Number range CHAPTER

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

> )

SHELYNDRA BROWN, )

by her mother and )

next friend, )

JESSE O'NEIL, [et]{.underline} [al.]{.underline}, )

)

Plaintiffs, )

)

v\. ) Civil Action No.: 98-673-CIV

) (FERGUSON) )

LAWTON CHILES, )

in his official capacity )

as Governor of the State )

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

)

Defendants. )

)

**UNITED STATES' MEMORANDUM OF LAW**

**AS *AMICUS CURIAE* AND INTERVENOR**

**IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS**

TABLE OF CONTENTS

Table of Authorities. . . . . . . . . . . . . . . . . . . . . .i

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . .1

I. THE ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS\' ADA

AND REHABILITATION ACT CLAIMS, AS PLAINTIFFS SEEK

PROSPECTIVE EQUITABLE RELIEF . . . . . . . . . . . . . . .3

II\. PLAINTIFFS\' ADA CLAIM IS NOT BARRED, BECAUSE THE ADA

IS A VALID EXERCISE OF CONGRESS\' POWER TO ABROGATE

STATES\' ELEVENTH AMENDMENT IMMUNITY. . . . . . . . . . . .4

A. In the ADA, Congress Has Unequivocally

Expressed Its Intent to Abrogate States\'

Eleventh Amendment Immunity . . . . . . . . . . ..5

B. The ADA Is a Valid Exercise of Congress\'

Power to Enforce the Fourteenth Amendment. . . . 6

1\. The ADA Was Enacted to Enforce the

Equal Protection Clause . . . . . . . . .. . 7

2\. The ADA is Plainly Adapted to Enforcing

the Equal Protection Clause. . . . . . . ..10

a\. Congress Found that Discrimination

Against People with Disabilities

Was Severe and Extended to Every

Aspect of Society . . . . . . . . . .. 10

b\. The ADA Is a Proportionate Response

by Congress to Remedy and Prevent the

Pervasive Discrimination It Found. . .. 13

c\. In Enacting the ADA, Congress Was

Redressing Constitutionally Cognizable

Injuries . . . . . . . . . . . . . . . 14

III\. THE ELEVENTH AMENDMENT DOES NOT IMMUNIZE DEFENDANTS

AGAINST PLAINTIFFS\' REHABILITATION ACT CLAIMS. . . . 21

A. The Rehabilitation Act, Like the ADA, Is a

Valid Abrogation of States\' Eleventh Amendment

Immunity Under Section 5 of the Fourteenth

Amendment . . . . . . . . . . . . . . . . . . .. . . 21

B. The State Waived Its Eleventh Amendment Immunity

to Rehabilitation Act Suits by Accepting Federal

Funds After the Enactment of Section 2000d-7 . . . . 23

IV\. THE AMERICANS WITH DISABILITIES ACT AND THE INTEGRATION

REGULATION PROVIDE A CAUSE OF ACTION FOR UNNECESSARY

INSTITUTIONALIZATION. . . . . . . . . . . . . . . . .. . 24

A. Plaintiffs Are Not Required to Allege that

They Experience Discrimination as Compared to

Non-disabled Persons. . . . . . . . . . . . . . . 26

> B. Whether Appropriate Community Placement of the

Plaintiff Class Would Require a \"Fundamental

Alteration\" of a State Program Is a Fact-Bound

Question . . . . . . . . . . . . . . . . . . . . . 28

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . 34

# TABLE OF AUTHORITIES

**CASES**

[Alexander]{.underline} v. [Choate]{.underline}, 469 U.S. 287 (1985) . .
. . . . 13, 17, 19

[Anderson]{.underline} v. [Department of Pub. Welfare]{.underline}, 1998
WL 154654,

\*9-10 (E.D. Pa. 1998) . . . . . . . . . . . . . . . . . 33

[Atascadero State Hospital]{.underline} v. [Scanlon]{.underline}, 473
U.S. 234 (1985)..22, 23

[Autio]{.underline} v. [State]{.underline} , 968 F. Supp. 1366 (D. Minn.
1997),

[aff\'d]{.underline}, 140 F.3d 803 (8th Cir. 1998), [vacated and
reh\'g]{.underline}

[granted]{.underline} (July 7, 1998) . . . . . . . . . . . . . . . 5, 21

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

[City of Boerne]{.underline} v. [Flores]{.underline}, 117 S. Ct. 2157
(1997) . . . 7, 10, 20

[Charles O.]{.underline} v. [Houston]{.underline}, 1996 WL 447549, \*5-6
(M.D. Pa. 1996) 32

[City of Cleburne]{.underline} v. [Cleburne Living Center]{.underline},

473 U.S. 432 (1985). . . . . . . . . 12, 13, 15, 16, 17, 18

[City of Rome]{.underline} v. [United States]{.underline}, 446 U.S. 156
(1980) . . . . . 20

[Civic Association of the Deaf of New York City]{.underline} v.
[Giuliani]{.underline},

915 F. Supp. 622 (S.D.N.Y. 1996) . . . . . . . . . . . 32

[Clark]{.underline} v. [California]{.underline}, 123 F.3d 1267 (9th Cir.
1997),

[cert. denied]{.underline} [sub nom.]{.underline} [Wilson]{.underline}
v. [Armstrong]{.underline},

1998 WL 324198 (June 22, 1998) . . . . 5, 10, 21, 22, 23, 24

[Coolbaugh]{.underline} v. [Louisiana]{.underline}, 136 F.3d 430 (5th
Cir. 1998) . 5, 10, 21

[Cooper]{.underline} v. [Nix]{.underline}, 496 F.2d 1285 (5th Cir. 1974)
. . . . . . . . 8

[Corpus]{.underline} v. [Estelle]{.underline}, 605 F.2d 1285 (5th Cir.
1979), [cert]{.underline}. [denied]{.underline},

445 U.S. 919 (1980) . . . . . . . . . . . . . . . . . . . 7

[Crawford]{.underline} v. [Indiana Department of
Corrections]{.underline},

115 F.3d 481 (7th Cir. 1997) . . . . . . . . . . . 5, 10, 21

[Department of Education]{.underline}, v. [Katherine D.]{.underline},531
F. Supp. 517

(D. Haw. 1982), [rev\'d]{.underline} [in]{.underline} [part]{.underline}
[on]{.underline} [other]{.underline} [grounds]{.underline},

727 F.2d 809 (9th Cir. 1983), [cert. denied]{.underline},

471 U.S. 1117 (1985) . . . . . . . . . . . . . . . . . . 23

[Does 1-13]{.underline} v. [Chiles]{.underline}, 136 F.3d 709 (11th Cir.
1998) . . . . . 4

[Duffy]{.underline} v. [Riveland]{.underline}, 98 F.3d 447 (9th Cir.
1996) . . . . . . 22

[Edelman]{.underline} v. [Jordan]{.underline}, 415 U.S. 651 (1974) . . .
. . . . . . 23

[Eric L.]{.underline} v. [Bird]{.underline}, 848 F. Supp. 303 (D.N.H.
1994) . . . . . . 33

[Fitzpatrick]{.underline} v. [Bitzner]{.underline}, 427 U.S. 445 (1976)
. . . . . . . 7, 20

[Fullilove]{.underline} v. [Klutznick]{.underline}, 448 U.S. 448 (1980)
. . . . . . . 13, 19

[Gordon]{.underline} v. [E.L. Hamm & Associates]{.underline}, 100 F.3d
907

(11th Cir. 1996) . . . . . . . . . . . . . . . . . . . 14

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

[sub nom.]{.underline}, [Pennsylvania Secretary of Public
Welfare]{.underline} v.

[Idell S.]{.underline}, 516 U.S. 813 (1995). . . . . . . . . . 24, 25,
27

[Holbrook]{.underline} v. [City of Alpharetta. Ga.]{.underline}, 112
F.3d 1522 (11th Cir.

1997\) . . . . . . . . . . . . . . . . . . . . .. . . . 14

[Hunter]{.underline} v. [Chiles]{.underline}, 944 F. Supp. 914 (S.D.
Fla. 1996), appeal

dismissed . . . . . . . . . . . . . . . . . . . . . . . 23

[Idaho]{.underline} v. [Coeur d\'Alene Tribe of Idaho]{.underline}, 117
S. Ct. 2028 (1997). .4

[Kathleen S.]{.underline} v. [Department of Public Welfare]{.underline},
No. 97-6610,

slip op. (E.D.Pa. June 26, 1998) . . . . . . . . . . 31, 34

[Katzenbach]{.underline} v. [Morgan]{.underline}, 384 U.S. 641 (1966) .
. . . . . . . . 7, 20

[Kimel]{.underline} v. [State of Florida Board of Regents]{.underline},

139 F.3d 1426 (11th Cir. 1998) . . . . . . . . . . 5, 9, 20

[L.C.]{.underline} v. [Olmstead]{.underline}, 138 F.3d 893 (11th Cir.
1998),

[petition for reh\'g en banc denied]{.underline} (July 1, 1998) 24,
passim

[Lane]{.underline} v. [Pena]{.underline}, 518 U.S. 187 (1996) . . . . .
. . . . . . 22, 24

[Lussier]{.underline} v. [Dugger]{.underline}, 904 F.2d 661 (11th Cir.
1990). . . . 22, 24

[Maher]{.underline} v. [Gagne]{.underline}, 448 U.S. 122 (1980) . . . .
. . . . . . . . . 9

[Martin]{.underline} v. [Voinovich]{.underline}, 840 F. Supp. 1175 (S.D.
Ohio 1993) . . 23

[Mayer]{.underline} v. [University of Minn.]{.underline}, 940 F. Supp.
1474

(D. Minn. 1996). . . . . . . . . . . . . . . . . . . 21, 23

[Messier]{.underline} v. [Southbury Training School]{.underline}, 916 F.
Supp. 133

(D. Conn. 1996) . . . . . . . . . . . . . . . . . . . . 27

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

[Mitten]{.underline} v. [Muscogee County School District]{.underline},
877 F.2d 932

(11th Cir. 1989), [cert. denied]{.underline}, 493 U.S. 1072 (1990) . . .
9

[Niece]{.underline} v. [Fitzner]{.underline}, 941 F. Supp. 1497 (E.D.
Mich. 1996) . 21, 23

[Papasan]{.underline} v. [Alain]{.underline}, 478 U.S. 265 (1986) . . .
. . . . . . . . . 4

[Pennhurst State Sch. and Hospital]{.underline} v.
[Halderman]{.underline},

465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . 4

[City of Rome]{.underline} v. [United States]{.underline}, 446 U.S. 156
(1980) . . . . . . 20

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

[Santiago]{.underline} v. [New York State Department of
Correctional]{.underline}

[Services]{.underline}, 945 F.2d 25 (2d Cir. 1991), [cert.]{.underline}
[denied]{.underline},

502 U.S. 1094 (1992) . . . . . . . . . . . . . . . . . 23

[School Board of Nassau County]{.underline} v. [Arline]{.underline}, 480
U.S. 273 (1987). .18

[Scott]{.underline} v. [City of Anniston, Ala.]{.underline}, 597 F.2d
897 (5th Cir. 1979),

[cert]{.underline}. [denied]{.underline}, 446 U.S. 917 (1980) . . . . .
. . . . . . . 7

[Seaborn]{.underline} v. [State of Florida]{.underline}, 143 F.3d 1405

(11th Cir. 1998) . . . . . . . . . . . . . . . . . 5, 9, 20

[Seminole Tribe of Florida]{.underline} v. [Florida]{.underline},

517 U.S. 44 (1996) . . . . . . . . . . 4, 5, 6, 7, 20, 22

[South Carolina]{.underline} v. [Katzenbach]{.underline}, 383 U.S. 301
(1966) . . . . . . 19

[Stanley]{.underline} v. [Darlington County Sch. District]{.underline},
879 F. Supp.

1341 (D.S.C. 1995), [rev\'d in part on other grounds,]{.underline}

84 F.3d 707 (4th Cir. 1996) . . . . . . . . . . . . . . 23

[Staron]{.underline} v. [McDonalds Corp.]{.underline}, 51 F.3d 353 (2d.
Cir. 1995) . . . 33

[Timmer]{.underline} v. [Michigan Department of Commerce]{.underline},
104 F.3d 833

(6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 7

[United States]{.underline} v. [Horton]{.underline}, 601 F.2d 319 (7th
Cir.)

[cert.]{.underline} [denied]{.underline}, 444 U.S. 937 (1979) . . . . .
. . . . . 17

[United States]{.underline} v. [Yonkers Board of Education]{.underline},
893 F.2d 498

(2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . 23

[Ex parte Virginia]{.underline}, 100 U.S. (10 Otto) 339 (1879) . . . . .
. 6

[Welch]{.underline} v. [Texas Department of Highways & Public
Transportation]{.underline},

\(483\) U.S. 468 (1987) . . . . . . . . . . . . . . . . . 22

[Williams]{.underline} v. [Wasserman]{.underline}, 937 F. Supp. 524 (D.
Md. 1996)..27, 32, 23

[Ex parte Young]{.underline}, 209 U.S. 123 (1908) . . . . . . . . . . .
. . . 4

**STATUTES**

Fla. Stat. Ann. §§ 393.066, 393.13, 419.001 . . . . . . . . . 30

Individuals with Disabilities Education Act (\"IDEA\"),

20 U.S.C. § 1400 [et]{.underline} [seq]{.underline} . . . . . . . . . .
. . . . . . 9

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 .1, passim

Social Security Act, 42 U.S.C. §§ 1396, 1396(a), 1396d(d) . . 2

Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c . . . 20

42 U.S.C. § 2000d-7 . . . . . . . . . . . . . . . . . . 22, 24

42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . 8, passim

42 U.S.C. § 12102(2)(A) . . . . . . . . . . . . . . . . . . . 17

Title II of the ADA, 42 U.S.C. §§ 12131 [et]{.underline}
[seq]{.underline}. . . . 1, passim

42 U.S.C. § 12202 . . . . . . . . . . . . . . . . . . . . . . 6

**REGULATIONS**

28 C.F.R. § 35.130(b)(7) . . . . . . . . . . . . . . 14, 28, 34

28 C.F.R. § 35.130(d) . . . . . . . . . . . 2, 14, 24, 27, 28, 34

**LEGISLATIVE HISTORY**

136 Cong. Rec. 10,870 (1990) (Rep. Fish) . . . . . . . . . 19

136 Cong. Rec. 10,870 (1990) (Rep. Dellums) . . . . . . . . 19

H.R. Rep. No. 485 pt. 2, 101st Cong., 2d Sess. 28-31 (1990)

. . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19

S. Rep. No. 116, 101st Cong., 1st Sess. 7-8 (1989) . 11, 12, 19

**MISCELLANEOUS**

Timothy M. Cook, [The Americans with Disabilities Act. The]{.underline}

[Move to Integration]{.underline}, 64 Temp. L. Rev. 393, 393-394

nn.1-4, 412 n.133 (1991) . . . . . . . . . . . . . . . . 11

Deval L. Patrick, Assitant Attorney General, Civil

Rights Division, United States Department of

Justice, Letter to Governor Lawton Chiles

(June 14, 1996) . . . . . . . . . . . . . . . . . Exhibit A

Ronald D. Rotunda and John E. Nowak, [Treatise on]{.underline}

[Constitutional Law]{.underline} (1978) . . . . . . . . . . . . . . . 17

U.S. Commission on Civil Rights, [Accommodating the
Spectrum]{.underline}

[of Individual Abilities]{.underline}, 23-26 (1983) . . . 11, 12, 18, 19

Lowell f. Weicker, Jr., [Historical Background of the]{.underline}

[Americans with Disabilities Act]{.underline}, 64 Temp. L. Rev.

387, 387-389 (1991) . . . . . . . . . . . . . . . . . . . 11

**UNITED STATES' MEMORANDUM OF LAW**

**AS *AMICUS CURIAE* AND INTERVENOR**

**IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS**

[INTRODUCTION]{.underline}

The United States submits this memorandum in opposition to defendants'
motions to dismiss,[^1] and moves simultaneously to intervene as of
right in this action to address the constitutionality of Title II of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12131
[et]{.underline} [seq.]{.underline}, and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794, and for leave to address as *amicus
curiae* the proper construction of Title II of the ADA and regulations
promulgated thereunder.[^2]

On March 24, 1998, plaintiffs filed this action on behalf of themselves
and a class of 1433 other persons who are confined to four Florida State
institutions (DSIs) for individuals with developmental disabilities,
seeking remedies including improved conditions of confinement for class
members who require institutional care, and placement in community
settings in the case of each class member for whom such placement would
be appropriate.[^3] The action is brought under Title II of the ADA, 42
U.S.C. §§ 12131-34, and the "integration regulation" promulgated
thereunder, 28 C.F.R. § 35.130(d); Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794; the Social Security Act, 42 U.S.C. §§ 1396,
1396(a), 1396d(d), and certain regulations promulgated thereunder; the
Fourteenth Amendment to the United States Constitution, and 42 U.S.C. §
1983.

Defendants have filed a motion to dismiss the complaint, arguing that
plaintiffs fail to allege injury as required to establish standing; fail
to state a claim under the ADA because they do not allege that they are
discriminated against in the provision of state-sponsored services
vis-a-vis non-disabled persons; seek a "fundamental alteration" in the
State's programs which would be contrary to the ADA; rely on allegedly
unconstitutional provisions of federal statutes (Title II of the ADA and
Section 504 of the Rehabilitation Act); fail to state cognizable
constitutional claims; and do not have a private right of action under
the Social Security Act.

The United States moves to intervene as of right to argue that Title II
of the ADA and Section 504 of the Rehabilitation Act are constitutional
and a valid abrogation of states' Eleventh Amendment immunity. Given the
importance of the ADA questions raised, the role of the Department of
Justice in promulgating regulations under the ADA, and the Department's
ongoing investigation of one of the facilities named in the complaint,
the United States also moves for leave to address, as *amicus curiae*,
the proper interpretation of Title II of the ADA and regulations
promulgated thereunder.[^4] Contrary to the position defendants take in
their briefs, in order to state a claim under the ADA, plaintiffs are
not required to allege that non-disabled persons are provided with the
same community services the plaintiffs seek, [i.e.]{.underline}, that
the plaintiffs experience discrimination vis-a-vis non-disabled persons.
Finally, whether the relief sought by plaintiffs in this class action
involves, as defendants maintain it does, a "fundamental alteration" of
a State program, such that it would not be required by the ADA, is in
this case a fact-bound question, and is inappropriate for resolution at
this stage of the litigation.

## ARGUMENT

**I. THE ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS\' ADA AND**

> **REHABILITATION ACT CLAIMS, AS PLAINTIFFS SEEK PROSPECTIVE EQUITABLE
> RELIEF.**

Defendants seek dismissal of plaintiffs\' ADA and Rehabilitation Act
claims, arguing that these claims are barred by the Eleventh Amendment
to the U.S. Constitution. Although the Eleventh Amendment generally bars
private citizens from suing states in federal court,[^5] states\'
Eleventh Amendment immunity is not absolute. As the Supreme Court held
90 years ago in [Ex parte Young]{.underline}, 209 U.S. 123 (1908),
states have no Eleventh Amendment immunity from suits against state
officials seeking prospective equitable relief to prevent continuing
violations of federal law.[^6] In Counts I, II, and III of their
complaint, plaintiffs allege that defendants have violated Title II of
the ADA and Section 504 of the Rehabilitation Act and seek prospective
equitable \-- [i.e.]{.underline}, declaratory and injunctive \-- relief
to prevent the State from continuing to violate these federal laws.
Thus, plaintiffs\' claims fall squarely within the [Ex parte
Young]{.underline} exception to Eleventh Amendment immunity and are not
barred.

**II. PLAINTIFFS\' ADA CLAIM IS NOT BARRED, BECAUSE THE ADA IS A VALID
EXERCISE OF CONGRESS\' POWER TO ABROGATE STATES\' ELEVENTH AMENDMENT
IMMUNITY.**

In [Seminole Tribe of Florida]{.underline} v. [Florida]{.underline}, 517
U.S. 44, 55 (1996), the Supreme Court held that Congress can lawfully
abrogate states\' Eleventh Amendment immunity by statute if the statute
passes two tests: (1) Congress must have \"unequivocally expressed its
intent to abrogate immunity\" in the language of the

statute, and (2) in enacting the statute, Congress must have \"acted
pursuant to a valid exercise of power.\" Defendants argue that the ADA
fails to pass at least the second of these tests. Def. Br. at 20-30. But
every court of appeals that has addressed this issue to date, including
the Eleventh Circuit in [Kimel]{.underline} v. [State of Florida Board
of Regents]{.underline}, 139 F.3d 1426, 1433 (11th Cir. 1998), and
[Seaborn]{.underline} v. [State of Florida]{.underline}, 143 F.3d 1405
(11th Cir. 1998)(applying [Kimel]{.underline} as binding law of the
Eleventh Circuit), has rejected the same arguments that defendants raise
here and has concluded that the ADA passes both tests. [See]{.underline}
[Coolbaugh]{.underline} v. [Louisiana]{.underline}, 136 F.3d 430, 430
(5th Cir. 1998); [Crawford]{.underline} v. [Indiana Dep\'t of
Corrections]{.underline}, 115 F.3d 481, 487 (7th Cir. 1997);
[Clark]{.underline} v. [California]{.underline}, 123 F.3d 1267, 1269-71
(9th Cir. 1997), [cert. denied]{.underline}, 1998 WL 324198 (June 22,
1998). [See also]{.underline} [Autio]{.underline} v.
[State]{.underline}, 140 F.3d 802, 803, 806 (8th Cir. 1998), [vacated
and reh\'g granted]{.underline} (July 7, 1998). However, because a
petition for rehearing *en banc* of the Eleventh Circuit\'s
[Kimel]{.underline} ruling is still pending, the United States will
address defendants arguments at some length. As is shown below, the ADA
is a valid exercise of Congress\' power under the Fourteenth Amendment
to abrogate states\' Eleventh Amendment immunity from suit in federal
court.

> **A. In the ADA, Congress Has Unequivocally Expressed Its Intent to
> Abrogate States\' Eleventh Amendment Immunity.**

Congress cannot abrogate states\' Eleventh Amendment immunity for claims
under a statute unless it has \"unequivocally expressed\" its intent to
do so in the statute at issue. [Seminole Tribe]{.underline}, 517 U.S. at
55-57. As the State apparently concedes, Congress\' abrogation of
immunity in Section 502 of the ADA passes this test. Def. Br. at 20, 23.
The ADA provides: \"\[a\] State shall not be immune under the Eleventh
Amendment to the Constitution of the United States from an action in
Federal or State court of competent jurisdiction for a violation of this
chapter.\" 42 U.S.C. § 12202. Thus, defendants are not entitled to
Eleventh Amendment immunity on plaintiffs\' ADA claim if Congress\'
enactment of the ADA was a \"valid exercise of power.\" [Seminole
Tribe]{.underline}, 517 U.S. at 55, 58-59.

**B. The ADA Is a Valid Exercise of Congress\' Power to Enforce the
Fourteenth Amendment.**

Defendants contend that they are entitled to Eleventh Amendment immunity
because Congress exceeded its power under the Fourteenth Amendment in
enacting the ADA. Def. Br. at 20-30. That contention is meritless.

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. (10 Otto) 339, 345-346 (1879).
A statute is thus "appropriate legislation" 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).[^7]

In [Fitzpatrick]{.underline} v. [Bitzer]{.underline}, 427 U.S. 445
(1976), the Supreme Court upheld the abrogation of states\' Eleventh
Amendment immunity in Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, [et]{.underline} [seq]{.underline}., as "appropriate"
legislation under Section 5. It explained:

> When Congress acts pursuant to § 5, not only is it exercising
> legislative authority that is plenary within the terms of the
> constitutional grant, it is exercising that authority under one
> section of a constitutional Amendment whose other sections by their
> own terms embody limitations on state authority.

[Id]{.underline}. at 456. In [Seminole Tribe]{.underline}, the Court
reaffirmed the holding of [Fitzpatrick]{.underline}. 517 U.S. at 59,
65-66, 71-72 n.15. Thus, even after [Seminole Tribe]{.underline}, "§ 5
of the Fourteenth Amendment remains a provision that vests Congress with
the power to abrogate Eleventh Amendment immunity." [Timmer]{.underline}
v. [Michigan Dep\'t of Commerce]{.underline}, 104 F.3d 833, 838 (6th
Cir. 1997). [Accord]{.underline} [City of Boerne]{.underline} v.
[Flores]{.underline}, 117 S.Ct. 2157 (1997).

> **1. The ADA Was Enacted to Enforce the Equal Protection Clause.**

In enacting the ADA, Congress declared that its intent 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). Thus, the ADA was enacted to enforce the Equal Protection
Clause.

Even though the ADA, by its own terms, was enacted pursuant to Section 5
of the Fourteenth Amendment, defendants nonetheless argue that because
classifications on the basis of disability are not subject to strict
scrutiny, the ADA may not be regarded as legislation to enforce the
Fourteenth Amendment. Def. Br. at 24-25. But neither the prohibitions of
the Equal Protection Clause nor Congress\' Section 5 authority is
limited to suspect classifications. "\[A\]rbitrary 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
also]{.underline} [Romer]{.underline} v. [Evans]{.underline}, 517 U.S.
620, 630 (1996); [Mills]{.underline} v. [Maine]{.underline}, 118 F.3d
37, 46 (1st Cir. 1997) (collecting cases); [Cooper]{.underline} v.
[Nix]{.underline}, 496 F.2d 1285, 1287 (5th Cir. 1974). 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 nonetheless held that the Fourteenth Amendment did
not leave persons with such disabilities "unprotected from invidious
discrimination." [Id]{.underline}. at 446.

Moreover, the Supreme Court has upheld Congress\' authority to abrogate
Eleventh Amendment immunity pursuant to Section 5 in cases involving
non-suspect classifications. In [Maher]{.underline} v.
[Gagne]{.underline}, 448 U.S. 122 (1980), the plaintiff brought suit
under 42 U.S.C. § 1983 against a state official, alleging that certain
state AFDC regulations violated the Fourteenth Amendment\'s Equal
Protection and Due Process Clauses by creating arbitrary, but
non-suspect, classifications. [Id]{.underline}. at 124-125 & n.5. After
the parties entered into a consent decree, the plaintiff sought
attorneys\' fees pursuant to 42 U.S.C. § 1988. The state official argued
that such an award was barred by the Eleventh Amendment. The Supreme
Court held to the contrary, explaining that "\[u\]nder § 5 Congress may
pass any legislation that is appropriate to enforce the guarantees of
the Fourteenth Amendment. A statute awarding attorneys\' fees to a
person who prevails on a Fourteenth Amendment claim falls within the
category of \'appropriate\' legislation." [Id]{.underline}. at 132. The
Court specifically declined to limit Congress\' Section 5 authority to
certain types of Fourteenth Amendment claims. [Id]{.underline}. at 133
n.16; [id]{.underline}. at 134-135 (Powell, J., concurring in part).

Finally, the Eleventh Circuit rejected the same argument that defendants
make here. [Kimel]{.underline}, 139 F.3d at 1433.[^8] Indeed, all of the
courts of appeals that have addressed the issue have upheld the ADA\'s
abrogation of states\' Eleventh Amendment immunity.
[Coolbaugh]{.underline}, 136 F.3d at 433; [Crawford]{.underline}, 115
F.3d at 487; [Clark]{.underline}, 123 F.3d at 1270-71.

2.  **The ADA Is Plainly Adapted to Enforcing the Equal Protection
    Clause.**

Defendants next argue 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\'s recent
decision in [City of Boerne]{.underline}, 117 S.Ct. at 2157, addressed
the question of the permissible scope of a statute that is "plainly
adapted" to enforce the Fourteenth Amendment. In [City of
Boerne]{.underline}, the Court 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. The appropriateness of remedial
measures must be considered in light of the evil presented."
[Id]{.underline}. at 2169.

> **a. 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).[^9] 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, 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).

> **b. The ADA Is a Proportionate Response by Congress to Remedy and
> Prevent the Pervasive Discrimination It Found.**

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.). "Prejudice, once let loose, is not
easily cabined." [Cleburne]{.underline}, 473 U.S. at 464 (Marshall, J.).

After extensive investigation, 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).[^10] 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, regulations implementing Title II of the ADA require that \"\[a\]
public entity shall 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). While this
requirement imposes some burden on the States, that burden is not
unlimited. 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).

> **c.** **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. 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 and quoting court of appeals decision in
[Cleburne]{.underline}, 726 F.2d 191, 197 (5th Cir. 1984));
[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," [id.]{.underline} at 442, the
Court elected not to do so, in part, because it would unduly limit
legislative solutions to problems faced by persons with disabilities.
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, 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 . . . 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, the Court
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,"
[id.]{.underline} at 448, 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" them what would be permitted for 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.

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.), [cert.]{.underline}
[denied]{.underline}, 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 that life activity,
"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. It is 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.

The State contends that the ADA is not proper remedial legislation
because it imposes affirmative duties in addition to simple
prohibitions. Def. Br. at 26-28. But, viewed in light of the underlying
Equal Protection principles, the ADA is appropriate preventive and
remedial legislation. First, it is preventive because it establishes a
statutory scheme that attempts to detect government activities likely
tainted by discrimination. By requiring the State to show on the record
that distinctions it makes based on disability, or refusals to provide
meaningful access to facilities, programs and services, are not the
result of prejudice or stereotypes, but rather based on legitimate
governmental objectives, the ADA attempts to ensure that inaccurate
stereotypes or irrational fear are not the true cause of the decision.
[Cf.]{.underline} [School Bd. of Nassau County]{.underline} v.
[Arline]{.underline}, 480 U.S. 273, 284-285 (1987). This 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 given due consideration. 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 taken
into account when buildings were designed, standards were set, and rules
were promulgated. [See]{.underline} U.S. Commission on Civil Rights,
[supra]{.underline}, at 21-22, 38. Even when considered, their interests
may not have been properly weighed, since "irrational fears or
ignorance, traceable to the prolonged social and cultural isolation of
\[persons with disabilities\] continue to stymie recognition of
\[their\] dignity and individuality." [Cleburne]{.underline}, 473 U.S.
at 467 (Marshall, J.).

Policies and criteria unnecessarily relegating persons to life within
the walls of an institution are real barriers. As Congress and the
Supreme Court recognized, many of the problems faced today by persons
with disabilities are a result of "thoughtlessness or indifference \--
or benign neglect" to the interaction between purportedly "neutral"
rules and persons with disabilities.[^11] 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; [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]{.underline}.
[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, as here, there is
evidence of a history of extensive discrimination, 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 rules, policies and practices. 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}, 117 S.Ct. at 2169, 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. 117 S.Ct. at
2169.[^12]

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. "It is for Congress in the
first instance to \'determin\[e\] 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} v. [Morgan]{.underline}, 384 U.S. 641,
651 (1996)). This holding is consistent with all the other courts that
have considered the issue since [Seminole Tribe]{.underline}, which are
in agreement that Congress\' abrogation of Eleventh Amendment immunity
for suits under the ADA is "appropriate legislation" to enforce the
Fourteenth Amendment. [See]{.underline} [Kimel]{.underline}, 139 F.3d at
1433, [Seaborn]{.underline}, 143 F.3d at 1405 (applying
[Kimel]{.underline}); [Crawford]{.underline}, 115 F.3d at 487;
[Coolbaugh]{.underline}, 136 F.3d at 430; [Clark]{.underline}, 123 F.3d
at 1270-71; [Niece]{.underline} v. [Fitzner]{.underline}, 941 F. Supp.
1497 (E.D. Mich. 1996); [Mayer]{.underline} v. [University of
Minn.]{.underline}, 940 F. Supp. 1474 (D. Minn. 1996). [See
also]{.underline} [Autio]{.underline}, 968 F. Supp. 1366 (D. Minn.
1997), [aff\'d]{.underline}, 140 F.3d 803, 806 (8th Cir. 1998), [vacated
and reh\'g granted]{.underline} (July 7, 1998). Although some of these
decisions pre-date [City of Boerne]{.underline}, for the reasons
discussed above they remain good law.

**III. THE ELEVENTH AMENDMENT DOES NOT IMMUNIZE DEFENDANTS**

**AGAINST PLAINTIFFS\' REHABILITATION ACT CLAIMS.**

Defendants contend that plaintiffs\' Rehabilitation Act claims must be
dismissed because the Rehabilitation Act is invalid Spending Clause
legislation that does not properly abrogate states\' Eleventh Amendment
immunity. Def. Br. at 28-30. Defendants\' argument fails for two
reasons. First, the Rehabilitation Act, like the ADA, is legislation to
enforce the Equal Protection guarantees of the Fourteenth Amendment \--
not merely a statute enacted pursuant to the Spending Clause.
[Clark]{.underline}, 123 F.3d at 1270. Second, even if the
Rehabilitation Act were enacted pursuant to the Spending Clause, it is
nonetheless valid because it provides ample notice to states that
abrogation of Eleventh Amendment rights is a condition of receipt of
federal funds. [Id]{.underline}. at 1271.

**A. The Rehabilitation Act, Like the ADA, Is a Valid Abrogation of
States\' Eleventh Amendment Immunity Under Section 5 of the Fourteenth
Amendment.**

Congress has lawfully abrogated states\' Eleventh Amendment immunity in
the Rehabilitation Act if: (1) it has \"unequivocally

expressed its intent to abrogate immunity\" in the language of the
statute, and (2) it \"acted pursuant to a valid exercise of power\" in
enacting the statute. [Seminole Tribe]{.underline}, 517 U.S. at 55
(quoting [Green]{.underline} v. [Mansour]{.underline}, 474 U.S. 64, 68
(1985)).

Congress amended the Rehabilitation Act in 1973 to make clear that the
statute was intended to abrogate states\' Eleventh Amendment immunity.
Section 2000d-7 of Title 42 provides that a \"State shall not be immune
under the Eleventh Amendment of the Constitution of the United States
from suit in Federal court for a violation of section 504 of the
Rehabilitation Act of 1973.\" Thus, Congress\' intent to abrogate
states\' Eleventh Amendment immunity under the Rehabilitation Act is
unambiguous. [Lussier]{.underline} v. [Dugger]{.underline}, 904 F.2d
661, 668-70 (11th Cir. 1990). [See]{.underline} [also]{.underline}
[Lane]{.underline} v. [Pena]{.underline}, 518 U.S. 187, 196-99 (1996);
[Clark]{.underline}, 123 F.3d at 1271; [Duffy]{.underline} v.
[Riveland]{.underline}, 98 F.3d 447, 452 (9th Cir. 1996).

It is equally clear that the Rehabilitation Act, like the ADA, was
enacted to enforce the Equal Protection Clause. [See]{.underline}
[Atascadero State Hosp.]{.underline} v. [Scanlon]{.underline}, 473 U.S.
234, 244-245 n.4 (1985);[^13] [Welch]{.underline} v. [Texas Department
of Highways & Public Transportation]{.underline}, 483 U.S. 468, 472 n. 2
(1987) (\"The Rehabilitation Act was passed pursuant to § 5 of the
Fourteenth Amendment. Congress therefore had the power to subject
unconsenting States to suit in federal court\" (citations omitted).[^14]
And, for the reasons stated in Section II [supra]{.underline}, the
Rehabilitation Act is valid legislation to enforce the Equal Protection
Clause, just as the ADA is valid legislation to enforce the Equal
Protection Clause. [Clark]{.underline}, 123 F.3d at 1270-71;
[Mayer]{.underline}, 940 F. Supp. at 1479; [Niece]{.underline} v.
[Fitzner]{.underline}, 941 F. Supp. 1497 (E.D. Mich. 1996). Thus, the
Eleventh Amendment affords defendants no protection from plaintiffs\'
Rehabilitation Act claims.[^15]

B.  **The State Waived Its Eleventh Amendment Immunity to Rehabilitation
    Act Suits by Accepting Federal Funds After the Enactment of Section
    2000d-7.**

It is a well-settled matter of law, and defendants concede, that a state
may waive its Eleventh Amendment immunity by participating in a program
that receives federal funds. [Edelman]{.underline} v.
[Jordan]{.underline}, 415 U.S. 651, 672 (1974); [Atascadero State
Hosp.]{.underline} v. [Scanlon]{.underline}, 473 U.S. 234, 238 n.1
(1985) ("\[a\] state may effectuate a waiver of its constitutional
immunity by . . . waiving its immunity to suit in the context of a
particular federal program"). Defendants contend, however, that they are
immune from plaintiffs\' Rehabilitation Act claim because the
Rehabilitation Act does not provide them with notice sufficient to
support a waiver of immunity under the Spending Clause. Def. Br. at
28-30. Defendants\' argument is meritless.

By enacting 42 U.S.C. § 2000d-7, Congress provided unambiguous notice to
states that waiver of Eleventh Amendment immunity was a condition of
receipt of funds under the Rehabilitation Act. [Clark]{.underline}, 123
F.3d at 1271. [See]{.underline} [Lane]{.underline}, 518 U.S. at 198;
[Lussier]{.underline}, 904 F.2d at 669. Thus, defendants\' argument that
they did not waive their right to immunity because they lacked notice is
simply unavailing. [Clark]{.underline}, 123 F.3d at 1270-71.

**IV. THE AMERICANS WITH DISABILITIES ACT AND THE INTEGRATION REGULATION
PROVIDE A CAUSE OF ACTION FOR UNNECESSARY INSTITUTIONALIZATION.**

The ADA "integration regulation," promulgated by the Department of
Justice under Title II of the ADA, requires covered public entities to
"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).[^16] The regulation, along with Title II of the ADA, 42
U.S.C. § 12131 [et]{.underline} [seq.]{.underline}, provides the basis
for a challenge to unnecessary institutional segregation where
professional

assessments determine that institutionalized individuals could be served
in integrated community settings appropriate to their needs.
[See]{.underline} [L.C.]{.underline} v. [Olmstead]{.underline}, 138 F.3d
893, 902-03 (11th Cir. 1998) [petition for reh\'g *en banc*
denied]{.underline} (July 1, 1998); [see also id.]{.underline} at 898
("the denial of community placements to \[institutionalized\]
individuals with disabilities. . . is precisely the kind of segregation
that Congress sought to eliminate" through enactment of the ADA); [see
generally]{.underline} [Helen L.]{.underline} v. [DiDario]{.underline},
46 F.3d 325, 332-33 (3d Cir.) (unnecessary institutional segregation of
persons with disabilities is prohibited by Title II of the ADA and the
integration regulation promulgated thereunder), [cert. denied sub.
nom.]{.underline}, [Pennsylvania Secretary of Pub. Welfare]{.underline}
v. [Idell S.]{.underline}, 516 U.S. 813 (1995).

In [L.C.]{.underline}, the Eleventh Circuit upheld a finding that the
State of Georgia had discriminated against two persons with psychiatric
disabilities "by confining them in a segregated institution rather than
in an integrated community-based program." 138 F.3d at 895. The Eleventh
Circuit conclusively repudiated the argument that in order to state a
claim under the ADA, plaintiffs were required to make "a comparison of
the treatment of individuals with disabilities against that of healthy
non-disabled persons." [Id.]{.underline} at 896. The State of Florida
advances the same failed argument here, and it must be repudiated again,
as it was in [L.C.]{.underline}

Defendants also argue that the relief requested by the plaintiffs
involves a "fundamental alteration" as a matter of law, and that the
complaint should therefore be dismissed. However, as the complaint has
been drawn, the question is fact-bound and is inappropriate for
resolution at this stage of the litigation. [See]{.underline}
[L.C.]{.underline}, 138 F.3d at 905 (Georgia\'s defense of \"fundamental
alteration\" to community placement is one that is properly decided by
the trial court).

**A. Plaintiffs Are Not Required to Allege that They Experience
Discrimination as Compared to Non-disabled Persons.**

Defendants maintain that the failure to provide developmentally disabled
individuals with appropriate services in the community cannot, as a
matter of law, constitute discrimination prohibited by the ADA, because
plaintiffs have not alleged that non-disabled persons receive similar
services in community settings. Def. Br. at 10-11; [see
also]{.underline} [id.]{.underline} at 12-13 ("In this action,
Plaintiffs seek access to community-based services (as opposed to
institutional services) for treatment of their disabilities. As a matter
of law, Plaintiffs cannot allege that non-disabled persons would be
eligible for the same services. Therefore, under the circumstances of
this case, Plaintiffs can state no ADA cause of action").

To the contrary, the Eleventh Circuit has held that institutionalized
persons with disabilities can state a claim for discrimination under the
ADA and seek community-based services without alleging that
[non-disabled]{.underline} persons receive community services from which
the disabled plaintiffs have been excluded:

> Under \[28 C.F.R.\] § 35.130(d), the failure to provide the most
> integrated services appropriate to the needs of disabled persons
> constitutes unlawful disability-based discrimination \-- [even though
> such services may not be needed by non-disabled
> individuals]{.underline} \-- because such segregation perpetuates
> their status as second-class citizens unfit for community life. As the
> Third Circuit explained in holding that the unnecessary segregation of
> disabled persons violates Title II of the ADA, \'\[t\]he ADA is
> intended to ensure that qualified individuals receive services in a
> manner consistent with basic human dignity rather than a manner that
> shunts them aside, hides, and ignores them.'

[L.C.]{.underline}, 138 F.3d at 899 (emphasis added; quoting [Helen
L.]{.underline}, 46 F.3d at 335). One other circuit court as well as
district courts examining this question have reached the same
conclusion. [Helen L.]{.underline}, 46 F.3d at 333-35;
[Williams]{.underline} v. [Wasserman]{.underline}, 937 F. Supp. 524,
529-30 (D. Md. 1996); [Messier]{.underline} v. [Southbury Training
School]{.underline}, 916 F. Supp. 133, 140-42 (D. Conn. 1996).

Here, as in [L.C.]{.underline}:

> The fact that \[plaintiffs\] seek community-based treatment services
> that only disabled persons need does not foreclose their claim that
> they were unnecessarily segregated. The ADA does not only mandate that
> individuals with disabilities be treated the same as persons without
> such disabilities. Underlying the ADA's prohibitions is the notion
> that individuals with disabilities must be accorded reasonable
> accommodations not offered to other persons in order to ensure that
> individuals with disabilities enjoy equality of opportunity, full
> participation, independent living, and economic self-sufficiency. . .
> . This principle . . . runs throughout the ADA.

138 F.3d at 899 (citations omitted).

And, as in [L.C.]{.underline}, "\[r\]educed to its essence, the State's
argument is that Title II of the ADA affords no protection to
individuals with disabilities who receive public services designed only
for individuals with disabilities." [Id.]{.underline} at 896.

The same response received by the defendants in [L.C.]{.underline}
applies here:

> The State has not pointed to any legal authority that supports such a
> reading of Title II of the ADA and its integration regulation, §
> 35.130(d), and we can find none. To the contrary, we find overwhelming
> authority in the plain language of Title II of the ADA, its
> legislative history, the Attorney General's Title II regulations, and
> the Justice Department's consistent interpretation of those
> regulations, to support \[plaintiffs\'\] position.

[Id.]{.underline} In other words, persons with disabilities need not
compare the treatment they receive with that received by non-disabled
persons, in order to state a claim under the ADA. Defendants\' attempt
to dismiss the complaint on this ground should be denied.[^17]

**B. Whether Appropriate Community Placement of the Plaintiff Class
Would Require a "Fundamental Alteration" of a State Program is a
Fact-bound Question.**

The regulations promulgated under the ADA require that:

> A public entity shall make reasonable modifications in policies,
> practices, or procedures when the modifications are necessary to avoid
> discrimination on the basis of disability, unless 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). Thus, the burden is on the defendants to prove
that the relief sought by the plaintiffs would constitute a fundamental
alteration of its programs.

The Eleventh Circuit determined in [L.C.]{.underline} that the issue of
whether community placement from an institution would entail a
"fundamental alteration" in a State program is one that is properly
decided by the trial court. 138 F.3d at 905. The Eleventh Circuit
remanded the case to the district court for further factual development
with a list of factors that the court should consider. [Id.]{.underline}
These factors included: (1) whether the additional expenditures (if any)
required for community-based care would be unreasonable in light of the
relevant State budget, (2) whether it would be unreasonable to require
the State to use additional available Medicaid waiver slots, as well as
any authority it might have to transfer funds from institutionalized
care to community-based care, and (3) whether any difference in the cost
of providing institutional or community-based care would itself lessen
the State's burden. [Id.]{.underline} This list was "not exclusive" and
the court stated specifically that the "district court may consider any
other factors it believes are relevant to the fundamental alteration
inquiry." [Id.]{.underline}

[L.C.]{.underline} left open the "difficult questions of fundamental
alteration" that might be present in a class action seeking
"deinstitutionalization" of a state hospital, as opposed to an action
seeking community placement for a few individual plaintiffs. 138 F.3d at
905 & n.10. Although the [Brown]{.underline} plaintiffs do not request
closure of any state institution, they seek community placement for each
individual class member for whom such placement would be appropriate.
Florida maintains that the relief requested by the plaintiffs would
require, as a matter of law, a "fundamental alteration," and that the
relief therefore cannot be required under the ADA. Def. Br. at 16-19.
However, as the plaintiffs' complaint has been drawn, the question of
"fundamental alteration" is fact-bound, and cannot be resolved at this
stage of the litigation.

For example, defendants state that placement of hundreds of class
members in the community would "impact" state programs. Def. Br. at 18
n.6; see also 15 n.4. But an "impact," particularly one that is merely
speculative in nature, is not a [per]{.underline} [se]{.underline}
fundamental alteration, especially where, as here, the State already has
a community-based service system for persons with developmental
disabilities and its legislature has mandated the continued development
of that system. [See, e.g.]{.underline}, Fla. Stat. Ann. §§ 393.066,
393.13, 419.001; [see also]{.underline} Exhibit A (June 14, 1996 letter
from Deval L. Patrick, Assistant Attorney General, Civil Rights
Division, United States Department of Justice, to Governor Lawton
Chiles, reporting findings of investigation of Landmark Learning Center,
at 4).

Defendants encapsulate plaintiffs' requested relief as "requiring \[the
State\] to dismantle its provision of institutionalized care to
individuals with disabilities." Def. Br. at 18. Defendants
mischaracterize the relief that plaintiffs seek in their complaint. The
injunction that plaintiffs seek contemplates the continued existence of
all or some of the DSIs. For example, the plaintiff class is defined as
persons who reside

in the DSIs or in the future may reside there (Complaint ¶¶ 1, 30), and
the relief sought by the plaintiffs includes not merely community
placement (Complaint at 41-44), but also extensive reform of conditions
within the institutions. Complaint at 41-44.

Plaintiffs seek community placement of each class member for whom such
placement would be appropriate ([see]{.underline} Complaint at 41-44 & ¶
126), and maintain that the State can offer them, without a fundamental
increase in cost, "the opportunity to participate in, and the benefits
of, public services and programs that are as effective and meaningful as
those delivered to other citizens and that are delivered in less
separate, more integrated settings." Complaint ¶¶ 121, 126.

Even assuming the relief requested would result in administrative
inconvenience or additional expenditures by the State, that alone would
not necessarily constitute a "fundamental alteration."
[L.C.]{.underline}, 138 F.3d at 902 ("the plain language of the ADA's
Title II regulations, as well as the ADA's legislative history, make
clear that Congress wanted to permit a cost defense in only the most
limited of circumstances"; and, according to the legislative history of
Title II, "\[t\]he fact that it is more convenient, either
administratively or fiscally, to provide services in a segregated
manner, does not constitute a valid justification for separate or
different services"). [See also]{.underline} [Kathleen S.]{.underline}
v. [Department of Pub. Welfare]{.underline}, No. 97-6610, slip op. at 25
(E.D.Pa. June 26, 1998)("The Court finds that complying

with the ADA\'s integration mandate does not require a fundamental
alteration of the services that the Commonwealth requires DPW to furnish
in connection with community placement" of several hundred
institutionalized mentally ill class members)(attached as Exhibit B);
[Charles Q.]{.underline} v. [Houston]{.underline}, 1996 WL 447549, \*5-6
(M.D. Pa. 1996); [Wasserman]{.underline}, 937 F. Supp. at 528, 530.[^18]
[Cf.]{.underline} [Civic Assn. of the Deaf of New York City]{.underline}
v. [Giuliani]{.underline}, 915 F. Supp. 622, 636-37 (S.D.N.Y. 1996)
(public entity must demonstrate more than "high" expense in order for
court to find that accommodation is unduly onerous under ADA Title II
regulations).[^19]

As the plaintiffs' complaint has been drawn, the question whether the
relief sought by the plaintiffs would constitute a "fundamental
alteration" is fact-bound and, as such, is inappropriate for resolution
at this stage of the litigation. [See, e.g.]{.underline},
[L.C.]{.underline},138 F.3d at 905 (remanding to trial court for
determination of whether community placement would constitute
"fundamental alteration"); [Wasserman]{.underline}, 937 F. Supp. at 528
(whether defendants were correct that the transfer of many
plaintiffs\--conceivably "hundreds"\--from institutional settings to
community placements would require a "fundamental alteration" of the
State's mental health care delivery system was a disputed issue of
material fact precluding summary judgment); [Anderson]{.underline} v.
[Department of Pub. Welfare]{.underline}, 1998 WL 154654, \*9-10 (E.D.
Pa. 1998) (whether class action seeking changes to managed care program
covered by ADA Title II would require a fundamental alteration was a
fact issue precluding summary judgment, where the relief requested
included architectural modifications, provision of information in
different formats, and alternative methods of administration).
[Cf.]{.underline} [Eric L.]{.underline} v. [Bird]{.underline}, 848 F.
Supp. 303, 313-14 (D.N.H. 1994) (denying motion to dismiss complaint
presenting claims under Title II of the ADA and Section 504 of the
Rehabilitation Act, where plaintiff class of institutionalized children
sought appropriate community placement; observing that plaintiffs\' ADA
and Section 504 claims presented fact issues); [Staron]{.underline} v.
[McDonald's Corp.]{.underline}, 51 F.3d 353, 356 (2d. Cir. 1995)
(refusing to dismiss ADA Title III complaint for failure to state a
claim, because determination of whether requested accommodation would be
reasonable "involves a fact-specific, case-by-case inquiry").

In sum, contrary to defendants\' position that the relief sought in
plaintiffs\' complaint is a [per]{.underline} [se]{.underline}
fundamental alteration, the State must bear the burden of proving that
placing class members into community programs pursuant to individualized
determinations by professionals would in fact require a fundamental
alteration in the State\'s programs. [L.C.]{.underline}, 138 F.3d at
904-05; [Kathleen S.]{.underline}, No. 97-6610, slip op. at 25-26
(concluding after a bench trial that the State had not carried its
burden under 28 C.F.R. § 35.130(b)(7), 28 C.F.R. § 35.130(d) and Title
II of the ADA, of producing evidence in support of its claim that
providing appropriate community facilities to institutionalized,
mentally ill class members would result in a "fundamental alteration,"
and ordering community placement of class members for whom professionals
determine such placement is appropriate).

CONCLUSION

For the reasons stated herein, the Court should deny defendants' motions
to dismiss as to plaintiffs\' ADA claims, and as to the defendants\'
argument that Section 504 of the Rehabilitation Act is unconstitutional.
Title II of the ADA and Section 504 of the Rehabilitation Act are
constitutional and a valid abrogation of the State's Eleventh Amendment
immunity. In order to state a claim for discrimination under the ADA,
plaintiffs are not required to allege that non-disabled persons are
provided the same services the plaintiffs seek. Finally, the question of
what constitutes a "fundamental alteration" of a state program for
purposes of Title II of the ADA is, in this case, a fact-bound issue,
precluding dismissal for failure to state a claim as a matter of law.

Dated: Washington, D.C.

July 17, 1998

Respectfully Submitted,

THOMAS E. SCOTT BILL LANN LEE

United States Attorney Acting Assistant Attorney General

Southern District of Florida Civil Rights Division

VERONICA HARRELL-JAMES JOHN L. WODATCH

Assistant U.S. Attorney Chief

99 N.E. 4th Street Disability Rights Section

Miami, FL 33132

\(305\) 961-9327 STEVEN H. ROSENBAUM

Chief

Special Litigation Section

> RENEE WOHLENHAUS
>
> Acting Deputy Chief
>
> Disability Rights Section
>
> ROBINSUE FROHBOESE
>
> Deputy Chief
>
> Special Litigation Section
>
> PHILIP L. BREEN
>
> Special Legal Counsel
>
> Disability Rights Section
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> LOUISA A. SMITH
>
> JEANINE WORDEN
>
> Attorneys
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66400
>
> Washington, D.C. 20035-6400
>
> \(202\) 514-6216

**CERTIFICATE OF SERVICE**

I hereby certify that on July 17, 1998, I sent by Federal Express copies
of the United States\' Memorandum of Law as *Amicus Curiae* and
Intervenor in Opposition to Defendants\' Motions to Dismiss; the United
States\' Motion to Intervene as of Right and for Leave to Participate as
*Amicus Curiae*; and the United States\' Motion for Leave to File
Memorandum of Law Exceeding Twenty Pages, to the following counsel of
record:

> The Honorable Robert A. Butterworth
>
> Attorney General
>
> Stephanie A. Daniel, Esq.
>
> Assistant Attorney General
>
> Chesterfield Smith, Jr., Esq.
>
> Assistant Attorney General
>
> Office of the Attorney General
>
> The Capitol, Suite PL01
>
> Tallahassee, Florida 32399
>
> J.C. Miller, Esq.
>
> Office of the General Counsel
>
> Department of Labor/Employment Security
>
> Hartman Building, Suite 307
>
> 2012 Capitol Circle, S.E.
>
> Tallahassee, Florida 32399
>
> Andrew J. Meyers, Esq.
>
> Special Counsel
>
> 14600 South Military Trail
>
> DelRay Beach, Florida 33445
>
> Peter Nimkoff, Esq.
>
> Litigation Director
>
> Advocacy Center for Persons with Disabilities, Inc.
>
> 2671 Executive Center Circle West
>
> Suite 100
>
> Tallahassee, Florida 32301
>
> Ellen M. Saideman, Esq.
>
> Senior Attorney
>
> Juliette E. Lippman, Esq.
>
> Senior Attorney
>
> Advocacy Center for Persons with Disabilities, Inc.
>
> 2901 Stirling Road, Suite 206
>
> Fort Lauderdale, Florida 33312
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> LOUISA A. SMITH
>
> Attorney

[^1]: ^?^ On May 14, 1998, the Attorney General of the State of Florida
    filed a memorandum of law in support of a motion to dismiss on
    behalf of all defendants. (This memorandum is cited herein as "Def.
    Br. \_\_.") In addition, one of the defendants, Tamara Allen,
    Director of the Division of Vocational Rehabilitation, Florida
    Department of Labor and Employment Security, filed her own motion to
    dismiss and motion for a more definite statement on May 18, 1998.

[^2]: ^?^ Together with this memorandum of law, the United States
    submits motion papers seeking intervention as of right, leave to
    participate as *amicus curiae*, leave to file a memorandum of law
    exceeding twenty pages, and two proposed orders.

[^3]: ^?^ The four institutions are: the Landmark Learning Center,

    the Sunland Center at Marianna, Tacachale Sunland, and Gulf Coast
    Center.

[^4]: ^?^ Although the United States has made findings of violations of
    residents' constitutional and statutory rights in its investigation
    of the Landmark Learning Center, the United States expresses no view
    here concerning issues raised in the [Brown]{.underline} case other
    than those specifically addressed herein.

[^5]: ^?^ [See]{.underline} [Seminole Tribe of Florida]{.underline} v.
    [Florida]{.underline}, 517 U.S. 44,

    53-55, 58-59, 63-65 (1996); [Papasan]{.underline} v.
    [Alain]{.underline}, 478 U.S. 265, 276 (1986); [Pennhurst State Sch.
    and Hosp.]{.underline} v. [Halderman]{.underline}, 465 U.S. 89, 100
    (1984).

[^6]: ^?^ [See]{.underline} [also]{.underline} [Seminole
    Tribe]{.underline}, 517 U.S. at 71-72 nn.14 & 16

    \(1996\) (reaffirming the [Ex parte Young]{.underline} exception to
    Eleventh Amendment immunity); [Idaho]{.underline} v. [Coeur d\'Alene
    Tribe of Idaho]{.underline}, 117 S.Ct. 2028, 2040 (1997)(same);
    [Does 1-13]{.underline} v. [Chiles]{.underline}, 136 F.3d 709,
    718-20 (11th Cir. 1998)(holding that state is not immune from
    private citizens\' lawsuit seeking prospective equitable relief to
    prevent continuing violation of federal law).

[^7]: ^?^ [See]{.underline} [also]{.underline} [Corpus]{.underline} v.
    [Estelle]{.underline}, 605 F.2d 175, 180 (5th Cir. 1979),
    [cert]{.underline}. [denied]{.underline}, 445 U.S. 919 (1980);
    [Scott]{.underline} v. [City of Anniston, Ala.]{.underline}, 597
    F.2d 897, 899-900 (5th Cir. 1979), [cert]{.underline}.
    [denied]{.underline}, 446 U.S. 917 (1980).

[^8]: ^?^ [Kimel]{.underline} is consistent with the Eleventh Circuit\'s
    ruling in [Mitten]{.underline} v. [Muscogee County School
    District]{.underline}, 877 F.2d 932, 937 (11th Cir. 1989), [cert.
    denied]{.underline}, 493 U.S. 1072 (1990), which held that another
    statute that protects the rights of persons with disabilities, the
    Individuals with Disabilities Education Act (\"IDEA\"), 20 U.S.C. §
    1400 [et]{.underline} [seq]{.underline}., was validly enacted
    pursuant to Section 5 of the Fourteenth Amendment. [See
    also]{.underline} [Seaborn]{.underline}, 143 F.3d at 1405 (applying
    [Kimel]{.underline} as law of the Eleventh Circuit to hold that the
    Eleventh Amendment does not bar ADA claim filed against the State by
    employees of the State of Florida Department of Corrections).

[^9]: ^?^ [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).

[^10]: ^?^ [Alexander]{.underline} dealt with Section 504 of the
    Rehabilitation

    Act. The Eleventh Circuit, however, has held that the ADA imposes
    substantive requirements similar to Section 504. [See,
    e.g.]{.underline}, [Holbrook]{.underline} v. [City of Alpharetta,
    Ga.]{.underline}, 112 F.3d 1522, 1526 n.2 (11th Cir. 1997);
    [Gordon]{.underline} v. [E.L. Hamm & Assocs.]{.underline}, 100 F.3d
    907, 913 n.3 (11th Cir. 1996).

[^11]: ^?^ [See]{.underline} Senate Report, [supra]{.underline}, at 6
    (quoting without

    attribution [Alexander]{.underline}, 469 U.S. at 295); House Report,
    [supra]{.underline}, at 29 (same); 136 Cong. Rec. 10,870 (1990)
    (Rep. Fish); [id.]{.underline} at 11,467 (Rep. Dellums).

[^12]: ^?^ Defendants argue that the ADA is inconsistent with the

    Tenth Amendment because it usurps power reserved to the states. Def.
    Br. at 20 & n.7. They are simply incorrect. The Fourteenth Amendment
    "fundamentally altered the balance of state and federal power struck
    by the Constitution." [Seminole Tribe]{.underline}, 517 U.S. at 59.
    Thus 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}, 427 U.S. at 455.

[^13]: ^?^ Although the Supreme Court held in [Atascadero]{.underline}
    in 1985

    that the Eleventh Amendment abrogation was ineffective because of
    the absence of an express abrogation (an absence that Congress
    remedied in 1986 by enacting 42 U.S.C. § 2000d-7), it did not
    question the Ninth Circuit\'s holding that the Rehabilitation Act
    was legislation to enforce the Equal Protection Clause.

[^14]: ^?^ [See also]{.underline} [Department of Educ.]{.underline} v.
    [Katherine D.]{.underline}, 531 F.

    Supp. 517, 530 (D. Haw. 1982), [rev\'d]{.underline} [in]{.underline}
    [part]{.underline} [on]{.underline} [other]{.underline}
    [grounds]{.underline}, 727 F.2d 809 (9th Cir. 1983), [cert.
    denied]{.underline}, 471 U.S. 1117 (1985).

[^15]: ^?^ [See]{.underline} [Hunter]{.underline} v.
    [Chiles]{.underline}, 944 F. Supp. 914, 917 (S.D. Fla. 1996), appeal
    dismissed, June 23, 1997; [Mayer]{.underline}, 940 F. Supp. at
    1478-1480; [Niece]{.underline}, 941 F. Supp. at 1501-1504.
    [See]{.underline} [also]{.underline} [United States]{.underline} v.
    [Yonkers Bd. of Educ.]{.underline}, 893 F.2d 498, 503 (2d Cir.
    1990); [Santiago]{.underline} v. [New York State Dep\'t of
    Correctional Services]{.underline}, 945 F.2d 25, 31 (2d Cir. 1991)
    (dictum), [cert. denied]{.underline}, 502 U.S. 1094 (1992);
    [Stanley]{.underline} v. [Darlington County Sch. Dist.]{.underline},
    879 F. Supp. 1341, 1363-1364 (D.S.C. 1995), [rev\'d in part on other
    grounds]{.underline}, 84 F.3d 707 (4th Cir. 1996);
    [Martin]{.underline} v. [Voinovich]{.underline}, 840 F. Supp. 1175,
    1187 (S.D. Ohio 1993).

[^16]: ^?^ The ADA integration regulation has "the force of law."
    [L.C.]{.underline} v. [Olmstead]{.underline}, 138 F.3d 893, 898
    (11th Cir. 1998), [petition for reh\'g *en banc* denied]{.underline}
    (July 1, 1998); [Helen L.]{.underline} v. [DiDario]{.underline}, 46
    F.3d 325, 332 (3d Cir.), [cert. denied sub nom.]{.underline},
    [Pennsylvania Secretary of Pub. Welfare]{.underline} v. [Idell
    S.]{.underline}, 516 U.S. 813 (1995).

[^17]: ^?^ Presumably, the only reason the defendants raised the
    argument conclusively rejected in [L.C.]{.underline} was to preserve
    it in the event the [L.C.]{.underline} decision was reheard *en
    banc* or the State of Georgia petitioned for certiorari to the
    United States Supreme Court. On July 1, 1998, the Eleventh Circuit
    denied rehearing in [L.C.]{.underline}

[^18]: ^?^ Although the court in [Wasserman]{.underline} opined in dicta
    that the Third Circuit\'s decision in [Helen L.]{.underline} "does
    not support the imposition of court-ordered relief that would
    require \'transferring millions of dollars from institutions to the
    community\'," the court held that the administrative and financial
    implications of the relief requested (including community placement)
    by the class in [Wasserman]{.underline} were fact issues that
    required further development, and therefore the court denied the
    defendants\' motion for summary judgment on plaintiffs\' ADA claims.
    937 F. Supp. at 528, 531 (quoting brief submitted by the
    [Wasserman]{.underline} defendants).

[^19]: ^?^ In any case, if defendants are suggesting (Def. Br. at 15 &
    n.4; 18) that persons who do not require institutional care should
    remain institutionalized in order to preserve the viability of
    institutions for those who do require that level of care, there is
    no legal precedent for that view.