IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

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

)

)

MILTON ASH, )

)

Plaintiff, ) CIVIL ACTION NO.

)

v\. ) 97-AR-2179-S

)

ALABAMA DEPARTMENT OF )

YOUTH SERVICES, WALTER WOOD, )

in his official capacity, and DELEON )

FANCHER, in his official capacity, )

)

Defendants, )

)

UNITED STATES OF AMERICA, )

)

Intervenor. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

**INTERVENOR'S MEMORANDUM OF POINTS AND AUTHORITIES**

**IN SUPPORT OF ITS MOTION**

**FOR PARTIAL SUMMARY JUDGMENT**

I. [PRELIMINARY STATEMENT]{.underline}

In this action, plaintiff Milton Ash alleges that the Alabama Department
of Youth Services discriminated against him by, inter alia, failing to
accommodate his disability by refusing to repair exhaust leaks in
automobiles he used on the job, refusing to enforce a no-smoking policy,
and refusing to allow him to transfer to another shift,, in violation of
Section 504 of the Rehabilitation Act of 1973, 42 U.S.C 794(a) ("Section
504\"). Defendant will move for partial summary judgment concurrent with
Intervenor's motion. Therefore, intervenor requests that the Court issue
a briefing schedule so that it may have an opportunity to file a
responsive brief once Defendants' arguments have been ascertained.

It is the intervenor's position that the Eleventh Amendment does not bar
plaintiff's claims under Section 504 because defendant has waived its
sovereign immunity by accepting federal funds. As demonstrated below,
pursuant to the Spending Clause,***^1^***[^1] Congress validly
conditioned receipt of federal financial assistance on waiver of States'
immunity to private suits brought to enforce Section 504. 42 U.S.C.
2000d-7. By enacting Section 2000d-7, Congress put state agencies on
clear notice that acceptance of federal financial assistance was
conditioned on a waiver of their Eleventh Amendment immunity to
discrimination suits under Section 504. In accepting federal funds,
defendant agreed to these terms. As the Eleventh Circuit recognized in
*Sandoval v. Hagan*, 197 F.3d 484 (11^th^ Cir. 1999) *rev'd on other
grounds, Alexander v. Sandoval,* 532 U.S. 275, Section 2000d-7 is a
valid exercise of the Spending Clause, and by accepting federal funds, a
State waives its sovereign immunity.

II\. [ARGUMENT]{.underline}

## A. CONGRESS VALIDLY CONDITIONED FEDERAL FUNDING ON A WAIVER OF ELEVENTH AMENDMENT IMMUNITY FOR PRIVATE CLAIMS UNDER SECTION 504 OF THE [REHABILITATION ACT OF 1973]{.underline}

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a),
prohibits discrimination against persons with disabilities under "any
program or activity receiving Federal financial
assistance."***^2^***[^2]** ** 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 \[29 U.S.C.
794\], title IX of the Education Amendments of 1972 \* \* \* \[and\]
title VI of the Civil Rights Act of 1964."

Section 2000d-7 may be upheld as a valid exercise of Congress's power
under the Spending Clause, Art. I, § 8, Cl. 1, to prescribe conditions
for state agencies that voluntarily accept federal financial assistance.
States are free to waive their Eleventh Amendment immunity. *See College
Sav. Bank v. Florida Prepaid Postsec. Educ. Expense Bd.*, 527 U.S. 666,
674 (1999). And "Congress may, in the exercise of its spending power,
condition its grant of funds to the States upon their taking certain
actions that Congress could not require them to take, and \* \* \*
acceptance of the funds entails an agreement to the actions." *Id*. at
686. Thus, Congress may, and has, conditioned the receipt of federal
funds on defendant's waiver of Eleventh Amendment immunity to Section
504 claims.

1.  Section 2000d-7 Is A Clear Statement That Accepting Federal
    Financial Assistance Would Constitute A Waiver To Private Suits
    [Brought Under Section]{.underline}*[
    ]{.underline}*[504]{.underline}

It is settled in the Eleventh Circuit that Section 2000d-7 is a clear
statement that in accepting federal funds, the State of Alabama is
subject to suits in Federal Court brought under Section 504. *Sandoval,
*197 F.3d 484 at 493-94.***^3^***[^3] The Eleventh Circuit explained in
*Sandoval *that "\[t\]he provision's plain language manifests an
unmistakable intent to condition federal funds on a state's waiver of
sovereign immunity." *Sandoval*, 197 F.3d at 493. A history of Section
2000d-7 lends context to the Court's decision.

Section 2000d-7 was enacted in response to the Supreme Court's decision
in *Atascadero State Hospital* v. *Scanlon*, 473 U.S. 234 (1985). In
*Atascadero*, the Court held that Congress had not provided sufficiently
clear statutory language** **to condition federal funding on States'
waiver of Eleventh Amendment immunity for private Section 504 claims
against state entities and reaffirmed that "mere receipt of federal
funds" was insufficient to constitute a waiver. 473 U.S. at 246. But the
Court stated that if a statute "manifest\[ed\] a clear intent to
condition participation in the programs funded under the Act on a
State's waiver of its constitutional immunity," the federal courts would
have jurisdiction over States that accepted federal funds. *Id*. at 247.

Section 2000d-7 makes unambiguously clear that Congress intended to
condition federal funding on States' waiver of Eleventh Amendment
immunity to suit in federal court under Section 504 (and the other
federal non-discrimination statutes tied to federal financial
assistance) if they accepted federal funds.***^4^***[^4] Any state
agency reading the U.S. Code would have known that after the effective
date of Section 2000d-7 it** **would waive its immunity to suit in
federal court for violations of Section 504 if it accepted federal
funds. Section 2000d-7 thus embodies exactly the type of unambiguous
condition discussed by the Court in *Atascadero*, putting States on
express notice that part of the "contract" for receiving federal funds
was the requirement that they consent to suit in federal court for
alleged violations of Section 504 for those agencies that received any
financial assistance.***^5^***[^5]

Thus, the Supreme Court, in *Lane* v. *Peña*, 518 U.S. 187, 200 (1996),
acknowledged "the care with which Congress responded to our decision in
*Atascadero* by crafting an unambiguous waiver of the States' Eleventh
Amendment immunity" in Section 2000d-7. The Court of Appeals for this
Circuit also made clear in *Sandoval*, that the "plain language" of 42
U.S.C. 2000d-7 "manifests an unmistakable intent to condition federal
funds on a state's waiver of sovereign immunity." 197 F.3d at 493. Six**
**other courts of appeals agree with Court of Appeals for the Eleventh
Circuit. *See Litman* v. *George Mason University*, 186 F.3d 544, 554
(4^th^ Cir. 1999), *cert. denied*, 528 U.S. 1181 (2000) ( "Congress
succeeded in its effort to codify a clear, unambiguous, and unequivocal
condition of waiver of Eleventh Amendment immunity in 42 U.S.C. §
2000d-7(a)(1).");* Douglas* v. *California Dep't of Youth Auth.*, 271
F.3d 812, 820, *opinion amended*, 271 F.3d 910 (9th Cir. 2001), *cert.
denied*, 122 S.Ct. 2591 (2002)(Section 504);** ***Nihiser* v. *Ohio
E.P.A.*, 269 F.3d 626, 628 (6th Cir. 2001) (Section 504),* cert.
denied,* 122 S.Ct. 2588 (2002); *Jim C.* v. *Arkansas Dep't of Educ.*,
235 F.3d 1079, 1081-1082 (8th Cir. 2000) (en banc) (Section 504), *cert.
denied*, 533 U.S. 949 (2001); *Stanley* v. *Litscher*, 213 F.3d 340, 344
(7th Cir. 2000) (Section 504); *Pederson* v. *Louisiana State Univ.*,
213 F.3d 858, 875-876 (5th Cir. 2000) (Title IX). The text and structure
of 42 U.S.C. 2000d-7 makes clear that federal financial assistance is
conditioned on both the nondiscrimination obligation under Section 504
and removal of Eleventh Amendment immunity.

Defendant cannot successfully rely upon an** **isolated decision in
*Garcia* v. *SUNY Health Sciences Center*, 280 F.3d 98, 113 (2d Cir.
2001) to argue that its waiver was not knowing and voluntary. The Second
Circuit in *Garcia* agreed that Section 2000d-7 "constitutes a clear
expression of Congress\'s intent to condition acceptance of federal
funds on a state's waiver of its Eleventh Amendment immunity." 280 F.3d
at 113. And it further agreed that, under normal circumstances, "the
acceptance of funds conditioned on the waiver might properly reveal a
knowing relinquishment of sovereign immunity." *Id*. at 114, n. 4.
However, *Garcia* also held that Title II of the ADA did not validly
abrogate the States' immunity and that the Section 504 waiver was not
knowing because the state agency did not "know" in 1995 (the latest
point the alleged discrimination in *Garcia* had occurred) that its
waiver of immunity under Section 504 would have a substantial fiscal
effect, rather than simply result in liability substantially similar to
that under Title II. According to the court, since "by all reasonable
appearances state sovereign immunity \[to claims of disability
discrimination under the ADA\] had already been lost" by virtue of the
Title II abrogation, the State "could not have understood that in
\[accepting federal funds\] it was actually abandoning its sovereign
immunity from private damages suits" for the same disability
discrimination under Section 504. *Id*. at 114.

The Second Circuit's conclusion about a knowing waiver is, in our view,
incorrect. It is wrong because it ignores what every state agency did
know from the plain text of Section 2000d-7 since it was enacted in
1986, that acceptance of federal funds constituted a waiver of immunity
to suit for violations of Section 504. Section 504 was not amended or
altered by the enactment of Title I of the ADA in 1990, and it was clear
that plaintiff could sue under either statute*. * *See* 42 U.S.C.**
**12201(b) of the ADA (preserving existing causes of action). It is thus
untenable to suggest that abrogation for suits under one statute is
relevant to whether an entity waived its immunity to suits brought to
enforce a distinct, albeit substantively similar, statute. *Garcia's*
holding -- that the waiver for Section 504 claims was effective until
Title II went into effect and then lost its effectiveness until some
point in the late 1990's, when a "colorable basis for a State to
suspect" that the abrogation was unconstitutional developed, *see*
*Garcia*, 280 F.3d at 114 n. 4, and has now regained its full
effectiveness -- creates an unprecedented patchwork of effective
coverage. Thus, the "clear intent to condition participation in the
programs funded" required by *Atascadero*, 473 U.S. at 247, *i.e.*, a
clear statement in the text of the statute about the Eleventh Amendment
and non-discrimination statutes tied to federal financial assistance,
assured that defendant knew as a matter of law that it was waiving its
immunity when it applied for and accepted federal financial assistance.

2\. Congress Has Authority To Condition The Receipt Of Federal Financial
[Assistance On The State Waiving Its Eleventh Amendment
Immunity]{.underline}

Congress may condition its spending on a waiver of Eleventh Amendment
immunity. Indeed, in *Alden v. Maine*, 527 U.S. 706, 755 (1999), the
Court cited* South Dakota v. Dole*, 483 U.S. 203 (1987), a case
involving Congress's Spending Clause authority, when it noted that "the
Federal Government \[does not\] lack the authority or means to seek the
States' voluntary consent to private suits." Similarly, in *Florida
Prepaid* the Court reaffirmed the holding of *Petty v.
Tennessee-Missouri Bridge Commission*, 359 U.S. 275 (1959), where the
Court held that Congress could condition the exercise of one of its
Article I powers (there, the approval of interstate compacts) on the
States' agreement to waive their Eleventh Amendment immunity from suit.
*Florida Prepaid*, 527 U.S. at 686. At the same time, the Court
suggested that Congress had the authority under the Spending Clause to
condition the receipt of federal funds on the waiver of immunity.
*Ibid*.; *see also id.* at 678-679 n.2. The Court explained that unlike
Congress's power under the Commerce Clause to regulate "otherwise lawful
activity," Congress's power to authorize interstate compacts and spend
money was the grant of a "gift" on which Congress could place conditions
that a State was free to accept or reject. *Id*. at 687. The Eleventh
Circuit recognized this principle in *Sandoval*, explaining that "under
the Spending Clause power, the federal government may condition a waiver
of state sovereign immunity upon the receipt of federal monies." 197
F.3d at 492.

Defendant cannot, based upon on *Seminole Tribe of Florida v. Florida*,
517 U.S. 44 (1996) assert that Congress cannot, pursuant to its Article
I powers, abrogate state sovereign immunity. Unlike the Commerce Clause
power that was at issue in *Seminole Tribe*, "the Spending Clause power
does not abrogate immunity through unilateral federal action. Rather,
States are free to accept or reject the terms and conditions of federal
funds, much like any contractual power." *Sandoval*, 197 F.3d at 494,
citing *Pennhurst State Sch. & Hosp. v. Halderman*, 451 U.S. 1, 17
(1981) ("legislation enacted pursuant to the spending power is much in
the nature of a contract: in return for federal funds, the States agree
to comply with federally imposed conditions"). Indeed, the Supreme Court
in *Florida Prepaid* expressly distinguished the Spending Clause powers
from other sections of Article I and reaffirmed that pursuant to its
Spending Clause Powers Congress may condition participation in federal
programs on an agreement to take certain actions that Congress otherwise
could not require a State to take. 527 U.S. at 686. * Accord Dole*, 483
U.S. at 207 ("objectives not thought to be within Article I's
'enumerated legislative fields,' may nevertheless be attained through
the use of the spending power and the conditional grant of federal
funds.") *citing United States v. Butler*, 297 U.S. 1, 65 (1936).

3\. [Section 504 Is A Valid Exercise Of The Spending Power]{.underline}

The Supreme Court in* Dole* identified four limitations on Congress\'s
Spending Power. First, the Spending Clause by its terms requires that
Congress legislate in pursuit of \"the general welfare.\" 483 U.S. at
207. Second, if Congress conditions the States\' receipt of federal
funds, it "'must do so unambiguously \* \* \* , enabling the States to
exercise their choice knowingly, cognizant of the consequence of their
participation.'" *Ibid.* (quoting *Pennhurst*). Third, the Supreme
Court\'s cases \"have suggested (without significant elaboration) that
conditions on federal grants might be illegitimate if they are unrelated
\'to the federal interest in particular national projects or
programs.\"\'* *483 U.S. at 207. And fourth, the obligations imposed by
Congress** **may not induce a governmental recipient to violate any
independent constitutional provisions. *Id*. at 209-211.** **

As this case comes before this Court, there is no dispute that (1) the
general welfare is served by prohibiting discrimination against persons
with disabilities, *see* *City of *

*Cleburne v. Cleburne Living Ctr.*, 473 U.S. 432, 443-444 (1985)
(discussing Section 504 with approval); *Dole*, 483 U.S. at 207 n.2
(noting substantial judicial deference to Congress on this issue); (2)
the language of Section 504 makes clear that the obligations it imposes
are a condition on the receipt of federal financial assistance, *see
School Bd. of Nassau County v. Arline*, 480 U.S. 273, 286 n.15 (1987)
(contrasting \"the antidiscrimination mandate of § 504\" with the
statute in *Pennhurst*); and (3) Section 504 does not \"induce the
States to engage in activities that would themselves be
unconstitutional.\" Dole, 483 U.S. at 210.

Section 504 meets the Dole \"relatedness\" requirement as well. Section
504 furthers the federal interest in assuring that no federal funds are
used to support, directly or indirectly, programs that discriminate or
otherwise deny benefits and services on the basis of disability to
qualified persons. Section 504\'s nondiscrimination requirement is
patterned on Title VI and Title IX, which prohibit race and sex
discrimination by \"programs\" that receive federal funds. * See NCAA v.
Smith*, 525 U.S. 459, 466 n.3 (1999); *Arline*, 480 U.S. at 278 n.2.
Both Title VI and Title IX have been upheld as valid Spending Clause
legislation. In *Lau v. Nichols*, 414 U.S. 563 (1974), the Supreme Court
held that Title VI, which the Court interpreted to prohibit a school
district from ignoring the disparate impact its policies had on limited-
English proficiency students, was a valid exercise of the Spending
Power. \"The Federal Government has power to fix the terms on which its
money allotments to the States shall be disbursed. Whatever may be

the limits of that power, they have not been reached here.\" 414 U.S. at
569 (citations omitted).***^6^***[^6] The Court made a similar holding
in *Grove City College v. Bell*, 465 U.S. 555 (1984). In *Grove City*,
the Court addressed whether Title IX, which prohibits education programs
or activities receiving federal financial assistance from discriminating
on the basis of sex, infringed on the college\'s First Amendment rights.
The Court rejected that claim, holding that \"Congress is free to attach
reasonable and unambiguous conditions to federal financial assistance
that educational institutions are not obligated to accept.\" *Id*. at
575.

These cases stand for the proposition that Congress has a legitimate
interest in preventing the use of any of its funds to \"encourage\[\],
entrench \[\], subsidize\[\], or result\[\] in,\" *Lau*, 414 U.S. at 569
(internal quotation marks omitted), discrimination against persons
otherwise qualified on the basis of criteria Congress has determined are
irrelevant to the receipt of public services, such as race, gender, and
disability. * See United States v. Louisiana*, 692 F. Supp. 642, 652
(E.D. La. 1988) (three-judge court) (\"\[T\]he condition imposed by
Congress on defendants \[in Title VI\], that they may not discriminate
on the basis of race in any part of the State\'s system of public higher
education, is directly related to one of the main purposes for which
public education funds are expended: equal education opportunities to
all citizens.\" (footnote omitted)). Because this interest extends to
all federal funds, Congress drafted Title VI, Title IX, and Section 504
to apply across-the-board to all federal financial assistance. The
purposes articulated by Congress in enacting Title VI, purposes equally
attributable to Title IX and Section 504, were to avoid the need to
attach nondiscrimination provisions each time a federal assistance
program was before Congress, and to avoid \"piecemeal\" application of
the nondiscrimination requirement if Congress failed to place the
provision in each grant statute. * See* 110 Cong. Rec. 6544 (1964) (Sen.
Humphrey); *id.* at 7061-7062 (Sen. Pastore); *id*. at 2468 (Rep.
Celler); *id.* at 2465 (Rep. Powell).***^7^***[^7]

III\. [CONCLUSION]{.underline}

For the foregoing reasons, the Eleventh Amendment does not bar this
lawsuit against defendant Alabama Department of Youth Services.

Date: September 11, 2002

Respectfully submitted,

John Ashcroft

Attorney General of the United States

Ralph F. Boyd, Jr.

Assistant Attorney General

Civil Rights Division

Alice H. Martin

United States Attorney

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

John Wodatch

Philip L. Breen

Allison Nichol

Harold L. Jackson

California State Bar No. 071325

M. Lucia Blacksher

Louisiana State Bar No. 26605

Disability Rights Section - NYA

Civil Rights Division

U.S. Department of Justice` `

950 Pennsylvania Ave. NW

Washington, D.C. 20530

Telephone: (202) 305-7624

Facsimile: (202) 616-6862

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on September 11, 2002, I served a copy of the
foregoing INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT upon
Defendant's counsel and Plaintiff's counsel in ASH V. ALABAMA DEPARTMENT
OF YOUTH SERVICES, Civil Case No. 97-AR-2179-S`, `by sending it via
first class U.S. Mail, postage pre-paid, to the following addresses:

Margaret L. Fleming

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130-0152

Deborah A. Mattison

GORDON, SILBERMAN, WIGGINS & CHILDS

1400 South Trust Tower

Birmingham, AL 35203

Alice H. Martin, U.S. Attorney

Cindy Simmons, Civil Chief

Office of the U.S. Attorney

Northern District of Alabama

200 Vance Federal Building

1800 Fourth Avenue North

Birmingham, Alabama 35203

Dated this 11^th^ day of September 2002` `

`                              ________________________                          ``	``	``	``	``	``	`HAROLD
L. JACKSON

Disability Rights Section - NYA

Civil Rights Division

U.S. Department of Justice` `

`	``	``	``	``	` 950 Pennsylvania Ave. NW

Washington, D.C. 20530

[^1]: ***^1^*** Article I, §8, cl. 1 of the United States Constitution
    provides:

    The Congress shall have Power To lay and collect Taxes, Duties,
    Imposts and Excises, to pay the Debts and provide for the common
    Defence and general Welfare of the United States; but all Duties,
    Imposts and Excises shall be uniform throughout the United States.

[^2]: ***^2^*** Defendant denied accepting federal financial assistance.
    *See* Defendant's Answer to Amended Complaint at ¶ 4. However,
    extensive evidence was adduced in discovery to show Defendant
    received federal funds in each year since at least 1993. *See*, the
    Affidavit of Harold L. Jackson in Support of Intervenor's Motion for
    Partial Summary Judgment dated August 27, 2002, identifying
    discovery excerpts.

[^3]: ***^3^*** *Sandova*l dealt with Title VI of the Civil Rights Act
    of 1964. However the waiver provision at issue was the same
    provision at issue here: 42 U.S.C. 2000d-7.

[^4]: ***^4^*** Congress recognized that the holding of *Atascadero* had
    implications for not only Section 504, but also Title VI of the
    Civil Rights Act of 1964 and Title IX of the Education Amendments of
    1972, which prohibit race and sex discrimination in "program\[s\] or
    activit\[ies\] receiving Federal financial assistance." See S. Rep.
    No. 388, 99th Cong., 2d Sess. 28 (1986); 131 Cong. Rec. 22,346
    (1985) (Sen. Cranston); see also *United States Dep't of Transp.* v.
    *Paralyzed Veterans of Am.*, 477 U.S. 597, 605 (1986) ("Under \* \*
    \* Title VI, Title IX, and § 504, Congress enters into an
    arrangement in the nature of a contract with the recipients of the
    funds: the recipient's acceptance of the funds triggers coverage
    under the nondiscrimination provision.").

[^5]: ***^5^*** The Department of Justice explained to Congress while
    the legislation was under consideration, "\[t\]o the extent that the
    proposed amendment is grounded on congressional spending powers,
    \[it\] makes it clear to \[S\]tates that their receipt of Federal
    funds constitutes a waiver of their \[E\]leventh \[A\]mendment
    immunity." 132 Cong. Rec. 28,624 (1986). On signing the bill into
    law, President Reagan similarly explained that the Act "subjects
    States, as a condition of their receipt of Federal financial
    assistance, to suits for violation of Federal laws prohibiting
    discrimination on the basis of handicap, race, age, or sex to the
    same extent as any other public or private entities." 22 Weekly
    Comp. Pres. Doc. 1421 (Oct. 27, 1986),* reprinted in* 1986
    U.S.C.C.A.N. 3554.

[^6]: ***^6^*** In *Alexander v. Sandoval*, 532 U.S. at 285, the Court
    noted that it has \"rejected *Lau*\'s interpretation of § 601 \[of
    the Civil Rights Act of 1964, 42 U.S.C. 2000d\] as reaching beyond
    intentional discrimination.\" The Court did not cast doubt on the
    Spending Clause holding in *Lau*.

[^7]: ***^7^*** For other Supreme Court cases upholding as valid
    exercises of the Spending Clause conditions not tied to a particular
    spending program, *see Oklahoma v. United States Civil Serv.
    Comm\'n*, 330 U.S. 127 (1947) (upholding an across-the-board
    requirement in the Hatch Act that no state employee whose principal
    employment was in connection with any activity that was financed in
    whole or in part by the United States could take \"any active part
    in political management\"); *Salinas v. United States*, 522 U.S. 52,
    60-61 (1997) (upholding federal bribery statute covering entities
    receiving more than \$10,000 in federal funds).