Number range CHAPTER

**IN THE UNITED STATES DISTRICT COURT**

**[FOR THE DISTRICT OF MARYLAND]{.underline}**

**SOUTHERN DIVISION**

**PATHWAYS PSYCHOSOCIAL :**

**SUPPORT CENTER, INC., [et]{.underline} [al]{.underline}.**

**:**

**Plaintiffs,**

**:**

**v. Civil Action No. DKC-99-1362**

**:**

**TOWN OF LEONARDTOWN, [et]{.underline} [al.]{.underline},**

**:**

**Defendants.**

**:**

**\...ooOoo\...**

**MEMORANDUM OF LAW OF THE**

**[UNITED STATES OF AMERICA AS AMICUS CURIAE]{.underline}**

The United States of America, by its undersigned counsel, submits this
Memorandum of Law as *Amicus* *Curiae*.

**TABLE OF CONTENTS**

**PAGE**

I. INTRODUCTION 1

II\. ARGUMENT 1

> A. Legal Standard 1
>
> B. Plaintiffs\' ADA Claim 2
>
> 1\. The ADA in General 2
>
> 2\. Plaintiffs Have Standing to Sue Under the ADA 4
>
> a\. Article III and Prudential Limitations 5
>
> i\. Article III Standing 6
>
> ii\. Prudential Limitations 7
>
> 1\. The Language of the Act Itself Supports Pathways\' Standing to Sue
> under the ADA 8
>
> 2\. The Department of Justice\'s Interpretation of Title II of the ADA
> Also Supports Pathways\' Pathways\' Standing to Sue 9
>
> 3\. The ADA\'s Legislative History Adds Even\
> Further Support for Pathways\' Standing\
> to Sue 12
>
> 4\. Prevailing Case Law Supports Pathways\'\
> Standing to Sue 12
>
> C. Plaintiffs\' Rehabilitation Claim 17
>
> 1\. The Rehabilitation Act in General 17
>
> 2\. Plaintiffs Have Stated a Claim under § 504 of the\
> Rehabilitation Act 21

III\. CONCLUSION 24

[TABLE OF AUTHORITIES]{.underline}

[FEDERAL CASES]{.underline}

PAGE

[Kessler Institute for Rehabilitation, Inc. v. Mayor and Council of
Essex Fells]{.underline},

876 F. Supp. 641 (D.N.J. 1995) 13

[Advanced Health-Care Services, Inc. v. Radford Community
Hospital]{.underline},

910 F.2d 139 (4th Cir. 1990) 1, 2, 22

[Bay Area Addiction Research and Treatment, Inc. v. City of
Antioch]{.underline}, \_\_\_ F.3d \_\_\_,

9 A.D. Cases 5

[Bentley v. Cleveland County Board of County Commissioners]{.underline},
41 F.3d 600 (10th Cir.

1994\) 21

[Bob Jones University v. Johnson]{.underline}, 396 F. Supp. 597 (D.S.C.
1974), aff\'d, 529 F.2d 514

(4th Cir. 1975) 21

[Buckhannon Board & Care Home v. West Virginia Dept. of
Health]{.underline}, 19 F. Supp.2d 567

(N.D. W.Va. 1998) 12

[Byers v. Rockford Mass Transit District]{.underline}, 635 F. Supp. 1387
(N.D. Ill. 1986) 22, 24

[Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837

\(1984\) 10, 11

[Civic Association of the Deaf of the City of New York, Inc. v.
Guiliani]{.underline}, 915 F. Supp. 622

(S.D.N.Y. 1996) 11

[Comer v. Cisneros]{.underline}, 37 F.3d 775 (2d Cir. 1994) 16

[Concerned Parents to Save Dreher Park Center v. City of West Palm
Beach]{.underline}, 846 F.

Supp. 986 (S.D. Fla. 1994) 13, 14

[Epicenter of Steubenville, Inc. v. City of Steubenville]{.underline},
924 F. Supp. 845 (S.D. Ohio 1996) 16

[Family & Children\'s Center, Inc. v. School City of
Mishawaka]{.underline}, 13 F.3d 1052 (7th Cir. 1994) 6

[Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35
(D.D.C. 1994) 11

[Finlator v. Powers]{.underline}, 902 F.2d 1158 (4th Cir. 1990) 5, 6

[Finley v. Giacobbe]{.underline}, 827 F. Supp. 215 (S.D.N.Y. 1993) 4, 17

[Gladstone Realtors v. Village of Bellwood]{.underline}, 441 U.S. 91
(1979) 6, 10

[Growth Horizons, Inc. v. Delaware County, Pa.]{.underline}, 983 F.2d
1277 (3d Cir. 1993) 13

[Havens Realty Corp. v. Coleman]{.underline}, 455 U.S. 363 (1982) 13

[Henning v. Village of Mayfield Village]{.underline}, 610 F. Supp. 17
(N.D. Ohio 1985) 21

[Huber v. Howard County, Maryland]{.underline}, 849 F. Supp. 407 (D. Md.
1994) 20, 22

[Innovative Health Systems, Inc. v. City of White Plains]{.underline},
117 F.3d 37 (2d

Cir. 1997) 5, 12, 14, 17, 19, 22, 23

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993), cert.
denied, 511 U.S. 1033 (1994) 12

[Lujan v. Defenders of Wildlife]{.underline}, 504 U.S. 555 (1992) 2, 6,
7, 22

[Motor Coach Ind., Inc. v. Dole]{.underline}, 725 F.2d 958 (4th Cri.
1984) 7

[Noland v. Wheatley]{.underline}, 835 F. Supp. 476 (N.D. Ind. 1993) 4,
11

[Oak Ridge Care Center v. Racine County, Wis.]{.underline}, 896 F. Supp.
867 (E.D. Wis. 1995) 7, 12, 16

[Olmstead v Zimring]{.underline}, \_\_\_ U.S. \_\_\_, 1999 WL 407380, 9
A.D. Cases 705 (June 22, 1999),

3, 9, 10

[Pennsylvania Department of Corrections v. Yeskey]{.underline}, 524 U.S.
206 (1998) 4

[Petersen v. University of Wis. Board of Regents]{.underline}, 818 F.
Supp. 1276 (W.D. Wis. 1993) 4, 11

[Raver v. Capitol Area Transit]{.underline}, 887 F. Supp. 96 (M.D. Pa.
1995) 13

[Schroeder v. City of Chicago]{.underline}, 927 F.2d 962 (7^th^ Cir.
1991) 20, 22

[Sierra Club v. Morton]{.underline}, 405 U.S. 727 (1972) 5

[Sullivan v. City of Pittsburgh]{.underline}, 811 F.2d 171 (3d Cir.),
cert. denied, 484 U.S. 849 (1987) 18, 19

[Tugg v. Towey]{.underline}, 864 F. Supp. 1201 (S.D. Fla. 1994) 10, 11,
13

[Winfred v. City of Chicago]{.underline}, 957 F. Supp. 1014 (N.D. Ill.
1997) 23

**FEDERAL STATUTES**

20 U.S.C. § 1687 18, 19

28 C.F.R. § 35.104 2, 9, 16

29 U.S.C. § 701 18

42 U.S.C. § 12182(b) 12

42 U.S.C. § 12101 2, 3

29 U.S.C. § 794 1, 8, 14, 22

42 U.S.C. § 12131(1) 2

42 U.S.C. § 12132 2, 8, 14

42 U.S.C. § 12134(b) 8, 9

42 U.S.C. § 12134(a) 9, 10

42 U.S.C. § 12182(b)(1)(E) 8, 9, 12

42 U.S.C. § 12201 9

42 U.S.C. § 12206(c)(3) 11

20 U.S.C. § 1687 18

**FEDERAL RULES**

Fed. R. Civ. P. 12(b)(6) 1

**MISCELLANEOUS**

H.R. Rep. No. 435 (III), 101st Cong., 2d Sess. 51 (1990) 3, 4, 12

S. Rep. No. 64, 100th Cong., 2d Sess. 1-2 (1988) 18, 22

S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989) 4

**I. INTRODUCTION**

Plaintiffs bring this action seeking injunctive relief and monetary
damages under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §
12101, *et seq*., § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794, and under the equal protection and due process clauses of the
United States Constitution based on Defendants' refusal to approve
Pathways Psychosocial Support Center, Inc.\'s ("Pathways") request for a
grant to purchase a building in downtown Leonardtown and the subsequent
denial of an occupancy permit to enable Pathways to operate a
rehabilitation center for people with mental disabilities in downtown
Leonardtown.

In the pending motion, Defendants claim, *inter alia*, that Pathways
does not have standing to sue under the ADA because Pathways does not
fall within the definition of a "qualified individual with a
disability", and that it has failed to assert a viable claim under § 504
of the Rehabilitation Act because it has not alleged that there exists a
nexus between the federal financial assistance that Defendants receive
and the alleged discriminatory conduct. Defendants' arguments, however,
are contrary to the plain language of these two important civil rights
statutes. Moreover, Defendants' arguments run contrary to the statutes'
legislative history, the Department of Justice regulations interpreting
the statutes, and the prevailing case law. Accordingly, for the reasons
set forth in greater detail below, the United States, as *amicus*
*curiae*, respectfully submits that this Court should deny Defendants\'
Motion to Dismiss.

**II. ARGUMENT**

> **A. [Legal Standard]{.underline}**

In assessing a motion to dismiss for failure to state a claim under Fed.
R. Civ. P. 12(b)(6), the court must accept the factual allegations
contained in the complaint as true. *Advanced Health-Care Services, Inc.
v. Radford Community Hosp.*, 910 F.2d 139, 143 (4th Cir. 1990).
Dismissal is appropriate pursuant to Rule 12(b)(6) only if "\'it appears
to a certainty that the plaintiff would be entitled to no relief under
any state of facts which could be proven in support of its claim.'"
*Id*. at 143-144 (quoting *Johnson v. Mueller*, 415 F.2d 354, 355 (4th
Cir. 1969). Thus, for purposes of Defendants' Motion to Dismiss, the
Court must accept the factual allegations set forth in Plaintiffs\'
complaint.

In standing cases, the United States Supreme Court has made clear that
"\[a\]t the pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice, for on a motion to
dismiss we 'presum\[e\] that general allegations embrace those specific
facts that are necessary to support the claim.'" *Lujan v. Defenders of
Wildlife*, 504 U.S. 555, 561 (1992)(quoting *Lujan v. National Wildlife
Federation*, 497 U.S. 871, 889 (1990)).

> **B. [Plaintiffs' ADA Claim]{.underline}**
>
> **1. [The ADA in General]{.underline}**

The Americans With Disabilities Act states: "No 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. "Public entity" is defined, in relevant
part, to include "any department, agency, special purpose district, or
other instrumentality of a State or States or local government." 42
U.S.C. § 12131(1); 28 C.F.R. § 35.104.

The ADA was enacted in 1990 to eliminate pervasive societal
discrimination against individuals with disabilities. 42 U.S.C. § 12101.
Congress found that individuals with disabilities, including persons
with mental disabilities, had historically been subject to isolation and
segregation, and had been discriminated against in \"such critical areas
as . . . recreation, . . . health services, . . . and access to public
services.\" *Id*. at § 12101(a)(2),(3); *Olmstead v. Zimring*, \_\_\_
U.S. at \_\_\_, 1999 WL 407380 at \*14, 9 A.D. Cases 705 (June 22,
1999)(Kennedy, J.)(concurring in judgment)("persons with mental
disabilities have been subject to historic mistreatment, indifference,
and hostility."). This discrimination had taken various forms: both
outright intentional exclusion as well as failures to make changes in
existing practices and facilities, such that persons with disabilities
are relegated to \"lesser services, programs, activities, benefits, . .
. or other opportunities.\" *Id*. at § 12101(a)(5). Congress observed
that persons with disabilities \"are notably underprivileged and
disadvantaged,\" and that they \"are much poorer, have far less
education, have less social and community life, participate much less
often in social activities\" than do persons without disabilities, and
that these disadvantages are due to \"discriminatory policies, based on
unfounded, outmoded stereotypes and perceptions, and deeply imbedded
prejudices.\" H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 23 (1990),
*reprinted in* 1990 U.S.C.C.A.N. 445, 447-48.

In enacting the ADA, Congress sought 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, services, and activities, public and private transportation
systems, telecommunications, public accommodations, and commercial
facilities.

The ADA was meant to effect a considerable change in the ways in which
private businesses and State and local governments treat and serve
individuals with disabilities. It established new federal civil rights,
to be enforced federally. Congress noted that \"there is a need to
ensure that the Federal Government plays a central role in enforcing
these standards on behalf of individuals with disabilities.\" S. Rep.
No. 116, 101st Cong., 1st Sess. 20 (1989) (hereinafter \"Senate
Report\"); *see also* H.R. Rep. No. 485 (II), 101st Cong., 2d Sess.
47-48, *reprinted in* 1990 U.S.C.C.A.N. 303, 329-30. Congress stressed
that federal intervention was critical, because \"State laws are
inadequate to address the pervasive problems of discrimination that
people with disabilities are facing.\"[^1] Congress chose not to require
the exhaustion of State or administrative remedies prior to the issuance
of federal judicial relief under title II. *See, e.g.,* *Noland v.
Wheatley*, 835 F. Supp. 476, 482 (N.D. Ind. 1993); *Finley v. Giacobbe*,
827 F. Supp. 215, 219 (S.D.N.Y. 1993); *Petersen v. University of Wis.
Bd. of Regents*, 818 F. Supp. 1276 (W.D. Wis. 1993).

> **2.** **[Plaintiffs Have Standing to Sue Under the ADA]{.underline}**

In their Motion to Dismiss, Defendants do not contest that zoning
decisions are covered by the ADA. Indeed, it is by now well-established
that zoning falls within the wide ambit of the ADA. *See*, *e.g.*,
*Pennsylvania Department of Corrections v. Yeskey*, 524 U.S. 206
(1998)(title II of the ADA applies to all State activities); *Bay Area
Addiction Research and Treatment, Inc. v. City of Antioch*, \_\_\_ F.3d
\_\_\_, 9 A.D. Cases 722, 1999 WL 351126 (9th Cir. 1999)("We hold that
Title II of the ADA and § 504 of the Rehabilitation Act apply to zoning
ordinances . . . ."); *Innovative Health Systems, Inc. v. City of White
Plains*, 117 F.3d 37, 44-45 (2d Cir. 1997)("\[B\]oth the ADA and the
Rehabilitation Act clearly encompass zoning decisions by the City
because making such decisions is a normal function of a governmental
entity."). Instead, Defendants claim that Pathways does not have
standing to sue in its own right or on behalf of its current and future
clients. *Defendants' Memo.* at 8. More particularly, Defendants claim
that Pathways does not have standing to sue in its own right because it
is not "a qualified individual with a disability," as that term is
employed under the Act, and that it cannot sue on behalf of its current
and future clients inasmuch as Pathways cannot base its claims upon the
rights of third persons. *Id*. Defendants' arguments, however, find no
support in the ADA, the regulation interpreting title II, its
legislative history, or the prevailing case law.

> **a. [Article III and Prudential Limitations]{.underline}**

Article III of the United States Constitution requires that a party have
standing in order to invoke the jurisdiction of the federal courts. In
addressing the issue of standing, a court must determine whether a party
has a sufficient personal stake in the outcome of an otherwise
justiciable controversy to obtain relief through a judicial resolution
of that controversy. *Sierra Club v. Morton*, 405 U.S. 727, 731 (1972).
"Simply stated, the consideration of standing ensures the
appropriateness of a particular party to pursue specific litigation."
*Finlator v. Powers*, 902 F.2d 1158, 1160 (4th Cir. 1990). Standing
questions must be resolved according to a two-part inquiry that
considers (1) Article III constitutional limitations and (2) prudential
limitations. *Gladstone Realtors v. Village of Bellwood*, 441 U.S. 91,
99 (1979). A litigant must pass both constitutional and prudential
muster to have standing to sue. *Family & Children\'s Center, Inc. v.
School City of Mishawaka*, 13 F.3d 1052, 1058 (7th Cir. 1994).

> **i. [Article III Standing]{.underline}**

To establish standing under Article III, a litigant must establish that
(1) it suffered actual or threatened injury; (2) the condition
complained of caused the injury or threatened injury, and (3) the
requested relief redressed the alleged injury." *Lujan v. Defenders of
Wildlife*, 504 U.S. 555, 560 (1992); *Finlator*, 902 F.2d at 1160.[^2]
"In the shorthand analysis of standing, these three basic requirements
are referred to as injury-in-fact, causation and redressability, and
they are central to any discussion of standing." *Finlator*, 902 F.2d at
1160. Pathways satisfies all three elements.

Pathways alleges that it has sustained "substantial and significant
damages" as a result of being denied access to two properties in
downtown Leonardtown to operate a rehabilitation center for people with
mental disabilities. *Complaint* at ¶ 42. Thus, Pathways has been
"injured in fact." Moreover, the Defendants\' denial of a grant to
enable Pathways to purchase a building in downtown Leonardtown and the
subsequent denial of an occupancy permit to enable Pathways to operate a
rehabilitation center for people with mental disabilities caused the
injuries sustained by Pathways. Finally, the injunctive relief and
monetary damages sought by Pathways will redress its sustained injuries.

Pathways has suffered an injury in fact fairly traceable to Defendants\'
conduct that a favorable decision by this Court would remedy. *Lujan*,
504 U.S. at 560. Clearly, then, Pathways\' complaint satisfies Article
III's constitutional standing requirements, and Defendants\' assertion
that Pathways has not met the Constitutional requirements of Article III
standing is simply wrong. *See, e.g., Oak Ridge Care Center v. Racine
County, Wis.*, 896 F. Supp. 867, 871 (E.D. Wis. 1995)(elder care
facility had Article III standing under ADA).

> **ii. [Prudential Limitations]{.underline}**

When addressing standing, a court must also consider whether prudential
limitations bar standing. Prudential limitations do not apply, however,
when Congress, by legislation, has expanded standing to the full extent
permitted by Article III, thereby overriding prudential standing
limitations and authorizing all persons who satisfy the Constitution's
standing requirements to bring a particular action in federal court.
"The standing question . . . is made less troublesome when Congress has
identified the litigant as someone entitled to pursue
statutorily-created rights to the fullest extent permitted by article
III. In these circumstances, our standing inquiry is narrowed to
constitutional limitations alone, because Congress has displaced the
need to independently invoke prudential rules of self-restraint." *Motor
Coach Ind., Inc. v. Dole*, 725 F.2d 958, 963 (4th Cri. 1984)(citing
*Gladstone, Realtors v. Village of Bellwood*, 441 U.S. 91, 100 (1979)).

Congress clearly intended that litigants such as Pathways be accorded
standing to sue under the ADA based not only on its own legal rights but
also the legal rights and interests of its current and future clients.
The language of the ADA, the Department of Justice\'s regulation
interpreting title II and Technical Assistance Manual, the statute\'s
legislative history, and the prevailing case law make this abundantly
clear.

> **1. The Language of the Act Itself Supports Pathways' Standing to
> Sue\
> [Under the
> ADA                                                                                        ]{.underline}**

Congress granted broad enforcement powers under title II of the ADA,
which prohibits discrimination on the basis of disability in general
terms, 42 U.S.C. § 12132, and extends relief to \"any *person* alleging
discrimination on the basis of disability.\" 42 U.S.C. § 12133 (emphasis
added). That \"person\" need not be an individual with a disability, as
Defendants maintain, but may be an entity or anyone who is injured by a
covered entity\'s discrimination, as evidenced by the express protection
from discrimination that Congress conferred on individuals and entities
on the basis of association with individuals with disabilities.

Titles I and III make clear that the ADA applies to discrimination
against individuals and entities on the basis of association. *See* 42
U.S.C. § 12182(b)(1)(E) (explicitly in title III\'s list of prohibited
discrimination is that against \"an individual or entity because of the
known disability of an individual with whom the individual or entity is
known to have a relationship or association\"); *see also* 42 U.S.C. §
12112(b)(4) (title I provision prohibiting discrimination on the basis
of association). While titles I and III provide numerous specific
provisions defining prohibited discrimination, 42 U.S.C. §§ 12112 &
12182, Congress simply prohibited discrimination by public entities in
general terms in title II, rather than repeating the specific provisions
of titles I and III. 42 U.S.C. § 12132. Moreover, Congress explicitly
required in title II that the Department of Justice\'s title II
regulations be \"consistent with this chapter,\" 42 U.S.C. § 12134(b),
meaning consistent with the entire Act. *See* \"References In Text\" to
42

U.S.C. § 12201 (\"Construction\"). Thus, the general non-discrimination
provisions of title II encompass the more specific types of
discrimination, including discrimination on the basis of association,
that are set forth in titles I and III. Contrary to Defendants\'
argument, therefore, title II of the ADA does confer standing on
Pathways to sue on behalf of itself and as a result of its association
with individuals with disabilities.

> **2. The Department of Justice's Interpretation of Title II of the[\
> ADA Also Supports Pathways\' Standing to
> Sue                     ]{.underline}**

The Department of Justice regulation implementing title II also confirms
that title II prohibits discrimination against entities associated with
individuals with disabilities.[^3] The regulation specifically provides:
\"A public entity shall not exclude or otherwise deny equal services,
programs, or activities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known
to have a relationship or association.\" 28 C.F.R. § 35.130(g) (1994).
The Department of Justice\'s preamble to the title II regulation further
emphasizes the intent to protect entities associated with individuals
with disabilities. In discussing § 35.130(g), the preamble provides:

> Paragraph (g), which prohibits discrimination on the basis of an
> individual\'s or entity\'s known relationship or association with an
> individual with a disability, is based on sections 102(b)(4) and
> 302(b)(1)(E) (42 U.S.C. § 12182(b)(1)(E)) of the ADA. . . .
>
> This protection is not limited to those who have a familial
> relationship with the individual who has a disability. Congress
> considered, and rejected, amendments that would have limited the scope
> of this provision to specific associations and relationships. . . .
>
> During the legislative process, the term \"entity\" was added to
> section 302(b)(1)(E) to clarify that the scope of the provision is
> intended to encompass not only persons who have a known association
> with a person with a disability, but also entities that provide
> services to or are otherwise associated with such individuals. This
> provision was intended to ensure that entities such as health care
> providers, employees of social service agencies, and others who
> provide professional services to persons with disabilities are not
> subjected to discrimination because of their professional association
> with persons with disabilities.

28 C.F.R. pt. 35, App. A at 453.

The Department of Justice\'s interpretation of title II is entitled to
controlling weight. The regulation was issued pursuant to statutory
mandate. 42 U.S.C. § 12134(a). Accordingly, it is to be given
\"controlling weight unless \[it is\] arbitrary, capricious, or
manifestly contrary to the statute.\" *Olmstead v. Zimring*, \_\_\_ U.S.
\_\_\_, 1999 WL 407380 at \* 9, 9 A.D. Cases 705 (June 22, 1999);[^4]
*Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.*, 467
U.S. 837, 844 (1984). *See also Gladstone Realtors v. Village of
Bellwood*, 441 U.S. 91, 103 n.9 (1979); *Tugg v. Towey*, 864 F. Supp.
1201, 1205 n.6, 1208 (S.D. Fla. 1994) (according Department of
Justice\'s title II regulation controlling weight regarding coverage of
discrimination on the basis of association); *Civic Ass\'n of the Deaf
of the City of New York, Inc. v. Guiliani*, 915 F. Supp. 622, 635
(S.D.N.Y. 1996) (giving title II regulations controlling weight);
*Noland v. Wheatley*, 835 F. Supp. 476, 483 (N.D. Ind. 1993) (applying
*Chevron* to give controlling weight to Department of Justice
interpretation of title II); *Petersen v. University of Wisconsin Bd. of
Regents*, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993) (same). Clearly, this
regulation is far from \"arbitrary, capricious, or manifestly contrary
to the statute.\" *Chevron*, 467 U.S. at 844.

Furthermore, pursuant to statutory authority, 42 U.S.C. § 12206(c)(3),
the Department of Justice has published its title II Technical
Assistance Manual (\"TA Manual\") to assist the public in understanding
and complying with the statute and the regulations. The TA Manual
provides:

> A State or local government may not discriminate against *individuals
> or entities because of their known relationship or association with
> persons who have disabilities*. This prohibition applies to cases
> where the public entity has knowledge of both the individual\'s
> disability and his or her relationship to another individual or
> entity. In addition to family relationships, the prohibition covers
> any type of association between the individual or entity that is
> discriminated against and the individual or individuals with
> disabilities, if the discrimination is actually based on disability. .
> . .

TA Manual § II-3.9000 at 17 (November 1993) (emphasis added).

The foregoing authorities make abundantly clear that Pathways has
standing to sue on behalf of itself and the clients it serves. *See Tugg
v. Towey*, 864 F. Supp. at 1208 (relying on the preamble regarding
coverage of association); *Fiedler v. American Multi-Cinema, Inc.*, 871
F. Supp. 35, 36 n.4 (D.D.C. 1994) (according controlling weight to title
III Technical Assistance Manual); *Noland*, 835 F. Supp. at 483 (relying
on TA Manual\'s interpretation of title II); *Petersen*, 818 F. Supp. at
1280 (same).

> **3. The ADA's Legislative History Adds Even Further Support[\
> For Pathways' Standing to
> Sue                                                 ]{.underline}**

The ADA\'s legislative history underscores Congress\' intent that title
II include the prohibition of discrimination on the basis of
association. In emphasizing its intent that title II\'s prohibitions
\"be identical to those set out in the applicable provisions of titles I
and III of this legislation. . . ,\" H.R. Rep. No. 485 (II), 101st
Cong., 2d Sess. 84 (1990), *reprinted in* 1990 U.S.C.C.A.N. 303, 367,
the House Committee on Education and Labor directed that \"the
construction of \'discrimination\' set forth in section 302(b) (42
U.S.C. § 12182(b)) should be incorporated in the regulations
implementing this title.\" *Id*. The House Committee on the Judiciary
report explained that \"title II should be read to incorporate
provisions of titles I and III . . . such as Section 102(b)(4) of the
ADA \[42 U.S.C. § 12112(b)(4)\].\" H.R. Rep. No. 435 (III), 101st Cong.,
2d Sess. 51 (1990), *reprinted* *in* 1990 U.S.C.C.A.N. 303, 474.
Therefore, title II\'s protections must be read to be consistent with
title III\'s protections. *See Kinney v. Yerusalim*, 9 F.3d 1067, 1073
n.6 (3d Cir. 1993) (noting that this legislative history shows that
Congress intended titles II and III to be read consistently), *cert.
denied*, 511 U.S. 1033 (1994).

> **4. [Prevailing Case Law Supports Pathways\' Standing to
> Sue]{.underline}**

Of those courts to address the specific issue of title II's protection
of individuals and entities subjected to discrimination on the basis of
their association with individuals with disabilities, most courts have
determined that an institution has standing to sue under title II. *See
Innovative Health Systems, Inc. v. City of White Plains*, 117 F.3d 37,
44-45 (2d Cir. 1997); *Buckhannon Board & Care Home v. West Virginia
Dept. of Health*, 19 F. Supp.2d 567 (N.D. W.Va. 1998); *Oak Ridge Care
Center v. Racine County, Wis.*, 896 F. Supp. 867, 872-73 (E.D.Wis.
1995); *Tugg v. Towey*, 864 F. Supp. 1201, 1205 (S.D. Fla. 1994);
*Concerned Parents to Save Dreher Park Center v. City of West Palm
Beach*, 846 F. Supp. 986, 990 (S.D. Fla. 1994). *See also Havens Realty
Corp. v. Coleman*, 455 U.S. 363, 379 (1982)(fair housing organization
had standing to sue in its own right under Fair Housing Act, a civil
rights statute closely analogous to the ADA); *Growth Horizons, Inc. v.
Delaware County, Pa.*, 983 F.2d 1277, 1282 (3d Cir. 1993)(corporation
that provided community living arrangements to mentally ill individuals
had standing to sue under Fair Housing Act); *Raver v. Capitol Area
Transit*, 887 F. Supp. 96, 98 (M.D. Pa. 1995)(nonprofit corporation that
seeks to assure equal access to mass transportation facilities for
persons with disabilities has standing to sue under ADA).

The only case cited by Defendants in support of their argument that
Pathways lacks standing to sue under the ADA is *Kessler Inst. for
Rehabilitation, Inc. v. Mayor and Council of Essex Fells*, 876 F. Supp.
641 (D.N.J. 1995). *Defendants' Memo*. at 8-9. In *Kessler*, however,
the court failed to address the provisions of the statute discussed
above, the clear language of the regulation interpreting title II, the
legislative history, or the Department of Justice\'s technical
assistance manual. Based, as it apparently was, on a cursory and
incomplete reading of the statute, that decision is contrary to the law
and should not be relied upon by this Court. To do so would frustrate
congressional intent and overrule statutorily-required regulations in
contravention of established principles of judicial review.[^5]

*Innovative Health Systems, , Buckhannon, Oak Ridge* and *Tugg*, on the
other hand, are well-reasoned and supported by the plain language,
legislative history, and agency interpretation of the ADA.[^6] In
*Innovative Health Sys.*, Plaintiff Innovative Health Systems, an
outpatient drug and alcohol rehabilitation treatment center and a number
of its clients sued the City of White Plains, its mayor, the city zoning
board of appeals and its chair, and the city planning board and its
chair under the ADA and Rehabilitation Act after the treatment center's
application for a building permit was denied. There, as here, defendants
challenged plaintiffs' standing to sue under both statutes. The Second
Circuit rejected defendants' arguments, noting: "That IHS is not granted
legal rights under \[the ADA or Rehabilitation Act\], . . . 'hardly
determines whether \[it\] may sue to enforce the . . . rights of
others.'" *Innovative Health Sys.*, 117 F.3d at 47 (quoting *Gladstone
Realtors v. Village of Bellwood*, 441 U.S. 91, 103 n.9 (1979)).
"Rather," the court continued, "we must look to whether the statutes
'grant\[\] persons in the plaintiff's position a right to judicial
relief." *Id*. (quoting *Warth v. Seldin*, 422 U.S. 490, 499 (1975). The
Second Circuit concluded:

> Looking to the enforcement provisions of each statute, we agree with
> the district court that IHS has standing under both Title II of the
> ADA and the Rehabilitation Act. Title II's enforcement provisions
> extends relief to "any person alleging discrimination on the basis of
> disability." 42 U.S.C. Section 12133 (1994). Similarly, the
> Rehabilitation Act extends its remedies to "any person aggrieved" by
> the discrimination of a person on the basis of his or her disability."
> 29 U.S.C. Section 974a(a)(2). As the district court noted, the use of
> such broad language in the enforcement provisions of the statute
> "evinces a congressional intention to define standing to bring a
> private action under 504 \[and Title II\] as broadly as is permitted
> by Article III of the Constitution." *See* *Innovative Health Sys.,
> Inc*., 931 F. Supp. at 237 (quoting *Nodleman v. Aero Mexico*, 528 F.
> Supp. 475, 485 (C.D. Cal. 1981)(citing *Trafficante v. Metropolitan
> Life Ins. Co.*, 409\
> U.S. 205, 209, 93 S. Ct. 364, 366-67, 34 L. Ed. 2d 415 (1972))).

*Innovative Health Sys.*, 117 F.3d at 47. *Innovative Health Sys*.
provides analytically rigorous support for Pathways right to sue under
the ADA on its own behalf and on behalf of its clients.

In *Buckhannon*, plaintiff Buckhannon Board and Care Home, Inc. ("BBCH")
operated a residential board and care home ("RBCH"). BBCH applied to the
West Virginia Office of Health Facility Licensure and Certification
("OHFLC") for a renewal of its licensure with respect to three homes it
operated. The OHFLC conducted an inspection of BBCH's facilities and
concluded that each home housed residents who were incapable of
"self-preservation." Under West Virginia law, RBCH residents are
required to possess the ability to remove themselves, physically, from
"situations involving imminent danger," an ability referred to as
"self-preservation." *Buckhannon*, 19 F. Supp.2d at 570. The State Fire
Marshal also inspected the homes and issued a written report in which it
reached the same conclusion as the OHFLC. Consequently, the OHFLC
ordered Buckhannon to cease operations and transfer its residents,
denying them a waiver to continue operations. BBCH subsequently sued
under the ADA and Fair Housing Act on behalf of itself and certain
residents as next friends. *Id*.

In denying defendants' motion to dismiss on standing grounds, the
*Buckhannon* court held:

> The residents' non-ambulatory status prevents them from remaining at a
> RBCH; the current fire regulations are the cause of this injury; and
> the requested relief, a waiver, would redress this injury because it
> would allow them to remain at their RBCH. Thus, the first requirement
> for associational standing has been met. The purpose of a RBCH is to
> house people who can no longer care for themselves; hence, the
> Association seeks protection of its interest in extending care to such
> people regardless of their ambulatory statute and in doing so
> satisfies the second criteria for associational standing. Finally, the
> participation of the individual residents is not required because
> neither the ADA nor the FHAA claims require individualized proof. For
> the foregoing reasons, this Court finds that the Association has
> standing to sue the defendants.

*Buckhannon*, 19 F. Supp.2d at 576.

Similarly, in *Oak Ridge*, the court found that Oak Ridge Care Center,
an elder care facility that challenged defendant\'s denial of its
application for a conditional use permit under the ADA and the Fair
Housing Act, had Article III standing because, as a result of
defendant\'s discriminatory action, it lost a sale of property and had
to continue to make mortgage payments. *Oak Ridge*, 896 F. Supp. at 871.
The court refused to follow *Kessler* because \"\[t\]he *Kessler* court
failed to consider the regulations implementing the ADA.\" *Id*. at 872.
The court found that ADA standing for an institution was contemplated by
the Appendix to 28 C.F.R. § 35.130(g), and the plain language of the
regulations supported its finding. *Id*.

Finally, in *Tugg*, deaf individuals and their family members sued for
violations of title II of the ADA. The defendants in that case, like the
defendants here, argued that the non-disabled individuals did not have
standing to sue in their own right because they were not individuals
with disabilities. The court, relying on 28 C.F.R. § 35.130(g) and the
preamble thereto, found that title II gave \"broad protection to anyone
associated with an individual with a disability.\" *Id*. at 1208.
Consequently, the court found that the non-disabled individuals had
standing to assert their own rights under the ADA. *See also Comer v.
Cisneros*, 37 F.3d 775, 789 (2d Cir. 1994) (under Fair Housing Act court
need only examine constitutional minima of injury); *Epicenter of
Steubenville, Inc. v. City of Steubenville*, 924 F. Supp. 845, 849-50
(S.D. Ohio 1996) (corporation had standing to challenge under the Fair
Housing Act City's zoning ordinance that prohibited it from obtaining
permit to operate an adult care facility); *Finley v. Giacobbe*, 827 F.
Supp. 215, 219-20 (S.D.N.Y. 1993).

The foregoing authorities firmly establish that Pathways has standing to
sue in its own right and on behalf of its current and future clients.
Defendants' sole reliance on *Kessler*, a case resoundingly criticized
for its lack of analytical rigor, cannot overcome the reasoned case law
upon which Plaintiffs' complaint rests.

> **C. [Plaintiff\'s Rehabilitation Claim]{.underline}**

Unlike their arguments with respect to the ADA, Defendants do not
maintain that Plaintiffs lack standing to sue under the Rehabilitation
Act. Rather, Defendants maintain that Pathways has failed to *plead* a
sufficient nexus between the federal funds that Leonardtown receives and
the acts giving rise to Defendants' alleged discriminatory and unlawful
conduct. *See* *Defendants' Memo*. at 10. Like their ADA argument,
Defendants\' argument with respect to Plaintiffs' Rehabilitation Act
claim lacks merit.

> **1. [The Rehabilitation Act in General]{.underline}**

The Rehabilitation Act provides: "No otherwise qualified individual with
a disability . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance. . . ." Like the ADA, § 504 of the
Rehabilitation Act uses expansive language and was intended to cover
every action, including zoning enforcement actions, taken by public
entities or subdivisions that receive or are extended federal financial
assistance. *See*, e*.g., Innovative Health Sys., Inc. v. City of White
Plains*, 117 F.3d 37, 44-45 (2d Cir. 1997)("\[B\]oth the ADA and the
Rehabilitation Act clearly encompass zoning decisions by the City
because making such decisions is a normal function of a governmental
entity"); *Sullivan v. City of Pittsburgh*, 811 F.2d 171, 181-83 (3d
Cir.), *cert. denied*, 484 U.S. 849 (1987) (city\'s denial of permit to
rehabilitation center for recovering alcoholics violated § 504).

The Rehabilitation Act was enacted to discourage the segregation of
persons with disabilities, and to expand their opportunities. 29 U.S.C.
§ 701 (1988). To that end, the statute established federal grant
programs to benefit persons with disabilities, and, in § 504, it
prohibits discrimination on the basis of disability in any \"program or
activity\" of recipients of federal financial assistance. *Id*. at §
794.

Congress clarified the definition of \"program or activity\" in 1988 in
the Civil Rights Restoration Act[^7] to overturn an unduly narrow
interpretation of that phrase by the Supreme Court. 20 U.S.C. § 1687
(1988); S. Rep. No. 64, 100th Cong., 2d Sess. 1-2 (1988), *reprinted in*
1988 U.S.C.C.A.N. 3, 3-4 (overturning *Grove City College v. Bell*, 465
U.S. 555 (1984)).[^8] The clarified definition provides that:

> \[T\]he term \'program or activity\' and \'program\' means *all of the
> operations of*--
>
> (1)(A) a department, agency, special purpose district, or other
> instrumentality of a State or of a local government; or
>
> \(B\) the entity of such State or local government that distributes
> such assistance and each such department or agency (and each other
> State or local government entity) to which the assistance is extended,
> in the case of assistance to a State or local government;

20 U.S.C. § 1687 (1988) (emphasis added).

By using the phrase \"all of the operations of,\" the definition
demonstrates that § 504 applies to every action taken by an entity
receiving federal financial assistance. Neither the Rehabilitation Act
nor the Civil Rights Restoration Act, or their legislative histories,
contain any references indicating congressional desire to exempt zoning
enforcement from their coverage. The Civil Rights Restoration Act
stresses \"institution-wide\" coverage, and congressional debates during
the enactment of the Civil Rights Restoration Act demonstrate that the
broad language was understood to cover zoning activities.[^9] *See,
e.g., Innovative Health Sys., Inc.*, 117 F.3d at 44-45); *Sullivan v.
City of Pittsburgh*, 811 F.2d 171, 181-83 (3d Cir. 1987), *cert.
denied*, 484 U.S. 849 (1989) (city\'s denial of permit to rehabilitation
center for recovering alcoholics violated § 504).[^10]

Moreover, most courts that have interpreted the financial coverage
language of the Civil Rights Restoration Act have held that generally,
the entire department or office within a state or local government
constitutes a "program or activity" for purposes of the Rehabilitation
Act. For example, in *Huber v. Howard County, Maryland*, 849 F. Supp.
407, 415 (D. Md. 1994)(Kaufman, J.), *aff\'d*, 56 F.3d 61 (4th Cir.
1995), *cert*. *denied*, 516 U.S. 916 (1995), this Court found that a
county fire department received federal financial assistance within the
meaning of § 504 upon evidence that a subunit within the fire department
received federal funds and the salary of one employee was partially paid
with federal funds. The court stated:

> While the receipt of federal financial assistance by one department or
> agency of a county does not render the entire county subject to the
> provisions of § 504, and while such assistance to one department does
> not subject another department to the requirements of § 504, if one
> part of a department receives federal financial assistance, the whole
> department is considered to receive federal assistance as to be
> subject to § 504.

*Id*. (citing *Schroeder v. City of Chicago*, 927 F.2d 957, 962 (7th
Cir. 1991) and *Tanberg v. Weld County Sheriff*, 787 F. Supp. 970, 974
(D. Colo. 1992)).

In *Schroeder*, the court specifically observed that "\[i\]f the office
of a mayor receives federal financial assistance and distributes it to
local departments or agencies, all of the operations of the mayor's
office are covered along with the departments or agencies which actually
get the aid." *Schroeder*, 927 F.2d at 962 (quoting S. Rep. No. 64,
100th Cong., 2d Sess. 16 (1987), reprinted in 1988 U.S.C.C.A.N. 18.[^11]
*See* *also* *Bentley v. Cleveland County Board of County
Commissioners*, 41 F.3d 600, 603 (10th Cir. 1994)(county\'s indirect
receipt of federal funds from the Oklahoma Department of Transportation
rendered it amenable to suit under § 504); *Henning v. Village of
Mayfield Village*, 610 F. Supp. 17, 19 (N.D. Ohio 1985)(dispatcher
stated cause of action under § 504 against Village even though federal
funds were not specifically earmarked for hiring dispatchers: "Because
the city receives funds to be used as it determines and does so for so
many different purposes it cannot be found that the programs or
activities receiving funds should be limited to a small specific use
such as to provide employment for dispatchers.").

> **2. [Plaintiffs Have Stated a Claim Under § 504 of the Rehabilitation
> Act]{.underline}**

Plaintiffs allege in their complaint that "defendants are the recipients
of federal financial assistance." *Complaint* at ¶ 46. Not one of the
Defendants, including Leonardtown's mayor, contests this assertion in
the pending Motion to Dismiss. Nor, in fact, do Defendants argue \-- let
alone establish \-- that there does *not* exist a nexus between the
federal financial assistance they receive and the alleged discriminatory
conduct. Instead, Defendants merely assert that "Pathways has *failed to
allege* that the Defendants' alleged conduct is in any way related to a
program or activity of Leonardtown or St. Mary's County that receives
federal financial assistance." *Defendants' Memo*. at 10 (emphasis
added).[^12] Plaintiffs do assert, however, without contradiction, that
*each* of the Defendants receives federal financial assistance. Thus,
the nexus is directly asserted, and at this stage in the litigation,
Plaintiffs' assertion \-- unchallenged as it is by Defendants \-- must
be accepted as true. *Lujan v. Defenders of Wildlife*, 504 U.S. 555, 561
(1992)("At the pleading stage, general factual allegations . . . may
suffice, for on a motion to dismiss we 'presum\[e\] that general
allegations embrace those specific facts that are necessary to support
the claim.'")(quoting *Lujan v. National Wildlife Federation*, 497 U.S.
871, 889 (1990)); *Advanced Health-Care Services, Inc. v. Radford
Community Hosp.*, 910 F.2d 139, 143 (4th Cir. 1990); *Byers v. Rockford
Mass Transit Dist.*, 635 F. Supp. 1387, 1390 (N.D. Ill.
1986)(plaintiff\'s complaint survives dismissal "as long as some federal
funding is alleged."). This is particularly evident in light of this
Court's decision in *Huber,* the Seventh Circuit's decision in
*Schroeder*, and the district court\'s opinion in *Byers*. *Huber,* 849
F. Supp. at 415; *Schroeder*, 927 F.2d at 962; *Byers*, 635 F. Supp. at
1390. *See* *also* S. Rep. No. 64, 100th Cong., 2d Sess. 16 (1987),
reprinted in 1988 U.S.C.C.A.N. 18.[^13]

Defendants rely solely on one case, *Winfred v. City of Chicago*, 957 F.
Supp. 1014 (N.D. Ill. 1997), in support on their contention that
Plaintiffs have failed to assert a viable § 504 claim. Defendants'
reliance on *Winfred*, however, is clearly misplaced. In *Winfred*,
plaintiff, a former city sanitation worker, filed suit against the City
of Chicago under § 504 alleging that the city refused to reinstate him
because of his disability. In his complaint, Winfred alleged that "the
City is a recipient of federal financial assistance and therefore, its
programs and activities, including the employment practices of the
Department of Streets and Sanitation, are subject to . . . § 504." *Id.*
at 1024. In dismissing plaintiff\'s claim, the court refused to infer
that because the entire City of Chicago received federal funds, the
Department of Streets and Sanitation also received direct federal
assistance. *Id.*

In the present case, Plaintiffs have not merely alleged that the Town of
Leonardtown receives financial assistance; instead, Plaintiffs have
alleged that *each* of the Defendants \-- the Mayor of Leonardtown, the
Town Manager, the Commissioners of the Town of Leonardtown, and the
members of the Town of Leonardtown Planning and Zoning Commission \--
receive financial assistance. It is the *Town of Leonardtown*, through
the individual defendants and their respective governmental bodies, that
are alleged to have discriminated against Plaintiffs. Thus, unlike in
*Winfred*, Plaintiffs\' complaint alleges that Defendants'
discriminatory conduct is directly related to a program or activity
(zoning) of Defendants, all of whom, the complaint alleges, receive
federal financial assistance. *See* *Innovative Health Sys.*, 117 F.3d
at 48-49 (permitting Rehabilitation claim against city, zoning board,
and planning board based on city\'s

receipt of federal funds); *Byers*, 635 F. Supp. at 1390. Having alleged
that each of the Defendants receives federal financial assistance,
Plaintiffs have properly asserted a viable claim under § 504 of the
Rehabilitation Act.[^14]

**III. CONCLUSION**

For the foregoing reasons, the United States of America, as *amicus*
*curiae*, submits that the Court should deny Defendants\' Motion to
Dismiss.

Respectfully submitted,

BILL LANN LEE LYNNE A. BATTAGLIA

Acting Assistant Attorney United States Attorney

General

Civil Rights Division

JOHN L. WODATCH By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Chief PERRY F. SEKUS

Disability Rights Section Assistant U.S. Attorney

Federal Bar No. 07379

IRENE BOWEN 6625 U.S. Courthouse

Deputy Chief 101 W. Lombard Street

Disability Rights Section Baltimore, Maryland 21201

410-209-4818

BEBE NOVICH

Trial Attorney

Disability Rights Section

Department of Civil Rights

United States Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

202-616-2313

**[CERTIFICATE OF SERVICE]{.underline}**

I hereby certify that on this \_\_\_\_\_ day of June, 1999, copies of
the United States of America's Memorandum of Law as *Amicus* *Curiae*
were mailed, first class postage prepaid, to:

> Beth Pepper, Esq.
>
> Stein & Schonfeld
>
> 520 W. Fayette Street
>
> Baltimore, Maryland 21201
>
> Counsel for Plaintiffs
>
> **and to:**
>
> Daniel Karp, Esq.
>
> Suite 1540
>
> 100 E. Pratt Street
>
> Baltimore, Maryland 21202
>
> Counsel for Defendants
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Perry F. Sekus
>
> Assistant U. S. Attorney

[^1]: ^/^

    The Senate Report declared:

    \[E\]nough time has . . . been given to the States to legislate what
    is right. Too many States, for whatever reason, still perpetuate
    confusion. It is time for Federal action. . . . \[E\]xisting States
    laws do not adequately counter such acts of discrimination.\"

    Senate Report at 18.

[^2]: ^/^

    The Supreme Court has made clear that "\[a\]t the pleading stage,
    general factual allegations of injury resulting from the
    defendant\'s conduct may suffice, for on a motion to dismiss we
    \'presum\[e\] that general allegations embrace those specific facts
    that are necessary to support the claim.\'" *Lujan v. Defenders of
    Wildlife*, 504 U.S. 555, 561 (1992)(quoting *Lujan v. National
    Wildlife Fed\'n*, 497 U.S. 871, 889 (1990)).

[^3]: ^/^

    Congress directed the Attorney General to issue regulations
    implementing provisions of title II. 42 U.S.C. § 12134(a) provides:
    "\[T\]he Attorney General shall promulgate regulations in an
    accessible format that implement this part." Section 12134(b)
    further provides that the Attorney General "shall be consistent with
    this chapter and with the coordination regulations . . . applicable
    to recipients of Federal financial assistance under \[§ 504 of the
    Rehabilitation Act\]." 42 U.S.C. § 12134(a) & (b); *See also*
    *Olmstead*, \_\_\_ U.S. \_\_\_, 1999 WL 407380 at \* 5, 9 A.D. Cases
    705 (June 22, 1999).

[^4]: ^/^ The *Olmstead* Court reiterated that "\[b\]ecause the
    Department is the agency directed by Congress to issue regulations
    implementing Title II, its views warrant respect." *Olmstead*,
    \_\_\_ U.S. at \_\_\_\_, 1999 WL 407380 at \* 9, 9 A.D. Cases 705
    (citations omitted). The Court also observed that "'the
    well-reasoned views of the agencies implementing a statute
    "constitute a body of experience and informed judgment to which
    courts and litigants may properly resort for guidance."'" *Id.* at
    \_\_\_\_ (quoting *Bragdon v. Abbott*, 524 U.S. 624, 642 (1998)
    (quoting in turn *Skidmore v. Swift & Co.*, 323 U.S. 134, 139-40
    (1944)).

[^5]: ^/^ Defendants make no effort whatsoever to discuss that line of
    cases that has rejected *Kessler*. Instead, Defendants merely cite
    two cases, *Innovative* *Health Systems* and *Buckhannon*, in a
    footnote and state, summarily, that "this authority is not
    persuasive and Defendants respectfully argue that its reasoning has
    no applicability to this case." *Defendants' Memo*. at 9. n.2. Such
    a cursory argument should carry little if any weight.

[^6]: ^/^ In *Concerned Parents to Save Dreher Park Center v. City of
    West Palm Beach*, 846 F. Supp. 986, 990 (S.D. Fla. 1994), the court
    also recognized standing if one represents those subjected to
    discrimination based on a disability.

[^7]: ^/^ Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102
    Stat. 28, 28 (1987) (codified as 20 U.S.C. § 1687 note)
    (\"legislative action is necessary to restore the prior consistent
    and long-standing executive branch interpretation and *broad,
    institution-wide* application of those laws.\") (emphasis added).

[^8]: ^/^ Congress\' intent in passing the Civil Rights Restoration Act
    was clear. As the Senate Report states: "S.557 was introduced . . .
    to overturn the Supreme Court\'s 1984 decision in *Grove City
    College v. Bell*, . . . and to restore the effectiveness and
    vitality of the four major civil rights statutes \[Title IX, Title
    VI, Section 504, and the Age Discrimination Act of 1975\] that
    prohibit discrimination in federally assisted programs." S. Rep. No.
    64 at 2, reprinted in 1988 U.S.C.C.A.N. at 3-4. The Civil Rights
    Restoration Act includes virtually identical amendments to broadly
    define \"program or activity\" (for coverage purposes) for the four
    cross-cutting civil rights statutes, including the Rehabilitation
    Act. The Senate Report provides extensive detail about the history
    of these statutes, including Congress\' original intent that they be
    broadly interpreted and enforced; the consequences of *Grove City
    College*, *i.e.*, the narrow interpretations by courts and agencies
    that relieved entities of liability for apparent acts of
    discrimination because of the new, constricted interpretation of
    program or activity; and detailed explanations of the Civil Rights
    Restoration Act language. *Id.* at 5-20.

[^9]: ^/^ During consideration of the Civil Rights Restoration Act,
    Senator Hatch stated:

    The zoning function of local government will likely be covered by
    these laws in ways never before achieved. . . . \[I\]t will be
    difficult, if not impossible, for localities and states to escape
    total coverage under the bill, including a locality\'s zoning
    function. . . . Thus, for example, zoning requirements falling with
    a disproportionate impact on a particular minority group can be
    struck down, even if they were not adopted for a discriminatory
    purpose. 134 Cong. Rec. 4259 (1988).

[^10]: ^/^ The district court opinion in *Sullivan* contains an extended
    discussion of the applicability of § 504. *See* 620 F. Supp. 935,
    946 (W.D. Pa. 1985).

[^11]: ^/^ As *Huber* and *Schroeder* make clear, federal financial
    assistance may be received directly or indirectly in order give rise
    to a claim under the Rehabilitation Act. For example, colleges
    indirectly receive federal financial assistance when they accept
    students who pay, in part, with federal financial aid directly
    distributed to the students. *See* *Bob Jones University v.
    Johnson*, 396 F. Supp. 597, 603 (D.S.C. 1974), *aff\'d*, 529 F.2d
    514 (4th Cir. 1975). In *Bob Jones University*, the university was
    deemed to have received federal financial assistance for
    participating in a program wherein veterans received monies directly
    from the Veterans Administration to support approved educational
    pursuits, although the veterans were not required to use the
    specific federal monies to pay the schools for tuition and expenses.
    *Id.* at 602-03 & n.22. Even if the financial aid to the veterans
    did not reach the university, the court considered this financial
    assistance to the school since this released the school\'s funds for
    other purposes. *Id*. at 602. Thus, an entity may be deemed to have
    \"received federal financial assistance\" even if the entity did not
    show a \"financial gain, in the sense of a net increment in its
    assets.\" *Id*. at 602-03. Aid such as this, and noncapital grants,
    are equally federal financial assistance. *Id*.

[^12]: ^/^ Presumably, Defendants would have stated in their motion that
    no nexus exists if that in fact were the case.

[^13]: ^/^ To the extent Defendants would have this Court hold that
    federal financial assistance must be used directly for zoning board
    activities for those activities to be covered by § 504, the Court
    should decline the invitation to do so. The authorities cited above
    firmly establish that the zoning board\'s activities are covered so
    long as the city department that includes zoning activities receives
    or distributes federal funds. *See* 29 U.S.C. § 794(b)(1);
    *Innovative Health Sys.*, 117 F.3d at 44-45; *Schroeder*, 927 F.2d
    at 962.

[^14]: ^/^ At a minimum, Plaintiffs should be permitted to further
    explore this issue in discovery.