No. 485, Pt. 1, 101st Cong., 2d Sess. 24
(1990); National Council on the Handicapped, [Toward
Independence]{.underline} 32-33 (1986); U.S. Commission on Civil Rights,
[supra]{.underline}, at 39. Some transit systems offered paratransit
services (special demand responsive systems for individuals with
disabilities) to compensate for the absence of other means of
transportation, but those services were often too limited and further
contributed to the segregation of individuals with disabilities from the
general public. [See]{.underline} Senate Report, [supra]{.underline}, at
13, 45; House Report, [supra]{.underline}, at 38, 86; [Toward
Independence]{.underline}, [supra]{.underline}, at 33; U.S. Commission
on Civil Rights, [supra]{.underline}, at 39. As Congress reasoned:

> Transportation plays a central role in the lives of all Americans. It
> is a veritable lifeline to the economic and social benefits that our
> Nation offers its citizens. The absence of effective access to the
> transportation network can mean, in turn, the inability to obtain
> satisfactory employment. It can also mean the inability to take full
> advantage of the services and other opportunities provided by both the
> public and private sectors.

H.R. Rep. No. 485, Pt. 4, 101st Cong., 2d Sess. 25 (1990);
[see]{.underline} House Report, [supra]{.underline}, at 37, 87-88;
Senate Report, [supra]{.underline}, at 13.

Moreover, even when individuals with disabilities had access to
generally available goods and services, often they could not afford them
due to poverty. Over twenty percent of individuals with disabilities of
working age live in poverty, more than twice the rate of other
Americans. [See]{.underline} National Council on the Handicapped, [On
the Threshold of Independence]{.underline} 13-14 (1988). Congress found
this condition was linked in part to the extremely high unemployment
rate among individuals with disabilities, which in turn was a result of
discrimination in employment combined with inadequate education and
transportation. [See]{.underline} Senate Report, [supra]{.underline}, at
47; House Report, [supra]{.underline}, at 37, 88; [Toward
Independence]{.underline} at 32; U.S. Commission on Civil Rights,
[supra]{.underline}, at 80. Thus, Congress concluded that even when not
barred by "outright intentional exclusion," individuals with
disabilities "continually encounter\[ed\] various forms of
discrimination, including\...the discriminatory effects of
architectural, transportation, and communication barriers." 42 U.S.C.\
§ 12101(a)(5).

Given these facts, it is not surprising that surveys of both individuals
with disabilities and employers revealed that intentional and
unintentional discrimination were some of the reasons many individuals
with disabilities were unemployed. [See]{.underline} Senate Report,
[supra]{.underline}, at 9; House Report, [supra]{.underline}, at 33, 37;
[On the Threshold of Independence]{.underline}, [supra]{.underline}, at
15. "\[R\]ecent studies suggest that prejudice against impaired persons
is more intense than against other minorities. \[One study\] concludes
that employer attitudes toward impaired workers are \'less favorable
than those\...toward elderly individuals, minority group members,
ex-convicts, and student radicals,\' and \[another study\] finds that
handicapped persons are victims of \'greater animosity and rejections
than many other groups in society.\'" William G. Johnson, [The
Rehabilitation Act and Discrimination Against Handicappped
Workers]{.underline}, in [Disability and the Labor Market]{.underline}
196, 242, 245, (Monroe Berkowitz and M. Anne Hill eds., 1986). Evidence
at congressional hearings suggested that similar discrimination may
exist in government employment. [See]{.underline} Stephen L. Mikochik,
[The Constitution and the Americans with Disabilities Act: Some First
Impressions]{.underline}, 64 Temp.L.Rev. 619, 624 n.33 (1991)(collecting
relevant testimony). And even when employed, individuals with
disabilities received lower wages that could not be explained by any
factor other than discrimination. [See]{.underline} U.S. Commission on
Civil Rights, [supra]{.underline}, at 31-32; Equal Employment
Opportunities for Individuals with Disabilities, 56 Fed. Reg. 8,581
(1991)(citing studies); [Johnson]{.underline} at 245 (same).

A variety of policies and practices found in both public and private
entities thus produced a situation in which individuals with
disabilities were largely poor, isolated and segregated. As Justice
Marshall explained, "lengthy and continuing isolation of \[individuals
with disabilities\] perpetuated the ignorance, irrational fears, and
stereotyping that long have plagued them." [City of
Cleburne]{.underline} v. [Cleburne Living Cntr.]{.underline}, 473 U.S.
432, 464 (1985); [see]{.underline} [also]{.underline} U.S. Commission on
Civil Rights, [supra]{.underline}, at 43-45. In fact, Congress could
reasonably have found government discrimination a root cause of "people
with disabilities, as a group, occupy\[ing\] an inferior status in our
society, and \[being\] severely disadvantaged socially, vocationally,
economically, and educationally." 42 U.S.C. § 12101(a)(6).[^5]

Because Congress bears primary responsibility for enforcing the
Fourteenth Amendment, [see]{.underline} [South Carolina]{.underline} v.
[Katzenbach]{.underline}, 383 U.S. at 326, \"\[s\]ignificant weight
should be accorded the capacity of Congress to amass the stuff of actual
experience and cull conclusions from it.\" [United States]{.underline}
v. [Gainey]{.underline}, 380 U.S. 63, 67 (1965); [see]{.underline} [City
of Richmond]{.underline} v. [J.A. Croson Co.]{.underline}, 488 U.S. 469,
490 (1989); [Fullilove]{.underline} v. [Klutznick]{.underline}, 448 U.S.
448, 483 (1980); [Morgan]{.underline} at 652-653; [Blake]{.underline} v.
[City of Los Angeles,]{.underline} 595 F.2d 1367, 1373 (9^th^ Cir.
1979)(congressional finding that \"widespread discrimination against
minorities exists in State\...employment\" sufficient to extend Title
VII disparate impact standard to the states under Section 5).

> C. [Title II Of The ADA Redresses\
> Constitutionally Cognizable Injuries]{.underline}

In enacting the various provisions of the ADA, including Title II,
Congress was acting within the constitutional framework that has been
laid out by the Supreme Court. The Equal Protection Clause prohibits
invidious discrimination, that is "a classification whose relationship
to \[a legitimate\] goal is so attenuated as to render the distinction
arbitrary or irrational." [City of Cleburne]{.underline} v. [Cleburne
Living Cntr.]{.underline}, 473 U.S. 432, 446 (1985). In
[Cleburne]{.underline}, the Supreme Court unanimously declared
unconstitutional as invidious discrimination a decision by a city to
deny a special use permit for the operation of a group home for
individuals with mental retardation. A majority of the Court recognized
that "through ignorance and prejudice \[individuals with disabilities\]
\'have been subjected to a history of unfair and often grotesque
mistreatment.\'" [Id]{.underline}. at 454 (Stevens, J., concurring);
[see]{.underline} [id]{.underline}. at 461 (Marshall, J., concurring in
the judgment in part). The Court acknowledged that "irrational
prejudice," [id]{.underline}. at 450, "irrational fears,"
[id]{.underline}. at 455 (Stevens, J.), and "impermissible assumptions
or outmoded and perhaps invidious stereotypes," [id]{.underline}. at 465
(Marshall, J.), existed against individuals with disabilities in society
at large and sometimes inappropriately infected government decision
making.

It is significant that, while a majority of the Court declined to deem
classifications based on disability as suspect or "quasi-suspect," it
elected not to do so, in part, because it would unduly limit legislative
solutions to problems faced by the disabled. The Court reasoned that,
"\[h\]ow this large and diversified group is to be treated under the law
is a difficult and often technical matter, very much a task for
legislators guided by qualified professionals." [Id]{.underline}. at
442-443. It specifically noted with approval legislation such as Section
504 of the Rehabilitation Act, which is aimed at protecting persons with
disabilities, and openly worried that requiring governmental entities to
justify their efforts under heightened scrutiny might "lead
\[governmental entities\] to refrain from acting at all."
[Id]{.underline}. at 444.[^6]

Nevertheless, it did affirm that "there have been and there will
continue to be instances of discrimination against the retarded that are
in fact invidious, and that are properly subject to judicial correction
under constitutional norms," [id]{.underline}. at 446, and found the
actions at issue in that case

unconstitutional. In doing so, it articulated several criteria for
making such determinations in cases involving disabilities. First, the
Court held that the fact that persons with mental retardation were
"indeed different from others" did not preclude a claim that they were
denied equal protection; instead, it had to be shown that the difference
was relevant to the "legitimate interests" furthered by the rules.
[Id]{.underline}. at 448. Second, in measuring the government\'s
interest, the Court did not examine all conceivable rationales for the
differential treatment of the mentally retarded; instead, it looked to
the record and found that "the record \[did\] not reveal any rational
basis" for the decision to deny a special use permit.
[Ibid]{.underline}.; [see]{.underline} [also]{.underline}
[id]{.underline}. at 450 (stating that "this record does not clarify
how\...the characteristics of \[individuals with mental retardation\]
rationally justify denying" to them what would be permitted to others).
Third, the Court found that "mere negative attitudes, or fear,
unsubstantiated by factors which are properly cognizable\...are not
permissible bases" for imposing special restrictions on persons with
disabilities. [Id]{.underline}. at 448. Thus, the Equal Protection
Clause of its own force already proscribes treating persons with
disabilities differently when the government has not put forward
evidence justifying the difference or where the justification is based
on mere negative attitudes.

There is a sound basis in constitutional law for the recognition that
discrimination exists not only by treating individuals with disabilities
differently for no legitimate

reason, but also by treating them identically when they have
recognizable differences. It is this recognition that has given rise to
the prohibition of certain devices that are discriminatory because such
devices have an unlawfully disparate impact on members of a certain
class. [See]{.underline}, [e.g.]{.underline}, [all]{.underline}
[Griggs]{.underline} v. [Duke Power Co.]{.underline}, 401 U.S. 424
(1971). The Sixth Circuit has explained in a case involving gender
classifications, "in order to measure equal opportunity, present
relevant differences cannot be ignored. When males and females are not
in fact similarly situated and when the law is blind to those
differences, there may be as much a denial of equality as when a
difference is created which does not exist." [Yellow Springs Exempted
Village Sch. Dist. Bd. of Educ.]{.underline} v. [Ohio High Sch. Athletic
Ass\'n]{.underline}, 647 F.2d 651, 657 (6th Cir. 1981). Similarly, it is
also a denial of equality when access to facilities, benefits and
services is denied because the state refuses to acknowledge the "real
and undeniable differences between \[persons with disabilities\] and
others." [Cleburne]{.underline} at 444. Title II is designed to remedy
the denial of such services.

Indeed, the Supreme Court has recognized that the principle of equality
is not an empty formalism divorced from the realities of day-to-day
life, and thus the Equal Protection Clause is not limited to prohibiting
unequal treatment of similarly situated persons. The Equal Protection
Clause guarantees "that people of different circumstances will not be
treated as if they were the same." [United States]{.underline} v.
[Horton]{.underline}, 601 F.2d 319, 324 (7th Cir.),[cert]{.underline}.
[denied]{.underline}, 444 U.S. 937 (1979) (quoting Ronald D. Rotunda &
John E. Nowak, [Treatise on Constitutional Law]{.underline} 520 (1978)).
By definition, persons with disabilities have "a physical or mental
impairment that substantially limits one or more\...major life
activities." 42 U.S.C. § 12102(2)(A). Thus, as to that life activity,
"the handicapped typically are not similarly situated to the
nonhandicapped." [Alexander]{.underline} v. [Choate]{.underline}, 469
U.S. 287, 298 (1985).[^7] The Constitution takes this reality into
account and instead, in certain circumstances, requires equal access
rather than simply identical treatment. For "\[s\]ometimes the grossest
discrimination can lie in treating things that are different as though
they were exactly alike." [Jenness]{.underline} v.
[Fortson]{.underline}, 403 U.S. 431, 442 (1971). The Fourteenth
Amendment grants to Congress the \"discretion in determining whether and
what legislation is needed\" to address such discrimination.
[Morgan]{.underline} at 651. In enacting the ADA, Congress recognized
that individuals with disabilities encounter "various forms" of
discrimination, among them being the prejudicial barriers to equal
opportunity that arise when individuals with disabilities are treated
the same as non-disabled individuals. 42 U.S.C. § 12101(a)(5).
"Legislation\...singling out the \[disabled\] for special treatment
reflects the real and undeniable differences between the \[disabled\]
and others\...and is a proper measure to vindicate equal protection
principles in the face of arbitrary discrimination." [Autio]{.underline}
at 1372 (citing [Cleburne]{.underline} at 444).

In Title II of the ADA, Congress attempted to redress this
discrimination by mandating that \"qualified handicapped individual\[s\]
must be provided with [meaningful access]{.underline} to the benefit
that the \[entity\] offers.\" [Alexander]{.underline} at 301 (emphasis
added). Congress\' mandate is consistent with the principles of equality
embodied in the Equal Protection Clause. \"The power to \'enforce\'
\[the Equal Protection Clause\] may at times also include the power to
define situations which [Congress]{.underline} determines threaten
principles of equality and to adopt prophylactic rules to deal with
those situations.\" [J.A. Croson Co.]{.underline} at 490 (opinion of
O\'Connor, J.).[^8]

Congress\' Section 5 powers are thus not limited to prohibiting types of
discrimination that may be labeled as "intentional," "purposeful" or
"animus-based" discrimination. \"Congress is not circumscribed by any
such artificial rules.\" [Katzenbach]{.underline} at 327. Pursuant to
Section 5, Congress may enact \"\[w\]hatever legislation is
appropriate\...to secure to all persons the enjoyment of perfect
equality of civil rights and the equal protection of the laws against
State denial or invasion.\" [Ex parte Virginia]{.underline} at 345-346.
This includes the power, such as that contained in Title II, to prohibit
or modify rules, policies and practices that have a disparate effect on
a class or individual, regardless of the intent behind those actions.

> D. [Unlike The Statute Found Unconstitutional In Flores, Title II Of
> The ADA Is A Remedial And Preventive Scheme Proportional To The Injury
> That Congress Discovered]{.underline}

The ADA, including Title II, is a proportionate response by Congress to
remedy and prevent the pervasive discrimination it discovered. Section 5
of the Fourteenth Amendment vests in Congress broad power to address the
"continuing existence of unfair and unnecessary discrimination and
prejudice \[that\] denies individuals with disabilities the
opportunity\...to pursue those opportunities for which our free society
is justifiably famous." 42 U.S.C. § 12101(a)(9). "It is fundamental that
in no organ of government, state or federal, does there repose a more
comprehensive remedial power than in the Congress, expressly charged by
the Constitution with competence and authority to enforce equal
protection guarantees." [Fullilove]{.underline} at 483 (opinion of
Burger, C.J.). As acknowledged by the Ninth Circuit in
[Clark]{.underline}, in rejecting a challenge that the ADA and Section
504 of the Rehabilitation Act are not a proper exercise of Congress'
powers under Section 5, "neither act provides remedies so sweeping that
they exceed the harms that they were designed to redress."
[Id]{.underline}. at 1270.

As discussed [supra]{.underline}, after extensive investigation (and
long experience with the analogous nondiscrimination requirement
contained in Section 504 of the Rehabilitation Act), Congress found that
the exclusion of individuals with disabilities from government
facilities, programs and benefits was a result of past and on-going
discrimination arising in a variety of contexts. In Title II, Congress
sought to remedy the effects of past discrimination and prevent like
discrimination in the future by mandating that "qualified handicapped
individual\[s\] must be provided with [meaningful access]{.underline} to
the benefit that the \[entity\] offers." [Alexander]{.underline} at 301
(emphasis added).

Viewed in light of the underlying equal protection principles, the ADA,
including Title II, is appropriate preventive and remedial legislation
under the Section 5 powers granted to Congress by the Constitution.
First, it is preventive in that it established a statutory scheme that
attempts to detect government activities likely tainted by
discrimination. By requiring the entity through Title II to show on the
record that distinctions it makes based on disability, or refusals to
provide meaningful access to facilities, programs and services, are not
the result of prejudice or stereotypes, but rather based on legitimate
governmental objectives, it attempts to ensure that inaccurate
stereotypes or irrational fear are not the true cause of the decision.
[See]{.underline}, [e.g.]{.underline}, [Pesterfield]{.underline} v.
[TVA]{.underline}, 941 F.2d 437, 443 n.2 (6th Cir. 1991). This is
similar to the standards articulated by the Court in
[Cleburne]{.underline}.

Second, the ADA is remedial in that it attempts to ensure that the
interests of individuals with disabilities are given their due. Not
surprisingly, given their profound segregation from the rest of society,
[see]{.underline} 42 U.S.C. § 12101(a)(2), the needs of individuals with
disabilities were not taken into account when buildings were designed,
standards were set, and rules were promulgated. Thus, for example,
sidewalks and buildings were often built based on the standards for
those who are not disabled. The ability of individuals in wheelchairs to
use them or of individuals with visual impairments to navigate within
them was not likely considered. [See]{.underline} U.S. Commission on
Civil Rights, [supra]{.underline}, at 21-22, 38. Even when considered,
their interests may not have been properly weighed, since "irrational
fears or ignorance, traceable to the prolonged social and cultural
isolation of \[individuals with disabilities\] continue to stymie
recognition of \[their\] dignity and individuality."
[Cleburne]{.underline} at 467. Congress may conclude that affirmative
measures are necessary to bring them into the mainstream.
[Cf]{.underline}. [Fullilove]{.underline} at 477-478.

Furthermore, Title II requires generally that in certain situations
state and local government programs not unnecessarily exclude
individuals with disabilities, either intentionally or unintentionally,
and that government entities make "[reasonable]{.underline}
modifications to rules, policies, or practices" for a "qualified
individual with a disability," 42 U.S.C. § 12131(2), when the
modifications are "[necessary]{.underline} to avoid discrimination on
the basis of disability," 28 C.F.R. § 35.130(b)(7)(emphasis added).
Furthermore, the regulations implementing Title II include a prohibition
against the failure to make a public entity's programs accessible to
individuals with disabilities. 28 C.F.R. § 35.149 provides that, "\...no
qualified individual with a disability shall, because of a public
entity's facilities are inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the
benefits of the services, programs, or activities of a public
entity\...." While these requirements impose some burden on the states,
the statutory scheme created by Congress acknowledges the importance of
other interests as well. For example, the Act does not require
governmental entities to articulate a "compelling interest," but only
requires "reasonable modifications" that do not entail a "fundamental
alteration in the nature of a service, program, or activity." 28 C.F.R.
§ 35.130(b)(7). In general,

governmental entities need not provide accommodations if they can show
"[undue]{.underline} financial and administrative burdens." 28 C.F.R. §§
35.150(a)(3), 35.164 (emphasis added).

Of course, there is no need for this Court to decide whether every
requirement of Title II could be ordered by a court under the authority
of the Equal Protection Clause. It is sufficient that Congress found
that the ADA was appropriate legislation to redress the rampant
discrimination it discovered in its decades-long examination of the
question. "Legislation 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." [Flores]{.underline} at 2163.

The Defendant's constitutional challenge in the instant case misstates
the relevance of the recent holding in [Flores]{.underline} to Congress'
power to remedy discrimination against individuals with disabilities
through enactment of the ADA. The Religious Freedom Restoration Act
("RFRA"), 42 U.S.C. § 2000bb [et]{.underline} [seq]{.underline}. (the
statute at issue in [Flores]{.underline}) was enacted by Congress in
response to the Supreme Court\'s decision in [Employment
Division]{.underline} v. [Smith]{.underline}, 494 U.S. 872 (1990).
[Smith]{.underline} held that the Free Exercise Clause did not require
states to provide exceptions to neutral and generally applicable laws
even when those laws significantly burdened religious practices.
[See]{.underline} [id]{.underline}. at 887. In RFRA, Congress attempted
to overcome the effects of [Smith]{.underline} by imposing through
legislation a requirement that laws substantially burdening a person\'s
exercise of religion be justified as in furtherance of a compelling
state interest and as the least restrictive means of furthering that
interest. [See]{.underline} 42 U.S.C. § 2000bb-1. The Court found that
in enacting this standard, Congress was not acting in response to a
history of unconstitutional activity. Indeed, "RFRA\'s legislative
record lack\[ed\] examples of modern instances of generally applicable
laws passed because of religious bigotry." [Flores]{.underline} at 2169.
Rather, the Court found that Congress simply disagreed with the Court\'s
decision about the substance of the Free Exercise Clause and was
"attempt\[ing\] a substantive change in constitutional protections."
[Id]{.underline}. at 2170.

As such, the Court found RFRA an unconstitutional exercise of Section 5
authority. It explained that the authority to enforce the Fourteenth
Amendment is a broad power to remedy past and present discrimination and
to prevent future discrimination. [Id]{.underline}. at 2163, 2172. And,
as explained [infra]{.underline}, it reaffirmed that Congress can
prohibit activities that themselves are not unconstitutional in
furtherance of its remedial scheme. [Id]{.underline}. at 2163, 2167,
2169. It stressed, however, that Congress\' power had to be linked to
constitutional injuries, and that there must be a "congruence and
proportionality" between the identified harms and the statutory remedy.
[Id]{.underline}. at 2164.

In [Flores]{.underline} the Court found that RFRA was "out of
proportion" to the problems identified so that it could not be viewed as
preventive or remedial. [Id]{.underline}. at 2170. First, it found that
there was no "pattern or practice of unconstitutional conduct under the
Free Exercise Clause as interpreted in [Smith]{.underline}."
[Id]{.underline}. at 2171; see [also]{.underline} [id]{.underline}. at
2169 (surveying legislative record). It also found that RFRA\'s
requirement that the state prove a compelling state interest and narrow
tailoring imposed "the most demanding test known to constitutional law"
and thus possessed a high "likelihood of invalidat\[ing\]" many state
laws. [Id]{.underline}. at 2171. While stressing that Congress was
entitled to "much deference" in determining the need for and scope of
laws to enforce Fourteenth Amendment rights, [id]{.underline}. at 2172,
the Court found that Congress had simply gone too far in attempting to
regulate local behavior that the statute could no longer be viewed as
remedial. Indeed, the failings of RFRA were not based on the Court's
disagreement with facts found by Congress, but with a determination that
those facts did not justify the alterations proposed by RFRA: "In
contrast to the record which confronted Congress and the judiciary in
the voting rights cases, RFRA's legislative record lacks examples of
modern instances of generally applicable laws passed because of
religious bigotry. The history of persecution in this country detailed
in the hearings mentions no episodes occurring in the past 40 years."
[Flores]{.underline} at 2169.

As we have shown above, none of the specific concerns articulated by the
Court in [Flores]{.underline} apply to the ADA, including Title II.[^9]
However, the ADA differs from RFRA in an even more fundamental way.
Through RFRA, Congress was attempting to expand the substance of
individual rights at the expense of the states. The ADA, on the other
hand, is simply seeking to protect the equal protection rights of
individuals with disabilities by establishing a remedial scheme tailored
to detecting and preventing those activities most likely to be the
result of past or present discrimination.

III. **TITLE II OF THE ADA IS CONSISTENT WITH THE LETTER AND SPIRIT OF
     THE CONSTITUTION**

Not only is Congress institutionally better suited to making
determinations regarding the extent to which a class of individuals has
been discriminated against and the appropriate remedies, it is also
charged by the Constitution with the responsibility for making such
determinations. Although federal courts have an important role to play
in protecting individuals from state infringement of equal protection
rights, Section 5 of the Fourteenth Amendment has vested in Congress the
authority to enact legislation it believes necessary to enforce those
rights \-- giving it power over the states greater than that entrusted
in the judiciary. \"It is not said that the [judicial power]{.underline}
of the general government shall extend to enforcing the prohibition and
protecting the rights and immunities guaranteed\....It is the power of
Congress which has been enlarged.\" [Ex parte Virginia]{.underline} at
345.

In exercising its broad plenary power under Section 5 to remedy the
on-going effects of past discrimination and prevent present and future
discrimination, Congress is afforded "wide latitude."
[Flores]{.underline} at 2164. As the Supreme Court reaffirmed in
[Flores]{.underline}, "\[i\]t is for Congress in the first instance to
\'determine whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment,\' and its conclusions are
entitled to much deference." [Id]{.underline}. at 2172 (quoting
[Katzenbach]{.underline} at 651).

Following this tradition, all of the appellate courts that have
considered the issue are in agreement that Congress\' abrogation of
Eleventh Amendment immunity for suits under the ADA, including Title II,
is "appropriate legislation" to enforce the Fourteenth Amendment.
[See]{.underline}, [e.g.]{.underline}, [Crawford]{.underline} v.
[Indiana Dep\'t of Corrections]{.underline}, 115 F.3d 481, 487 (7th Cir.
1997)("invidious discrimination by governmental agencies\...violates the
equal protection clause even if the discrimination is not racial, though
racial discrimination was the original focus of the clause. In creating
a remedy against such discrimination, Congress was acting well within
its powers under section 5\.... [Clark]{.underline} v.
[California]{.underline}, 123 F.3d 1267, 1270 (9th Cir. 1997)("\[t\]he
Supreme Court has previously held that discrimination against the
disabled is a form of discriminated protected under the Equal Protection
Clause\....the ADA \[is\]\...within the scope of appropriate legislation
under the Equal Protection Clause."); [Armstrong]{.underline} v.
[Wilson]{.underline}, 942 F.Supp. 1252 (N.D.Cal. 1996),
[aff'd]{.underline} [on]{.underline} [other]{.underline}
[grounds]{.underline}, 124 F.3d 1019 (9^th^ Cir, 1997);
[see]{.underline} [also]{.underline} [Autio]{.underline} v.
[Minnesota]{.underline}, 968 F.Supp. 1366, 1370 (D.Minn. 1997),
[appeal]{.underline} [pending]{.underline}, No. 97-3145 (8^th^
Cir.)("Congress enacted the Americans With Disabilities Act to secure
the equal protection rights of individuals with disabilities pursuant to
a valid exercise of its enforcement rights under Section Five of the
Fourteenth Amendment."); [Wallin]{.underline} v. [Minnesota Dep't of
Corrections]{.underline}, 1997 WL 456582, at \*9 (D.Minn. 1997)("This
Court has recently held, and now reaffirms, that ADA claims are not
subject to Eleventh Amendment immunity."); [Williams]{.underline} v.
[Ohio Dep\'t of Mental Health]{.underline}, 960 F.Supp. 1276, 1282
(S.D.Ohio 1997) ("Congress has lawfully enacted the ADA pursuant to its
authority under Section 5 of the Fourteenth Amendment.");
[Hunter]{.underline} v. [Chiles]{.underline}, 944 F.Supp. 914 (S.D.Fla.
1996), [appeal]{.underline} [pending]{.underline}, No. 96-5388 (11^th^
Cir.); [Niece]{.underline} v. [Fitzner]{.underline}, 941 F. Supp. 1497,
1504 (E.D.Mich. 1996)("\[b\]ecause both the Rehabilitation Act of 1973
and the ADA are proper exercises of Congress' power to enforce the
provisions of the Fourteenth Amendment, and because in both acts
Congress has indicated in clear, unequivocal language its intent to
abrogate states' Eleven Amendment immunity, the Court should conclude
that the Eleventh Amendment does not bar the plaintiffs' suit.");
[Mayer]{.underline} v. [University of Minnesota]{.underline}, 940
F.Supp. 1474 (D.Minn. 1996); [Doe]{.underline} v. [Judicial Nominating
Convention]{.underline}, 906 F.Supp. 1534, 1539 (S.D.Fla. 1995)(noting
that ADA was passed under the Congress' powers under Fourteenth
Amendment in rejecting argument that ADA violated Tenth Amendment);
[Ellen S.]{.underline} v. [Florida Bd. Of Bar Examiners]{.underline},
859 F.Supp. 1489, 1494-1495 (S.D.Fla. 1995)(same);
[Eisfelder]{.underline} v. [Michigan Dep't of Natural
Resources]{.underline}, 847 F.Supp. 78, 82 (W.D.Mich. 1993);
[but]{.underline} [see]{.underline} [Nihiser]{.underline} v. [Ohio
Envtl. Protection]{.underline} [Agency]{.underline}, 1997 WL 627071
(S.D. Ohio 1997), [appeal]{.underline} [pending]{.underline}, No.
97-3933 (6^th^ Cir.); [Pierce]{.underline} v. [King]{.underline}, 918
F.Supp 932 (E.D.N.C. 1996)(dictum), [appeal]{.underline}
[pending]{.underline}, No. 96-6450 (4^th^ Cir.). (Although some of these
decisions pre-date [Flores]{.underline}, for the reasons discussed above
they remain good law.)

CONCLUSION

The Eleventh Amendment is no bar to this Court\'s jurisdiction over this
action. Title II of the ADA may be construed to proscribe conduct that
is not intentional.

STATEMENT IN SUPPORT OF ORAL ARGUMENT

Because the constitutionality of federal statutes is at issue, the
United States believes that its presence at oral argument would be
appropriate. [See]{.underline} 28 U.S.C. § 2403(a).

> Respectfully Submitted,
>
> ISABELLE KATZ PINZLER
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date: November 6, 1997
>
> JOHN L. WODATCH
>
> ALLISON NICHOL
>
> STEVEN E. BUTLER
>
> Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> United States Department\
> of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-8887

CERTIFICATE OF SERVICE

I hereby certify that on November 6, 1997, a copy of the foregoing Brief
for the United States as Intervenor, Opposition to Defendant's Cross
Motion for Partial Summary Judgment, was served via Federal Express
overnight delivery on the following counsel:

Stephen F. Gold

125 South Ninth Street

Suite 700

Philadelphia, Pennsylvania

19107

\(215\) 627-7100

Ilene W. Shane

Disabilities Law Project

801 Arch Street, Suite 610

Philadelphia, Pennsylvania 19107-2421

Attorneys for Plaintiffs

John A. Kane

Department of Public Welfare

Office of Legal Counsel

302 State Office Building

1400 Spring Garden Street

Philadelphia, Pennsylvania 19130

\(215\) 560-2192

Attorney for Defendant

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

STEVEN E. BUTLER

Attorney

[^1]: ^/^ In addition, the Defendant's reliance upon the decision in
    [Pierce]{.underline} v. [King]{.underline}, 918 F.Supp. 932
    (E.D.N.C. 1996) is not persuasive. In this case, the district court
    held that the Fourteenth Amendment does not permit Congress to
    impose the ADA upon state prisons. [Id]{.underline}. at 939. The
    court failed to engage in any meaningful analysis to determine
    whether Title II validly was enacted by Congress pursuant to its
    Section 5 powers, and its holding is in square opposition to the
    decisions of other courts addressing virtually the same issue
    concerning prisons, including the Third Circuit. [See]{.underline},
    [e.g.]{.underline}, [Yeskey]{.underline} v. [Pennsylvania Dep't of
    Corrections]{.underline}, 118 F.3d 168 (3^rd^ Cir. 1997);
    [Armstrong]{.underline} v. [Wilson]{.underline}, 1997 WL 525521
    (9^th^ Cir. 1997); [Crawford]{.underline} v. [Indiana Dep't of
    Corrections]{.underline}, 115 F.3d 481 (7^th^ Cir. 1997);
    [Clark]{.underline}, [supra]{.underline}; [Niece]{.underline} v.
    [Fitzer]{.underline}, 941 F.Supp. 1497 (E.D.Mich. 1996). An appeal
    in [Pierce]{.underline} currently is pending before the Fourth
    Circuit. No. 96-6450.

[^2]: ^/^ For example, in enacting the Individuals with Disabilities in
    Education Act, Congress had determined that millions of children
    with disabilities were either receiving no education whatsoever, an
    inadequate education, or receiving their education in an
    unnecessarily segregated environment. [See]{.underline} 20 U.S.C. §
    1400(b)(2)-(4); [see]{.underline} [also]{.underline} [Bd. of
    Educ.]{.underline} v. [Rowley]{.underline}, 458 U.S. 176, 191-203
    (1982)(surveying legislative findings); [Cook]{.underline} at
    413-414.

[^3]: ^/^ S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989)(quoting
    without attribution [Alexander]{.underline} v. [Choate]{.underline},
    469 U.S. 287, 295 (1985); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d
    Sess. 29 (1990) (same); 136 Cong. Rec. 10,870 (1990)(Rep. Fish);
    [id]{.underline}. at 11,467 (Rep. Dellums).

[^4]: ^/^ \"For example, under \[the ADA\], local and state governments

    are required to provide curb cuts on public streets. The

    employment, transportation, and public accommodation sections of
    this Act would be meaningless if people who use wheelchairs were not
    afforded the opportunity to travel on and between the streets.\"
    H.R. Rep. No. 485, Pt. 2, [supra]{.underline}, at 84. Similarly,
    Congress intended \"that the telephone emergency services operated
    by local and state governments be accessible to \[hearing impaired
    and speech impaired\] individuals. This means that such telephone
    emergency systems must be equipped with technology that gives these
    individuals direct access to emergency services.\" H.R. Rep. No.
    558, 101st Cong., 2d Sess. 63 (1990); S. Rep. No. 596, 101st Cong.,
    2d Sess. 67-68 (1990); [see]{.underline} [also]{.underline} H.R.
    Rep. No. 485, Pt. 2, [supra]{.underline}, at 39, 85. These are clear
    examples of government practices that while neutral on their face
    and perhaps not intended to discriminate, are nevertheless grossly
    discriminatory in effect.

[^5]: ^/^ Since the enactment of the ADA, individuals with disabilities
    "have experienced increased access to many environments and
    services" and "employment opportunities have increased." National
    Council on Disability, [Achieving Independence: The Challenge for
    the 21st Century]{.underline} 34 (1996). (The Council is an
    independent federal agency charged with gathering information about
    the effectiveness and impact of the ADA, [see]{.underline} 29 U.S.C.
    § 780a, 781(a)(7)). However, discrimination continues to be a
    significant force in the lives of individuals with disabilities.
    [See]{.underline} [id]{.underline}. at 14-16, 35-36; National
    Council on Disability, [ADA Watch \-- Year One: A Report to the
    President and the Congress on Progress in Implementing the Americans
    with Disabilities Act]{.underline} 36 (1993)("Reports of
    discrimination abound in formal actions through the courts and
    federal agencies, in statistical survey data, and in anecdotal
    evidence.").

[^6]: ^/^ As Congress's power to craft appropriate legislation under the
    Equal Protection Clause is not limited to conduct that is
    intentional, neither is it so limited with regard to whether a
    victim of discrimination protected by the Act is a member of a
    "suspect class." \"The fact that the Supreme Court has subjected
    governmental classifications involving suspect classes to a higher
    level of scrutiny than other classifications does not prevent
    Congress from finding that another class of persons has been
    subjected to a history of unequal treatment and legislating pursuant
    to its enforcement powers under the Fourteenth Amendment to protect
    that class of persons from arbitrary discrimination.\"
    [Mayer]{.underline} v. [University of Minn.]{.underline}, 940
    F.Supp. 1474, 1479 (D.Minn. 1996); [see]{.underline}
    [also]{.underline} [Clark]{.underline} at 1271 ("We reject \[the
    defendant's\] argument that Congress' power must be limited to the
    protection of those classes found by the Court to deserve "special
    protection" under the Constitution.")

[^7]: ^/^ [Alexander]{.underline} was discussing Section 504 of the
    Rehabilitation

    Act of 1973, 29 U.S.C. § 794. The Third Circuit has acknowledged the
    relevance and applicability of case law interpreting the
    Rehabilitation Act, when considering matters arising under Title II.
    [See]{.underline} [Helen L.]{.underline} v. [Didario]{.underline},,
    46 F.3d 325, 333-34 (3^rd^ Cir. 1995), [cert]{.underline}.
    [denied]{.underline}, 116 S.Ct. 64 (1995). [See]{.underline}
    [also]{.underline} [McPherson]{.underline} v. [Michigan High Sch.
    Athletic Ass\'n, Inc.]{.underline}, 119 F.3d 453, 460 (6th Cir.
    1997)(en banc); [Parker]{.underline} v. [Metropolitan Life Ins.
    Co.]{.underline}, 121 F.3d 1006, 1016 n.13 (6th Cir. 1997)(en
    banc)("Over sixteen years after the Rehabilitation Act was enacted,
    Congress, concerned that the Rehabilitation Act alone was inadequate
    to eradicate discrimination against the disabled, signed into law
    the ADA, which has a broader scope than the Rehabilitation Act.").

[^8]: ^/^ Moreover, in a series of Supreme Court cases beginning with
    [Griffin]{.underline} v. [Illinois]{.underline}, 351 U.S. 12 (1956),
    and culminating in [M.L.B.]{.underline} v. [S.L.J.]{.underline},
    \_\_ U.S. \_\_, 117 S.Ct. 555 (1996), the Court instructed that
    principles of equality are sometimes violated by treating unlike
    persons alike. In these cases, the Court held that a state violates
    the Equal Protection Clause in treating indigent parties appealing
    from certain court proceedings as if they were not indigent. Central
    to these holdings is the acknowledgment that \"a law
    nondiscriminatory on its face may be grossly discriminatory in its
    operation.\" [M.L.B.]{.underline} at 569 (quoting
    [Griffin]{.underline} at 17 n.11). The Court held in these cases
    that even though states are applying a facially neutral policy by
    charging all litigants equal fees for an appeal, the Equal
    Protection Clause requires states to waive such fees in order to
    ensure equal \"access\" to appeal. [Id]{.underline}. at 560. Nor is
    it sufficient if a state permits an indigent person to appeal
    without charge, but does not provide free trial transcripts. The
    Court has declared that the State cannot \"extend to such indigent
    defendants merely a \'meaningless ritual\' while others in better
    economic circumstances have a \'meaningful appeal.\'\"
    [Id]{.underline}. at 569 n.16 (quoting [Ross]{.underline} v.
    [Moffitt]{.underline}, 417 U.S. 600, 612 (1974)).

[^9]: ^/^ First, there was substantial evidence by which Congress could
    have determined that there was a "pattern or practice of
    unconstitutional conduct." Second, the statutory scheme imposed by
    Congress did not attempt to impose a compelling interest standard,
    but a more flexible test that requires "[reasonable]{.underline}
    modifications." This finely-tuned balance between the interests of
    individuals with disabilities and public entities plainly manifests
    a "congruence" between the "means used" and the "ends to be
    achieved." [See]{.underline} [Flores]{.underline} at 2169. Moreover,
    there is no problem regarding judicially manageable standards, as
    the courts have regularly applied the "reasonable accommodation"
    test under Section 504 to recipients of federal funds for the past
    20 years.