Number range CHAPTER IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

[                              ]{.underline}

JEFFREY GORMAN, )

)

Plaintiff ) No. 95-0475-CV-W-8

)

and )

)

UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor )

)

vs. )

)

)

STEVEN BISHOP, Chief, )

KCMO Police Dept., )

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

)

Defendants. )

[                              ]{.underline})

**UNITED STATES\' SUGGESTIONS IN OPPOSITION**

**TO DEFENDANTS\' PARTIAL MOTION TO DISMISS**

**TABLE OF CONTENTS**

**TABLE OF AUTHORITIES** ii

**I. BACKGROUND** 1

**II. TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS NOT
UNCONSTITUTIONALLY VAGUE.** 3

> A. Police Departments Are Required to Provide\
> Police Officers With Training in the Proper\
> Treatment of Persons With Disabilities,\
> Including Arrestees. 5
>
> B. The Statute and the Title II Regulation Make\
> it Clear That Public Entities Must Provide\
> Vehicles Accessible to Persons With\
> Disabilities, or at Least Modify Existing\
> Vehicles, Where Necessary to Avoid\
> Discriminating on the Basis of Disability. 7
>
> C. Caselaw Has Upheld as Constitutional Words,\
> Phrases, and Concepts in Title III of the ADA\
> That Are Similar to Those in Title II. 10

**III. CONCLUSION** 12

**TABLE OF AUTHORITIES**

**CASES**

[Boyce Motor Lines v. United States]{.underline},

342 U.S. 337 (1952) 10

[D.C. & M.S. v. City of St. Louis]{.underline},

795 F.2d 652 (8th Cir. 1986) 10

[Ginsburg v. New York]{.underline}, 390 U.S. 629 (1968) 4

[Gorman v. Guitars & Cadillacs, L.P., et al.]{.underline}, No.
93-0487-CV-W-8 (W.D. Mo.) 2

[Grayned v. City of Rockford]{.underline}, 408 U.S. 104 (1972) 10

[Horn v. Burns & Roe]{.underline}, 536 F.2d 251 (8th Cir. 1976) 10

[Kohl v. Woodhaven Learning Center]{.underline}, 865 F.2d 930 (8th Cir.
1989), [cert. denied]{.underline}, 493 U.S. 892 (1990) 9

[Moore v. Clarke]{.underline}, 904 F.2d 1226 (8th Cir. 1989) 4

[Noland v. Wheatley]{.underline}, 835 F. Supp. 476 (N.D. Ill. 1993) 12

[Pinnock v. International House of Pancakes]{.underline},

844 F. Supp. 574 (S.D. Cal. 1993),[cert denied]{.underline},

114 S. Ct. 2726 (1994), [appeal dismissed as moot]{.underline},

No. 94-55030 (9th Circ. July 21, 1994) 5, 10, 11, 12

[Pottgen v. Missouri State High School Activities
Association]{.underline},

40 F.3d 926 (8th Cir. 1994) 9

[Southeastern Community College v. Davis]{.underline},

442 U.S. 397 (1979) 8

[United States v. Articles of Drug]{.underline},

825 F.2d 1238 (8th Cir. 1987) 3, 10

[United States v. Schneiderman]{.underline},

968 F.2d 1564 (2d Cir. 1992) 4

[Village of Hoffman Estates v. Flipside,]{.underline}

[Hoffman Estates, Inc.]{.underline}, 455 U.S. 489 (l982) 4, 9

[Ward v. Rock Against Racism]{.underline}, 491 U.S. 781 (1989) 3

**STATUTORY AUTHORITY**

28 U.S.C. § 2403(a) 3

29 U.S.C. § 794 1

29 U.S.C. § 794(a) 8

Title II of the Americans with Disabilities Act of 1990,

42 U.S.C. §§ 12115-12161 1

42 U.S.C. § 12131(2) 4, 7, 12

42 U.S.C. § 12132 5, 6, 8

42 U.S.C. § 12134(a) 4

42 U.S.C. § 12134(b) 9

Title III of the Americans With Disabilities Act of 1990,

42 U.S.C. §§ 12181-12189 5

42 U.S.C. § 12182(b)(2)(A)(ii) 11

42 U.S.C. § 1983 12

**REGULATORY AUTHORITY**

28 C.F.R. Pt. 35 (1994) 3

28 C.F.R. Pt. 35, App. A (1994) 8, 9, 11, 12

28 C.F.R. § 35.130 6

28 C.F.R. § 35.130(b)(1)(iii) 7

28 C.F.R. § 35.130(b)(1)(iv) 7

28 C.F.R. § 35.130(b)(7) 7, 11

28 C.F.R. § 35.150 7

28 C.F.R. § 35.150(a)(3) 9

28 C.F.R. § 35.150(b)(1) 8

28 C.F.R. Pt. 36 (1994) 10

28 C.F.R. Pt. 36, App. B (1994) 10

28 C.F.R. § 36.302 11

**LEGISLATIVE HISTORY**

H.R. Rep. No. 485(III), 101st Cong., 2d Sess.,

[reprinted in]{.underline}, 1990 U.S.C.C.A.N. 445 6, 7, 8, 11

**MISCELLANEOUS**

Plaintiff\'s Complaint 2, 3, 5, 7

Defendants\' Suggestions in Support of\
Partial Motion to Dismiss 3, 9

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

[                              ]{.underline}

JEFFREY GORMAN, )

)

Plaintiff ) No. 95-0475-CV-W-8

)

and )

)

UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor )

)

vs. )

)

)

STEVEN BISHOP, Chief, )

KCMO Police Dept., )

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

)

Defendants. )

[                              ]{.underline})

**UNITED STATES\' SUGGESTIONS IN OPPOSITION**

**TO DEFENDANTS\' PARTIAL MOTION TO DISMISS**

**I. BACKGROUND**

On May 30, 1995, Jeffrey Gorman, an individual with a disability who
uses a wheelchair, filed this civil action against Steven Bishop, Chief
of Police of the Kansas City, Missouri Police Department (\"KCMOPD\"),
Neal Becker, a police officer with the KCMOPD, and several persons who,
on and prior to May 31, 1992, were members of the KCMOPD\'s Board of
Commissioners (\"the Board\"). The complaint alleges violations of title
II of the Americans with Disabilities Act (\"ADA\"), 42 U.S.C. §§
12115-12161, and section 504 of the Rehabilitation Act of 1973, (as
amended) (\"section 504\"), 29 U.S.C. § 794.[^1]

The plaintiff alleges that on May 31, 1992, defendant Becker detained
him, arranged for his transport in connection with his arrest, removed
him from his wheelchair, and transported him to police headquarters in a
vehicle that was not suitable for individuals with his disability. As a
result of this conduct, the plaintiff claims he sustained injuries and
his wheelchair was damaged during transport. [See]{.underline} Complaint
at ¶¶ 14, 19, and 20. The plaintiff also claims that defendant Bishop,
as Chief of Police of the KCMOPD, and the remaining defendants, as
members of the Board, failed to fulfill their responsibility to
implement the requirements of the ADA and section 504 within the KCMOPD.
This responsibility included, the plaintiff contends, providing vehicles
suitable for transporting individuals who use wheelchairs,
[id.]{.underline} at ¶ 15; making reasonable modifications in
departmental policies, practices, and procedures that were necessary to
avoid discriminating against the plaintiff on the basis of his
disability, [id.]{.underline} at ¶ 16; and training police officers in
the proper handling of arrestees with spinal cord injuries, like the
plaintiff. [Id.]{.underline} at ¶ 17.

On June 7, 1995, defendants served upon the plaintiff and upon the
United States copies of their Partial Motion to Dismiss (\"motion\") and
their Suggestions in Support of Partial Motion to Dismiss
(\"Suggestions\" or \"Def. Mem.\"), in which they argued that the
plaintiff\'s claims based upon title II of the ADA should be dismissed
on the ground that the statute is unconstitutionally vague. Pursuant to
28 U.S.C. § 2403(a), the United States has filed a motion to intervene
in this case as of right with respect to the issue of the ADA\'s
constitutionality. This brief argues that title II of the ADA is not
unconstitutionally vague.

**II. TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS NOT
UNCONSTITUTIONALLY VAGUE.**

It is well-settled that when interpreting the meaning of words in a
statute challenged as unconstitutionally vague, courts must consider not
only the words of the statute themselves, but the limiting construction
given to them by the statute\'s legislative history, [see]{.underline},
[e.g.]{.underline}, [U.S. v. Articles of Drug]{.underline}, 825 F.2d
1238, 1244 (8th Cir. 1987), by the agencies charged with enforcing the
statute, [see]{.underline}, [e.g.]{.underline}, [Ward v. Rock Against
Racism]{.underline}, 491 U.S. 781, 795 (1989),[^2] [Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc.]{.underline}, 455 U.S. 489,
494 n.5 (1982), and by caselaw interpreting the particular words at
issue. [See]{.underline}, [e.g.]{.underline}, [Ginsburg v. New
York]{.underline}, 390 U.S. 629, 643 (1968); [Moore v.
Clarke]{.underline}, 904 F.2d 1226, 1233 (8th Cir. 1989).

The language of title II itself is sufficiently clear to have put
defendants on notice of their obligations to make modifications to
existing police department policies, practices, and procedures and to
remove \"transportation barriers,\" in order to avoid discriminating
against individuals with disabilities. The ADA\'s legislative history
supports the plaintiff\'s claim that a failure to train police officers
in the proper manner of interacting with individuals with disabilities
may constitute discrimination within the meaning of title II. The
regulation implementing title II, 28 C.F.R. Pt. 35 (1994) (\"the
regulation\" or \"the title II regulation\"), that was promulgated by
the Department of Justice pursuant to statutory directive,[^3] and the
Department\'s interpretation of the regulation in the regulation\'s
Preamble, 28 C.F.R. Pt. 35, App. A (1994), support this theory as well,
and also define the extent of the defendants\' obligation to provide
vehicles suitable for arrestees with mobility impairments. Finally, a
Federal court has upheld, against a vagueness challenge, terms in title
III of the ADA, 42 U.S.C. §§ 12181-12189, that are intended to have the
same meaning as the same terms in title II. [See]{.underline} [Pinnock
v. International House of Pancakes]{.underline}, 844 F. Supp. 574 (S.D.
Cal. 1993), [cert denied]{.underline}, 114 S. Ct. 2726 (1994), [appeal
dismissed as moot]{.underline}, No. 94-55030 (9th Cir. July 21, 1994).
That case strongly favors a finding in the instant case that title II is
not unconstitutionally vague.

> **A. [Police Departments Are Required to Provide Police Officers With
> Training in the Proper Treatment of Persons With Disabilities,
> Including Arrestees.]{.underline}**

The plaintiff has alleged that the defendants violated title II by
failing to make \"reasonable modifications\" to existing policies,
practices, and procedures, [see]{.underline} Complaint at ¶ 16, and,
with respect to the Chief of Police and the members of the Board, by
failing to ensure that police officers were adequately trained in
arresting and transporting persons with mobility impairments.
[Id.]{.underline} at ¶ 17. Title II specifically contemplates that in
some circumstances modifications to a public entity\'s policies,
practices, and procedures will be necessary to avoid discrimination.
Section 202 protects from discrimination by public entities any
\"qualified individual with a disability,\" [see]{.underline} 42 U.S.C.
§ 12132, whom section 201(2) defines as

> an individual with a disability who, with or without [reasonable
> modifications to rules, policies, or practices]{.underline}, the
> removal of architectural, communication, or transportation barriers,
> or the provision of auxiliary aids or services, meets the essential
> eligibility requirements for the receipt of services or the
> participation in programs or activities provided by a public entity.

42 U.S.C. § 12181(2) (emphasis added).

Section 35.130(b)(7) of the title II regulation perhaps most pointedly
defines the obligation. It states that modifications to policies,
practices, and procedures shall be made when \"necessary to avoid
discrimination on the basis of disability,\" unless it can be
demonstrated that making the modifications would \"fundamentally alter
the nature of \[a\] service, program, or activity.\" 28 C.F.R. §
35.130(b)(7).

A police department\'s obligation to provide adequate training to
officers in the proper treatment of individuals with disabilities is a
specific application of this general rule.[^4] The House Judiciary
Committee Report states that title II requires such training when it is
necessary to avoid discriminating against persons with disabilities,
including persons arrested by the police:

> In order to comply with the\
> non-discrimination mandate, it is often necessary to provide training
> to public employees about disability. For example, persons who have
> epilepsy, and a variety of other disabilities, are frequently
> inappropriately arrested and jailed because police officers have not
> received proper training in the recognition of and aid for seizures.
> Often, after being arrested, they are deprived of medications while in
> jail, resulting in further seizures. Such discriminatory treatment
> based on disability can be avoided by proper training.

H.R. Rep. No. 485(III), 101st Cong., 2d Sess., at 51, [reprinted
in]{.underline}, 1990 U.S.C.C.A.N. 445, 473 (hereafter \"House Judiciary
Report\"). The discussion of section 35.130(b) of the title II
regulation found in the Preamble says essentially the same thing.
[See]{.underline} 28 C.F.R. Pt. 35, App. A, at 451.[^5]

> **B. [The Statute and the Title II Regulation Make it Clear That
> Public Entities Must Provide Vehicles Accessible to persons With
> Disabilities, or at Least Modify Existing Vehicles, Where Necessary to
> Avoid Discriminating on the Basis of Disability.]{.underline}**

The plaintiff also alleges that the KCMOPD should have had vehicles
suitable for arrestees with mobility impairments. Complaint at ¶ 15.
This allegation is consistent with section 201(2) of the ADA, which
requires \"the removal of architectural, communication, or
transportation barriers,\" 42 U.S.C. § 12131(2), and with section
35.150(b)(1) of the regulation, which states that, in meeting the
requirement to provide access to programs, services, and activities,
public entities may undertake \"alteration of existing facilities and
construction of new facilities\" and may use \"accessible rolling stock
or other conveyances.\" 28 C.F.R. § 35.150(b)(1).

Of course, this obligation, like the obligation to make reasonable
modifications to policies, practices, and procedures, is not without
limitation. Section 35.150(a)(3), for example, says that public entities
are not required to take any actions to afford access to their services,
programs, and activities that would result in a \"fundamental
alteration\" of those services, programs, and activities or in \"an
undue financial or administrative burden.\" 28 C.F.R. § 35.150(a)(3).
The regulation itself does not define the terms \"fundamental
alteration\" and \"undue financial and administrative burden.\" However,
the Preamble discussion of section 35.150(b)(3) clearly indicates that
these terms are intended to be defined in the same way that cases
interpreting the same terms under section 504, including [Southeastern
Community College v. Davis]{.underline}, 442 U.S. 397 (1979), and the
Circuit court decisions following [Davis]{.underline}, have defined
them. [See]{.underline} 28 C.F.R. Pt. 35, App. A, at 457, 463.[^6] The
Eighth Circuit has had no difficulty applying the standards set out in
[Davis]{.underline}. [See]{.underline}, [e.g.]{.underline}, [Pottgen v.
Missouri State High School Activities Association]{.underline}, 40 F.3d
926 (8th Cir. 1994); [Kohl v. Woodhaven Learning Center]{.underline},
865 F.2d 930 (8th Cir. 1989), [cert. denied]{.underline}, 493 U.S. 892
(1990).

It is true that there is no regulatory language or caselaw interpreting
title II that specifically tells police officers how to arrest and
transport individuals who have disabilities like the plaintiff\'s.
[See]{.underline} Def. Mem. at 2. This degree of specificity, however,
is not required to withstand a vagueness challenge. It is firmly
established that statutes that regulate economic conduct and impose
civil rather than criminal liability, like the ADA, are subject to less
stringent vagueness standards than are statutes that impose criminal
liability or abridge constitutionally protected rights. [Hoffman
Estates]{.underline}, 455 U.S. at 495 n.7 & 498; [Grayned v. City of
Rockford]{.underline}, 408 U.S. 104, 109 (1972); [U.S. v. Articles of
Drug]{.underline}, 825 F.2d at 1244; [D.C. & M.S. v. City of St.
Louis]{.underline}, 795 F.2d 652, 654 (8th Cir. 1986); [Horn v. Burns &
Roe]{.underline}, 536 F.2d 251, 254 (8th Cir. 1976).[^7] Indeed, the
Supreme Court has upheld, in the face of vagueness challenges, statutes
imposing criminal liability that have language similar to title II\'s.
[See]{.underline}, [e.g.]{.underline}, [Boyce Motor Lines v. United
States]{.underline}, 342 U.S. 337, 339 (1952) (upholding a statute
requiring truck drivers who carry explosives or flammable liquids to
avoid driving into congested thoroughfares \"so far as practicable, and
where feasible\").

> **C. [Caselaw Has Upheld as Constitutional Words, Phrases, and
> Concepts in Title III of the ADA That Are Similar to Those in Title
> II.]{.underline}**

We are aware of at least one case in which a court upheld title III of
the ADA in the face of a vagueness challenge. [See]{.underline}
[Pinnock]{.underline}, [supra]{.underline}. In [Pinnock]{.underline},
the court held that the title III implementing regulation, 28 C.F.R. Pt.
36 (1994), and its Preamble, 28 C.F.R. Pt. 36, App. B (1994),
sufficiently clarified the meaning of the term \"reasonable
modifications\" so as to avoid a claim that this term was vague.
[Pinnock]{.underline}, 844 F. Supp. at 582.[^8] [Pinnock]{.underline}
also relied upon the fact that several cases have interpreted the term
\"fundamental alteration\" under section 504 when it concluded that the
same term in title III was not unconstitutionally vague.
[Id.]{.underline}

The concepts of \"reasonable modifications\" and \"fundamental
alteration\" found in title II are intended to carry essentially the
same meanings as they do in title III. [See]{.underline} 28 C.F.R. Pt.
35, App. A, at 451; House Judiciary Report at 52, [reprinted
in]{.underline}, 1990 U.S.C.C.A.N. at 475.[^9] [Pinnock\'s]{.underline}
analysis of title III is, we believe, careful and persuasive, and no
Federal court has reached a contrary conclusion. [Pinnock]{.underline},
therefore, strongly supports the government\'s position in the present
case that title II of the ADA is not unconstitutionally vague.[^10]

**III. CONCLUSION**

For all of the foregoing reasons, the United States asks this Court to
deny Defendants\' Partial Motion to Dismiss.

Respectfully submitted,

STEPHEN L. HILL, JR. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

For the Western District Civil Rights Division

of Missouri

[                       ]{.underline} By:
[                       ]{.underline}

GAY TEDDER JOHN L. WODATCH

Assistant United States L. IRENE BOWEN

Attorney CHRISTOPHER J. KUCZYNSKI,

Missouri Bar #34846 Attorneys

Suite 2300 Disability Rights Section

1201 Walnut Street U.S. Department of Justice

Kansas City, MO 64106 P.O. Box 66738

Tel: (816) 426-3130 Washington, D.C. 20035-6738

Tel: (202) 307-1060

[^1]: ^?^ The same acts and omissions complained of by the plaintiff in
    this action were the basis of a lawsuit that the plaintiff filed in
    1993. [Gorman v. Guitars & Cadillacs, L.P., et al.]{.underline}, No.
    93-0487-CV-W-8 (W.D. Mo.). In their motion for summary judgment in
    that case, the present defendants argued that, for exactly the same
    reasons as they have stated in their motion and supporting
    suggestions in this case, title II is unconstitutionally vague. They
    also argued that title II and section 504 do not apply to arrest
    procedures.

    This court granted the United States leave to intervene in that case
    with respect to the constitutional issue and leave to participate as
    [amicus]{.underline} [curiae]{.underline} with respect to the
    coverage issues. On June 17, 1994, the United States circulated to
    all parties a brief, as intervenor and [amicus]{.underline}
    [curiae]{.underline}, in support of the plaintiff\'s opposition to
    the defendants\' motion for summary judgment. On June 24, 1994, this
    court dismissed case No. 93-0487-CV-W-8 without prejudice, following
    a June 21, 1994 agreement between the parties that permitted
    re-filing of the action within one year of dismissal. The complaint
    in the present action was filed in accordance with that agreement.

[^2]: ^?^ [See]{.underline} [also]{.underline} [United States v.
    Schneiderman]{.underline}, 968 F.2d 1564, 1568 (2d Cir. 1992)
    (administrative regulations and interpretations may provide
    sufficient clarification for statutes that might otherwise be deemed
    vague).

[^3]: ^?^ Section 204(a) of the ADA, 42 U.S.C. § 12134(a), requires that
    within one year after enactment of the ADA, \"the Attorney General
    shall promulgate regulations in an accessible format that implement
    this subtitle.\"

[^4]: ^?^ The obligation may also as a specific application of section
    202\'s general requirement that individuals with disabilities not be
    \"subjected to discrimination\" by public entities.
    [See]{.underline} 42 U.S.C. § 12132.

[^5]: ^?^ The Department of Justice declined to add a provision
    specifically requiring that police officers receive training on the
    subject of how to treat persons with disabilities because the
    Department believed that

    > \[d\]iscriminatory arrests and brutal treatment are already
    > unlawful police activities. The general regulatory obligation to
    > modify policies, practices, or procedures requires law enforcement
    > to make changes in policies that result in discriminatory arrests
    > or abuse of individuals with disabilities.

    28 C.F.R. Pt. 35, App. A, at 449.

[^6]: ^?^ The purpose of title II is to extend the same rights and
    remedies available under section 504 to those State and local
    government entities that do not receive Federal financial
    assistance. [See]{.underline} House Judiciary Report at 49,
    [reprinted in]{.underline}, 1990 U.S.C.C.A.N. 445, 472.
    [Compare]{.underline} 42 U.S.C. § 12132, [with]{.underline}, 29
    U.S.C. § 794(a). Consistent with this Congressional intent, section
    204(b) of the ADA reads as follows:

    > \(b\) Relationship to Other Regulations. Except for \"program
    > accessibility, existing facilities\" and \"communications\",
    > regulations \[promulgated by the Attorney General\] under
    > subsection (a) shall be consistent with this Act and with the
    > coordination regulations under part 41 of title 28, Code of
    > Federal Regulations (as promulgated by the Department of Health,
    > Education, and Welfare on January 13, 1978), applicable to
    > recipients of Federal financial assistance under section 504 of
    > the Rehabilitation Act of 1973 (29 U.S.C. § 794). With respect to
    > \"program accessibility, existing facilities\" and
    > \"communications\", such regulations shall be consistent with
    > analysis as in part 39 of title 28 of the Code of Federal
    > Regulations, applicable to Federal conducted activities under such
    > section 504.

    42 U.S.C. § 12134(b). It is noteworthy that despite the linkage
    between title II and section 504, the defendants have not challenged
    section 504 as unconstitutionally vague. Their motion and supporting
    evidence suggestions offer no explanation of what differences exist
    between title II and section 504 that would justify challenging the
    former as unconstitutional while apparently conceding the
    constitutionality of the latter.

[^7]: ^?^ In [Horn]{.underline}, the plaintiff challenged as
    unconstitutionally vague a Nebraska statute which provided for a
    two-year statute of limitations of claims based upon \"professional
    negligence.\" The Eighth Circuit dismissed the plaintiff\'s claim,
    noting that he had not suggested more specific language that would
    have withstood the vagueness challenge short of a list of those
    professions that were covered. \"Even if more specific language
    could be devised,\" the court observed, \"it is apparent that the
    absence of criminal sanctions requires less literal exactitude in
    order to comport with due process.\" [Horn]{.underline}, 536 F.2d at
    254-55.

[^8]: ^?^ Section 302(b)(2)(A)(ii) defines as unlawful discrimination a
    public accommodation\'s

    failure to make reasonable modifications in policies, practices, or
    procedures, when such modifications are necessary to afford \[a
    public accommodation\'s\] goods, services, facilities, privileges,
    advantages, or accommodations to individuals with disabilities,
    unless the entity could demonstrate that making such modifications
    would fundamentally alter the nature of such goods, services,
    facilities, privileges, advantages, or accommodations.

    42 U.S.C. § 12182(b)(2)(A)(ii). The regulation implementing this
    section of the ADA is found at 28 C.F.R. § 36.302.

[^9]: ^?^ The Judiciary Committee Report unequivocally states the
    Committee\'s intention that \"the regulations under title II
    incorporate interpretations of the term discrimination set forth in
    titles I and III of the ADA to the extent that they do not conflict
    with the Section 504 regulations.\" House Judiciary Report at 52,
    [reprinted in]{.underline}, 1990 U.S.C.C.A.N. at 475. The Preamble
    to the title II regulation makes it clear that this general
    directive applies specifically to the terms \"reasonable
    modifications\" and \"fundamental alteration\" found in section
    35.130(b)(7) of the title II regulation. 28 C.F.R. Pt. 35, App. A,
    at 451. Section 35.130(b)(7) is essentially the same requirement as
    that found in section 302(b)(2)(A)(ii), except that the former
    requirement applies to public entities while the latter applies to
    public accommodations. [See]{.underline} 42 U.S.C.
    § 12182(b)(2)(A)(ii).

[^10]: ^?^ [See]{.underline} [Noland v. Wheatley]{.underline}, 835 F.
    Supp. 476 (N.D. Ill. 1993). In [Noland]{.underline}, the court was
    faced with the question of whether the ADA creates an enforceable
    right sufficient to support a claim brought pursuant to 42 U.S.C. §
    1983. The court held that \"\[t\]he ADA\'s use of the term
    \"reasonable\" in 42 U.S.C. § 12131(2) to describe the required
    modifications of programs or services \[did\] not render
    \[plaintiff\'s\] interest, and that of all other individuals with
    disabilities, \"vague and amorphous.\" [Id.]{.underline} at 484.