Number range CHAPTER IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

)

GARY E. WILLIAMS, [et]{.underline} [al.]{.underline}, )

)

Plaintiffs, )

)

v\. ) Civil Action No. CCB 94-880

)

MARTIN WASSERMAN, [et]{.underline} [al.]{.underline}, )

)

Defendants. )

)

**UNITED STATES' MEMORANDUM OF LAW**

**IN SUPPORT OF THE CONSTITUTIONALITY OF THE**

**AMERICANS WITH DISABILITIES ACT**

**TABLE OF CONTENTS**

**PAGE**

INTRODUCTION 1

SUMMARY OF ARGUMENT 3

ARGUMENT:

> I. TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE
> OF CONGRESS'S POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT 3
>
> A. The ADA Is An Enactment To Enforce The\
> Equal Protection Clause 6
>
> B. The ADA Is Plainly Adapted To Enforcing\
> The Equal Protection Clause 10
>
> 1\. Congress Found That Discrimination\
> Against People With Disabilities\
> Was Severe And Extended To Every\
> Aspect Of Society 11
>
> 2\. The ADA Is A Proportionate Response\
> By Congress To Remedy And Prevent The\
> Pervasive Discrimination It Discovered 14
>
> 3\. In Enacting The ADA, Congress Was\
> Redressing Constitutionally Cognizable\
> Injuries 15
>
> 4\. Unlike The Statute Found\
> Unconstitutional In [City Of Boerne]{.underline},\
> The ADA Is A Remedial And Preventive\
> Scheme Proportional To The Injury 20

II\. TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE
OF CONGRESS'S POWER UNDER THE COMMERCE CLAUSE 27

A. Congress Had A Rational Basis For Concluding That Discrimination
Against the Disabled, Including As Proscribed By Title II Of The ADA,
Substantially Affects Interstate Commerce 28

> 1\. Congress Possesses Broad Powers Under The Commerce Clause To Enact
> Civil Rights Legislation 28

2\. The Statutory Findings and Legislative History Of The ADA Make Clear
That Discrimination Against Persons With Disabilities Affects Interstate
Commerce\
33

> 3\. Congress's Reliance On Its Commerce Clause Powers In Enacting
> Title II Of The ADA Is Consistent With The Lopez Decision 35

B.  Congress Had A Rational Basis For Concluding That Unnecessarily
    Segregating Disabled Persons In Public Institutions, And Thereby
    Failing To Administer Services, Programs, And Activities For Such
    Persons In The Most Integrated Setting Appropriate, Substantially
    Affects Interstate Commerce 37

1\. Once Congress Concludes That An Activity Substantially Affects
Interstate Commerce, It Is Not Required To Establish An Interstate Nexus
For Every Possible Application Of The Statute 37

> 2\. Even If Congress Were Required To Establish That The ADA, As
> Applied In This Case, Substantially Affects Interstate Commerce, It Is
> Apparent That Congress Had A Rational Basis For Reaching That
> Conclusion 39

C. Congress's Commerce Clause Power In Enacting Title II Of The ADA Is
Not Constrained By The Tenth Amendment 42

CONCLUSION 46

**TABLE OF AUTHORITIES**

**CASES:**

[Abril]{.underline} v. [Virginia]{.underline}, 145 F.3d 182 (4th Cir.
1998) 5

[Alexander]{.underline} v. [Choate]{.underline}, 469 U.S. 287 (1985) 14

[Amos]{.underline} v. [Maryland Dep't of Safety and Correctional
Servs.]{.underline},\
126 F.3d 589 (4th Cir. 1997) 3

[Arritt]{.underline} v. [Grisell]{.underline}, 567 F.2d 1267 (4th Cir.
1977) 9

[Bangerter]{.underline} v. [Orem City Corp.]{.underline}, 46 F.3d 1503\
(10th Cir. 1995) 24

[Bankers Life & Cas. Co.]{.underline} V. [Crenshaw]{.underline}, 486
U.S. 71 (1988) 8

[Bledsoe]{.underline} v. [Palm Beach Soil & Water Conserv.
District]{.underline}, 133 F.3d 816 (11th Cir.), cert. denied, 119 S.
Ct. 72 (1998) 32

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

[Brown]{.underline} v. [North Carolina Div. Of Motor
Vehicles]{.underline}, 987 F. Supp. 451 (E.D.N.C. 1997), appeal pending,
No. 97-2784 (4th Cir.) 3

[Brzonkala]{.underline} v. [Virginia Polytechnic Institute and State
Univ]{.underline},\
132 F.3d 949 (4th Cir. 1997), vacated for reh'g en banc (Feb. 5, 1998)
36, 38

[City of Boerne]{.underline} v. [Flores]{.underline}, 117 S. Ct. 2157
(1997) [passim]{.underline}

[City of Cleburne]{.underline} v. [Cleburne Living Ctr.]{.underline},\
473 U.S. 432 (1985) [passim]{.underline}

[City of Rome]{.underline} v. [United States]{.underline}, 446 U.S. 156
(1980) 25

[Clark]{.underline} v. [California]{.underline}, 123 F.3d 1267 (9th Cir.
1997),\
cert. denied, 118 S. Ct. 2340 (1998) 4,9,26

[Coger]{.underline} v. [Board of Regents]{.underline}, No. 97-5134, 1998
WL\
476164 (6th Cir. Aug. 17, 1998) 9

[Condon]{.underline} v. [Reno]{.underline}, 155 F.3d 453 (4^th^ Cir.
1998) 43,45

[Coolbaugh]{.underline} v. [Louisiana]{.underline}, 136 F.3d 430 (5th
Cir.),\
cert. denied, 119 S. Ct. 58 (Oct. 5, 1998) 4,23,26

[Counsel]{.underline} v. [Dow]{.underline}, 849 F.2d 731 (2d Cir.),
cert. denied,\
488 U.S. 955 (1988) 9

**CASES (continued):**

[Crawford]{.underline} v. [Indiana Dep't of Corrections]{.underline},
115 F.3d 481\
(7th Cir. 1997), cert. denied, 118 S. Ct. 2340\
(1998) 4,9,26

[Crawford]{.underline} v. [Pittman]{.underline}, 708 F.2d 1028 (5th Cir.
1983) 10

[David D.]{.underline} v. [Dartmouth Sch. Comm.]{.underline}, 775 F.2d
411\
(1st Cir. 1985), cert. denied, 475 U.S. 1140\
(1986) 9

[Doe]{.underline} v. [University of Md. Med. System Corp.]{.underline},
50 F.3d 1261\
(4th Cir. 1995) 14

[EEOC.]{.underline} v. [Wyoming]{.underline}, 460 U.S. 226 (1983)
5,27,28,43

[Employment Div.]{.underline} v. [Smith]{.underline}, 494 U.S. 872
(1990) 20,21

[Ex parte Virginia]{.underline}, 100 U.S. 339 (1879) 4

[Fitzpatrick]{.underline} v. [Bitzer]{.underline}, 427 U.S. 445 (1976)
5,31

[Fry]{.underline} v. [United States]{.underline}, 421 U.S. 542 (1975)
29,38

[Fullilove]{.underline} v. [Klutznick]{.underline}, 448 U.S. 448 (1980)
14,25,30

[Garcia]{.underline} v. [San Antonio Metro. Transit Auth.]{.underline},
469 U.S. 528\
(1985) 42,43,45

[Goshtasby]{.underline} v. [Board of Trustees]{.underline}, 141 F.3d
761\
(7th Cir. 1998) 9

[Grano]{.underline} v. [Department of Dev.]{.underline}, 637 F.2d 1073
(6th Cir. 1980) 25

[Griffin]{.underline} v. [Illinois]{.underline}, 351 U.S. 12 (1956) 19

[Heart of Atlanta Motel, Inc.]{.underline} v. [United
States]{.underline},\
379 U.S. 241 (1964) 30,31

[Helen L.]{.underline} v. [DiDario]{.underline}, 46 F.3d 325 (3d Cir.
1994) 1

[Hodel]{.underline} v. [Virginia Surface Mining & Reclamation
Ass'n]{.underline},\
452 U.S. 264 (1981) 28,29

[Jenness]{.underline} v. [Fortson]{.underline}, 403 U.S. 431 (1971) 19

[Kathleen S.]{.underline} v. [Dep't. Of Public Welfare]{.underline},\
10 F. Supp. 2d 460 (E.D. Pa. 1998) 40

[Katzenbach]{.underline} v. [McClung]{.underline}, 379 U.S. 294 (1964)
[passim]{.underline}

**CASES (continued):**

[Katzenbach]{.underline} v. [Morgan]{.underline}, 384 U.S. 641 (1966) 5

[Keeton]{.underline} v. [University of Nev. Sys.]{.underline}, No.
97-17184, 1998 WL\
381432 (9th Cir. July 10, 1998) 9

[Kimel]{.underline} v. [Board Of Regents]{.underline}, 139 F.3d 1426\
(11th Cir. 1998) 4,26

[L.C. by Zimring]{.underline} v. [Olmstead]{.underline}, 138 F.3d 893\
(11th Cir. 1998) 7,40,44

[Lake]{.underline} v. [Arnold]{.underline}, 112 F.3d 682 (3d Cir. 1997)
10

[Lau]{.underline} v. [Nichols]{.underline}, 483 F.2d 791 (9th Cir.
1973), rev'd,\
414 U.S. 563 (1974) 20

[Lewis]{.underline} v. [Casey]{.underline}, 518 U.S. 343 (1996) 19

[M.L.B.]{.underline} v. [S.L.J.]{.underline}, 117 S. Ct. 555 (1996) 19

[Maryland]{.underline} v. [Wirtz]{.underline}, 392 U.S. 183 (1968)
37,38,42

[Mills]{.underline} v. [Maine]{.underline}, 118 F.3d 37 (1st Cir. 1997)
8

[Mitten]{.underline} v. [Muscogee County Sch. Dist.]{.underline}, 877
F.2d 932\
(11th Cir. 1989), cert. denied, 493 U.S. 1072\
(1990) 9

[Oxford House-C]{.underline} v. [City of St. Louis]{.underline}, 77 F.3d
249\
(8th Cir.), cert. denied, 117 S. Ct. 65 (1996) 30

[Penn. Dep't of Corrections]{.underline} v. [Yesky]{.underline},\
118 S. Ct. 1952 (1998) 3

[Pierce]{.underline} v. [King]{.underline}, 918 F. Supp. 932 (E.D.N.C.
1996), aff'd\
on other grounds, 131 F.3d 136, 1997 WL 770564\
(4th Cir. Dec. 11, 1997), petition for cert. Filed\
(March 10, 1998) (No. 97-8592) 3

[Plyer]{.underline} v. [Doe]{.underline}, 457 U.S. 202 (1982) 18

[Printz]{.underline} v. [United States]{.underline}, 117 S. Ct. 2375
(1997) 45

[Proyect]{.underline} v. [United States]{.underline}, 101 F.3d 11 (2d.
Cir. 1996) 39

[Ramirez]{.underline} v. [Puerto Rico Fire Serv.]{.underline}, 715 F.2d
694\
(1st Cir. 1983) 9

[Romer]{.underline} v. [Evans]{.underline}, 517 U.S. 620 (1996) 8

**CASES (continued):**

[Santiago]{.underline} v. [New York State Dep't of Correctional
Servs.]{.underline},\
945 F.2d 25 (2d Cir. 1991), cert. denied,\
502 U.S. 1094 (1992) 9

[School Bd. Of Nassau County]{.underline} v. [Arline]{.underline}, 480
U.S. 273\
(1987) 24

[Scott]{.underline} v. [University of Miss.]{.underline}, 148 F.3d 493
(5th Cir. 1998) 9

[Seaborn]{.underline} v. [Florida]{.underline}, 143 F.3d 1405 (11th Cir.
1998) 4,27

[Seminole Tribe of Florida]{.underline} v. [Florida]{.underline}, 517
U.S. 44\
(1996) 4,5

[South Carolina]{.underline} v. [Katzenbach]{.underline}, 383 U.S. 301\
(1966) 25

[Sunday Lake Iron Co.]{.underline} V. [Township of
Wakefield]{.underline},\
247 U.S. 350 (1918) 8

[United States]{.underline} v. [Bishop]{.underline}, 66 F.3d 569 (3d
Cir. 1995),\
cert. denied, 516 U.S. 1032 (1995) 29

[United States]{.underline} v. [Horton]{.underline}, 601 F.2d 319 (7th
Cir. 1979),\
cert. denied, 444 U.S. 937 (1979) 18

[United States]{.underline} v. [Kenney]{.underline}, 91 F.3d 884 (7th
Cir. 1996) 29

[United States]{.underline} v. [Lopez]{.underline}, 514 U.S. 549 (1995)
27,29,35,36

[United States]{.underline} v. [Olin Corp.]{.underline}, 107 F.3d 1506\
(11th Cir. 1997) 39

[United States]{.underline} v. [Trupin]{.underline}, 117 F.3d 678 (2d
Cir. 1977),\
cert. denied, 118 S. Ct. 699 (1998) 37

[United States]{.underline} v. [Wall]{.underline}, 92 F.3d 1444 (6th
Cir. 1996),\
cert. denied, 117 S. Ct. 690 (1977) 37

[United States]{.underline} v. [Wilson]{.underline}, 73 F.3d 675 (7th
Cir. 1995),\
cert. denied, 117 S. Ct. 46 (1996) 29,33,36

[United States]{.underline} v. [Zorilla]{.underline}, 93 F.3d 7 (1st
Cir. 1996) 42

[United Steelworkers]{.underline} v. [Weber]{.underline}, 443 U.S. 193
(1979) 31

[Usery]{.underline} v. [Charleston County Sch. Dist.]{.underline}, 558
F.2d 1169\
(4th Cir. 1977) 6

**CASES (continued):**

[West]{.underline} v. [Anne Arundel County]{.underline}, 137 F.3d 752
(4th Cir. 1998),\
pet. for cert. denied, 1998 WL 479777\
(U.S. Dec. 7, 1998) (No. 98-266). 45

[Westside Community Bd. Of Educ.]{.underline} V. [Mergens]{.underline},\
496 U.S. 226 (1990) 6

[Wickard]{.underline} v. [Filburn]{.underline}, 317 U.S. 111 (1942)
29,38

[Williams]{.underline} v. [Wasserman]{.underline}, 937 F. Supp. 524 (D.
Md. 1996) 1,2,7

[Willis]{.underline} v. [Dean Witter Reynolds, Inc.]{.underline}, 948
F.2d 305\
(6th Cir. 1991) 31

[Yellow Springs Exempted Village Sch. Dist.\
Bd. Of Ed.]{.underline} V. [Ohio High Sch. Athletic Ass'n]{.underline},\
647 F.2d 651 (6th Cir. 1981) 19

**STATUTES:**

Age Discrimination in Employment Act (ADEA),\
29 U.S.C. 621 [et]{.underline} [seq]{.underline} 30\
29 U.S.C. 623 38

Americans with Disabilities Act (ADA),\
42 U.S.C. 12101-12117 44\
42 U.S.C. 12101 (a)(2) 11,24\
42 U.S.C. 12101 (a)(3) 13\
42 U.S.C. 12101 (a)(5) 24\
42 U.S.C. 12101 (a)(6) 13\
42 U.S.C. 12101 (a)(7) 12\
42 U.S.C. 12101 (a)(9) 14,33,40\
42 U.S.C. 12101 (b)(4) 6,27,32\
42 U.S.C. 12102 (2)(A) 18

Title I:\
42 U.S.C. 12111 [et]{.underline} [seq]{.underline} 33

Title II:\
42 U.S.C. 12131-12134 1\
42 U.S.C. 12132 15\
42 U.S.C. 12134 7

Title III:\
42 U.S.C. 12181-12189 44\
42 U.S.C. 12181 (7) 33

Title IV:\
47 U.S.C. 225-611 44

**STATUTES (continued):**

Civil Rights Act of 1964,\
42 U.S.C. 2000e [et]{.underline} [seq]{.underline} 30

Fair Housing Act of 1968,\
42 U.S.C. 3601 [et]{.underline} [seq]{.underline} 30

Gun-Free School Zones Act of 1990,\
18 U.S.C. 922 (q)(1)(A) 35

Individuals with Disabilities Education Act (IDEA)\
20 U.S.C. 1400 [et]{.underline} [seq]{.underline} 9

Religious Freedom Restoration Act (RFRA)\
42 U.S.C. 2000bb [et]{.underline} [seq]{.underline} 20\
42 U.S.C. 2000bb-1 21\
42 U.S.C. 2000e-2 38

Voting Rights Act, Section 5\
42 U.S.C. 1973c 25

28 C.F.R. 35.130(b)(7) 15

28 C.F.R. 35.130(d) 7,15

28 C.F.R. 36.203(b) 44

**LEGISLATIVE HISTORY:**

H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess.(1990) 11,12,40

H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess.(1990)

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 11,32,34,40

136 Cong. Rec. 11,467 (1990) 10,34

**BOOKS AND ARTICLES:**

Timothy M. Cook, [The Americans with Disabilities Act:\
The Move to Integration]{.underline}, 64 Temp. L. Rev. 393\
(1991) 11

Lowell P. Weicker, Jr., [Historical Background of the\
Americans with Disabilities Act]{.underline},\
64 Temp. L. Rev. 387 (1991) 11

**REPORTS:**

U.S. Commission on Civil Rights**,** [Accommodating the\
Spectrum of Individual Abilities]{.underline} (1983) 12,13,24

INTRODUCTION

This case was filed by individuals with mental disabilities confined in
Maryland State institutions against certain State officials. Plaintiffs
seek prospective injunctive and other relief, including transfer to
community-based care.[^1] On April 22, 1996, the United States sought
leave of this Court to file an amicus brief addressing issues raised by
the parties in their respective motions for summary judgment relating to
this Court's interpretation of title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. 12131-12134, and the substantive due
process rights of institutionalized persons under the Fourteenth
Amendment. Leave was granted pursuant to an Order dated May 16, 1996,
and the United States filed its brief on April 22, 1996.

In its decision on the issues raised in these motions, [see]{.underline}
[Williams]{.underline} v. [Wasserman]{.underline}, 937 F. Supp. 524 (D.
Md. 1996), the Court held, [inter alia]{.underline}, that, "\* \* \*
while the ADA does not place an affirmative obligation on the state to
create or fundamentally alter a program of community-based treatment
options, the ADA does oblige the defendants to make those options
available to otherwise qualified individuals without regard to the
severity or particular classification \* \* \* of their disabilities."
[Id]{.underline}. at 530. The Court also cited the Third Circuit's
decision in [Helen L.]{.underline} v. [DiDario]{.underline}, 46 F.3d 325
(3d Cir. 1994), with approval for the proposition that "the ADA and its
attendant regulations clearly define unnecessary segregation as a form
of illegal discrimination against the disabled." [Williams]{.underline},
937 F.Supp. at 530, citing [Helen L.]{.underline}, 46 F.3d at 333.

Following trial on the merits and the submission of post-trial briefs,
defendants, by letter to this Court dated October 2, 1998, raised for
the first time the question of whether Congress has the power, under
title II of the ADA, to require the States to provide health-related
services to persons with disabilities in the most integrated setting
appropriate, and requested this Court's permission to submit a
memorandum addressing that question. On October 15, 1998, defendants
submitted a supplemental post-trial brief (corrected copy filed October
19, 1998), asserting that Congress lacked power under both the
Fourteenth Amendment and the Commerce Clause to impose such a
requirement on the States. Plaintiffs submitted their reply on November
9, 1998. By letter dated November 5, 1998, the United States notified
this Court that it intended to file a motion to intervene in this case
for the limited purpose of defending the constitutionality of the ADA
and an accompanying brief addressing the defendants' constitutional
arguments. We requested permission to file by December 9, 1998, which
permission was granted by marginal ruling dated November 11, 1998.
Concurrently with this brief, the United States has filed its motion
seeking leave to intervene as of right for the sole purpose of defending
the constitutionality of the ADA. Defendants do not oppose our
intervention.

The United States demonstrates below that Congress properly exercised
its powers, under both Section 5 of the Fourteenth Amendment and the
Commerce Clause, in prohibiting disability-based discrimination by State
and local governmental entities under title II of the ADA.

ARGUMENT

I

TITLE II OF THE AMERICANS WITH DISABILITIES ACT\
IS A VALID EXERCISE OF CONGRESS'S POWER UNDER\
SECTION 5 OF THE FOURTEENTH AMENDMENT

Citing the Supreme Court\'s recent decision in [City of
Boerne]{.underline} v. [Flores]{.underline}, 117 S. Ct. 2157 (1997), the
defendants contend that, if title II of the ADA is interpreted to
require States to provide health-related services to persons with
disabilities in the most integrated setting appropriate, it exceeds
Congress's power to legislate under Section 5 of the Fourteenth
Amendment.[^2] [See]{.underline} Defendants' Supplemental Post-Trial
Reply Brief (Defs.' Br.) at 2. To date, four courts of appeals have
upheld the ADA as valid Section 5 legislation. [See]{.underline}
[Crawford]{.underline} v. [Indiana Dep\'t of Corrections]{.underline},
115 F.3d 481, 487 (7th Cir. 1997) cert. denied, 118 S. Ct. 2340 (1998);
[Clark]{.underline} v. [California]{.underline}, 123 F.3d 1267,
1270-1271 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998);
[Coolbaugh]{.underline} v. [Louisiana]{.underline}, 136 F.3d 430, 438
(5th Cir.), cert. denied, 119 S. Ct. 58 (Oct. 5, 1998);
[Kimel]{.underline} v. [Board of Regents]{.underline}, 139 F.3d 1426,
1433, 1442-1443 (11th Cir. 1998); [Seaborn]{.underline} v.
[Florida]{.underline}, 143 F.3d 1405, 1407 (11th Cir. 1998). We agree
with these courts and urge this Court to follow their well-reasoned
decisions.[^3]

Section 5 of the Fourteenth Amendment empowers Congress to enact
"appropriate legislation" to "enforce" the Equal Protection Clause. As
the Supreme Court explained over a hundred years ago:

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

[Ex parte Virginia]{.underline}, 100 U.S. 339, 345-346 (1879). A statute
is thus "appropriate legislation" to enforce the Equal Protection Clause
if the statute "may be regarded as an enactment to enforce the Equal
Protection Clause, \[if\] it is \'plainly adapted to that end\' and
\[if\] it is not prohibited by but is consistent with \'the letter and
spirit of the constitution.\'" [Katzenbach]{.underline} v.
[Morgan]{.underline}, 384 U.S. 641, 651 (1966); [Abril]{.underline} v.
[Virginia]{.underline}, 145 F.3d 182, 187 (4th Cir. 1998). And, contrary
to defendants' apparent view of the law, neither the Fourteenth
Amendment itself, nor the Supreme Court's opinion in [City of
Boerne]{.underline}, prohibits Congress from enacting legislation that
provides greater relief than the Constitution requires.[^4]

> A. The ADA Is An Enactment To Enforce The Equal\
> [Protection Clause                           ]{.underline}

Although Congress need not announce that it is legislating pursuant to
its Section 5 authority, [see]{.underline} [Usery]{.underline} v.
[Charleston County Sch. Dist.]{.underline}, 558 F.2d 1169, 1171 (4th
Cir. 1977), Congress declared that its intent in enacting the ADA was
"to invoke the sweep of congressional authority, including the power to
enforce the fourteenth amendment \* \* \*, in order to address the major
areas of discrimination faced day-to-day by people with disabilities."
42 U.S.C. 12101(b)(4). While such a declaration is not dispositive of
Congress's authority, it carries significant weight. "Given the
deference due \'the duly enacted and carefully considered decision of a
coequal and representative branch of our Government,\'" a court is "not
lightly \[to\] second-guess such legislative judgments." [Westside
Community Bd. of Educ.]{.underline} v. [Mergens]{.underline}, 496 U.S.
226, 251 (1990).

While defendants concede that people with disabilities are protected by
the Equal Protection Clause, they suggest (Defs.' Br. at 11-12) that,
because classifications on the basis of disability are not subject to
strict scrutiny, Congress has exceeded its power to protect that class
under the Fourteenth Amendment if the ADA is interpreted to require
States to provide health-related services to people with disabilities in
the "most integrated setting appropriate." 28 C.F.R. 35.130(d).[^5]
However, as discussed in detail below, Congress may enact legislation
that provides greater protection than the Constitution itself requires.

To the extent defendants are attempting to argue, more broadly, that it
is beyond Congress's power to legislate unless the courts have declared
a classification "suspect" or "quasi-suspect," they are clearly wrong.
Neither the prohibitions of the Equal Protection Clause nor Congress's
Section 5 authority is limited to suspect or quasi-suspect
classifications. "The purpose of the equal protection clause of the
Fourteenth Amendment is to secure every person within the State\'s
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper execution
through duly constituted agents." [Sunday Lake Iron Co.]{.underline} v.
[Township of Wakefield]{.underline}, 247 U.S. 350, 352 (1918). Thus
"arbitrary and irrational discrimination violates the Equal Protection
Clause under even \[the\] most deferential standard of review." [Bankers
Life & Cas. Co.]{.underline} v. [Crenshaw]{.underline}, 486 U.S. 71, 83
(1988); [see]{.underline}, [e.g.]{.underline}, [Romer]{.underline} v.
[Evans]{.underline}, 517 U.S. 620, 631-634 (1996); [Mills]{.underline}
v. [Maine]{.underline}, 118 F.3d 37, 46 (1st Cir. 1997) (collecting
cases). And, in [City of Cleburne]{.underline} v. [Cleburne Living
Center]{.underline}, 473 U.S. 432, 450 (1985), the Supreme Court made
clear that government discrimination on the basis of disability is
prohibited by the Equal Protection Clause when it is arbitrary. Although
a majority declined to deem classifications on the basis of mental
retardation as "quasi-suspect," it held that this did not leave persons
with such disabilities "unprotected from invidious discrimination."
[Id]{.underline}. at 446.

In affirming Congress's power to prohibit discrimination against persons
with disabilities pursuant to Section 5, the Seventh Circuit explained,
"\[i\]nvidious discrimination by governmental agencies \* \* \* violates
the equal protection clause even if the discrimination is not racial,
though racial discrimination was the original focus of the clause. In
creating a remedy against such discrimination \[through the ADA\],
Congress was acting well within its powers under section 5 \* \* \*."
[Crawford]{.underline}, 115 F.3d at 487; accord [Clark]{.underline}, 123
F.3d at 1270-1271. This is consistent with the Fourth Circuit's holding
in [Arritt]{.underline} v. [Grisell]{.underline}, 567 F.2d 1267, 1271
(1977), that the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
621 [et]{.underline} [seq]{.underline}., is a valid exercise of
Congress's Section 5 authority, despite the fact that age is not a
suspect classification.[^6]

Courts have reached a similar conclusion in cases involving the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400
[et]{.underline} [seq]{.underline}., which requires "access to
specialized instruction and related services which are individually
designed to provide educational benefit to the handicapped child."
[Board of Educ.]{.underline} v. [Rowley]{.underline}, 458 U.S. 176, 201
(1982). The four courts of appeals to address the question have held
that Congress validly exercised its Section 5 authority in enacting the
IDEA. [See]{.underline} [Mitten]{.underline} v. [Muscogee County Sch.
Dist.]{.underline}, 877 F.2d 932, 937 (11th Cir. 1989), cert. denied,
493 U.S. 1072 (1990); [Counsel]{.underline} v. [Dow]{.underline}, 849
F.2d 731, 737 (2d Cir. 1988), cert. denied, 488 U.S. 955 (1988); [David
D.]{.underline} v. [Dartmouth Sch. Comm.]{.underline}, 775 F.2d 411, 421
n.7 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986);
[Crawford]{.underline} v. [Pittman]{.underline}, 708 F.2d 1028,
1036-1038 (5th Cir. 1983); [see]{.underline} [also]{.underline}
[Lake]{.underline} v. [Arnold]{.underline}, 112 F.3d 682, 688 (3d Cir.
1997) (finding that animus against people with mental retardation
constitutes "\'class-based invidiously discriminatory\' motivation" for
purposes of 42 U.S.C. 1985(3)).

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

> B. The ADA Is Plainly Adapted To Enforcing The Equal [Protection
> Clause                                ]{.underline}

The defendants' central argument appears to be that the ADA is not
validly enacted pursuant to the Fourteenth Amendment because it provides
protection that is outside the scope of the Fourteenth Amendment. But
the Supreme Court recently addressed the question of the permissible
scope of a statute that is "plainly adapted" to enforcing the Fourteen
Amendment and concluded that even statutes that prohibit more than the
Equal Protection Clause itself prohibits can be "appropriate remedial
measures" when there is "a congruence between the means used and the
ends to be achieved." [City of Boerne]{.underline}, 117 S. Ct. at 2169.
As the [Boerne]{.underline} Court stated, "\[t\]he appropriateness of
remedial measures must be considered in light of the evil presented."
[Ibid]{.underline}. Therefore, this Court must examine both the extent
and nature of the discrimination faced by individuals with disabilities,
and the appropriateness of the relief crafted by Congress when it
enacted title II of the ADA. Although it was not required to do so, when
Congress considered the ADA it created an extensive and detailed
legislative record of the discrimination experienced by Americans with
disabilities.

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

In enacting the ADA, Congress made express findings about the status of
people with disabilities in our society and determined that they were
subject to continuing "serious and pervasive" discrimination that
"tended to isolate and segregate individuals with disabilities." 42
U.S.C. 12101(a)(2).[^7] 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]{.underline} S. Rep. No. 116, 101st Cong., 1st Sess. 7-8 (1989)
(citing instances of discrimination based on negative reactions to sight
of disability) (Senate Report); H.R. Rep. No. 485, Pt. 2, 101st Cong.,
2d Sess. 28-31 (1990) (same) (House Report). 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]{.underline} [also]{.underline} 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]{.underline} 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).

The 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]{.underline} Senate Report, [supra]{.underline}, at
11; U.S. Commission on Civil Rights, [supra]{.underline}, at 43-45. This
segregation was in part the result of government policies in "critical
areas \[such\] as employment, housing, public accommodations, education,
transportation, communication, recreation,
[institutionalization]{.underline}, [health services]{.underline},
voting, and access to public services." 42 U.S.C. 12101(a)(3) (emphasis
added). Evidence before Congress showed that government policies and
practices, in tandem with similar private discrimination, produced a
situation in which people with disabilities were largely poor, isolated,
and segregated. As Justice Marshall explained, "lengthy and continuing
isolation of \[persons with disabilities\] perpetuated the ignorance,
irrational fears, and stereotyping that long have plagued them."
[Cleburne]{.underline}, 473 U.S. at 464; [see]{.underline}
[also]{.underline} U.S. Commission on Civil Rights, [supra]{.underline},
at 43-45. This evidence provided an ample basis for Congress to conclude
that government discrimination was a root cause of "people with
disabilities, as a group, occupy\[ing\] an inferior status in our
society, and \[being\] severely disadvantaged socially, vocationally,
economically, and educationally." 42 U.S.C. 12101(a)(6).

> 2\. The ADA Is A Proportionate Response By Congress To Remedy And
> Prevent The Pervasive Discrimination It Discovered

Section 5 of the Fourteenth Amendment gives Congress broad power to
address what it found to be the "continuing existence of unfair and
unnecessary discrimination and prejudice \[that\] denies people with
disabilities the opportunity . . . to pursue those opportunities for
which our free society is justifiably famous." [See]{.underline} 42
U.S.C. 12101(a)(9). "It is fundamental that in no organ of government,
state or federal, does there repose a more comprehensive remedial power
than in the Congress, expressly charged by the Constitution with
competence and authority to enforce equal protection guarantees."
[Fullilove]{.underline} v. [Klutznick]{.underline}, 448 U.S. 448, 483
(1980) (opinion of Burger, C.J.).

After extensive investigation prior to enacting the ADA, Congress found
that the exclusion of persons with disabilities from public facilities,
programs, and benefits was a result of past and on-going discrimination.
[See]{.underline} 42 U.S.C. 12101. In the ADA, Congress sought to remedy
the effects of past discrimination and prevent like discrimination in
the future by mandating that "qualified handicapped individual\[s\] must
be provided with [meaningful access]{.underline} to the benefit that the
\[entity\] offers." [Alexander]{.underline} v. [Choate]{.underline}, 469
U.S. 287, 301 (1985) (emphasis added).[^8] Thus, title II of the ADA
requires that \"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. And, in response to the widespread isolation and
segregation identified by Congress and the consequent harm it
discovered, regulations implementing title II of the ADA require that
\"\[a\] public entity shall administer services, programs, and
activities in the most [integrated]{.underline} setting appropriate to
the needs of qualified individuals with disabilities.\" 28 C.F.R.
35.130(d)(emphasis added). While this requirement imposes some burden on
the States, that burden is not unlimited. For example, regulations
implementing title II of the ADA do not require public entities to make
reasonable modifications to policies, practices, or procedures if \"the
public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.\"
28 C.F.R. 35.130(b)(7).

> 3\. In Enacting The ADA, Congress Was Redressing Constitutionally
> Cognizable Injuries

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

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 did not want to unduly limit legislative solutions to
problems faced by the disabled. The Court reasoned that "\[h\]ow this
large and diversified group is to be treated under the law is a
difficult and often technical matter, very much a task for legislators
guided by qualified professionals." [Id]{.underline}. at 442-443. It
specifically noted with approval legislation such as Section 504 and
IDEA, which aimed at protecting persons with disabilities, and openly
worried that requiring governmental entities to justify their efforts
under heightened scrutiny might "lead \[governmental entities\] to
refrain from acting at all." [Id]{.underline}. at 444.

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

The Supreme Court has also recognized that the principle of equality is
not an empty formalism divorced from the realities of day-to-day life,
and thus the Equal Protection Clause is not limited to prohibiting
unequal treatment of similarly situated persons. The Equal Protection
Clause also guarantees "that people of different circumstances will not
be treated as if they were the same." [United States]{.underline} v.
[Horton]{.underline}, 601 F.2d 319, 324 (7th Cir. 1979), cert. denied,
444 U.S. 937 (1979) (quoting Ronald D. Rotunda & John E. Nowak,
[Treatise on Constitutional Law]{.underline} 520 (1978)). By definition,
persons with disabilities have "a physical or mental impairment that
substantially limits one or more \* \* \* major life activities." 42
U.S.C. 12102(2)(A). Thus, as to those life activities, "the handicapped
typically are not similarly situated to the nonhandicapped."
[Alexander]{.underline}, 469 U.S. at 298. The Constitution is not blind
to this reality and instead, in certain circumstances, requires equal
access rather than simply identical treatment. While it is true that the
"\'Constitution does not require things which are different in fact or
opinion to be treated in law as though they were the same,\'"
[Plyler]{.underline} v. [Doe]{.underline}, 457 U.S. 202, 216 (1982), it
is also true that "\[s\]ometimes the grossest discrimination can lie in
treating things that are different as though they were exactly alike."
[Jenness]{.underline} v. [Fortson]{.underline}, 403 U.S. 431, 442
(1971).[^9]

Thus, there is a basis in constitutional law for recognizing 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. 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 males and females are not in fact similarly situated
and when the law is blind to those differences, there may be as much a
denial of equality as when a difference is created which does not
exist." [Yellow Springs Exempted Village Sch. Dist. Bd. of
Educ.]{.underline} v. [Ohio High Sch. Athletic Ass\'n]{.underline}, 647
F.2d 651, 657 (6th Cir. 1981); [see]{.underline} also [Lau]{.underline}
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.

4.  Unlike The Statute Found Unconstitutional In [City Of
    Boerne]{.underline}, The ADA Is A Remedial And Preventive Scheme
    Proportional To The Injury

As the Supreme Court has stated, "\[l\]egislation which deters or
remedies constitutional violations can fall within the sweep of
Congress's enforcement power even if in the process it prohibits conduct
which is not itself unconstitutional." [City of Boerne]{.underline}, 117
S. Ct. at 2163. Thus, there is no need for this Court to decide whether
every requirement of the ADA could be ordered by a court under the
authority of the Equal Protection Clause. It is sufficient that Congress
found that the ADA was appropriate legislation to redress the rampant
discrimination it discovered in its decades-long examination of the
question.

Congress's decision to follow the teachings of [Cleburne]{.underline} in
enacting the ADA distinguishes this case from [City of
Boerne]{.underline}. The Religious Freedom Restoration Act (RFRA), 42
U.S.C. 2000bb [et]{.underline} [seq]{.underline}. (the statute at issue
in [City of Boerne]{.underline}), was enacted by Congress in response to
the Supreme Court\'s decision in [Employment Division]{.underline} v.
[Smith]{.underline}, 494 U.S. 872 (1990). [Smith]{.underline} held that
the Free Exercise Clause did not require States to provide exceptions to
neutral and generally applicable laws even when those laws significantly
burdened religious practices. [See]{.underline} [id]{.underline}. at
887. In RFRA, Congress attempted to overcome the effects of
[Smith]{.underline} by imposing through legislation a requirement that
laws substantially burdening a person\'s exercise of religion be
justified as in furtherance of a compelling State interest and as the
least restrictive means of furthering that interest. [See]{.underline}
42 U.S.C. 2000bb-1. The Court found that in enacting this standard,
Congress was not acting in response to a history of unconstitutional
activity. Indeed, "RFRA\'s legislative record lack\[ed\] examples of
modern instances of generally applicable laws passed because of
religious bigotry." [City of Boerne]{.underline}, 117 S. Ct. at 2169.
Rather, the Court found that Congress simply disagreed with the Court\'s
decision about the substance of the Free Exercise Clause and was
"attempt\[ing\] a substantive change in constitutional protections."
[Id]{.underline}. at 2170.

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

In [City of Boerne]{.underline} the Court found that RFRA was "out of
proportion" to the problems identified so that it could not be viewed as
preventive or remedial. [Id]{.underline}. at 2170. First, it found that
there was no "pattern or practice of unconstitutional conduct under the
Free Exercise Clause as interpreted in [Smith]{.underline}."
[Id]{.underline}. at 2171; [see]{.underline} also [id]{.underline}. at
2169 (surveying legislative record). It also found that RFRA\'s
requirement that the State prove a compelling State interest and narrow
tailoring imposed "the most demanding test known to constitutional law"
and thus possessed a high "likelihood of invalidat\[ing\]" many State
laws. [Id]{.underline}. at 2171. While stressing that Congress was
entitled to "much deference" in determining the need for and scope of
laws to enforce Fourteenth Amendment rights, [id]{.underline}. at 2172,
the Court found that Congress had simply gone so far in attempting to
regulate local behavior that, in light of the lack of evidence of a risk
of unconstitutional conduct, it could no longer be viewed as remedial or
preventive. [Id]{.underline}. at 2169-2170.

As we have shown above, despite the defendants\' assertions (Defs.' Br.
9-10), none of the specific concerns articulated by the Court in
[Boerne]{.underline} apply to the ADA.[^10] But the ADA differs from
RFRA in a more fundamental way. RFRA was attempting to expand the
substantive meaning of the Fourteenth Amendment by imposing a strict
scrutiny standard on the States in the absence of evidence of widespread
use of constitutionally improper criteria. The ADA, on the other hand,
is simply seeking to make effective the right to be free from invidious
discrimination by establishing a remedial scheme tailored to detecting
and preventing those activities most likely to be the result of past or
present discrimination. Moreover, unlike the background to RFRA \--
which demonstrated that Congress acted out of displeasure with the
Court\'s decision in [Smith]{.underline} \-- there is no evidence that
Congress enacted the ADA because of its disagreement with any decision
of the Court. "In the ADA, Congress included no language attempting to
upset the balance of powers and usurp the Court\'s function of
establishing a standard of review by establishing a standard different
from the one previously established by the Supreme Court."
[Coolbaugh]{.underline}, 136 F.3d at 438.

Viewed in light of the underlying Equal Protection principles, the ADA
is appropriate preventive and remedial legislation. First, it is
preventive in that it establishes a statutory scheme that attempts to
detect government activities likely tainted by discrimination. For
example, the ADA regulations require States to conduct self-evaluations
of policies, programs, and activities in order to determine that any
distinctions they make based on disability, or refusals to provide
meaningful or integrated access to facilities, programs, and services
are based on legitimate governmental objectives. The ADA thus attempts
to ensure that inaccurate stereotypes or irrational fear are not the
true cause of State decisions. [See]{.underline} [Bangerter]{.underline}
v. [Orem City Corp.]{.underline}, 46 F.3d 1503 & n.20 (10th Cir. 1995);
cf. [School Bd. of Nassau County]{.underline} v. [Arline]{.underline},
480 U.S. 273, 284-285 (1987). This approach is similar to the standards
articulated by the Court in [Cleburne]{.underline}.

Second, the ADA is remedial in that it attempts to ensure that the
interests of people with disabilities are taken into account. Not
surprisingly, given their profound segregation from the rest of society,
[see]{.underline} 42 U.S.C. 12101(a)(2), the needs of persons with
disabilities were not considered when rules were promulgated, standards
were set, and the built environment was designed. 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]{.underline}
42 U.S.C. 12101(a)(5); [see]{.underline} [also]{.underline} 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]{.underline}, 448 U.S. at 477-478.

The ADA thus falls 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]{.underline} v.
[Katzenbach]{.underline}, 383 U.S. 301, 325-337 (1966), and again in
[City of Rome]{.underline} v. [United States]{.underline}, 446 U.S. 156,
177 (1980), both cited with approval in [City of 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. Similarly, the courts of appeals have
unanimously upheld the application of title VII\'s disparate impact
standard to States as a valid exercise of Congress's Section 5
authority. [See]{.underline} [Grano]{.underline} v. [Department of
Dev.]{.underline}, 637 F.2d 1073, 1080 n.6 (6th Cir. 1980) (collecting
cases); [see]{.underline} [also]{.underline} [City of
Boerne]{.underline}, 117 S. Ct. at 2169 (agreeing that "Congress can
prohibit laws with discriminatory effects in order to prevent racial
discrimination in violation of the Equal Protection Clause").

In sum, there can be no dispute that "well-cataloged instances of
invidious discrimination against the handicapped do exist."
[Alexander]{.underline} v. [Choate]{.underline}, 469 U.S. 287, 295 n.12
(1985). In exercising its broad power under Section 5 to remedy the
ongoing effects of past discrimination and prevent present and future
discrimination, Congress is afforded "wide latitude." [City of
Boerne]{.underline}, 117 S. Ct. at 2164. As the Supreme Court reaffirmed
in [City of Boerne]{.underline}, "\[i\]t is for Congress in the first
instance to

\'determine whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment,\' and its conclusions are
entitled to much deference." [Id]{.underline}. at 2172 (quoting
[Katzenbach]{.underline}, 384 U.S. at 651).

Following this tradition, the Fifth Circuit recently held that "the ADA
represents Congress's considered efforts to remedy and prevent what it
perceived as serious, widespread discrimination against the disabled. \*
\* \* We cannot say \* \* \*, 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."
[Coolbaugh]{.underline} v. [Louisiana]{.underline}, 136 F.3d 430, 438
(5th Cir.), cert. denied, 119 S. Ct. 58 (Oct. 5, 1998). This holding is
consistent with all the other courts of appeals that have considered the
issue since [Seminole Tribe]{.underline}. [See]{.underline}
[Crawford]{.underline} v. [Indiana Dep\'t of Corrections]{.underline},
115 F.3d 481, 487 (7th Cir. 1997) cert. denied, 118 S. Ct. 2340 (1998);
[Clark]{.underline} v. [California]{.underline}, 123 F.3d 1267,
1270-1271 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998);
[Kimel]{.underline} v. [Board of Regents]{.underline}, 139 F.3d 1426,
1433, 1442-1443 (11th Cir. 1998); [Seaborn]{.underline} v.
[Florida]{.underline}, 143 F.3d 1405, 1407 (11th Cir. 1998). [^11] We
urge this Court to follow these well-reasoned opinions.

II

TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF
CONGRESS'S COMMERCE CLAUSE POWER

In enacting the ADA, Congress specifically invoked its authority under
the Commerce Clause. 42 U.S.C. § 12101(b)(4). The defendants, however,
make the narrow argument that Congress does not have the power under the
Commerce Clause to require States to provide health-related services to
persons with disabilities in the most integrated setting appropriate.
Defendants argue that this activity does not have a substantial effect
on interstate commerce, citing [United States]{.underline} v.
[Lopez]{.underline}, 514 U.S. 549 (1995). They also argue that
Congress\'s commerce power is constrained in this context by the Tenth
Amendment. Because, as discussed in Section I above, application of the
ADA in this context falls plainly within Congress\'s power to enforce
the Fourteenth Amendment, this Court need not address these arguments.
Cf. [EEOC]{.underline} v. [Wyoming]{.underline}, 460 U.S. 226, 243
(1983).

Nevertheless, as discussed below, the ADA is a permissible exercise of
Congress\'s commerce power. Congress had a rational basis for concluding
that discrimination on the basis of disability \-- like the other forms
of invidious discrimination it had previously proscribed \-- has a
substantial effect on interstate commerce, including such discrimination
by public entities covered under title II.[^12] That ends the Commerce
Clause inquiry. Defendants' more narrow argument, focusing only on the
application of the ADA to the \"community placement of the traumatically
brain injured from state mental hospitals\" (Defs.' Br. at 5), is
misplaced. If a general regulatory statute bears a substantial relation
to commerce, it may be applied to individual instances arising under the
statute notwithstanding their [de]{.underline} [minimis]{.underline}
character. In any event, Congress could have also rationally concluded
that the ADA\'s proscription of the unnecessary isolation and
segregation of people with disabilities from the community has a
substantial effect on interstate commerce.

> A. Congress Had A Rational Basis For Concluding That Discrimination
> Against the Disabled, Including As Proscribed By Title II Of The ADA,
> Substantially [Affects Interstate
> Commerce                     ]{.underline}

1.  Congress Possesses Broad Powers Under The Commerce Clause To Enact
    Civil Rights Legislation

Congress\'s power under the Commerce Clause is exceedingly broad, and
therefore the \"task of a court that is asked to determine whether a
particular exercise of congressional power is valid under the Commerce
Clause is relatively narrow.\" [Hodel]{.underline} v. [Virginia Surface
Mining & Reclamation Ass\'n]{.underline}, 452 U.S. 264, 276 (1981). The
reviewing court must determine whether Congress had a rational basis for
finding that a regulated activity substantially affects interstate
commerce and, if so, must defer to that finding. [Ibid.]{.underline};
[see]{.underline} generally [Lopez]{.underline}, 514 U.S. at 558-560.
\"The judicial task is at an end once the court determines that Congress
acted rationally in adopting a particular regulatory scheme.\"
[Hodel]{.underline}, 452 U.S. at 276.[^13]

Congress, however, is not required to make formal findings \"as to the
substantial burdens that an activity has on interstate commerce.\"
[Lopez]{.underline}, 514 U.S. at 562. The evidence presented before
Congress may \"fully indicate the nature and effect of the burdens on
interstate commerce which Congress meant to alleviate.\"
[Katzenbach]{.underline} v. [McClung]{.underline}, 379 U.S. 294, 304
(1964). As the Seventh Circuit has explained, in addressing a challenge
to Congress\'s commerce power, the court\'s task is \"merely to
determine whether Congress [could]{.underline} [have]{.underline}
[had]{.underline} a rational basis to support the exercise of its
commerce power.\" [United States]{.underline} v. [Kenney]{.underline},
91 F.3d 884, 886 (7th Cir. 1996)(emphasis added). Moreover, where
Congress has repeatedly legislated in a particular area, and in such
legislation has heard extensive evidence on the burdens of the targeted
activity on interstate commerce, those findings may be treated as a
reliable statement of Congress\'s authority to pass subsequent, related
legislation. As Justice Powell explained in [Fullilove]{.underline} v.
[Klutznick]{.underline}, 448 U.S. 448, 502-503 (1980) (Powell, J.,
concurring), \"information and expertise that Congress acquires in the
consideration and enactment of earlier legislation\" may be sufficient
where \"Congress has legislated repeatedly in an area of national
concern.\"

Civil rights legislation is an example of such an area. As the Supreme
Court has recognized, \"\[t\]he power of Congress in this field is broad
and sweeping; where it keeps within its sphere and violates no express
constitutional limitation it has been the rule of this Court, going back
almost to the founding days of the Republic, not to interfere.\"
[McClung]{.underline}, 379 U.S. at 305. Thus, through its passage of the
Civil Rights Act of 1964,[^14] as well as other Federal civil rights
statutes, Congress was aware that invidious discrimination in a broad
array of contexts, based on race as well as on other bases, directly
affects interstate commerce.[^15] [See]{.underline} generally [Heart of
Atlanta Motel, Inc.]{.underline} v. [United States]{.underline}, 379
U.S. 241, 257 (1964) (in addressing the public accommodations provision
of title II of the 1964 Act, Congress was presented with \"overwhelming
evidence of the disruptive effect that racial discrimination has had on
commercial intercourse\"); [McClung]{.underline}, 379 U.S. at 299-301
(addressing the application of title II of the 1964 Act to a
restaurant).[^16]

The Americans With Disabilities Act is Congress\'s most extensive piece
of civil rights legislation since the Civil Rights Act of 1964. The
purpose of the ADA \"is to provide a clear and comprehensive national
mandate to end discrimination against individuals with disabilities and
to bring persons with disabilities into the economic and social
mainstream of American life.\" S. Rep. No. 116, 101st Cong, 1st Sess. 2.
In fulfilling that mandate by enacting the ADA, Congress specifically
provided that it was invoking \"the sweep of \[its\] congressional
authority, including \[its\] power \* \* \* to regulate commerce.\" 42
U.S.C. 12101(b)(4). Since the subject matter of the ADA is directly
related to the other civil rights legislation based on Congress\'s
commerce power, the legislative findings underlying the prior
legislation also provide a reliable statement of the basis for
Congress\'s enactment of the ADA.[^17] Thus, in enacting the ADA\'s
comprehensive prohibitions against discrimination on the basis of
disability \-- whether in employment (title I), public services by
States and cities (title II), or public accommodations (title III) \--
Congress had a rational basis for concluding that such discrimination,
like other forms of invidious discrimination against which it had
previously legislated, substantially affects interstate commerce.[^18]

2.  The Statutory Findings And Legislative History Of The ADA Make Clear
    That Discrimination Against Persons With Disabilities Affects
    Interstate Commerce

In any event, in enacting the ADA Congress provided examples of the
manner in which discrimination against persons with disabilities affects
the national economy. The statutory \"\[f\]indings\" provide that
Congress found that \"studies \[and other data\] have documented that
people with disabilities, as a group, occupy an inferior status in our
society, and are severely disadvantaged socially, vocationally,
economically, and educationally.\" 42 U.S.C. 12101(a)(6). Congress
further found that \"the continuing existence of unfair and unnecessary
discrimination \* \* \* denie\[d\] people with disabilities the
opportunity to compete on an equal basis \* \* \* and costs the United
States billions of dollars in unnecessary expenses resulting from
dependency and nonproductivity.\" 42 U.S.C. 12101 (a)(9).

Congress based these findings on the extensive evidence and testimony it
received during the hearings held to consider the ADA. For example,
Attorney General Thornburgh stated that:

> We must recognize that passing comprehensive civil rights legislation
> protecting persons with disabilities will have direct and tangible
> benefits for our country \* \* \*. Certainly, the elimination of
> employment discrimination and the mainstreaming of persons with
> disabilities will result in more persons with disabilities working, in
> increased earnings, in less dependence on the Social Security system
> for financial support, in increased spending on consumer goods, and
> increased tax revenues.

S. Rep. No. 116, [supra]{.underline}, at 17. Similarly, President Bush
stated that:

On the cost side, the National Council on the

> Handicapped states that current spending on disability benefits and
> programs exceeds \$60 billion annually. Excluding the millions of
> disabled who want to work from the employment ranks costs society
> literally billions of dollars annually in support payments and lost
> income revenues.

[Ibid.]{.underline} Further, Congressman Steny Hoyer, after noting that
Congress \"has broad authority to pass antidiscrimination laws under the
commerce clause,\" summarized that:

> \[t\]he extensive hearings on the ADA amply demonstrate how
> discrimination against people with disabilities has made it difficult
> for them to participate in the commercial life of this country. The
> Harris polls, cited in a number of the committee hearings, set forth
> clearly the myriad ways in which people with disabilities have been
> precluded, through various forms of discrimination, from public
> accommodations, from traveling, and from gaining employment.

136 Cong. Rec. 11,468 (1990). [See]{.underline} [also]{.underline} pages
11-13, [supra]{.underline}. Thus, even apart from the findings
underlying its prior, related, civil rights legislation, Congress had a
rational basis for concluding that discrimination against persons with
disabilities substantially affects interstate commerce.

> 3\. Congress's Reliance On Its Commerce Clause Powers In Enacting
> Title II Of The ADA Is Consistent With The Lopez Decision

This conclusion is not inconsistent with the Supreme Court\'s decision
in [Lopez]{.underline}, which held that Congress exceeded its commerce
power in enacting the Gun-Free School Zones Act of 1990, 18 U.S.C.
922(q)(1)(A). The Court concluded that possession of a firearm in a
local school zone bore such an attenuated relationship to interstate
commerce that it would be required to \"pile inference upon inference\"
to conclude that the regulated conduct affects commerce. 514 U.S. at
567. The Court also noted the absence of evidence or congressional
findings demonstrating that the regulated conduct substantially affects
interstate commerce. [Id.]{.underline} at 562-563. The Court further
stated that Congress could not rely on its \"accumulated institutional
expertise regarding the regulation of firearms through previous
enactments\" because the prior Federal statutes and congressional
findings do not speak to the subject matter of Section 922(q) or its
relationship to interstate commerce. [Id.]{.underline} at 563. The Court
emphasized, the statute plowed \"new ground\" and represented a \"sharp
break with the long-standing pattern of federal firearms legislation.\"
[Ibid.]{.underline} (internal quotation marks omitted).

Unlike in [Lopez]{.underline}, the link between the activities regulated
by the ADA and interstate commerce is amply supported by both its
legislative history and the express congressional findings contained in
the Act.[^19] Moreover, the ADA does not represent a \"sharp break\"
with prior civil rights legislation; indeed, as we have noted, it is
directly related to other Federal civil rights legislation, and expands
their protection.[^20] Cf. [Brzonkala]{.underline} v. [Virginia
Polytechnic Institute and State University]{.underline}, 132 F.3d 949,
971 (4th Cir. 1997) (the court followed [Lopez]{.underline} in holding
that Congress did not exceed the scope of its commerce power in enacting
title III of the Violence Against Women Act (VAWA), 42 U.S.C. 13981
(1994); the court emphasized that "VAWA legislates in an area \-- civil
rights \-- that has been a federal responsibility since shortly after
the Civil War," and \"a quintessential area of federal expertise\"),
vacated on rehearing en banc (Feb. 5, 1998).[^21]

> B. Congress Had A Rational Basis For Concluding That Unnecessarily
> Segregating Disabled Persons In Public Institutions, And Thereby
> Failing To Administer Services, Programs, And Activities For Such
> Persons In The Most Integrated Setting Appropriate, Substantially
> [Affects Interstate Commerce                           ]{.underline}

1\. Once Congress Concludes That An Activity Substantially Affects
Interstate Commerce, It Is Not Required To Establish An Interstate Nexus
For Every Possible Application Of The Statute

Since Congress had ample basis to conclude that discrimination against
the disabled, like other forms of invidious discrimination,
substantially affects interstate commerce, that should end the inquiry.
Congress is not required to establish an interstate commerce nexus in
every conceivable application of the statute; rather, it is sufficient
if the class of activities that is regulated, when aggregated,
substantially affect interstate commerce. In [Maryland]{.underline} v.
[Wirtz]{.underline}, 392 U.S. 183, 192-193 (1968), the Court explained
that Congress has the power \"to declare that an entire class of
activities affects commerce. The only question for the courts is then
whether the class is within the reach of the federal power.\" The Court
further explained that \"where a general regulatory statute bears a
substantial relation to commerce, the [de]{.underline}
[minimis]{.underline} character of individual instances arising under
that statute is of no consequence.\" [Id.]{.underline} at 197 n.27.;
[see]{.underline} [also]{.underline} [McClung]{.underline}, 379 U.S. at
301; [Wickard]{.underline} v. [Filburn]{.underline}, 317 U.S. 111
(1942); [Fry]{.underline} v. [United States]{.underline}, 421 U.S. 542,
547 (1975).

Thus, the fact that the ADA, like all anti-discrimination statutes,
proscribes discrimination in generalized language is immaterial when
application of the statute to a specific set of facts is challenged
under the Commerce Clause.[^22] For example, in [Brzonkala]{.underline}
the Fourth Circuit did not address whether, in enacting the VAWA,
Congress had a rational basis to conclude that the gang rape of a
college student in her dormitory by other college students (the
underlying facts of the case) had the requisite effect on interstate
commerce. Instead, the court focused on the regulated activity \--
\"violence against women\" \-- and examined whether Congress had a
rational basis for concluding that such violence, discussed generally,
substantially affected interstate commerce. 132 F.3d at 967-968. Thus,
in this case, once the court finds that Congress had a rational basis to
conclude that discrimination on the basis of disability by the covered
entities affects interstate commerce, it need not examine whether the
specific discriminatory acts alleged in the complaint themselves
substantially affect interstate commerce.[^23]

2.  Even If Congress Were Required To Establish That The ADA, As Applied
    In This Case, Affects Interstate Commerce, It Is Apparent That
    Congress Had A Rational Basis For Reaching That Conclusion

Even if the court were to examine the application of title II of the ADA
in this case more narrowly, it is plain that Congress had a rational
basis for concluding that unnecessarily segregating disabled persons
from society, and failing to integrate them into more appropriate and
less restrictive environments, substantially affects interstate
commerce.[^24] First, the congressional findings reflected in the ADA
make clear that Congress viewed \"institutionalization\" as one of the
\"critical areas\" in which discrimination against persons with
disabilities persists. 42 U.S.C. 12101(a)(3). The same findings also
make clear that Congress did not simply view disability-based
discrimination that is manifested in the isolation and segregation of
persons with disabilities as purely a social problem, but also as a
sizable economic one. [See]{.underline} 42 U.S.C. 12101(a)(9). Further,
the legislative history of the ADA makes clear that in enacting the ADA
Congress focused specifically on the \"integration of persons with
disabilities into the economic and social mainstream of American life.\"
S. Rep. No. 116, [supra]{.underline}, at 20; [see]{.underline}
[also]{.underline} H. Rep. No. 485, Pt. 3, 101st Cong., 2nd Sess 49-50
(1990) (the purpose of title II \"is to continue to break down barriers
to the integrated participation of people with disabilities in all
aspects of community life\"; the \"integration of people with
disabilities \* \* \* will benefit society as a whole\").
[See]{.underline} [generally]{.underline} Memorandum of the United
States, [supra]{.underline} n.5, at 10-12, 14-17 (summarizing ADA\'s
focus on the problem of the institutionalization of persons with
disabilities and need to integrate them into the economic and social
mainstream).[^25]

More particularly, Congress could have had a rational basis for
concluding that the conduct targeted by title II\'s integration
requirement has a direct economic effect. First, as a result of moving
disabled individuals from State institutions to community-based
treatment, these individuals generally become eligible for State
services designed to enhance their ability to live and work in the
community. [See]{.underline} Plaintiffs' Reply to Defendants'
Supplemental Post-Trial Brief (Pls.' Br.) at III.C.1. In addition, as a
result of integration disabled persons have a greater opportunity to
purchase goods and services, including food, clothing, and other
personal items. [See]{.underline} [Cook]{.underline},
[supra]{.underline} at 450, 450 n. 385 (collecting studies); Pls.' Br.
at III.C.2.; cf. [McClung]{.underline}, 379 U.S. at 299 (decrease in
spending resulting from racial discrimination by restaurant has a close
connection to interstate commerce). Finally, since community placements
are effectuated through contracts, these contracts are themselves
economic transactions that substantially affect interstate commerce, and
result in other transactions and purchases ([e.g.]{.underline}, the
rental of homes or apartments) that, in the aggregate, affect interstate
commerce. [See]{.underline} Pls.' Br. at III C.3.

Defendants suggest, however, that the court must examine the application
of title II even more narrowly, [i.e.]{.underline}, to whether the
\"community placement of the traumatically brain injured from state
mental hospitals\" substantially affects interstate commerce. As the
above discussion makes clear, there is no basis for such an analysis.
Since Congress could have rationally concluded that the mainstreaming of
individuals with disabilities would result in increased employment,
consumer spending, and other activities that affect interstate commerce,
it is unnecessary for this Court to examine how commerce is affected
each time a person with a particular disability seeks a less restrictive
community placement. Again, once a court \"find\[s\] that the
legislators, in light of the facts and testimony before them, have a
rational basis for finding a chosen regulatory scheme necessary to the
protection of commerce, \[its\] investigation is at an end.\"
[McClung]{.underline}, 379 U.S. at 303-304; [Maryland]{.underline} v.
[Wirtz]{.underline}, 392 U.S. at 197 n.27; cf. [United
States]{.underline} v. [Zorrilla]{.underline}, 93 F.3d 7, 9 (1st Cir.
1996) (\"courts, when passing on the constitutionality of a statutory
provision, must view it in the context of whole statutory scheme\"
(internal quotation marks omitted)).

> C. Congress\'s Commerce Clause Power In Enacting Title II [Of The ADA
> Is Not Constrained By The Tenth Amendment]{.underline}

Defendants argue (Defs.' Br. at 5) that "the inherent limitations of
federalism and the Tenth Amendment" limit Congress\'s power under the
Commerce Clause to regulate the State\'s provision of health-related
services to individuals with disabilities. This argument is wrong.
Because the ADA\'s integration requirement is a law of general
applicability that applies to both private entities and State
governments, Congress\'s commerce power in this context is not
constrained by the Tenth Amendment.

In [Garcia]{.underline} v. [San Antonio Metro. Transit
Auth.]{.underline}, 469 U.S. 528 (1985), the Court held that Congress
acted within its commerce power in applying the Fair Labor Standards Act
to State and local governments. In so doing, the Court rejected an
analysis of the scope of Congress\'s commerce power that turns on
whether the legislation regulates a \"traditional governmental
function.\" [Id.]{.underline} at 548, 554. Instead, the Court held that
when Congress exercises its commerce power the State\'s sovereign
interests are preserved by procedural safeguards inherent in the Federal
political process. [Id.]{.underline} at 552. The Court also emphasized
that the transit authority \"face\[d\] nothing more than the same
minimum-wage and overtime obligations that hundreds of thousands of
other employers, public as well as private, have to meet.\"
[Id.]{.underline} at 554.

As the Fourth Circuit has recently explained, under [Garcia]{.underline}
and its progeny Congress may \"subject the States to legislation that is
also applicable to private parties." [Condon]{.underline} v.
[Reno]{.underline}, 155 F.3d 453, 459 (4th Cir. 1998), petition for
rehearing and suggestion for rehearing en banc filed Oct. 16, 1998 (No.
97-2334). In other words, under [Garcia]{.underline} Congress, in
exercising its commerce power, may subject State governments to
generally applicable laws. [Id.]{.underline} at 461; [see]{.underline}
[also]{.underline} [ibid.]{.underline} (in [Garcia]{.underline}
\"Congress was only allowed to regulate how much the States pay their
hourly employees because Congress also regulates how much private
parties pay their hourly employees\" (emphasis omitted));
[see]{.underline} generally [EEOC]{.underline} v. [Wyoming]{.underline},
460 U.S. 226 (1983)(upholding application of the ADEA to State and local
governments).

The ADA\'s anti-discrimination provisions \-- including its integration
mandate \-- fall plainly within this principle. As described above,
Congress passed the ADA after extensive investigation had identified the
pervasive and continuing existence of widespread discrimination against
people with disabilities. Such discrimination was not limited to the
activities of the State and local governments covered by title II.
Instead, Congress identified and legislated against discrimination
conducted by a wide variety of actors, both public and private: title I
prohibits disability-based discrimination by private and public
employers, 42 U.S.C. 12101-12117; title III prohibits such
discrimination by privately-owned places of public accommodation and
commercial facilities, 42 U.S.C. 12181-12189; and title IV regulates
telecommunications services provided by both public and private
entities, 47 U.S.C. 225, 611. Moreover, the regulations promulgated
under title III contain the same requirement that individuals with
disabilities receive services in the "most integrated setting
appropriate" that is at issue here under title II. [See]{.underline} 28
C.F.R. 36.203(b); [Olmstead]{.underline}, 138 F.3d at 897-898 & n.5.
Thus, the ADA, including its integration requirement, is precisely the
kind of generally applicable law Congress may apply to the States under
its commerce power.[^26]

Finally, the Court\'s recent decision in [Printz]{.underline} v. [United
States]{.underline}, 117 S. Ct. 2375 (1997) (striking down parts of the
\"Brady Bill\"), also does not limits Congress\'s commerce power in this
context. Title II does not require "the forced participation of the
States\' executive in the actual administration of a federal program."
[Id.]{.underline} at 2376. Rather, title II simply forbids States from
discriminating against persons with disabilities in providing State
services, just as it prohibits private employers and places of public
accommodation from engaging in such discrimination. [See]{.underline}
[West]{.underline} v. [Anne Arundel County]{.underline}, 137 F.3d 752,
757-760 (4th Cir. 1998) ([Printz]{.underline} does not overrule
[Garcia]{.underline}), pet. for cert. denied, 1998 WL 47977 (U.S. Dec.
7, 1998) (No.98-266).[^27]

CONCLUSION

For the reasons stated above, title II of the Americans with
Disabilities Act is a constitutional exercise of Congress's power under
both Section 5 of the Fourteenth Amendment and the Commerce Clause.

+--------------------------------+----+--------------------------------+
| Dated: Washington, D.C.        |    | Respectfully submitted,        |
|                                |    |                                |
| December \_\_\_, 1998          |    | BILL LANN LEE                  |
|                                |    |                                |
| LYNNE A. BATTAGLIA             |    | Acting Assistant Attorney      |
|                                |    |                                |
| United States Attorney         |    | General for Civil Rights       |
|                                |    |                                |
| District of Maryland           |    | JOHN L. WODATCH                |
|                                |    |                                |
| \_\_\_\_\_\_\_\_\_\_\_         |    | Chief                          |
| \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |    |                                |
|                                |    | Disability Rights Section      |
| PERRY F. SEKUS                 |    |                                |
|                                |    | L. IRENE BOWEN                 |
| Assistant U.S. Attorney        |    |                                |
|                                |    | Deputy Chief                   |
| District of Maryland           |    |                                |
|                                |    | Disability Rights Section      |
| Bar No. 07379                  |    |                                |
|                                |    | \_\_\_\_\_\_\_\_\_\_\_         |
|                                |    | \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |
|                                |    |                                |
|                                |    | ANNE MARIE PECHT               |
|                                |    |                                |
|                                |    | THOMAS E. CHANDLER             |
|                                |    |                                |
|                                |    | Attorneys                      |
|                                |    |                                |
|                                |    | Civil Rights Division          |
|                                |    |                                |
|                                |    | U.S. Department of Justice     |
|                                |    |                                |
|                                |    | P.O. Box 66400                 |
|                                |    |                                |
|                                |    | Washington, D.C. 20035-6400    |
|                                |    |                                |
|                                |    | \(202\) 307-2891               |
+--------------------------------+----+--------------------------------+

[^1]: ^/^ The Eleventh Amendment is not a bar to this suit because the
    only defendants in this action are State officials sued in their
    official capacities for prospective injunctive relief. [CSX
    Transportation]{.underline} v. [Board of Public Works]{.underline},
    138 F. 3d 537, 540-541 (4th Cir. 1998) (explaining [Ex parte
    Young]{.underline}, 209 U.S. 123 (1908)).

[^2]: ^/^ The constitutionality of the ADA is currently before the 4th
    Circuit in several cases. [See]{.underline} [Amos]{.underline} v.
    [The Maryland Department of Safety and Correctional
    Services]{.underline}, 126 F.3d 589 (4th Cir. 1997), vacated, 118 S.
    Ct. 2339 (1998) (oral argument held December 4, 1998) and
    [Brown]{.underline} v. [North Carolina Department of Motor
    Vehicles]{.underline}, 987 F. Supp. 451 (E.D.N.C. 1997), appeal
    pending, No. 97-2784 (4th Cir.)(oral argument held October 26,
    1998). The argument was pressed by defendants, but not passed on, in
    [Pierce]{.underline} v. [King]{.underline}, 918 F. Supp. 932
    (E.D.N.C. 1996), aff\'d on the basis of [Amos]{.underline}, 131 F.3d
    136 (Table), 1997 WL 770564 (4th Cir. Dec. 11, 1997), petition for
    cert. granted, vacated, and remanded for further consideration in
    light of [Penn. Dept. of Corrections]{.underline} v.
    [Yeskey]{.underline}, 118 S. Ct. 1952 (1998), (119 S. Ct. 33) (Oct.
    5, 1998). The Fourth Circuit stayed [Pierce]{.underline} v.
    [King]{.underline}, pending [Amos]{.underline}. The United States
    has intervened in these cases to defend the constitutionality of the
    ADA.

[^3]: ^/^ Whether or not the ADA was validly enacted by Congress under
    the Fourteenth Amendment has been typically challenged by defendants
    as part of the broader question of whether the abrogation of a
    State's Eleventh Amendment immunity contained in the ADA is a valid
    exercise of Congress's power under Section 5 of the Fourteenth
    Amendment. [See]{.underline} [Seminole Tribe of Florida]{.underline}
    v. [Florida]{.underline}, 517 U.S. 44 (1996). However, as noted
    above, because plaintiffs here seek only prospective injunctive
    relief against State officials, the abrogation of Eleventh Amendment
    immunity is not an issue.

[^4]: ^/^ We also note that application of the ADA in the context of
    this case is not inconsistent with the Tenth Amendment or notions of
    State sovereignty. The Fourteenth Amendment "fundamentally altered
    the balance of state and federal power struck by the Constitution."
    [Seminole Tribe of Florida]{.underline} v. [Florida]{.underline},
    517 U.S. 44, 59 (1996). A long "line of cases has sanctioned
    intrusions by Congress, acting under the Civil War Amendments, into
    the judicial, executive, and legislative spheres of autonomy
    previously reserved to the States." [Fitzpatrick]{.underline} v.
    [Bitzer]{.underline}, 427 U.S. 445, 455 (1976); [see]{.underline}
    also [EEOC]{.underline} v. [Wyoming]{.underline}, 460 U.S. at 243
    n.18. Thus, even if this case is narrowly characterized as
    addressing the State\'s care of uninsured and impoverished persons
    with mental disabilities, there is nothing talismanic about such
    care that places it outside the legitimate scope of Congress\'
    Fourteenth Amendment power.

[^5]: ^/^ The anti-discrimination provision of title II provides that
    \"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 or a public
    entity, or be subjected to discrimination by any such entity.\" 42
    U.S.C. 12132. In 42 U.S.C. 12134, Congress directed the Attorney
    General to promulgate regulations implementing this general mandate.
    The \"integration regulation,\" relevant here, requires, as one of
    title II\'s general prohibitions against discrimination, that public
    entities \"administer services, programs, and activities in the most
    integrated setting appropriate to the needs of qualified individuals
    with disabilities.\" 28 C.F.R. 35.130(d). As we have indicated in an
    earlier filing in this case, the Department of Justice has taken the
    consistent position that the \"integration regulation\" means that
    \"where professionals (with appropriate input) have determined that
    community-based services are appropriate for disabled individuals,
    States must end unnecessary segregation in State-operated
    institutions and provide community based services for those
    individuals.\" Memorandum of the United States in Support of
    Plaintiffs\' Motion for Partial Summary Judgment on ADA Claims and
    in Opposition to Defendants\' Motion for Summary Judgment, or in the
    Alternative, Motion for Summary Judgment at 14.

    This Court has already agreed, in denying defendants' Motion for
    Summary Judgment, that the Department of Justice's regulations are
    entitled to substantial deference and are consistent with the
    purposes of the ADA, [see]{.underline}, [Williams]{.underline} v.
    [Wasserman]{.underline}, 937 F. Supp. 524 at 530-31, discussing
    unnecessary segregation as a form of illegal segregation under title
    II and its regulations and citing with approval [Helen
    L.]{.underline} v. [DiDario]{.underline}, 46 F.3d 325 (3d Cir.
    1994), requiring the State of Pennsylvania to make attendant care
    services available to the plaintiff in her home under the existing
    home care program. [See]{.underline} [also]{.underline}, [L.C. by
    Zimring]{.underline} v. [Olmstead]{.underline}, 138 F.3d 893 (11th
    Cir. 1998) (addressing title II\'s integration mandate), pet. for
    cert. filed, No. 98-536 (S. Ct. Sept. 29, 1998).

[^6]: ^/^ A majority of the courts of appeals are in accord.
    [See]{.underline}, [e.g.]{.underline}, [Coger]{.underline} v. [Board
    of Regents]{.underline}, No. 97-5134, 1998 WL 476164, at \*5-\*11
    (6th Cir. Aug. 17, 1998); [Scott]{.underline} v. [University of
    Miss.]{.underline}, 148 F.3d 493, 501-503 (5th Cir. 1998);
    [Keeton]{.underline} v. [University of Nev. Sys.]{.underline}, No.
    97-17184, 1998 WL 381432, at \*2-\*3 (9th Cir. July

    10, 1998); [Goshtasby]{.underline} v. [Board of
    Trustees]{.underline}, 141 F.3d 761, 770-772 (7th Cir. 1998);
    [Ramirez]{.underline} v. [Puerto Rico Fire Serv.]{.underline}, 715
    F.2d 694, 698-700 (1st Cir. 1983); [Arritt]{.underline} v.
    [Grisell]{.underline}, 567 F.2d 1267, 1271 (4th Cir. 1977);
    [see]{.underline} [also]{.underline} [Santiago]{.underline} v. [New
    York State Dep\'t of Correctional Servs.]{.underline}, 945 F.2d 25,
    30 (2d Cir. 1991) (dictum), cert. denied, 502 U.S. 1094 (1992).

[^7]: ^/^ [See]{.underline} [also]{.underline} Timothy M. Cook, [The
    Americans with Disabilities Act: The Move to
    Integration]{.underline}, 64 Temp. L. Rev. 393, 393-394 nn.1-4, 412
    n.133 (1991); Lowell P. Weicker, Jr., [Historical Background of the
    Americans with Disabilities Act]{.underline}, 64 Temp. L. Rev. 387,
    387-389 (1991) (discussing other laws enacted to redress
    discrimination against persons with disabilities).

[^8]: ^/^ [Alexander]{.underline} dealt with Section 504 of the
    Rehabilitation Act. The Fourth Circuit, however, has held that the
    ADA imposes substantive requirements similar to Section 504.
    [See]{.underline}, [e.g.]{.underline},

    [Doe]{.underline} v. [University of Md. Med. Sys.
    Corp.]{.underline}, 50 F.3d 1261, 1264-1265 n.9 (4th Cir. 1995).

[^9]: ^/^ In a series of Supreme Court cases beginning with
    [Griffin]{.underline} v. [Illinois]{.underline}, 351 U.S. 12 (1956),
    and culminating in [M.L.B.]{.underline} v. [S.L.J.]{.underline}, 117
    S. Ct. 555 (1996), the Court has held that principles of equality
    are sometimes violated by treating unlike persons alike. In these
    cases, the Supreme Court has held that a State violates the Equal
    Protection Clause in treating indigent parties appealing from
    certain court proceedings as if they were not indigent. Central to
    these holdings is the acknowledgment that "a law nondiscriminatory
    on its face may be grossly discriminatory in its operation." 117 S.
    Ct. at 569 (quoting [Griffin]{.underline}, 351 U.S. at 17 n.11). The
    Court held in these cases that even though States are applying a
    facially neutral policy by charging all litigants equal fees for an
    appeal, the Equal Protection Clause requires States to waive such
    fees in order to ensure equal "access" to appeal. [Id]{.underline}.
    at 560. Nor is it sufficient if a State permits an indigent person
    to appeal without charge, but does not provide free trial
    transcripts. The Court has declared that the State cannot "extend to
    such indigent defendants merely a \'meaningless ritual\' while
    others in better economic circumstances have a \'meaningful
    appeal.\'" [Id]{.underline}. at 569 n.16 (quoting [Ross]{.underline}
    v. [Moffitt]{.underline}, 417 U.S. 600, 612 (1974));
    [see]{.underline} also [Lewis]{.underline} v. [Casey]{.underline},
    518 U.S. 343, 356-357 (1996) (holding that State has not met its
    obligation to provide illiterate prisoners access to courts simply
    by providing a law library).

[^10]: ^/^ First, there was substantial evidence by which Congress could
    have determined that there was a "pattern or practice of
    unconstitutional conduct." Second, the statutory scheme imposed by
    Congress did not attempt to impose a compelling interest standard,
    but a more flexible test that requires "[reasonable]{.underline}
    modifications." This finely-tuned balance between the interests of
    persons with disabilities and public entities plainly manifests a
    "congruence" between the "means used" and the "ends to be achieved."
    See [City of Boerne]{.underline}, 117 S. Ct. at 2169. Moreover,
    there is no problem regarding judicially manageable standards, as
    the courts have regularly applied tests such as the "reasonable
    accommodation" test under Section 504, the predecessor to title II
    of the ADA, to recipients of Federal funds for the past 20 years.

[^11]: ^/^ But [see]{.underline} cases cited in footnote 2,
    [supra.]{.underline}

[^12]: ^/^The Supreme Court in [Wyoming]{.underline} held that the
    Commerce Clause affords Congress independent authority to prohibit
    discriminatory conduct by public entities. 460 U.S. at 243
    (application of ADEA to State and local government employers is
    valid exercise of Congress's commerce powers and does not violate
    Tenth Amendment; no need to determine whether ADEA is also valid
    exercise of Congress\'s power under Section 5 of the Fourteenth
    Amendment).

[^13]: ^/^It is well-established that Congress\'s Commerce Clause power
    is not limited to activities that themselves involve interstate
    commerce. \"It is within Congressional authority to regulate
    activities that, although purely local and intrastate themselves,
    comprise a class of activities that, when aggregated, substantially
    affect interstate commerce.\" [United States]{.underline} v.
    [Bishop]{.underline}, 66 F.3d 569, 584 (3d Cir. 1995), cert. denied,
    516 U.S. 1032 (1995); [see]{.underline} generally
    [Hodel]{.underline}, 452 U.S. at 324; [Fry]{.underline} v. [United
    States]{.underline}, 421 U.S. 542, 547 (1975); [Wickard]{.underline}
    v. [Filburn]{.underline}, 317 U.S. 111, 127-128 (1942). Nor is
    Congress\'s commerce power limited to the regulation of activities
    that are themselves commercial. [See]{.underline},
    [e.g.]{.underline}, [United States]{.underline} v.
    [Wilson]{.underline}, 73 F.3d 675, 684 (7th Cir. 1995), cert.
    denied, 117 S. Ct. 46 (1996).

[^14]: ^/^The Civil Rights Act of 1964, 42 U.S.C. 2000e [et]{.underline}
    [seq.]{.underline}, outlawed discrimination in public accommodations
    (title II), public facilities (title III), public education (title
    IV), Federally assisted programs (title VI), and employment (title
    VII).

[^15]: ^/^[See]{.underline}, [e.g.]{.underline}, the Fair Housing Act of
    1968, 42 U.S.C. 3601 [et]{.underline} [seq.]{.underline}; Age
    Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621
    [et]{.underline} [seq.]{.underline}; [see]{.underline}
    [also]{.underline} [Oxford House-C]{.underline} v. [City of St.
    Louis]{.underline}, 77 F.3d 249, 251 (8th Cir.) (Congress had a
    rational basis for concluding that housing discrimination has a
    substantial effect on interstate commerce), cert. denied, 117 S. Ct.
    65 (1996); Hearings on S. 2114 and S. 2280 Before the Subcomm. on
    Housing and Urban Affairs, 90th Cong., 1st Sess. 8 (1967) (Fair
    Housing Act constitutional under the Fourteenth Amendment and the
    Commerce Clause) (statement of Ramsey Clark, Attorney General of the
    United States); [Willis]{.underline} v. [Dean Witter Reynolds,
    Inc.]{.underline}, 948 F.2d 305 (6th Cir. 1991) (ADEA enacted under
    Congress\'s Commerce Clause power).

[^16]: ^/^As a general matter, the 1964 Act was based on Congress\'s
    Commerce Clause power and Section 5 of the Fourteenth Amendment.
    [See]{.underline} generally [Heart of Atlanta Motel]{.underline},
    379 U.S. at 249-250 (finding that \"\[t\]he legislative history of
    the Act indicates that Congress based the Act on Section 5 and the
    Equal Protection Clause \* \* \* as well as its power to regulate
    interstate commerce,\" but upholding title II under the Commerce
    Clause \"since the commerce power is sufficient\");
    [McClung]{.underline}, 379 U.S. at 304 (upholding title II under the
    Commerce Clause based on Congress\'s \"finding\[s\] that \[such
    discrimination\] had a direct and adverse effect on the free flow of
    interstate commerce\"); [United Steelworkers of America]{.underline}
    v. [Weber]{.underline}, 443 U.S. 193, 206 n.6 (1979) (Title VII,
    prohibiting discrimination in employment, was based on the Commerce
    Clause); [Fitzpatrick]{.underline} v. [Bitzer]{.underline}, 427 U.S.
    445, 447 (1976) (upholding 1972 Amendments to title VII extending
    provisions to the States under Section 5 of the Fourteenth
    Amendment); [id.]{.underline} at 458 (Brennan, J., concurring in the
    judgment) (\"\[c\]ongressional authority to enact the provisions of
    title VII at issue in this case is found in the Commerce Clause \*
    \* \* and in § 5 of the Fourteenth Amendment\").

[^17]: ^/^ Indeed, the employment and public accommodations provisions
    of the ADA (titles I and III, respectively), in effect, broaden the
    coverage of the protections contained in the similar provisions of
    the 1964 Act. The forms of discrimination prohibited under title II
    in the public services, program, or activities of State and local
    governments are, in turn, \"comparable to those set out in the
    applicable provisions of titles I and III.\" S. Rep. No. 116,
    [supra]{.underline}, at 44. Among other things, title II applies to
    discrimination in employment by public entities, [e.g.]{.underline},
    [Bledsoe]{.underline} v. [Palm Beach Soil & Water Conserv.
    Dist.]{.underline}, 133 F.3d 816 (11th Cir.), cert. denied, 119 S.
    Ct. 72 (1998), to the public\'s use of a public entity\'s
    facilities, 28 C.F.R. Pt. 35, App. A at 456 (1996)
    ([e.g.]{.underline}, a State must ensure that an inn owned and
    operated by a State park complies with title II), and to programs
    administered by State or local government that provide services or
    benefits.

[^18]: ^/^ Titles I and III of the ADA also contain a jurisdictional
    element that ensures that the statute reaches only those activities
    that substantially affect interstate commerce. [See]{.underline} 42
    U.S.C. 12111(5)(A), 12111(7) (title I); 42 U.S.C. 12181(7) (title
    III). Although title II does not, Congress need not include a
    jurisdictional element when it legislates under its commerce power.
    See, [e.g.]{.underline}, [United States]{.underline} v.
    [Wilson]{.underline}, 73 F.3d at 685 (while a jurisdictional element
    may ensure constitutionality, it is not a prerequisite of
    constitutionality). The inquiry remains whether Congress could have
    had a rational basis for concluding that discrimination against the
    disabled in public services substantially affects interstate
    commerce.

[^19]: ^/^ [Lopez]{.underline} does not alter prior precedent that
    Congress may prohibit conduct that is not itself \"economic\" or an
    essential part of a larger regulatory scheme. Rather, it reaffirms
    longstanding precedent that Congress has the power to regulate
    conduct that \"substantially affect\[s\] interstate commerce\" as
    well as prohibit interference with persons and things in interstate
    commerce. 514 U.S. at 558-559. As the Court explained in
    [Lopez]{.underline}, the commerce power extends to activities that
    either \"arise out of [or are connected with]{.underline} a
    commercial transaction, which viewed in the aggregate substantially
    affects interstate commerce.\" 514 U.S. at 561 (emphasis added). The
    Court in [Lopez]{.underline} also reaffirmed Congress\'s Commerce
    Clause power to regulate two other broad categories of conduct:
    first, \"Congress may regulate the use of the channels of interstate
    commerce\"; second, \"Congress is empowered to regulate and protect
    the instrumentalities of interstate commerce, or persons or things
    in interstate commerce, even though the threat may come only from
    intrastate activities.\" [Id.]{.underline} at 558.

[^20]: ^/^ The Court in [Lopez]{.underline} cited and left undisturbed
    the Court\'s Commerce Clause decisions addressing the Civil Rights
    Act of 1964. 514 U.S. at 559. As one court has stated, \"the Supreme
    Court \[in [Lopez]{.underline}\] reaffirmed, rather than overturned,
    the previous half century of Commerce Clause precedent.\" [United
    States]{.underline} v. [Wilson]{.underline}, 73 F.3d at 685.

[^21]: ^/^ As the Second Circuit has stated, [Lopez]{.underline} \"has
    raised many false hopes. Defendants have used it as a basis for
    challenges to various statutes. Almost invariably those challenges
    fail.\" [United States]{.underline} v. [Trupin]{.underline}, 117
    F.3d 678, 685 (2d Cir. 1977) (quoting [United States]{.underline} v.
    [Bell]{.underline}, 70 F.3d 495, 497 (7th Cir. 1995)), cert. denied,
    118 S. Ct. 699 (1998). And the Sixth Circuit has stated that
    \"\[u\]ntil the Supreme Court provides a clearer signal or cogent
    framework to handle this type of legislation, \[it\] is content to
    heed the concurrence of two Justices \[in [Lopez]{.underline}\] that
    the history of Commerce Clause jurisprudence still \'counsels great
    restraint.\'\" [United States]{.underline} v. [Wall]{.underline}, 92
    F.3d 1444, 1452 (6th Cir. 1996) (quoting [Lopez]{.underline}, 514
    U.S. at 568 (Kennedy, J., concurring)), cert. denied, 117 S. Ct. 690
    (1977).

[^22]: ^/^ Of course, it is characteristic of most civil rights
    legislation to proscribe certain conduct at a high level of
    generalization. [See]{.underline}, [e.g.]{.underline}, 42 U.S.C.
    2000e-2 (proscribing discrimination in employment); 42 U.S.C. 3604
    (proscribing discrimination in housing); 29 U.S.C. 623 (proscribing
    age discrimination).

[^23]: ^/^ In other contexts, courts have declined to narrowly
    characterize the class of activities involved in the case in
    determining whether Congress\'s commerce power may validly extend to
    the conduct at issue. For example, in [Proyect]{.underline} v.
    [United States]{.underline}, 101 F.3d 11, 13 (2d Cir. 1996), the
    court rejected defendant\'s argument that his conduct was the
    cultivation of marijuana for personal consumption, not the
    \"manufacture of a controlled substance,\" and that the former was
    beyond Congress\'s commerce power. The court stated that any class
    of activities \"could be defined so narrowly as to cover only those
    activities that do not have a substantial affect on interstate
    commerce,\" but to do so \"would circumvent the mandate, reaffirmed
    in [Lopez]{.underline},\" that courts are not to carve out even
    [de]{.underline} [minimis]{.underline} individual instances of
    conduct that are covered by a general regulatory statute bearing a
    substantial relation to commerce. [Id.]{.underline} at 14. Several
    cases have similarly rejected a narrow characterization of the class
    of activities covered by a Federal statute that addresses hazardous
    waste disposal in upholding application of the statute under
    Congress\'s commerce power. [See]{.underline}, [e.g.]{.underline},
    [United States]{.underline} v. [Olin Corp.]{.underline}, 107 F.3d
    1506, 1509-1510 (11th Cir. 1997); [In re Pfohl Brothers Landfill
    Litigation]{.underline}, \_\_\_ F. Supp 2d \_\_\_, 1998 WL 765661
    (W.D.N.Y. Oct. 27, 1998).

[^24]: ^/^ [See]{.underline} footnote 5, [supra]{.underline}.

[^25]: ^/^ [See]{.underline} [also]{.underline} [Olmstead]{.underline},
    138 F.3d at 898-899 (discussing congressional findings underlying
    requirement that public services be provided in the most integrated
    setting appropriate); [Kathleen S.]{.underline} v. [Department of
    Public Welfare]{.underline}, 10 F. Supp. 2d 460, 467 (E.D. Pa. 1998)
    (emphasizing that \"unnecessary segregation of the disabled in
    America continued to be a major form of discrimination against the
    disabled, and that through the ADA, Congress intended to ensure that
    the disabled be given the opportunity for more true and full
    integration into the mainstream of American life.\").

[^26]: ^/^ Defendants acknowledge (Defs.' Br. at 6) that the ADA " as
    applied to employment, building access, and many other facets of its
    regulatory scheme, \* \* \* does indeed apply to private parties as
    well as governmental entities, and places the same general
    obligations on both." But, they argue (Defs.' Br. at 5), providing
    free \"care for the impoverished and uninsured members of the
    population is a function performed by state and local governmental
    entities only.\" Defendants' focus is much too narrow. The ADA is a
    civil rights statute broadly addressing discrimination on the basis
    of disability by public and private entities alike. Thus, as one
    example, the nondiscrimination principle reflected in the ADA\'s
    integration mandate applies to mental health institutions and
    State-created and funded community placements as well as to their
    private counterparts. That is sufficient to satisfy
    [Garcia]{.underline}. There is no basis for defendants\' suggestion
    that a non-discrimination provision of the ADA that otherwise
    applies to both private and public entities cannot apply to a public
    entity if that entity does not charge the recipient for the
    particular service.

[^27]: ^/^ Defendants also rely on the Fourth Circuit\'s decision in
    [Condon]{.underline}, which held that Congress\'s enactment of the
    Federal Driver\'s Privacy Protection Act (DPPA) under its commerce
    powers violated the Tenth Amendment. 155 F.3d 453. The court stated
    that \"because the DPPA is not generally applicable, like the FLSA
    or ADEA, Congress did not have authority under our system of dual
    sovereignty.\" [Id]{.underline}. at 463; [see]{.underline}
    [also]{.underline} [id]{.underline}. at 461-462 (\"rather than
    enacting a law of general applicability that incidentally applies to
    the States, Congress enacted a law that, for all intents and
    purposes, applies only to the States\" (emphasis omitted)). Although
    we disagree with the decision in [Condon]{.underline}, the instant
    case, as noted above, plainly involves application of a regulatory
    scheme that applies to both private entities and the States.