Bill Lann Lee,

Acting Assistant Attorney General

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Philip L. Breen, Special Legal Counsel

Bebe Novich, Trial Attorney (D.C. Bar No. 431203)

Disability Rights Section

Civil Rights Division

United States Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 616-2313

Attorneys for Plaintiff-Intervenor

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ELIZABETH CAMPOS, on behalf of )\
herself and others similarly situated; )\
STUDENTS TENACIOUSLY ) CASE NO. C-97-02326 MMC(PJH)\
ADVOCATING for our Rights ("STARS"); )\
CALIFORNIA FACULTY ) CLASS ACTION\
ASSOCIATION; )\
) UNITED STATES' BRIEF IN\
Plaintiffs, ) OPPOSITION TO DEFENDANTS'\
) MOTION FOR JUDGMENT ON\
v. ) THE PLEADINGS\
)\
SAN FRANCISCO STATE ) Date: October 1, 1999\
UNIVERSITY; BOARD OF TRUSTEES ) Time: 9:00a.m.\
OF THE CALIFORNIA STATE ) Place: Courtroom of Hon. Maxine\
UNIVERSITY; CHANCELLOR BARRY ) M. Chesney\
MUNITZ, in his official and individual )\
capacities; PRESIDENT ROBERT )\
CORRIGAN, in his official and individual )\
capacities; )\
)\
Defendants. )\
)

)

**[TABLE OF CONTENTS]{.underline}**

**TABLE OF AUTHORITIES** ii

**PRELIMINARY STATEMENT** 1

**ARGUMENT** 2

> I. THE ABROGATIONS OF ELEVENTH AMENDMENT IMMUNITY CONTAINED IN THE ADA
> AND SECTION 504 ARE VALID EXERCISES OF CONGRESS\' POWER UNDER THE
> FOURTEENTH AMENDMENT 2
>
> A. [The Ninth Circuit Has Already Found the ADA and Section 504 to be
> Valid Legislation Under the Fourteenth Amendment]{.underline} 3
>
> B. [The Supreme Court's Decision in Florida Prepaid Did Not Alter
> Boerne]{.underline} 4
>
> C. [Even if Clark Does Not Control, The ADA and Section 504 Should Be
> Upheld]{.underline} 6
>
> **1. Congress Found That Discrimination Against People With
> Disabilities Was Severe And Extended To Every Aspect Of Society** 6
>
> **2. The ADA's and Section 504 Are Proportionate Responses By Congress
> To Remedy And Prevent The Pervasive Discrimination It Discovered** 11
>
> a\. [The ADA and Section 504 Are Remedial Legislation]{.underline} 11
>
> b\. [The ADA's and Section 504\'s Remedies and Preventative Measures
> Are Proportional to the Evil They Address]{.underline} 14
>
> c\. [Unlike the Religious Freedom Restoration Act, Neither The ADA Nor
> 504 Impose Strict Scrutiny]{.underline} 19
>
> II\. 42 U.S.C. § 2000d-7 VALIDLY WAIVES ELEVENTH AMENDMENT IMMUNITY
> FOR CLAIMS UNDER SECTION 504 22

**CONCLUSION** 25

**TABLE OF AUTHORITIES**

**[CASES]{.underline}**

[Alden v. Maine]{.underline}, 119 S. Ct. 2240 (1999) 23

[Alexander v. Choate]{.underline}, 469 U.S. 287(1985) 11, 12

[Alsbrook v. City of Maumelle]{.underline}, No. 97-1825, 1999 WL 521709
(8^th^ Cir. Jul. 23, 1999) 15-18

[Amos v. Maryland Dep't of Public Safety and Correctional
Servs.]{.underline}, 178 F. 3d 212 (4^th^ Cir. 1999)\
14, 17-19, 21

[Bay Area Addiction Research and Treatment, Inc. v. City of
Antioch]{.underline}, 179 F.3d 725 (9^th^ Cir. 1999) 20

[Board of Educ. v. Rowley]{.underline}, 458 U.S. 176 (1982) 9

[Bradley v. Arkansas Bd. of Educ]{.underline}., No. 98-1010, 1999 WL
673228 (8^th^ Cir. Aug. 31, 1999) 24

[Brown v. North Carolina Div'n of Motor Vehicles]{.underline}, 166 F.3d
698 (4^th^ Cir. 1999) 15, 16, 18, 19

[City of Boerne v. Flores]{.underline}, 521 U.S. 507 (1997)
[passim]{.underline}

[City of Cleburne v. Cleburne Living Center]{.underline}, 473 U.S. 432
(1985) 11-14, 21

[City of Rome v. United States]{.underline}, 446 U.S. 156 (1980) 22

[Clark v. California]{.underline}, 123 F.3d 1267 (9^th^ Cir. 1997),
cert. denied, 118 S. Ct. 2340 (1998) [passim]{.underline}

[College Savings Bank v. Florida Prepaid Postsecondary Expense
Board]{.underline}, 119 S. Ct. 2219 (1999)\
23

[Coolbaugh v. Louisiana]{.underline}, 136 F.3d 430 (5th Cir. 1998),
cert. denied, 119 S. Ct. 58 (1998) 14-16

[Crawford v. Indiana Dep\'t of Corrections]{.underline}, 115 F.3d 481
(1997) 14

[Crowder v. Kitagawa]{.underline}, 81 F.3d 1480 (9^th^ Cir. 1996) 20

[FCC v. Beach Communications, Inc.]{.underline}, 508 U.S. 307 (1993) 19

[Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings
Bank]{.underline}, 119 S. Ct. 2199 (1999) 4-6, 22

[Fullilove v. Klutznick]{.underline}, 448 U.S. 448 (1980) 12

[Griffin v. Illinois]{.underline}, 351 U.S. 12 (1956) 13

[Hasbrouck v. Texaco, Inc]{.underline}. 663 F.2d 930 (9^th^ Cir. 1981),
cert. denied, 459 U.S. 828 (1982) 2

[In re Innes]{.underline}, No. 97-3363, 1999 WL 641865(10th Cir. Aug.
24, 1999) 24

[Jenness v. Fortson]{.underline}, 403 U.S. 431 (1971) 13

[Keeton v. University of Nevada Sys]{.underline}., 150 F.3d 1055 (9^th^
Cir. 1998) 3

[Kilcullen v. New York State Dep't of Trans.]{.underline}, 33 F. Supp.
2d 133 (N.D.N.Y. 1999) 16

[Kimel v. Board of Regents]{.underline}, 139 F.3d 1426 (11th Cir. 1998),
petition for cert. filed on ADA issue,\
67 U.S.L.W. 3364 (Nov. 16, 1998) (No. 98-829) 14

[Lau v. Nichols]{.underline}, 483 F.2d 791 (9th Cir. 1973), rev\'d, 414
U.S. 563 (1974) 14

[Litman v. George Mason Univ.]{.underline}, No. 98-1742, 1999 WL 547910
(4th Cir. Jul. 28, 1999) 23

[M.L.B. v. S.L.J.]{.underline}, 519 U.S. 102 (1996) 13

[Martin v. Kansas]{.underline}, Nos. 98-3102, 98-3118, 1999 WL 635916
(10^th^ Cir. Aug. 19, 1999) 5, 14

[Muller v. Costello]{.underline}, Nos. 98-7491, 98-7729, 1999 WL 599285
(2d Cir. Aug. 11, 1999) 5, 14, 15,\
17, 18, 22

[Nevada v. Skinner]{.underline}, 884 F.2d 445 (9^th^ Cir. 1989) 24

[Oregon v. Mitchell]{.underline}, 400 U.S. 112 (1970) 10

[Oregon Short Line Railroad Co. v. Department of Revenue]{.underline},
139 F.3d 1259 (9^th^ Cir. 1998) 4

[Seaborn v. Florida]{.underline}, 143 F.3d 1405 (11th Cir. 1998), cert.
denied, 119 S. Ct. 1038 (1999) 14

[Seminole Tribe of Florida v. Florida]{.underline}, 517 U.S. 44 (1996)
2, 3

[South Carolina v. Katzenbach]{.underline}, 383 U.S. 301 (1966) 21

[South Dakota v. Dole]{.underline}, 483 U.S. 203 (1987) 23

[Torres v. Puerto Rico Tourism Co.]{.underline}, 175 F.3d 1 (1^st^ Cir.
1999) 15

[United States v. Des Moines Nav. & Ry.]{.underline}, 142 U.S. 510
(1892) 19

[United States v. Horton]{.underline}, 601 F.2d 319 (7th Cir.), cert.
denied, 444 U.S. 937 (1979) 13

[United States v. Raines]{.underline}, 362 U.S. 17 (1960) 5

[Univ. Of Cal. Regents v. Bakke]{.underline}, 438 US. 265 (1978) 21

[Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. Ohio High
Sch. Athletic Ass\'n]{.underline}, 647 F.2d 651 (6th Cir. 1981) 14

**[CONSTITUTIONS STATUTES, AND REGULATIONS]{.underline}**

U.S. Const. amend. XI [passim]{.underline}

U.S. Const., amend. XIV [passim]{.underline}

Americans with Disabilities Act (ADA)

> 42 U.S.C. §§ 12101 et seq [passim]{.underline}

Individuals with Disabilities Education Act (IDEA)

> 20 U.S.C. § 1401 et seq. 9
>
> 20 U.S.C. § 1400(c)(2)(C) 9

Rehabilitation Act of 1973

> 29 U.S.C. § 701(a)(5) 10
>
> 29 U.S.C. § 794 [passim]{.underline}
>
> 42 U.S.C. § 2000d-7 22-24

Voting Rights Act

> 42 U.S.C. § 1973c 22

Americans with Disabilities Act Regulations

> 28 C.F.R. § 31.150 16, 20
>
> 28 C.F.R. § 35.130 16, 17, 20

**[LEGISLATIVE HISTORY]{.underline}**

H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990) 7, 8, 12

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 7-9, 12

135 Cong. Rec. 8,712 (1989) 8

136 Cong. Rec. 10,870 (1990) 12

Americans with Disabilities Act of 1989: Hearings on H.R. 2273 before
the Subcomm. on Civil & Const. Rights of the House Comm. on the
Judiciary, 101st Cong., 1st Sess. 334 (1989) 9

**[BOOKS, ARTICLES & REPORTS]{.underline}**

Marcia Pearce Burgdorf & Robert Burgdorf, Jr., A History of Unequal
Treatment, 15 Santa Clara\
Lawyer 855 (1975) 9

National Council on the Handicapped, On the Threshold of Independence 14
(1988) 10

Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law 520
(1978) 13

Lowell P. Weicker, Jr., Historical Background of the Americans with
Disabilities Act, 64 Temp. L. Rev. 387 (1991) 7

National Council on Disability, Achieving Independence: The Challenge
for the 21st Century 34\
(1996) 10

National Council on Disability, ADA Watch \-- Year One: A Report to the
President and the Congress on Progress in Implementing the Americans
with Disabilities Act 36 (1993) 10

Thomas M. Cooley, A Treatise on Constitutional Limitations (5th ed.) 19

Timothy M. Cook, The Americans with Disabilities Act: The Move to
Integration, 64 Temp. L. Rev. 393 (1991) 7, 8

U.S. Commission on Civil Rights, Accommodating the Spectrum of
Individual Abilities 23 (1983) 8, 9, 11, 12

**PRELIMINARY STATEMENT**

The parties to this action have stipulated to the United States'
intervention to address the constitutionality of Title II of the
Americans with Disabilities Act ("ADA"),[^1] and Section 504 of the
Rehabilitation Act ("Section 504").[^2] Plaintiffs brought this action,
alleging, [inter]{.underline} [alia]{.underline}, that Defendants have
failed to ensure program accessibility and to make reasonable
modifications to their policies, practices, and procedures, in violation
of ADA Title II and Section 504. Plaintiffs claim that Defendants have
failed to remove barriers to access, required under Defendants'
transition plan, from classrooms, restrooms, and other areas of
Defendants' campus. Defendants have moved for judgment on the pleadings,
claiming that the ADA and Section 504 do not constitutionally abrogate
States' sovereign immunity under the Eleventh Amendment and that Section
504 does not effect a valid waiver of States' sovereign immunity. The
United States Department of Justice, the primary enforcement agency
designated within those statutes, respectfully requests that this Court
uphold the ADA's and Section 504\'s abrogations of sovereign immunity
and the State's waiver of sovereign immunity under Section 504.

**ARGUMENT**

I. THE ABROGATIONS OF ELEVENTH AMENDMENT IMMUNITY CONTAINED IN\
THE ADA AND SECTION 504 ARE VALID EXERCISES OF CONGRESS\' POWER UNDER
THE FOURTEENTH AMENDMENT

In [Seminole Tribe of Florida v. Florida]{.underline}, the Supreme Court
articulated a two-part test to determine whether Congress has properly
abrogated States\' Eleventh Amendment immunity: "first, whether Congress
has unequivocally expressed its intent to abrogate the immunity; and
second, whether Congress has acted pursuant to a valid exercise of
power." [Seminole]{.underline}, 517 U.S. 44, 55 (1996) (citations,
quotations, and brackets omitted). Defendants concede that both the ADA
and Section 504 satisfy the first requirement, but challenge the
statutes' validity under the Fourteenth Amendment. [See]{.underline}
Defendants' Brief at 8.

Applying the [Seminole]{.underline} standard, the Ninth Circuit Court of
Appeals has already decided the issue that is before this Court. [Clark
v. California]{.underline}, 123 F.3d 1267 (9^th^ Cir. 1997), cert.
denied, 118 S. Ct. 2340 (1998). The [Clark]{.underline} Court upheld the
abrogations of sovereign immunity in the ADA and Section 504, holding
that Congress acted pursuant to a valid exercise of power under the
Fourteenth Amendment when it enacted those laws. Defendants argue that
[Clark]{.underline} was wrongly decided, but this Court is not empowered
to ignore or overturn controlling precedent.[^3] Moreover,
[Clark]{.underline} was properly decided and is consistent with
intervening decisions and the weight of judicial authority.

> A. [The Ninth Circuit Has Already Found the ADA and Section 504 to be
> Valid Legislation Under the Fourteenth Amendment]{.underline}

After [Seminole]{.underline}, the Supreme Court\'s decision in [City of
Boerne v. Flores]{.underline} confirmed that Congress has broad
discretion to enact legislation to redress what it rationally perceives
to be widespread constitutional injuries against individuals with
disabilities. [Boerne]{.underline}, 521 U.S. 507 (1997). In
[Boerne]{.underline}, the Court held that in order for legislation to be
a valid exercise of Congress' Fourteenth Amendment power it must be
linked to constitutional violations and its remedies must be "congruent
and proportional" to the evils sought to be addressed. [Id]{.underline}.
at 520. The Court explained that the authority to enforce the Fourteenth
Amendment is a broad power to remedy past and present discrimination and
to prevent future discrimination. [Id]{.underline}. at 517-18. And it
reaffirmed that Congress can prohibit activities that themselves are not
unconstitutional in furtherance of its remedial scheme,
[id]{.underline}. at 518, 525-27, 532, acknowledging that "the line
between measures that remedy or prevent unconstitutional actions and
measures that make a substantive change in the governing law is not easy
to discern, and Congress must have wide latitude in determining where it
lies." [Id]{.underline}. at 519-20.

The [Boerne]{.underline} reasoning was applied by the Ninth Circuit in
[Clark]{.underline}. The Ninth Circuit analyzed the ADA and Section 504
and found them both to be "congruent" and "proportional" to the
discrimination they sought to remedy, and thus valid exercises of
congressional power [Clark,]{.underline} 123 F.3d at 1270. The Ninth
Circuit has also manifested its broad deference to Congress' authority
to enforce the Equal Protection clause in other contexts. For example,
in [Keeton v. University of Nevada System]{.underline}, the court held
that the Age Discrimination in Employment Act was a valid exercise of
Congress' authority to prohibit unconstitutional age discrimination.
[Keeton]{.underline}, 150 F.3d 1055, 1058 (9^th^ Cir. 1998). And in
[Oregon Short Line Railroad Co. v. Department of Revenue]{.underline},
139 F.3d 1259, 1266-67 (9^th^ Cir. 1998), the court held that Congress
could validly abrogate Eleventh Amendment immunity for claims of
discrimination against railroads. Certainly if the Fourteenth Amendment
permits Congress to enact prophylactic legislation to protect railroads
from discrimination, Congress had the authority to enact the ADA and
Section 504 to redress a well-documented history of widespread
discrimination against people with disabilities.

> B. [The Supreme Court's Decision in Florida Prepaid Did Not Alter
> Boerne]{.underline}

Defendants claim that the Supreme Court's recent decision in [Florida
Prepaid Postsecondary Education Expense Board v. College Savings
Bank]{.underline} overrules the previous authority and dictates that the
ADA and Section 504 are not valid legislation within the Fourteenth
Amendment's Equal Protection Clause. [Florida Prepaid]{.underline}, 119
S. Ct. 2199 (1999). The [Florida Prepaid]{.underline} decision
invalidated an abrogation of immunity in the Patent and Plant Variety
Protection Remedy Clarification Act (Patent Remedy Act), because it
deemed that the act was not valid legislation within the Fourteenth
Amendment's Due Process Clause.

Defendant's application of [Florida Prepaid]{.underline} to this case is
misguided for several reasons. First and foremost, [Florida
Prepaid]{.underline} did not alter the [Boerne]{.underline} test. In
[Florida Prepaid]{.underline}, there is no question that the Supreme
Court followed the method outlined in [Boerne]{.underline}. The Court in
[Florida Prepaid]{.underline} relied on [Boerne]{.underline} as the
guide for its decision, reaffirming as well that "' \[l\]egislation
which deters or remedies constitutional violations can fall within the
sweep of Congress' enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional and intrudes into
"legislative spheres of autonomy previously reserved to the States,"'"
and that "'the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive change in
the governing law is not easy to discern, and Congress must have wide
latitude in determining where it lies.'" [Id.]{.underline} at 2206
(quoting [Boerne]{.underline}, 521 U.S. at 518, 519-20). Thus, the Ninth
Circuit's application of the [Boerne]{.underline} test in
[Clark]{.underline} remains valid after [Florida Prepaid]{.underline},
and [Clark]{.underline}'s validation of the ADA and Section 504 should
stand. Two circuit courts of appeals ruling on this issue since [Florida
Prepaid]{.underline} have upheld the ADA's and Section 504\'s
constitutionality. [Martin v. Kansas]{.underline}, Nos. 98-3102,
98-3118, 1999 WL 635916 (10^th^ Cir. Aug. 19, 1999); [Muller v.
Costello]{.underline}, Nos. 98-7491, 98-7729, 1999 WL 599285 (2d Cir.
Aug. 11, 1999).

Second, Defendant claims that the availability of State remedies causes
the ADA and Section 504 to fail the [Boerne]{.underline} test for
congruence and proportionality. In [Florida Prepaid]{.underline}, one
factor in the Court's finding that the Patent Remedy Act was not
congruent and proportional to the constitutional violation was that
State patent infringement remedies were available. [Florida
Prepaid]{.underline}, 119 S. Ct. at 2208-09. However, the availability
of State remedies is not relevant to a constitutional analysis of the
ADA or Section 504. Those remedies are relevant to the validity of the
Patent Remedy Act because it is grounded in the Fourteenth Amendment's
Due Process Clause, which prohibits States from depriving property
"without due process of law." U.S. Const. amend XIV. The ADA and Section
504, in contrast, are grounded in the Fourteenth Amendment's Equal
Protection Clause, which has no similar language. [Id.]{.underline} An
Equal Protection violation is complete when a person acting under color
of State law acts for an invidious reason. The existence or absence of
State remedies is irrelevant. See [United States v. Raines]{.underline},
362 U.S. 17, 25 (1960) ("It is, however, established as a fundamental
proposition that every state official, high and low, is bound by the
Fourteenth and Fifteenth Amendments. We think this court has already
made it clear that it follows from this that Congress has the power to
provide for the correction of the constitutional violations of every
such official without regard to the presence of other authority in the
state that might possibly revise their actions.") (citation omitted).
Thus, [Florida Prepaid]{.underline} in no way compels this Court to
ignore the controlling authority of [Clark]{.underline} and the vast
weight of judicial authority.

> C. [Even if Clark Does Not Control, The ADA and Section 504 Should Be
> Upheld]{.underline}

Even if this Court decides to reexamine [Clark]{.underline} in light of
[Florida Prepaid]{.underline}, this Court should uphold the abrogations
of sovereign immunity in the ADA and Section 504 because they satisfy
the Supreme Court's test for congruence and proportionality to the
discrimination they seek to remedy.

> **1.** **Congress Found That Discrimination Against People With
> Disabilities Was Severe And Extended To Every Aspect Of Society**

Congress enacted the ADA based on its findings of pervasive
discrimination on the basis of disability, including:

> \[H\]istorically, 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;
>
> \[D\]iscrimination against individuals with disabilities persists in
> such critical areas as employment, housing, public accommodations,
> education, transportation, communication, recreation,
> institutionalization, health services, voting, and access to public
> services . . . .

42 U.S.C. § 12101(a)(2), (3).[^4] Among these findings is discrimination
in functions such as institutionalization, voting, education, and
transportation, in which States have commonly played a principle role.

The ADA's legislative history is also replete with findings of
unconstitutional exclusion of and discrimination against people with
disabilities. We cannot provide a complete summary of the 14 hearings
held by Congress at the Capitol, the 63 field hearings, the lengthy
floor debates, and the myriad reports submitted to Congress by the
Executive Branch in the three years prior to the enactment of the ADA,
see Timothy M. Cook, [The Americans with Disabilities Act: The Move
to Integration]{.underline}, 64 Temp. L. Rev. 393, 393-94 nn.1-4, 412
n.133 (1991) (collecting citations), as well as Congress\' 30 years of
experience with other statutes aimed at preventing discrimination
against persons with disabilities, see Lowell P. Weicker, Jr.,
[Historical Background of the Americans with Disabilities
Act]{.underline}, 64 Temp. L. Rev. 387, 387-89 (1991) (discussing other
laws enacted to redress discrimination against persons with
disabilities). However, we will briefly sketch some of the relevant
areas of discrimination Congress discovered and was attempting to
redress.

First, the evidence before Congress demonstrated that persons with
disabilities were sometimes excluded from public services for no reason
other than distaste for or fear of their disabilities. See S. Rep. No.
116, 101st Cong., 1st Sess. 7-8 (1989) (citing instances of
discrimination based on negative reactions to sight of disability)
(Senate Report); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 28-31
(1990) (same) (House Report). The legislative record contained
documented instances of exclusion of persons with disabilities from
hospitals, theaters, restaurants, bookstores, and auction houses simply
because of prejudice. See Cook, [supra]{.underline}, at 408-09
(collecting citations). Indeed, the United States Commission on Civil
Rights, after a thorough survey of the available data, documented that
prejudice against persons with disabilities manifested itself in a
variety of ways, including "reaction\[s\] of aversion," reliance on
"false" stereotypes, and stigma associated with disabilities that lead
to people with disabilities being "thought of as not quite human." U.S.
Commission on Civil Rights, [Accommodating the Spectrum of Individual
Abilities]{.underline} 23-26 (1983); see also Senate Report,
[supra]{.underline}, at 21. The negative attitudes, in turn, produced
fear and reluctance on the part of people with disabilities to
participate in society. See Senate Report, [supra]{.underline}, at 16;
House Report, [supra]{.underline}, at 35, 41-43; Cook,
[supra]{.underline}, at 411. Congress thus concluded that persons with
disabilities were "faced with restrictions and limitations . . .
resulting from stereotypic assumptions not truly indicative of the
individual ability of such individuals to participate in, and contribute
to, society." 42 U.S.C. § 12101(a)(7).

These decades of ignorance, fear, and misunderstanding created a tangled
web of discrimination, resulting in, and being reinforced by, isolation
and segregation. The evidence before Congress demonstrated that these
attitudes were linked more generally to the segregation of people with
disabilities. See Senate Report, [supra]{.underline}, at 11; U.S.
Commission on Civil Rights, [supra]{.underline}, at 43-45. This
segregation was in part the result of government policies in "critical
areas \[such\] as employment, housing, public accommodations, education,
transportation, communication, recreation, institutionalization, health
services, voting, and access to public services." 42 U.S.C. §
12101(a)(3).

Similarly, there was evidence before Congress that, like most public
accommodations, government buildings were not accessible to people with
disabilities. For example, a study conducted in 1980 of state-owned
buildings available to the general public found 76 percent of them
physically inaccessible and unusable for providing services to people
with disabilities. See 135 Cong. Rec. 8,712 (1989) (remarks of Rep.
Coelho); U.S. Commission on Civil Rights, [supra,]{.underline} at 38-39.
In another survey, 40 percent of persons with disabilities reported that
an important reason for their segregation was the inaccessibility of
buildings and restrooms. See [Americans with Disabilities Act of 1989:
Hearings on H.R. 2273 before the Subcomm. on Civil & Const. Rights of
the House Comm. on the Judiciary]{.underline}, 101st Cong., 1st Sess.
334 (1989) (House Judiciary Hearings). Thus, Congress concluded that
even when not barred by "outright intentional exclusion," people with
disabilities "continually encounter\[ed\] various forms of
discrimination, including . . . the discriminatory effects of
architectural, transportation, and communication barriers." 42 U.S.C. §
12101(a)(5).

Most relevant to this case are Congress' specific findings about
pervasive discrimination in education, which is manifest in the history
of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §
1401 [et]{.underline} [seq]{.underline}. In enacting IDEA\'s predecessor
in 1975, Congress found that one million disabled children were
"excluded entirely from the public school system." 20 U.S.C. §
1400(c)(2)(C), while others were given permission to enter the
schoolhouse, but were learning nothing because the schools failed to
account for their disabilities. See [Board of Educ. v.
Rowley,]{.underline} 458 U.S. 176, 191 (1982); [id]{.underline}. at 213
n.1 (White, J., dissenting). This state of affairs was rooted in decades
of unwarranted discrimination against children with disabilities. See
Marcia Pearce Burgdorf & Robert Burgdorf, Jr., [A History of Unequal
Treatment]{.underline}, 15 Santa Clara Lawyer 855, 870-75 (1975).

Not surprisingly, similar government practices were found to exist in
higher education. See Senate Report, [supra]{.underline}, at 7; House
Report, [supra]{.underline}, at 29. This is consistent with the
conclusion of the United States Commission on Civil Rights, also before
Congress, that the "higher one goes on the education scale, the lower
the proportion of handicapped people one finds." U.S. Commission on
Civil Rights, [supra]{.underline}, at 28; see also National Council on
the Handicapped, [On the Threshold of Independence]{.underline} 14
(1988) (29% of disabled persons had attended college, compared to 48% of
the non-disabled population). Given the extensive discrimination by
government actors in educating children, Congress had sufficient
evidence from which it could infer similar discrimination in higher
education, and thus that "discrimination against individuals with
disabilities [persists]{.underline} in such critical areas as . . .
education." 42 U.S.C. § 12101(a)(3) (emphasis added); accord 29 U.S.C. §
701(a)(5). These government policies and practices, in tandem with
similar private discrimination, produced a situation in which people
with disabilities were largely poor, isolated, and segregated.[^5]

[Boerne]{.underline} requires courts to accord deference to such
findings. So long as this Court can "perceive\[\] a factual basis on
which Congress could have concluded" that there was "\'invidious
discrimination in violation of the Equal Protection Clause,\'" then this
Court must uphold the ADA and Section 504 as valid legislation.
[Boerne]{.underline}, 521 U.S. at 528 (citation omitted); see also
[Oregon v. Mitchell]{.underline}, 400 U.S. 112, 216 (1970) (Harlan, J.).

> **2. The ADA and Section 504 are Proportionate Responses By Congress
> To Remedy And Prevent The Pervasive Discrimination It Discovered**

a.  [The ADA and Section 504 Are Remedial Legislation]{.underline}

In the ADA and Section 504, Congress sought to remedy the effects of the
past discrimination described above and prevent like discrimination in
the future by mandating that qualified individuals with disabilities be
provided with "[meaningful]{.underline} [access]{.underline} to the
benefit that the \[entity\] offers." [Alexander v. Choate]{.underline},
469 U.S. 287, 301 (1985) (emphasis added). Thus, Title II of the ADA and
Section 504 prohibit States from unnecessarily excluding persons with
disabilities, either intentionally or unintentionally, from their
programs, services, and activities. 42 U.S.C. § 12132; 29 U.S.C. § 794.

These laws are remedial in that they attempt to counteract the effects
of a long history of disability discrimination, including exclusion due
to architectural barriers. Not surprisingly, given their profound
segregation from the rest of society, see 42 U.S.C. § 12101(a)(2), the
needs of persons with disabilities were not taken into account when
buildings were designed, state and local building standards were set,
and rules were promulgated. The ability of people in wheelchairs to use
public buildings or of people with visual impairments to navigate within
them was not likely considered. See U.S. Commission on Civil Rights,
[supra]{.underline}, at 21-22, 38. Even when considered, their interests
may not have been properly weighed, since "irrational fears or
ignorance, traceable to the prolonged social and cultural isolation of
\[persons with disabilities\] continue to stymie recognition of
\[their\] dignity and individuality." [City of Cleburne v. Cleburne
Living Center]{.underline}, 473 U.S. 432, 467 (1985) (Marshall, J.).

Congress believed that in order to remedy some types of disability
discrimination, especially architectural discrimination, affirmative
steps would be required. As Congress and the Supreme Court recognized,
many of the problems faced today by persons with disabilities are a
result of "thoughtlessness or indifference \-- of benign neglect" to the
interaction between those purportedly "neutral" rules and persons with
disabilities.[^6] As a result, Congress determined that for an entity to
treat persons with disabilities as it did those without disabilities was
not sufficient to eliminate the effects of years of segregation and to
give persons with disabilities equally meaningful access to every aspect
of society. See 42 U.S.C. § 12101(a)(5); see also U.S. Commission on
Civil Rights, [supra]{.underline}, at 99. When persons with disabilities
have been segregated, isolated, and denied effective participation in
society, Congress may conclude that affirmative measures are necessary
to bring them into the mainstream. Cf. [Fullilove v.
Klutznick]{.underline}, 448 U.S. 448, 477-78 (1980).

The Supreme Court has recognized that the Equal Protection Clause is not
limited to prohibiting unequal treatment of similarly situated persons.
In enacting the ADA, Congress was acting within the constitutional
framework that has been laid out by the Supreme Court. In [City of
Cleburne v. Cleburne Living Center]{.underline}, the Supreme Court
unanimously declared unconstitutional as invidious discrimination a
decision by a city to deny a special use permit for the operation of a
group home for people with mental retardation. [Cleburne]{.underline},
472 U.S. 432 (1985). While a majority of the Court declined to deem
classifications based on disability as suspect or "quasi-suspect," it
elected not to do so, in part, because it would unduly limit legislative
solutions to problems faced by the disabled. [Id.]{.underline} at 444.
The Court reasoned that "\[h\]ow this large and diversified group is to
be treated under the law is a difficult and often a technical matter,
very much a task for legislators guided by qualified professionals."
[Id]{.underline}. at 442-43. It specifically noted with approval
legislation such as Section 504, which is aimed at protecting persons
with disabilities. [Id]{.underline}. at 444.

The Equal Protection Clause also guarantees "that people of different
circumstances will not be treated as if they were the same." [United
States v. Horton]{.underline}, 601 F.2d 319, 324 (7th Cir.), cert.
denied, 444 U.S. 937 (1979) (quoting Ronald D. Rotunda & John E. Nowak,
[Treatise on Constitutional Law]{.underline} 520 (1978)). The
Constitution recognizes this reality and, in certain circumstances,
requires equal access rather than simply identical treatment. "Sometimes
the grossest discrimination can lie in treating things that are
different as though they were exactly alike." [Jenness v.
Fortson]{.underline}, 403 U.S. 431, 442 (1971).[^7]

Thus, there is a basis in constitutional law for recognition that
discrimination exists not only by treating people with disabilities
differently for no legitimate reason, but also by treating them
identically when they have recognizable differences, and by failing to
modify inaccessible buildings and discriminatory practices. As the Sixth
Circuit has explained in a case involving

gender classifications, "in order to measure equal opportunity, present
relevant differences cannot be ignored. When \[people\] are not in fact
similarly situated and when the law is blind to those differences, there
may be as much a denial of equality as when a difference is created
which does not exist." [Yellow Springs Exempted Village Sch. Dist. Bd.
of Educ. v. Ohio High Sch. Athletic Ass\'n]{.underline}, 647 F.2d 651,
657 (6th Cir. 1981); see also [Lau v. Nichols]{.underline}, 483 F.2d
791, 806 (9th Cir. 1973) (Hufstedler, J., dissenting from the denial of
reh\'g en banc), rev\'d, 414 U.S. 563 (1974). Similarly, it is also a
denial of equality when access to facilities, benefits, and services is
denied because the State refuses to acknowledge the "real and undeniable
differences between \[persons with disabilities\] and others."
[Cleburne]{.underline}, 473 U.S. at 444.

> b\. [The ADA's and Section 504\'s Remedies and Preventative Measures
> Are Proportional to the Evil They Address]{.underline}

The vast majority of courts of appeals, including the Ninth Circuit,
have upheld both the ADA and Section 504 under the Supreme Court's
standard. These courts of appeals have found that the ADA and Section
504 are"congruent and proportional" responses to the pervasive
discrimination Congress discovered and thus are "appropriate" Equal
Protection legislation. See [Clark]{.underline}, 123 F.3d at 1270-71;
[Martin v. Kansas]{.underline}, 1999 WL 635916 at \*4; [Muller v.
Costello]{.underline}, 1999 WL 599285 at \*23; [Amos v. Maryland Dep't
of Public Safety and Correctional Servs.]{.underline}, 178 F. 3d 212,
217 (4^th^ Cir. 1999); [Crawford v. Indiana Dep\'t of
Corrections]{.underline}, 115 F.3d 481, 487 (1997); [Coolbaugh v.
Louisiana]{.underline}, 136 F.3d 430, 438 (5th Cir. 1998), cert. denied,
119 S. Ct. 58 (1998); [Seaborn v. Florida]{.underline}, 143 F.3d 1405,
1406 (11th Cir. 1998), cert. denied, 119 S. Ct. 1038 (1999); [Kimel v.
Board of Regents]{.underline}, 139 F.3d 1426, 1433,

1442-43 (11th Cir. 1998), petition for cert. filed on ADA issue, 67
U.S.L.W. 3364 (Nov. 16, 1998) (No. 98-829); see also [Torres v. Puerto
Rico Tourism Co.]{.underline}, 175 F.3d 1, 6 n.7 (1^st^ Cir. 1999)(in
dictum, stating "we have considered the issue of Congress' authority to
sufficiently to conclude that, were we to confront the question head-on,
we almost certainly would join the majority of courts upholding the
\[abrogation\] provision")[^8]

The Second Circuit's recent decision in [Muller v.
Costello]{.underline}, which upheld the ADA's abrogation of state
immunity as "proportional" and "congruent," highlighted the
comprehensiveness of Congress' findings of pervasive discrimination
against persons with disabilities and recognized [Boerne's]{.underline}
dictate to allow Congress "wide latitude" to determine the extent of
measures necessary to prevent and remedy such discrimination:

> In light of Congress's findings of the extent of discrimination
> against people with disabilities, and with due regard to the deference
> owed to Congress in making such judgments, we will not second-guess
> Congress's judgment that the ADA was targeted to remedy and prevent
> irrational discrimination against people with disabilities.

[Muller]{.underline}, 1999 WL 599285 at \* 21 (citing
[Boerne]{.underline} 521U.S. at 519-20).

Similarly, in [Coolbaugh v. Louisiana]{.underline}, the Fifth Circuit
noted that unlike the statute at issue in [Boerne]{.underline}, the ADA
was accompanied by express factual findings by Congress based on an
extensive legislative record. The Fifth Circuit did not hold the
findings dispositive, but accorded

them "substantial deference" in determining the scope of the
constitutional violations. [Coolbaugh]{.underline}, 136 F.3d at 435.
Given those findings, the Fifth Circuit held:

> In sum, the ADA represents Congress\' considered efforts to remedy and
> prevent what it perceived as serious, widespread discrimination
> against the disabled. We recognize that in some instances, the
> provisions of the ADA will "prohibit\[\] conduct which is not itself
> unconstitutional and intrude\[\] into \'legislative spheres of
> autonomy previously reserved to the States.\'" We cannot say, however,
> in light of the extensive findings of unconstitutional discrimination
> made by Congress, that these remedies are too sweeping to survive the
> [Flores]{.underline} proportionality test for legislation that
> provides a remedy for unconstitutional discrimination or prevents
> threatened unconstitutional actions.

[Id]{.underline}. at 437-38 (footnote and citations omitted).

The regulatory provisions at issue in this case demonstrate that the ADA
and Section\
504 fall well within the bounds established by [Boerne]{.underline}. The
principle provisions at issue in this action \-- requirements to make
"reasonable modifications to policies, practices, and procedures where
necessary" to afford access to a program to persons with disabilities,
28 C.F.R. § 35.130(b)(7), and to make programs as a whole accessible,
[id]{.underline}. at § 35.150, --- are balanced, reasonable, and
flexible measures to ensure the persons with disabilities are no longer
unreasonably excluded from public services and buildings.

In an attempt to convince this Court to decline to follow
[Clark]{.underline}, Defendant relies upon [Alsbrook v. City of
Maumelle]{.underline}, a recent decision from the United States Court of
Appeals for\
the Eighth Circuit, the only circuit decision to find Title II an
invalid use of power under the Fourteenth Amendment.
[Alsbrook]{.underline}, 1999 WL 521709.[^9] We believe that the
[Alsbrook]{.underline} decision misreads the relevant ADA provisions.
For instance, [Alsbrook]{.underline} incorrectly interprets the word
"reasonable" in the ADA Title II provision requiring "reasonable
modifications of policies, practices, and procedures." 42 U.S.C. §
12131(2). The [Alsbrook]{.underline} opinion states that\
"reasonable" is so "amorphous" as to expand the reach of Title II. In
fact, the "reasonable" qualifier does just the opposite: it limits
intrusion into government policies, practices, and procedures only to
situations in which it would be reasonable to require
modifications.[^10] Similarly, [Alsbrook]{.underline} argues that Title
II is not congruent and proportional because it targets\
every state program or activity. [Alsbrook]{.underline}, 1999 WL 51709
at \*6. To the contrary, Title II affects only programs, services, or
activities from which people with disabilities are otherwise excluded or
denied an equal opportunity to participate, programs for which a
modification is "necessary" for access. 28 C.F.R. § 35.130(b)(67). And
for such programs, Title II requires only "reasonable modifications,"
and does not require the imposition of an undue burden or a fundamental
alteration to States' programs. [Id.]{.underline}

Alsbrook also failed to recognize the amount of discretion Congress has
in determining appropriate remedies for unconstitutional discrimination.
See [Boerne]{.underline}, 521 U.S. at 519-20.

[Alsbrook]{.underline} improperly narrowed Congress' power to prohibit
some constitutional conduct where necessary in Congress' view to prevent
constitutional violations. [Alsbrook]{.underline}, 1999 WL 521709\
at \*5. This deference was explicitly reserved in [Boerne]{.underline}
and has been reaffirmed by other circuit courts. See
[Boerne]{.underline}, 521 U.S. at 519; [Muller]{.underline}, 1999 WL
599285 at\* 21; [Amos]{.underline}, 178 F.3d at\
219; see also [Alsbrook]{.underline} 1999 WL 521709 at \*10 ("\[the
majority\] entirely ignores the Supreme Court's reference to legislation
which 'deters' constitutional violations and only takes into
consideration legislation which 'remedies' constitutional violations.")
(dissenting in part). Instead, as the dissenters in
[Alsbrook]{.underline} aptly note, [Boerne]{.underline}
"acknowledge\[s\] Congress's broad discretion in fashioning remedial or
preventative legislation." [Alsbrook]{.underline}, 1999 WL 521709 at
\*10. The congruence between the evil to be remedied and the
legislation's means exists in Title II. The "widespread and persistent
discrimination against individuals that Congress found to exist
throughout our society," [id.]{.underline} at \*12, is balanced by a
"reasonable modifications" standard that requires States to change
discriminatory practices, which Congress also found, that are "partially
or entirely under the control of the state or local government."
[Id.]{.underline} At \*13. We urge this Court not to follow
[Alsbrook]{.underline}, which we believe was wrongly decided. Instead,
this Court should follow the controlling authority in this circuit,
[Clark v. California]{.underline}, which upheld Title II's abrogation of
immunity.

Defendant also relies on [Brown v. North Carolina]{.underline}, in which
a divided panel of the\
Fourth Circuit found that the ADA\'s abrogation was unconstitutional as
applied to a specific regulatory provision that prohibited imposing
surcharges for services required to be provided by

the ADA. [Brown]{.underline}, 166 F.3d 698 (4^th^ Cir. 1999). We believe
that the Fourth Circuit employed\
an improper standard in measuring the constitutionality of the ADA. The
court demanded "support in the legislative record for the proposition
that state surcharges for handicapped programs are motivated by animus
toward the class." [Brown]{.underline}, 166 F.3d at 707. The Fourth
Circuit erred in requiring a "legislative record" at all, much less at
the level of specificity it demanded. See [United States v. Des Moines
Nav. & Ry.]{.underline}, 142 U.S. 510, 544 (1892) (quoting Thomas M.
Cooley, [A Treatise on Constitutional Limitations]{.underline} (5th
ed.)); see also [FCC v. Beach Communications, Inc.]{.underline}, 508
U.S. 307, 315 (1993) ("legislative choice is not subject to

courtroom fact-finding and may be based on rational speculation
unsupported by evidence or empirical data"). Indeed, that court
completely ignored the Court\'s admonition in [Boerne]{.underline} that
"\[j\]udicial deference, in most cases, is based not on the state of the
legislative record Congress compiles, but \'on due regard for the
decision of the body constitutionally appointed to decide.\'"
[Boerne]{.underline}, 521 U.S. at 531. We believe that
[Brown]{.underline} was also wrongly decided, and, in any event, has no
bearing on the provisions at issue here.[^11]

> c\. [Unlike the Religious Freedom Restoration Act, Neither The ADA Nor
> 504 Impose Strict Scrutiny]{.underline}

The Religious Freedom Restoration Act (RFRA), struck down in
[Boerne]{.underline}, required the highest level of scrutiny allowable
under the Constitution: States would have to justify any substantial
burden on a religious practice with a "compelling state interest," and
to use the "least

restrictive means" of accomplishing the state goal.
[Boerne]{.underline}, 521 U.S. at 507. Congress enacted this strict
scrutiny in RFRA in the absence of a national pattern of
unconstitutional interference with the exercise of religion.
[Id]{.underline}. at 530-31. Far from imposing such strict scrutiny or a
"compelling interest" test, the ADA and Section 504, both of which are
based on a well-documented history of unconstitutional discrimination
and segregation, require only that public entities make
"[reasonable]{.underline} modifications to their policies, practices,
and procedures," and only where it's "[necessary]{.underline}" to avoid
discrimination on the basis of disability." 28 C.F.R. § 35.130(b)(7).
For preexisting facilities and programs, such as those at issue in this
case, the ADA and Section 504 impose a similarly balanced standard. They
obligate public entities to ensure that their programs as a whole are
accessible to persons with disabilities, rather than requiring that
every barrier to access be removed from every facility. 28 C.F.R. §
31.150. Such moderate measures surely cannot be construed to be the
draconian and "sweeping" remedies disallowed in [Boerne]{.underline}.
[Boerne]{.underline}, 521 U.S. at 532

The Ninth Circuit has held the ADA and Section 504 to remedy the very
type of discrimination that [Cleburne]{.underline} held unconstitutional
under the rational basis test. See [Bay Area Addiction Research and
Treatment, Inc. v. City of Antioch]{.underline}, 179 F.3d 725 (9^th^
Cir. 1999) (allegations of ordinance prohibiting methadone clinic within
500 feet of residential area state claims under the ADA and Section
504); see also [Crowder v. Kitagawa]{.underline}, 81 F.3d 1480, 1485
(9^th^ Cir. 1996) (reasonable modifications to Hawaii's mandatory
quarantine of carnivores are necessary to provide meaningful access to
guide dog users).[^12]

The ADA and Section 504 thus fall neatly in line with other statutes
that have been upheld as valid Section 5 legislation. For when there is
evidence of a history of extensive discrimination, as here, Congress may
prohibit or require modifications of rules, policies, and practices that
tend to have a discriminatory effect on a class or individual,
regardless of the intent behind those actions. In [South Carolina v.
Katzenbach]{.underline}, 383 U.S. 301, 325-37 (1966),\
and again in [City of Rome v. United States]{.underline}, 446 U.S. 156,
177 (1980), both cited with approval

in [Boerne]{.underline}, the Supreme Court upheld the constitutionality
of Section 5 of the Voting Rights\
Act, 42 U.S.C. § 1973c, which prohibits covered jurisdictions from
implementing any electoral change that is discriminatory in effect.

All actions prohibited by the ADA and Section 504 need not rise to the
level of constitutional violations in order to uphold those laws as
valid Fourteenth Amendment legislation. So long as Congress, exercising
its superior fact-finding power, could have rationally concluded that
there were a substantial number of extant and incipient constitutional
violations regarding people with disabilities, it is free to enact a
prophylactic remedial scheme. "Legislation which deters or remedies
constitutional violations can fall within the sweep of Congress\'
enforcement power even if in the process it prohibits conduct which is
not itself unconstitutional." [Florida Prepaid]{.underline}, 119 S. Ct.
at 2206 (quoting [Boerne]{.underline}, 521 U.S. at 518); see [Muller v.
Costello]{.underline}, 1999 WL 599285 at 21 ("Congress may prohibit
conduct that is not itself unconstitutional as prophylaxis against
discrimination that may be subtle or difficult to detect," and courts
should accord deference to Congress' judgment as to how to draw the line
to\
prevent discrimination).

II\. 42 U.S.C. § 2000d-7 VALIDLY WAIVES ELEVENTH AMENDMENT IMMUNITY FOR
CLAIMS UNDER SECTION 504

The Ninth Circuit in [Clark]{.underline} also upheld 42 U.S.C. § 2000d-7
as a valid exercise of the Spending Clause, holding that States waived
their immunity if they continued to apply for and accept federal funds
after the statute\'s effective date. [Clark]{.underline}, 123 F.3d 1267.
No intervening decision of the Supreme Court has drawn that holding into
question. To the contrary, the Supreme Court\'s recent decision in
[College Savings Bank v. Florida Prepaid Postsecondary Expense
Board]{.underline}, 119 S. Ct. 2219 (1999), bolsters the Ninth
Circuit\'s holding.

In [College Savings Bank v. Florida Prepaid Postsecondary Education
Expense Board,]{.underline}\
the Supreme Court held that "Congress may, in the exercise of its
spending power, condition its grant of funds to the States upon their
taking certain actions that Congress could not require\
them to take, and that acceptance of the funds entails an agreement to
the actions. [College Savings]{.underline}, 119 S. Ct. at 2231. Because
"Congress has no obligation to use its Spending Clause power to disburse
funds to the States," Congress is free "to extract 'constructive
waivers' of\
state sovereign immunity" in exchange for the grant. [Id.]{.underline};
see also [Alden v. Maine]{.underline}, 119 S. Ct. 2240, 2267 (1999)
(Nor, subject to constitutional limitations, does the Federal Government
lack the authority or means to seek the States' voluntary consent to
private suits.) Cf. [South Dakota v. Dole]{.underline}, 483 U.S. 203
(1987).

Given this holding, defendants do not dispute Congress' power to require
a waiver of immunity under Section 504. Instead they claim that Section
504\'s waiver language is insufficiently clear. But defendants fail to
point to any controlling authority that would authorize this Court to
reject the Ninth Circuit\'s explicit holding in [Clark]{.underline} that
Section 2000d-7 is sufficiently clear to be valid. [Clark]{.underline},
123 F.3d at 1271. Indeed, other courts of appeals to\
address this issue have followed the holding of [Clark]{.underline}. See
[Litman v. George Mason Univ.]{.underline}, No.

98-1742, 1999 WL 547910 (4th Cir. Jul. 28, 1999); [In re
Innes]{.underline}, No. 97-3363, 1999 WL 641865 at \*7 (10th Cir. Aug.
24, 1999).[^13]

[Clark]{.underline} is thus controlling precedent on this issue and
dictates that California waived its Eleventh Amendment immunity to
Section 504 suits when it elected to accept federal funds\
after the effective date of Section 2000d-7.

**CONCLUSION**

The Eleventh Amendment is not a bar to Plaintiffs' action against the
State Defendants, and Defendants' motion for judgment on the pleadings
should be denied.

Dated: September 10, 1999

> Respectfully submitted,
>
> BILL LANN LEE
>
> Acting Assistant Attorney General
>
> [                                     ]{.underline}
>
> JOHN L. WODATCH
>
> RENEE M. WOHLENHAUS
>
> PHILIP L. BREEN
>
> BEBE NOVICH
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 616-2313

PUBLIC LAW 101 - 336

THE AMERICANS WITH

DISABILITIES ACT OF 1990

(AS AMENDED)

TITLE V MISCELLANEOUS PROVISIONS

Sec. 501. Construction.

Sec. 502. State

Sec. 503. Prohibition against retaliation and coercion.

Sec. 504. Regulations by the Architectural and Transportation Barriers
Compliance Board.

Sec. 505. Attorney\'s fees.

Sec. 506. Technical assistance.

Sec. 507. Federal wilderness areas.

Sec. 508. Transvestites.

Sec. 509. Coverage of Congress and the agencies of the legislative
branch.

Sec. 510. Illegal use of drugs.

Sec. 511. Definitions.

Sec. 512. Amendments to the Rehabilitation Act

Sec. 513. Alternative means of dispute resolution.

Sec. 514. Severability

SEC. 2. FINDINGS AND PURPOSES. *42USC 12101.*

\(a\) Findings. The Congress finds that

\(1\) some 43,000,000 Americans have one or more physical or mental
disabilities, and this number is increasing as the population as a whole
is growing older;

\(2\) historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such
forms of discrimination against individual with disabilities continue to
be a serious and pervasive social problem;

\(3\) discrimination against individuals with disabilities persists in
such critical areas as employment, housing, public accommodations,
education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public
services;

\(4\) 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;

\(5\) individuals with disabilities continually encounter various forms
of discrimination, including outright intentional exclusion, the
discriminatory effects of architectural, transporta-tion, and
communication barriers, overprotective rules and policies, failure to
make modifications to existing facilities and practices, exclusionary
qualification standards and crite-ria, segregation, and relegation to
lesser services, programs, activities, benefits, jobs, or other
opportunities;

\(6\) census data, national polls, and other studies have documented
that people with disabili-ties, as a group, occupy an inferior status in
our society, and are severely disadvantaged socially, vocationally,
economically, and educationally;

\(7\) 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 sterotypic
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; and

\(9\) the continuing existence of unfair and unnecessary discrimination
and prejudice denies people with disabilities the opportunity to compete
on an equal basis and to pursue those oppor-tunities for which our free
society is justifiably famous, and costs the United States billions of
dollars in unnecessary expenses resulting from dependency and
nonproductivity.

\(b\) Purpose. It is the purpose of this Act

\(1\) to provide a clear and comprehensive national mandate for the
elimination of discrimina-\
tion against individuals with disabilities;

\(2\) to provide clear, strong, consistent, enforceable standards
addressing discrimination against individuals with disabilities;

\(3\) to ensure that the Federal Government plays a central role in
enforcing the standards established in this Act on behalf of individuals
with disabilities; and

\(4\) to invoke the sweep of congressional authority, including the
power to enforce the four-teenth amendment and to regulate commerce, in
order to address the major areas of discrimination faced day-to-day by
people with disabilities.

SEC. 3. DEFINITIONS. *42 USC 12102*

As used in this Act:

\(1\) Auxiliary aids and services. The term \"auxiliary aids and
services\" includes

\(A\) qualified interpreters or other effective methods of making
aurally delivered materi-als available to individuals with hearing
impairments:

\(B\) qualified readers, taped texts, or other effective methods of
making visually delivered\
materials available to individuals with visual impairments;

\(C\) acquisition or modification of equipment or devices; and

\(D\) other similar services and actions.

\(2\) Disability. The term \"disability\" means, with respect to an
individual

\(A\) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;

\(B\) a record of such an impairment; or

\(C\) being regarded as having such an impairment.

\(3\) State. The term \"State\" means each of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the Virgin Island, the Trust Territory of the Pacific Islands,
and the Commonwealth of the Northern Mariana Islands.

TITLE I EMPLOYMENT

SEC. 101. DEFINITIONS. *42 USC 12111*

As used in this title:

\(1\) Commission. The term \"Commission\" means the Equal Employment
Opportunity Commission established by section 705 of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-4).

\(2\) Covered entity. The term \"covered entity\" means an employer,
employment agency,

Bill Lann Lee,

Acting Assistant Attorney General

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Bebe Novich, Trial Attorney (D.C. Bar No. 431203)

Disability Rights Section

Civil Rights Division

United States Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202)616-2313

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ELIZABETH CAMPOS, et al., )\
)\
Plaintiffs, ) CASE NO. C-97-02326 MMC(PJH)\
)\
v. ) **[CERTIFICATE OF SERVICE]{.underline}**\
)\
SAN FRANCISCO STATE )\
UNIVERSITY, et al., )\
)\
Defendants. )\
)

)

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

I certify that today I served copies of the United States' Brief in
Opposition to\
Defendants' Motion for Judgment on the Pleadings upon Plaintiffs' and
Defendants' counsel in the above action, by causing the document to be
sent via first-class mail to the following addresses:

Guy B. Wallace Michael T. Lucey

Sarah Colby Jack B. McCowan, Jr.

The Employment Law Center Brian P. Maschler

a Project of the Legal Aid Society of Gordon & Rees, LLP

San Francisco Embarcadero Center West

1663 Mission Street, Suite 400 275 Battery Street

San Francisco, CA 94103 Twentieth Floor

San Francisco, CA 94111

Laurence W. Paradis

Rhoda Benedetti Attorneys for Defendants

Rowena Gargalicana

Alison M. Aubry

Disability Rights Advocates

449 15^th^ Street, Suite 303

Oakland, California 94612

Stephanie Proctor Miller

Beth Ross

Leonard, Carder, Nathan, Zuckerman,

Ross, Chin, & Remar, LLP

1188 Franklin Street

Suite 201

San Francisco, CA 94109-6839

Attorneys for Plaintiffs

Dated this 10th day of September, 1999.

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

BEBE NOVICH (D.C. Bar No. 431203)

Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 616-2313

[^1]: ^/^42 U.S.C. §§ 12131 [et]{.underline} [seq]{.underline}. The
    parties' stipulation was filed with this Court on September 10,
    1999.

[^2]: ^/^29 U.S.C. § 794.

[^3]: ^/^"District courts are bound by the law of their own circuit.
    They are not to resolve splits between circuits no matter how
    egregiously in error they may feel their own circuit to be."
    [Hasbrouck v. Texaco, Inc]{.underline}. 663 F.2d 930, 933 (9^th^
    Cir. 1981), cert. denied, 459 U.S. 828 (1982) (citations omitted).

[^4]: ^/^These findings are attached in their entirety to this brief.

[^5]: ^/^/ Since the enactment of the ADA, people with disabilities
    "have experienced increased access to many environments and
    services" and "\[e\]mployment opportunities have increased."
    National Council on Disability, [Achieving Independence: The
    Challenge for the 21st Century]{.underline} 34 (1996). However,
    discrimination continues to be a significant force in the lives of
    people with disabilities. See [id]{.underline}. at 14-16, 35-36;
    National Council on Disability, [ADA Watch \-- Year One: A Report to
    the President and the Congress on Progress in Implementing the
    Americans with Disabilities Act]{.underline} 36 (1993).

[^6]: ^/^/ Senate Report, [supra]{.underline}, at 6 (quoting without
    attribution [Alexander v. Choate]{.underline}, 469 U.S. 287, 295
    (1985)); House Report, [supra]{.underline}, at 29 (same); 136 Cong.
    Rec. 10,870 (1990) (Rep. Fish); [id]{.underline}. at 11,467 (Rep.
    Dellums).

[^7]: ^/^/ See also [M.L.B. v. S.L.J.]{.underline}, 519 U.S. 102 (1996)
    and [Griffin v. Illinois]{.underline}, 351 U.S. 12 (1956) (cases
    holding that a State violates the Equal Protection Clause when it
    treats indigent parties appealing from certain court proceedings as
    if they were not indigent). Central to these holdings is the
    acknowledgment that "a law nondiscriminatory on its face may be
    grossly discriminatory in its operation." [M.L.B.]{.underline}, 519
    U.S. at 569 (quoting [Griffin]{.underline}, 351 U.S. at 17 n.11).

[^8]: ^/^But see [Alsbrook v. City of Maumelle]{.underline}, No.
    97-1825, 1999 WL 521709 (8^th^ Cir. Jul. 23, 1999) (invalidating
    Title II's abrogation of immunity); [Brown v. North Carolina Div'n
    of Motor Vehicles]{.underline}, 166 F.3d 698 (4^th^ Cir. 1999)
    (striking one provision in the Title II regulation as exceeding
    Congress' Fourteenth Amendment powers).

[^9]: ^/^ [Brown v. North Carolina]{.underline}, the other appellate
    opinion to hold against the ADA's constitutionality, did not render
    an opinion on the entirety of the ADA or even the entirety of Title
    II. [Brown]{.underline} found invalid one provision in the
    regulation promulgated under Title II, which provision is not at
    issue in this action. [Brown]{.underline}, 166 F.3d 698. Defendant
    also cites [Kilcullen v. New York State Dep't of
    Trans.]{.underline}, 33 F. Supp. 2d 133 (N.D.N.Y. 1999), a district
    court case whose holding on the ADA's abrogation of immunity
    effectively has been overruled by [Muller v.\
    Costello]{.underline}, 1999 WL 599285.

[^10]: ^/^In fact, the [Alsbrook]{.underline} decision contradicts
    itself by claiming that because Title II imposes "the amorphous
    requirement of providing [reasonable]{.underline} modifications in
    every program, service, or activity," it prevents "states from
    making decisions tailored to meet specific local needs."
    [Alsbrook]{.underline}, 1999 WL 521709 at \*5 (emphasis added). The
    court did not acknowledge, as did the Fourth Circuit in
    [Amos]{.underline}, that inherent in the term "reasonable" is the
    ability to assess particular modifications and particular local
    needs. See [Amos]{.underline}, 178 F.3d at 222.

[^11]: ^/^The Fourth Circuit has since upheld the ADA's abrogation of
    immunity as to Title II as a whole. [Amos]{.underline}, 178 F.3d
    212. The language of the [Amos]{.underline} decision suggests that
    [Brown]{.underline} has been cabined by the Fourth Circuit.
    [Id.]{.underline} at 221 n.8.

[^12]: ^/^ Defendant claims that Title II's regulations related to
    architectural barriers intrude upon subjects of "even less of a
    Constitutional dimension" than facially neutral State policies.
    Defendants' brief at 14. However, such historical neglect can rise
    to constitutional proportions.

    > \[O\]ften the difference between accommodating the disabled and
    > leaving them segregated and excluded is only a difference of a few
    > inches. But, for the disabled, "almost" is not good enough. From
    > the perspective of a disabled American, the absence of these
    > accommodations in a building, a hallway, a bathroom, or a
    > state-run program is tantamount to a sign that says, "No disabled
    > allowed." A state's failure to consider these necessary and often
    > minor accommodations when designing buildings and programs is
    > invidious discrimination in a most pernicious form . . . .
    >
    > \[T\]his deliberate ignorance is unreasonable and irrational. The
    > disabled are as much a part of society as are those of us
    > fortunate enough not to be challenged. The need to have a ramp for
    > a building and accessible toilets and showers is as evident as the
    > need to have doors and bathrooms in the first place. A state's
    > decision to construct facilities and design programs as if the
    > disabled are not a part of society stems from attitudes formed
    > during a "'lengthy and tragic history,' of segregation and
    > discrimination," which continues to affect the daily lives of the
    > disabled.

    [Amos]{.underline}, 178 F.3d 224-25 (citations omitted) (Murnaghan,
    J., concurring).

    Further, as discussed above, Title II does not necessarily require
    physical changes if policy modifications are sufficient. It does
    not, as Defendants claim, require States to allocate monies in a
    certain way. Instead, it requires something very reasonable \--
    access to the program as a whole \-- and allows States to fashion
    the appropriate method of ensuring this.

[^13]: ^/^Since Defendants' brief was filed, a panel of the Eighth
    Circuit held that Section 2000d-7 did not constitute a valid waiver
    because the condition was "impermissibl\[y\] coerci\[ve\]." [Bradley
    v. Arkansas Bd. of Educ]{.underline}., No. 98-1010, 1999 WL 673228
    (8^th^ Cir. Aug. 31, 1999). This case is inapposite because
    Defendants have not argued that they were coerced into waiving their
    sovereign immunity. In any event, [Bradley]{.underline} conflicts
    not only with [Clark]{.underline}, which is binding precedent, but
    also with [Nevada v. Skinner]{.underline}, 884 F.2d 445, 448 (9^th^
    Cir. 1989), which held that the "coercion theory" was highly suspect
    as a method for resolving disputes between federal and state
    governments and was essentially non-justiciable.