**IN THE UNITED STATES DISTRICT COURT**

**SOUTHERN DISTRICT OF ALABAMA**

**SOUTHERN DIVISION**

**)**

**VIRGIL LANCASTER, )**

**)**

**Plaintiff )**

**)**

**v. ) Civil Action No. 94-1016-BH-C**

**)**

**CITY OF MOBILE, ALABAMA, )**

**)**

**Defendant )**

**)**

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

**UNITED STATES\' MEMORANDUM OF LAW**

**IN SUPPORT OF THE CONSTITUTIONALITY OF THE**

**AMERICANS WITH DISABILITIES ACT**

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

# INTRODUCTION

This is an employment discrimination case, brought pursuant to Title I
of the Americans with Disabilities Act (\"ADA\"), 42 U.S.C. §§ 12101-17.
Plaintiff Virgil Lancaster alleges that the City of Mobile (\"the
City\") discriminated against him on the basis of his learning
disability in its job application and hiring processes. Specifically,
Lancaster alleges that the City failed to provide him with reasonable
accommodations during its written examination for the position of
\"body/paint mechanic,\" and that the City did not hire Lancaster for
this position because Lancaster failed the written examination.[^1]

On December 13, 1995, this Court directed the parties to brief the
question of whether the ADA is constitutional under the Commerce Clause
and the Fourteenth Amendment to the Constitution. This Court
subsequently certified the question of the ADA\'s constitutionality to
the Attorney General pursuant to 28 U.S.C.\
§ 2403, and granted the United States\' motion to intervene as of right.
The United States demonstrates below that Congress properly exercised
its powers, under both the Fourteenth Amendment and the Commerce Clause,
in prohibiting disability discrimination by local government employers
under Title I of the ADA.[^2]

# ARGUMENT

**I. THE AMERICANS WITH DISABILITIES ACT**

The Americans with Disabilities Act, 42 U.S.C. § 12101 [et]{.underline}
[seq.]{.underline}, is Congress\' most extensive piece of civil rights
legislation since the Civil Rights Act of 1964. Its purpose is to
provide \"a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.\" 42 U.S.C. §
12101(b)(1). The ADA\'s coverage is accordingly broad \-- prohibiting
discrimination on the basis of disability in employment, State and local
government programs and services, transportation systems,
telecommunications, commercial facilities, and the provision of goods
and services offered to the public by private businesses.

In enacting the ADA, Congress explicitly invoked \"the sweep of
congressional authority, including the power to enforce the fourteenth
amendment and to regulate commerce, 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 case concerns Title I of the ADA, 42 U.S.C.
§§ 12101-17, which prohibits disability discrimination by private and
public employers. 42 U.S.C. §§ 12111(5)(A), 12112(a). Because the
Defendant in this action is a city employer, this memorandum addresses
only the constitutionality of Title I\'s provisions with respect to such
employers. As set forth below, both the Fourteenth Amendment and the
Commerce Clause provide authority for Congress to enact these
provisions.

**II TITLE I OF THE ADA IS A VALID EXERCISE OF CONGRESS\' POWER TO
REMEDY DENIALS OF EQUAL PROTECTION PURSUANT TO SECTION 5 OF THE
FOURTEENTH AMENDMENT**

## A. Congress\' Section 5 Powers Are Broad

Section 5 of the Fourteenth Amendment grants Congress the \"power to
enforce, by appropriate legislation, the provisions of the Fourteenth
Amendment,\" including those barring the states from depriving citizens
of \"equal protection of the laws.\" U.S. Const. Am. 14, § 5. It is well
established that Congress\' authority under the Fourteenth Amendment
includes the power to reach the conduct not only of States, but of local
governments, such as the City of Mobile. [See]{.underline},
[e.g.]{.underline}, [Lombard v. Louisiana]{.underline}, 373 U.S. 267,
273 (1963); [The Civil Rights Cases]{.underline}, 109 U.S. 3 (1883); [Ex
Parte Virginia]{.underline}, 100 U.S. 339 (1880).[^3]

Section 5 authorizes Congress not only to provide remedies for
violations of the Fourteenth Amendment, but also to amplify its
substantive protections. [Katzenbach v. Morgan]{.underline}, 384 U.S.
641, 648-49 (1966); [cf]{.underline}. [City of Richmond v. J.A. Croson
Co.]{.underline}, 488 U.S. 469, 490 (1989) (O\'Connor, J., concurring
and dissenting)(Congress\' power to enforce the Fourteenth Amendment
includes \"the power to define situations which Congress determines
threaten principles of equality and to adopt prophylactic rules to deal
with those situations\"). The Federal courts, in a variety of contexts,
have upheld legislation under Section 5 that created broader rights than
the Constitution itself mandates.

For example, in [Katzenbach v. Morgan]{.underline}, 384 U.S. 641, the
Supreme Court held that Congress had authority to bar the states from
requiring literacy tests of persons who had attained a sixth grade
education in Puerto Rico, even though the Court had previously ruled in
[Lassiter v. Northampton County Bd. of Elections]{.underline}, 360 U.S.
45, 53-54 (1959), that a state\'s use of literacy tests does not deny
equal protection. The Court reasoned that Congress could prohibit such
tests to protect against what Congress found to be a denial of equal
protection, the judiciary\'s more limited view of equal protection
notwithstanding. [Morgan]{.underline}, 384 U.S. at 649, 652. The Court
explained that Section 5 does not \"confine the legislative power . . .
to the insignificant role of abrogating only those state laws that the
judicial branch was prepared to adjudge unconstitutional,\"
[id.]{.underline} at 648-649, but rather grants it broad power to
\"extend\[\]\" the protections provided by the Constitution.
[Id.]{.underline} at 657.[^4]

There is thus no merit to the City\'s suggestion that Section 5 of the
Fourteenth Amendment empowers Congress only to enact legislation
redressing race discrimination. [See]{.underline} Defendant\'s
Supplemental Brief in Support of Summary Judgment at 18. The Equal
Protection Clause itself has never been so narrowly construed. The Equal
Protection Clause is \"essentially a direction that all persons
similarly situated should be treated alike.\" [City of Cleburne v.
Cleburne Living Center]{.underline}, 473 U.S. 432, 439 (1985), citing
[Plyler v. Doe]{.underline}, 457 U.S. 202, 216 (1982). Indeed, the
Supreme Court, using various levels of scrutiny, has held that the
Clause prohibits discrimination on the basis of, [inter
alia]{.underline}, sex,[^5] national origin,[^6] alienage,[^7]
disability,[^8] poverty,[^9] illegitimacy,[^10] length of
residency,[^11] property ownership,[^12] and living in a household of
unrelated persons.[^13] Moreover, as the cases collected in footnote 4,
[supra]{.underline}, demonstrate, Congress has power under Section 5 of
the Fourteenth Amendment to enact legislation providing for broader
rights than the Amendment itself secures directly.

> **B. As Applied to State and Local Government Employers, Title I of
> the ADA Is A Valid Exercise Of Congress\' Section 5 Powers**[^14]

In examining congressional authority to legislate under Section 5, the
proper focus is on whether the legislation is \"appropriate
legislation\" under the Amendment, rather than whether the conduct
prohibited in the legislation specifically violates the Equal Protection
Clause or other provisions of the Amendment. [Morgan]{.underline}, 384
U.S. at 648-9. In determining whether a statute is properly within
Congress\' power, judicial review is limited to determining \"whether
\[the statute\] may be regarded as an enactment to enforce the Equal
Protection Clause, whether it is \'plainly adapted to that end\' and
whether it is not prohibited by but is consistent with \'the letter and
spirit of the constitution.\'\" [Id.]{.underline} at 651 (quoting
[McCulloch v. Maryland]{.underline}, 17 U.S. (4 Wheat.) 316, 421 (1819)
(footnote omitted)).

> **1. As Applied to State and Local Government Employers, Title I of
> the ADA is \"Appropriate Legislation\" to Enforce the Fourteenth
> Amendment**

As applied to public employers, Title I of the ADA is unquestionably
\"appropriate legislation\" to enforce the Equal Protection Clause.
First, Title I certainly \"may be regarded as an enactment to enforce
the Equal Protection Clause.\" Indeed, in enacting Title I, Congress
specifically invoked its \"power to enforce the fourteenth amendment.\"
42 U.S.C. § 12101(b)(4). Congress also formally found, [inter
alia]{.underline}, that:

> . . . (2) historically, society has tended to isolate and segregate
> individuals with disabilities, and, despite some improvements, such
> forms of discrimination against individuals with disabilities continue
> to be a serious and pervasive social problem;
>
> \(3\) discrimination against individuals with disabilities persists in
> such critical areas as employment, . . . ;
>
> \(4\) unlike individuals who have experienced discrimination on the
> basis of race, color, sex, national origin, religion, or age,
> individuals who have experienced discrimination on the basis of
> disability have often had no legal recourse to redress such
> discrimination; . . .
>
> \(7\) individuals with disabilities are a discrete and insular
> minority who have been faced with restrictions and limitations,
> subjected to a history of purposeful unequal treatment, and relegated
> to a position of political powerlessness in our society, based on
> characteristics that are beyond the control of such individuals and
> resulting from stereotypic assumptions not truly indicative of the
> individual ability of such individuals to participate in, and
> contribute to, society;
>
> \(8\) the Nation\'s proper goals regarding individuals with
> disabilities are to assure equality of opportunity, full
> participation, independent living, and economic self-sufficiency for
> such individuals. . . .

42 U.S.C. § 12101(a). As applied to public employers, the prohibition of
arbitrary, discriminatory employment decisions, based not on an
individual\'s ability to perform a job, but on misperceptions and
stereotypic assumptions concerning what members of a class can and
cannot do, is the very essence of equal protection guarantees.[^15]

Second, title I of the ADA is \"plainly adapted\" to furthering the aims
of the Equal Protection Clause. Title I ensures that persons with
disabilities are provided equal employment opportunities and are
protected from discriminatory government conduct. The statute
specifically prohibits discrimination by public employers against
qualified individuals with disabilities in job application procedures;
the hiring or discharge of employees; employee compensation;
advancement; job training; and other terms, conditions, and privileges
of employment. 42 U.S.C. § 12112(a).[^16]

Finally, Title I \"is not prohibited by but is consistent with the
\'letter and spirit of the constitution.\'\" Title I protects a class of
individuals vulnerable to disparate and adverse treatment by State and
local government employment practices, while not requiring employers to
hire individuals who are not \"otherwise qualified,\" i.e., those who
cannot perform the \"essential functions of the job,\" 42 U.S.C. §§
12111(8), 12112(a), 12112(b)(5)(A), or those who pose a \"significant
risk to the health or safety of others.\" 42 U.S.C. §§ 12111(3),
12113(a), 12113(b). As such, the Act is tailored to the traditional
Equal Protection goal of protecting a discrete class of individuals from
arbitrary and capricious action by the State, and thus is a valid
exercise of Congress\' Section 5 powers.[^17]

2\. Case Law Regarding Earlier Civil Rights Statutes Further Supports
the Conclusion that Congress had the Authority to Enact Title I Under
the Fourteenth Amendment

To the best of the government\'s knowledge, this is the first case in
which the constitutionality of Title I has been drawn into
question.[^18] With respect to Title I, case law under earlier civil
rights statutes supports the argument that Congress properly invoked its
authority under the Fourteenth Amendment to prohibit disability-based
employment discrimination by State and local governments.

It is well established that the 1972 amendments to Title VII, which
extended that statute\'s coverage to State and local government
employers, are properly grounded in Section 5. [Fitzpatrick v.
Bitzer]{.underline}, 427 U.S. 445, 453-56, & 453 n.9 (1976).
[See]{.underline} [also]{.underline} [Freeman v. Michigan Dep\'t of
State]{.underline}, 808 F.2d 1174, 1177 (6th Cir. 1987); [Scott v. City
of Anniston]{.underline}, 597 F.2d 897, 900 (5th Cir. 1979), [cert.
denied]{.underline}, 446 U.S. 917 (1980); [United States v.
Gregory]{.underline}, 818 F.2d 1114, 1119 (4th Cir. 1987), [cert.
denied]{.underline} 484 U.S. 847 (1987); [Shawer v. Indiana University
of Pennsylvania]{.underline}, 602 F.2d 1161, 1163-64 (3d Cir. 1979);
[United States v. New Hampshire]{.underline}, 539 F.2d 277, 280-81 (1st
Cir. 1976), [cert. denied]{.underline}, 429 U.S. 1023 (1976). Just as
Title VII\'s coverage of State and local governments is a valid exercise
of Congress\' Section 5 powers, so too is Title I\'s, whose enforcement
provisions are directly patterned after Title VII. [See]{.underline}
H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 31, 48 (1990).[^19]

A similar analysis was considered and adopted by the courts in
determining whether the Age Discrimination in Employment Act (ADEA), 29
U.S.C. §§ 521 et seq., was a valid exercise of Congress\' Section 5
powers in prohibiting discrimination by public employers. The courts
noted ADEA\'s similarities to Title VII and found that prior rulings
upholding Title VII\'s constitutionality were persuasive authority for
upholding ADEA as well. [See]{.underline} [Ramirez v. Puerto Rico Fire
Service]{.underline}, 715 F.2d 694, 700 (1st Cir. 1983); [E.E.O.C. v.
County of Calumet]{.underline}, 686 F.2d 1249, 1253 (7th Cir. 1982);
[E.E.O.C. v. Elrod]{.underline}, 674 F.2d 601, 607 (7th Cir. 1982);
[Arritt v. Grisell]{.underline}, 567 F.2d 1267, 1270-71 (4th Cir. 1977).
As the First Circuit stated: \"The striking substantive similarity
between the two acts militates strongly in favor of the conclusion that
the identical reservoir of congressional power was the well-spring for
both.\" [Ramirez]{.underline}, 715 F.2d at 700.

Further support for Title I\'s constitutionality can be found in the
constitutionality of Section 504 of the Rehabilitation Act (\"Section
504\"), 29 U.S.C. § 794, which prohibits discrimination on the basis of
disability by programs and activities receiving federal financial
assistance. The substantive provisions of Title I are modeled after
Section 504. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 31
(1990). The Supreme Court has noted that Section 504 also was enacted
pursuant to Congress\' enforcement authority under the Fourteenth
Amendment. [See]{.underline} [Welch v. Texas Dep\'t of Highways & Public
Transp.]{.underline}, 483 U.S. 468, 472 n.2 (1987), citing [Atascadero
State Hosp. v. Scanlon]{.underline}, 473 U.S. 234, 244 n.4 (1985).

**III TITLE I OF THE ADA IS A VALID EXERCISE OF CONGRESS\' POWER TO
REGULATE COMMERCE**

In enacting Title I, Congress also invoked its authority under the
Commerce Clause. 42 U.S.C. § 12101(b)(4). Because Title I\'s coverage of
State and local governments falls well within Congress\' power to
enforce the Fourteenth Amendment, it is unnecessary for this Court to
address the question of whether Title I is also a constitutional
exercise of Congress\' power to regulate commerce. [Cf]{.underline}.
[E.E.O.C. v. Wyoming]{.underline}, 460 U.S. 226, 243 (1983). The Supreme
Court, however, has held that the Commerce Clause affords Congress
independent authority to prohibit discriminatory conduct by public
employers. [Wyoming]{.underline}, 460 U.S. at 243 (application of ADEA
to State and local government employers is valid exercise of Congress\'
commerce powers and does not violate Tenth Amendment; no need to
determine whether ADEA is also valid exercise of Congress\' Section 5
powers).[^20]

**A. Title I of the ADA Reaches Only Those Employers that are Engaged in
Industries Affecting Commerce and Thus is Within the Scope of Congress\'
Commerce Authority**

As the Supreme Court recently reaffirmed in [United States v.
Lopez]{.underline}, 115 S. Ct. 1624 (1995), the Commerce Clause, U.S.
Const., Art. I, § 8, cl. 3, empowers Congress to: (1) regulate the use
of the channels of interstate commerce; (2) \"regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce;\" and (3) regulate or prohibit \"activities that
substantially affect interstate commerce.\"

115 S. Ct. at 1629-30. \"Where economic activity substantially affects
interstate commerce, legislation regulating that activity will be
sustained.\" [Id]{.underline}. at 1630 (citations omitted).

The jurisdictional provisions of Title I ensure that the statute reaches
only those activities that substantially affect interstate commerce.
Specifically, application of Title I is limited to those employers
\"engaged in an industry affecting commerce.\" 42 U.S.C. § 12111(5)(A).
Title I incorporates the definitions of \"commerce\" and \"affecting
commerce\" found in Title VII of the 1964 Civil Rights Act. 42 U.S.C. §
12111(7).[^21]

After considering similar jurisdictional language in the National Labor
Relations Act, 29 U.S.C. § 151 et seq., the Supreme Court held that that
statute was a valid exercise of Congress\' Commerce Clause powers. [NLRB
v. Jones & Laughlin Steel Corp.]{.underline}, 301 U.S. 1, 31 (1937).
Specifically, the Court held that the authority granted to the National
Labor Relations Board \-- namely, the authority to prevent unfair labor
practices that \"affect commerce\":

> reach\[es\] only what may be deemed to burden or obstruct that
> commerce and, thus qualified, it must be construed as contemplating
> the exercise of control within constitutional bounds. It is a familiar
> principle that acts which directly burden or obstruct interstate or
> foreign commerce, or its free flow, are within the reach of
> congressional power.

[Id]{.underline}.

The Court in [Lopez]{.underline} cited with approbation [Jones &
Laughlin Steel Corp.]{.underline}, as well as other cases upholding the
validity of statutes containing jurisdictional requirements such as

Title I\'s. [Lopez]{.underline}, 115 S. Ct. at 1628-29, 1631. As the
Court noted, such jurisdictional elements \"ensure, through case-by-case
inquiry, that the \[activity\] in question affects interstate
commerce.\" [Id]{.underline}. at 1631.

Moreover, the Eleventh Circuit has recognized that cities, such as the
City of Mobile, are \"engaged in \[industries\] affecting commerce.\"
[See]{.underline}, [e.g.]{.underline}, [Williams v. City of
Montgomery]{.underline}, 742 F.2d 586, 588-89 (11th Cir. 1984)(City of
Montgomery is an \"employer\" within the meaning of Title VII), [cert.
denied]{.underline}, 470 U.S. 1053 (1985); [Dumas v. Town of Mt. Vernon,
Alabama]{.underline}, 612 F.2d 974, 979 (5th Cir. 1980) (Town of Mt.
Vernon is an \"employer\" within the meaning of Title VII). Thus, Title
I of the ADA, like the National Labor Relations Act, is a valid exercise
of Congress\' Commerce Clause powers, both on its face and as applied to
the facts of this case.

**B. Title I of the ADA Proscribes Conduct That Congress Rationally
Found Substantially Affects Interstate Commerce, and Thus is Within the
Scope of Congress\' Commerce Authority**

Congressional findings further support the conclusion that Title I is a
valid exercise of Congress\' commerce powers. The Court has held that in
determining whether a federal statute may be sustained as a proper
exercise of Congress\' Commerce Clause power, courts \"[must
defer]{.underline} to a congressional finding that a regulated activity
affects interstate commerce if there is [any rational basis]{.underline}
for such a finding.\" [Hodel v. Virginia Surface Mining & Reclamation
Ass\'n Inc.]{.underline}, 452 U.S. 264, 276 (1981) (emphasis added).
Courts may look to statutory findings, as well as congressional
committee findings, to assess the rationality of Congress\' conclusions.
[Lopez]{.underline}, 115 S. Ct. at 1631-1632; [Katzenbach v.
McClung]{.underline}, 379 U.S. 294, 299, 304 (1964) (noting that
Congress is not required to make formal findings). Once the court
\"find\[s\] that the legislators, in light of the facts and testimony
before them, have a rational basis for finding a chosen regulatory
scheme necessary to the protection of commerce, \[its\] investigation is
at an end.\" [McClung]{.underline}, 379 U.S. at 303-304 (cited with
approval in [Virginia Surface Mining & Reclamation Ass\'n]{.underline},
452 U.S. at 276).

In enacting Title I, Congress specifically found that disability-based
discrimination adversely affects the national economy:

> \(9\) the continuing existence of unfair and unnecessary
> discrimination and prejudice denies people with disabilities the
> opportunity to compete on an equal basis . . . and costs the United
> States billions of dollars in unnecessary expenses resulting from
> dependency and nonproductivity.

42 U.S.C. § 12101(a).

Indeed, the record of the ADA\'s passage is replete with testimony
concerning the specific burdens that disability-based employment
discrimination places on interstate commerce. [See]{.underline}

S. Rep. No. 116, 101st Cong., 1st Sess. (1989); H.R. Rep. No. 485, 101st
Cong. 2d Sess., pt. 2 (1990); H.R. Rep. No. 485, 101st Cong. 2d Sess.,
pt. 3 (1990); [see]{.underline} [also]{.underline} 136 Cong. Rec.
E1913-01 (daily ed. May 22, 1990)(statement of Rep. Hoyer). This
testimony includes the fact that millions of persons with disabilities
who want to work and who are able to work have been excluded
discriminatorily from the workforce; that even those who do work earn
incomes significantly less than those of their non-disabled
counterparts; that employment discrimination makes persons with
disabilities dependent on social welfare programs and thus costs society
billions of dollars annually in support payments; that elimination of
employment discrimination will result in increased spending on consumer
goods and increased tax revenues; that persons with disabilities
comprise a pool of educated and talented workers necessary to offset
potential upcoming labor shortages; and that the employment of persons
with disabilities is essential if the nation is to remain competitive in
the international marketplace. S. Rep. No. 116, 101st Cong., 1st Sess.
at 16-18 (1989); H.R. Rep. No. 485, 101st Cong. 2d Sess., pt. 2, at
32-34, 43-45 (1990).

Similar effects on interstate commerce have been upheld by the Supreme
Court as legitimate bases for Congress\' exercise of its commerce
powers. [See]{.underline}, [e.g.]{.underline}, [Fry v. United
States]{.underline}, 421 U.S. 542, 547 (1975) (increased purchasing
power resulting from increased wages); [Perez v. United
States]{.underline}, 402 U.S. 146, 156 (1971) (loss of income and
employment resulting from extortionate credit transactions); [Maryland
v. Wirtz]{.underline}, 392 U.S. 183, 195 (1968) (changing competitive
positions in marketplace resulting from decreased wages and substandard
labor conditions), overruled on other grounds, [National League of
Cities v. Usery]{.underline}, 426 U.S. 833 (1976), overruled by [Garcia
v. San Antonio Metro. Transit Authority]{.underline}, 469 U.S. 528
(1985); [McClung]{.underline}, 379 U.S. at 299 (diminished spending
resulting from race discrimination); [Heart of Atlanta Motel, Inc. v.
United States]{.underline}, 379 U.S. 241, 252-53 (1964) (diminished
travel resulting from race discrimination); [Wickard v.
Filburn]{.underline}, 317 U.S. 111, 128 (1942) (changing market
conditions resulting from individual consumption of food products).

[Lopez]{.underline} does not change this analysis. At issue in
[Lopez]{.underline} was the Gun-Free School Zones Act, which forbade the
possession of firearms in a school zone, and which the Court ruled
exceeded Congress\' Commerce Clause power. The [Lopez]{.underline}
decision, however, specifically reaffirmed the validity of the Court\'s
previous Commerce Clause decisions. [Lopez]{.underline}, 115 S. Ct. at
1634. [See]{.underline} [id.]{.underline} at 1637 (Kennedy, J. and
O\'Connor, J., concurring)(affirming Commerce Clause precedent in the
area of discrimination, and the principle that \"Congress can regulate
in the commercial sphere on the assumption that we have a single market
and a unified purpose to build a stable national economy\"). Of
particular concern in [Lopez]{.underline} was the fact that the School
Zones Act was a criminal statute, typically a subject of State and
local, not federal legislation, [id]{.underline}. at 1631 n.3, 1632, and
\"by its terms ha\[d\] nothing to do with \'commerce\' or any sort of
economic enterprise however broadly one might define those terms.\"
[Id]{.underline}. at 1630-31.

By contrast, as explained above, Title I of the ADA deals with
commercial actors, public and private employers. Moreover, \"the design
of the statute ha\[s\] an evident commercial nexus,\" [id]{.underline}.
at 1640; it ensures access to employment, and is designed to ensure
equality of opportunity and economic self-sufficiency to a significant
sector of the national economy. Thus, in contrast to
[Lopez]{.underline}, where neither the prohibited conduct (possession of
a gun near schools), nor its immediate effect (increase in violence in
schools) was commercial, the immediate effect of the prohibited conduct
here is a burden to commercial transactions. Prohibition of employment
discrimination on the basis of disability is thus well within Congress\'
power to protect and foster commerce. [Lopez]{.underline}, 115 S. Ct. at
1630.[^22]

# CONCLUSION

For the reasons set forth above, Title I of the ADA should be sustained
as a valid exercise of Congress\' powers under the Fourteenth Amendment
and the Commerce Clause.

> Respectfully submitted,

J. DON FOSTER DEVAL L. PATRICK

United States Attorney Assistant Attorney General

Southern District of Alabama Civil Rights Division

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> JOHN L. WODATCH
>
> JOAN A. MAGAGNA
>
> SHARON N. PERLEY
>
> Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-6016

[^1]: ^?^ Title I of the ADA requires public employers to provide
    reasonable accommodations for the known disabilities of job
    applicants, including the \"appropriate adjustment or modifications
    of examinations.\" 42 U.S.C. §§ 12111(9)(B); 12112(a); 12112(5)(A).
    Providing an oral, rather than written, examination to an otherwise
    qualified job applicant with a learning disability is the type of
    accommodation required under the statute unless the employer can
    show that this would impose an \"undue hardship.\" 42 U.S.C. §
    12112(5)(A). [Cf.]{.underline} [Stutts v. Freeman]{.underline}, 694
    F.2d 666 (11th Cir. 1983) (suit under Section 504 of the
    Rehabilitation Act, 29 U.S.C. § 794) (failure to hire dyslexic
    individual for position of heavy equipment operator, because of
    applicant\'s failure to pass written examination, without provision
    of alternative oral exam or adjustment of entry requirements that
    would have accommodated applicant\'s dyslexia, discriminates on the
    basis of disability).

[^2]: ^?^ In order to uphold the constitutionality of Title I, the Court
    need not reach the Commerce Clause issue, if it finds the statute
    authorized under the Fourteenth Amendment.

[^3]: ^?^ [See]{.underline} [also]{.underline} Rotunda & Nowak,
    [Treatise on Constitutional Law: Substance and
    Procedure]{.underline}, 2nd ed. § 16.1, at 524:

    > . . . actions of any governmental entity give rise to state action
    > for the purposes of constitutional limitations. Any subdivision of
    > a state, . . . such as a city, represents government or state
    > authority to a sufficient degree to invoke constitutional
    > restrictions on its actions.

[^4]: ^?^ [See]{.underline} [also]{.underline} [Flores v. City of
    Boerne]{.underline}, 73 F.3d 1352, 1358-61 (5th Cir. 1996)(upholding
    enactment of the Religious Freedom Restoration Act, 42 U.S.C. §
    2000bb et seq., as valid exercise of Congress\' Section 5 powers,
    despite the Supreme Court\'s holding in [Employment Div., Dep\'t of
    Human Resources v. Smith]{.underline}, 494 U.S. 872 (1990), [reh\'g
    denied]{.underline}, 496 U.S. 913 (1990), that the First Amendment
    does not bar application of a facially neutral, generally applicable
    law to religiously motivated conduct); [Ramirez v. Puerto Rico Fire
    Service]{.underline}, 715 F.2d 694 (1st Cir. 1983) (upholding the
    Age Discrimination in Employment Act, 29 U.S.C. § 626(b), as a valid
    exercise of Congress\' Section 5 powers despite the Supreme Court\'s
    holding in [Massachusetts Bd. of Retirement v. Murgia]{.underline},
    427 U.S. 307 (1976), that a state mandatory retirement law did not
    violate the Equal Protection Clause); [E.E.O.C. v.
    Elrod]{.underline}, 674 F.2d 601, 608-09 n.6 (7th Cir. 1982)(same).

[^5]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Craig v.
    Boren]{.underline}, 429 U.S. 190 (1976); [Frontiero v.
    Richardson]{.underline}, 411 U.S. 677 (1973).

[^6]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Oyama v.
    California]{.underline}, 332 U.S. 633 (1948).

[^7]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Plyler]{.underline},
    457 U.S. 202; [Graham v. Richardson]{.underline}, 403 U.S. 365
    (1971).

[^8]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Cleburne]{.underline},
    473 U.S. 432.

[^9]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Griffin v.
    Illinois]{.underline}, 351 U.S. 12 (1956).

[^10]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Mills v.
    Habluetzel]{.underline}, 456 U.S. 91 (1982); [Matthews v.
    Lucas]{.underline}, 427 U.S. 495 (1976).

[^11]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Zobel v.
    Williams]{.underline}, 457 U.S. 55 (1982).

[^12]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Quinn v.
    Millsap]{.underline}, 491 U.S. 95 (1989).

[^13]: ^?^ [See]{.underline}, [e.g.]{.underline}, [United States Dep\'t
    of Agriculture v. Moreno]{.underline}, 413 U.S. 528 (1973).

[^14]: ^?^ The only question before this Court is whether Congress has
    the authority to reach the discriminatory conduct of public

    \-- not private \-- employers under Title I of the ADA.

[^15]: ^?^ [Cf]{.underline}. [Ramirez v. Puerto Rico Fire
    Service]{.underline}, 715 F.2d 694, 699-700 (1st Cir. 1983) (Age
    Discrimination in Employment Act may be regarded as an enactment to
    enforce the Equal Protection Clause); [E.E.O.C. v. County of
    Calumet]{.underline}, 686 F.2d 1249, 1252-53 (7th Cir. 1982) (same);
    [Scott v. City of Anniston]{.underline}, 597 F.2d 897, 900 (5th Cir.
    1979) (Title VII of the 1964 Civil Rights Act may be regarded as an
    enactment to enforce the Equal Protection Clause), [cert.
    denied]{.underline}, 446 U.S. 917 (1980); [United States v. New
    Hampshire]{.underline}, 539 F.2d 277, 280-81 (1st Cir. 1976) (same),
    [cert. denied]{.underline}, 429 U.S. 1023 (1976).

[^16]: ^?^ [Cf]{.underline}. [Ramirez]{.underline}, 715 F.2d at 699-70;
    [County of Calumet]{.underline}, 686 F.2d at 1252-53;
    [Scott]{.underline}, 597 F.2d at 900; [New Hampshire]{.underline},
    539 F.2d at 280-81.

[^17]: ^?^ [Cf]{.underline}. [Ramirez]{.underline}, 715 F.2d at 699-70;
    [County of Calumet]{.underline}, 686 F.2d at 1252-53;
    [Scott]{.underline}, 597 F.2d at 900; [New Hampshire]{.underline},
    539 F.2d at 280-81.

[^18]: ^?^ Three courts have rejected constitutional challenges to Title
    III of the Act, 42 U.S.C. §§ 12181-89, which prohibits disability
    discrimination in privately owned places of public accommodation and
    commercial facilities. [See]{.underline} [Abbott v.
    Bragdon]{.underline}, 912 F. Supp. 580, 592-94 (1995) (upholding
    Title III\'s application to a private dental practice); [United
    States v. Morvant]{.underline}, 898 F. Supp. 1157, 1167 (E.D. La.
    1995)(same); [Pinnock v. International House of Pancakes
    Franchisee]{.underline}, 844 F. Supp. 574, 579 (S.D.Cal.
    1993)(upholding Title III\'s application to a restaurant), [cert.
    denied]{.underline}, 114 S. Ct. 2726 (1994). Title III was enacted
    pursuant to Congress\' power under the Commerce Clause.
    [Abbott]{.underline} specifically considered and rejected the
    argument that Title III exceeded Congress\' authority under the
    Commerce Clause under the standards set forth in [United States v.
    Lopez]{.underline}, 115 S. Ct. 1624 (1995). [Abbott]{.underline},
    912 F. Supp. at 592-94.

[^19]: ^?^ Indeed, in discussing Title I\'s enforcement provisions,
    Congress stated that the ADA\'s prohibitions are \"designed to
    provide civil rights protections for persons with disabilities
    parallel to those available to minorities and women.\" H.R. Rep. No.
    485, 101st Cong., 2d Sess., pt. 3 at 48 (1990).

[^20]: ^?^ In its recent decision in [Seminole Tribe of Florida v.
    Florida]{.underline}, 116 S.Ct. 1114 (1996), the Supreme Court
    indicated that Congress enjoys greater power under the Fourteenth
    Amendment vis-a-vis States than it does under the Commerce Clause.
    [Id]{.underline}. at 1125, 1128, 1131. The Court, citing
    [Fitzpatrick]{.underline}, recognized Congress\' power under the
    Fourteenth Amendment to abrogate the States\' Eleventh Amendment
    immunity, but expressly overruled [Pennsylvania v. Union Gas
    Co.]{.underline}, 491 U.S. 1 (1989), in which a plurality had ruled
    that Congress could also abrogate Eleventh Amendment immunity of the
    States in Commerce Clause legislation. [Id]{.underline}. at 1128.
    [Seminole]{.underline} has no application in this case, however,
    because cities do not enjoy Eleventh Amendment immunity. [Mt.
    Healthy City School District Bd. of Educ. v. Doyle]{.underline}, 429
    U.S. 274, 280 (1977).

[^21]: ^?^ [See]{.underline} 42 U.S.C. §§ 2000e(g), 2000e(h):

    > The term \"commerce\" means trade, traffic, commerce,
    > transportation, transmission, or communication among the several
    > States; or between a State and any place outside thereof; or
    > within the District of Columbia, or a possession of the United
    > States; or between points in the same State but through a point
    > outside thereof.
    >
    > The term \"industry affecting commerce\" means any activity,
    > business, or industry in commerce or in which a labor dispute
    > would hinder or obstruct commerce or the free flow of commerce and
    > includes any activity or industry \"affecting commerce\" within
    > the meaning of the Labor-Management Reporting and Disclosure Act
    > of 1959, and further includes any governmental industry, business
    > or activity.

    [See]{.underline} [also]{.underline} [Polish Nat\'l Alliance of the
    United States of North America v. NLRB]{.underline}, 322 U.S. 643,
    647 (1944) (when Congress \"wants to bring aspects of commerce
    within the full sweep of its constitutional authority, it manifests
    its purpose by regulating not only \'commerce\' but also matters
    which \'affect,\' interrupt,\' or \'promote\' interstate
    commerce\").

[^22]: ^?^ The Eleventh Circuit recently rejected a [Lopez]{.underline}
    challenge to the Freedom of Access to Clinic Entrances Act (\"Access
    Act\"), 18 U.S.C. § 248. [Cheffer v. Reno]{.underline}, 55 F.3d 1517
    (11th Cir. 1995). The Court held that even after
    [Lopez]{.underline}, Congress\' findings \"provide a rational basis
    for concluding that the Access Act regulates activity \[the
    provision of reproductive health services\] which \'substantially
    affects\' interstate commerce,\" and that \"the Access Act is a
    constitutional exercise of Congress\' power under the Commerce
    Clause.\" [Id]{.underline}. at 1521.