No. 95-3402
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
        INMATES OF THE ALLEGHENY COUNTY JAIL, THOMAS BRICE ILLEGIBLE
            ARTHUR GOSLEE, ROBERT MALONEY, and CALVIN MILLIGAN.
                                                Plaintiffs-appearance
       CYRIL H. ILLEGIBLE President of the Allegheny County ILLEGIBLE
           Prison Inspectors and the Other Members of the Board.
       THOMAS FOERSTER and WILLIAM H. HUNT, Commissioners ILLEGIBLE
        Allegheny County, EUGENE COON, Sheriff for Allegheny County,
        THE HONORABLE PATRICK R. ILLEGIBLE, MICHAEL J. O'MALLEY and
       MARION K. FINKELHOP, Judges Court of Common Pleas of Allegheny
       County, RICHARD S. ILLEGIBLE, Mayor of the City of Pittsburgh,
      HARRIET MCCRAY, MSGR. CHARLES OWEN RICE, and CHARLES KOZAKIEWICZ,
          Warden of Allegheny County Jail and WILLIAM R. ROBINSON,
       Executive Director of Prison Inspectors, and CYRIL ILLEGIBLE
        THOMAS FOERSTER, and WILLIAM H. HUNT, as Commissioners of
                                Allegheny County.
                                                Defendants-appellees
                                v.
           THE COMMONWEALTH OF PENNSYLVANIA; THE COMMONWEALTH OF
        PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DAVID S. OWENS, JR.,
       Commissioner, Department of Corrections, and ERSKIND DERAMUS,
                Deputy Commissioner, Department of Corrections.
                                                Defendants-appellees
            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE WESTERN DISTRICT OF PENNSYLVANIA
              BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
DEVAL L. PATRICK                                LINDA F. THOME
Assistant Attorney General                      Department of Justice
DAVID K. FLYNN                                  P.O. Box 66078
                                                Washington, D.C. 20035-6078
                                                (202) 514-4707
                           TABLE OF CONTENTS
                                                               PAGE
INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUE . . . . .. . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT:
        SECTION 504 AND TITLE II OF THE ADA APPLY TO
        STATE AND LOCAL PRISONS . . . . . . . . . . . . . . . . 4
        A. The Plain Language Of Both Statutes Applies To
           State And Local Entities That Operate Prisons .. . . 4
        B. Administrative Interpretations Of Section 504
           And Title II Of The ADA Confirm Their
           Application To State And Local Prisons . . . . . . .14
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . ... 20
                         TABLE OF AUTHORITIES
CASES:
ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994) . . . . .. 14
Armstrong v. Wilson, No. C 94-2307 CW, 1996 WL
        580847 (N.D. Cal., Sept. 20, 1996), appeal
        pending on other grounds, No. 96-16870 (9th
        Cir.), Section 1292(b) appeal on coverage
        issue dismissed, No. 96-80358 (9th Cir.) . . . . . .. . 5
Atascadero State Hosp. v. Scanlon,
       473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . .. 9
Babbitt v. Sweet Home Chapter of Communities
      for a Great Oregon, 115 S. Ct. 2407 (1995) . . . . . 13, 14
Bailey v. United States, 116 S. Ct. 501 (1995) . . . . . .  . 5,6
Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . . . 5
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410
      (1945) . . . . . . . . . . . . . . . . . . . . . . . . . 15
Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) . . . . . . .. . 8
                                - i -
01-07173
CASES (continued):                                           PAGE
Chevron U.S.A., Inc. v. Natural Resources Defense
       Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . 14
Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) . . . . . . 13
Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) . . . . . . . . 5
Fiedler v. American Multi-Cinema, Inc.,
      871 F. Supp. 35 (D.D.C. 1994)  . . . . . . . . . . . . .15
Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . 5
Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . .  . . . . . . 10
Gustafson v. Alloyd Co., 115 S. Ct. 1061 (1995) . . . . . . . 13
Harker v. State Use Indus., 990 F.2d 131
      (4th Cir.), cert. denied, 510 U.S. 886 (1993) . . . . . 11
Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . .  . . 5
Inmates of the Allegheny County Jail v. Wecht,
      93 F.3d 1124, vacated, reh'g en banc granted
      (3d Cir., Sept. 20, 1996) . . . . . . . . . . . . . passim
Innovative Health Sys., Inc. v. City of White Plains,
      931 F. Supp. 222 (S.D.N.Y. 1996), appeal
      pending, No. 96-7797 (2d Cir.) . . . . . . . . . .  . . 15
Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994) . . . . . . . . . . 5
Niece v. Fitzner, Civ. A. No. 94-CV-70718-DT,
      1996 WL 588217 (E.D. Mich., Oct. 10, 1996) . . . . . . . 5
Noland v. Wheatley, 835 F. Supp. 476
      (N.D. Ind. 1993) . . . . . . . . . . . . . .. . . . . . 15
Oak Ridge Care Ctr., Inc. v. Racine County,
      Wis., 896 F. Supp. 867 (E.D. Wis. 1995) . . . . . . . . 13
Pennhurst State School & Hosp. v.
      Halderman, 465 U.S. 89 (1984) . . . . . . . . . . .. 9, 10
Petersen v. University of Wisconsin Bd.
      of Regents, 818 F. Supp. 1276
      (W.D. Wis. 1993) . . . . . . . . . . . . . . . . .  . . 15
Southeastern Community College v. Davis,
      442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . . 12
                                - ii -
01-07174
CASES (continued):                                           PAGE
Stinson v. United States, 508 U.S. 36 (1993) . . . . . . . 14-15
Thomas Jefferson Univ. v. Shalala, 114 S. Ct.
      2381 (1994) . . . . . . . . . . . . . . . . . . . . . . 14
Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995),
      cert. denied, 116 S. Ct. 772 (1996) . . . . . . . . passim
Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) . . . . . . 15
United States v. Larionoff, 431 U.S. 864 (1977) . . . . . . . 15
      Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992),
      cert. denied, 507 U.S. 928 (1993) . . . . . . . . . . . 11
White v. State of Colorado, 82 F.3d 364
      (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 8
Will v. Michigan Dep't of State Police, 491 U.S. 58
      (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 9
Williams v. Meese, 926 F.2d 994 (10th Cir. 1991) . . . . . .7, 8
STATUTES AND REGULATIONS:
      Americans with Disabilities Act, Title II . . . . . passim
      42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . 14
      42 U.S.C. 12101(b)(4) . . . . . . . . . . . . . . . . . 14
      42 U.S.C. 12131 . . . . . . . . . . . . . . . . . . . . .2
      42 U.S.C. 12131(1)(B) . . . . . . . . . . . . . . . . . .7
      42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . .12
      42 U.S.C. 12132 . . . . . . . . . . . . . . . . . 2, 6, 13
      42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . .2
      42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . .2
      42 U.S.C. 12134(a) . . . . . . . . . . . . . .  . . .2, 14
      42 U.S.C. 12134(b) . . . . . . . . . . . . . .  . . . . .7
      42 U.S.C. 12134(c) . . . . . . . . . . . . . . . . . . .18
      42 U.S.C. 12201(a) . . . . . . . . . . . . . .  . . . . .7
      42 U.S.C. 12202 . . . . . . . . . . . . . . . .. . . . .10
      42 U.S.C. 12204(a) . . . . . . . . . . . . . . . . . . .18
      42 U.S.C. 12206 . . . . . . . . . . . . . . . . . . . . 14
      42 U.S.C. 12206(c)(3) . . . . . . . . . . . . . . . . . .2
Fair Labor Standards Act, 29 U.S.C. 201 et seq. . . . . .. . .11
                                - iii -
01-07175
STATUTES AND REGULATIONS (cont'd):                          PAGE
Rehabilitation Act of 1973, Section 504 . . . . . . . . . .passim
      29 U.S.C. 794(a) . . . . . . . . . . . . . . . . . 2, 6, 14
      29 U.S.C. 794(b) . . . . . . . . . . . . . . . . . .  . . 6
42 U.S.C. 2000d-7(a)(1) . . . . . . . . . . . . . . . . . .. . 10
28 C.F.R. Pt. 35 (1996) . . . . . . . . . . . . . . . . . . . . 2
28 C.F.R. Pt. 35, App. A (1996) . . . . . . . . . . . . . . . .17
28 C.F.R. Pt. 35, App. A, Subpart A (1996) . . . . . . . . . . 17
28 C.F.R. 35.102(a) (1996) . . . . . . . . . . . . . . . . . . 17
28 C.F.R. 35.151(c) (1996) . . . . . . . . . . . . . . . . . . 18
28 C.F.R. 35.190(b)(6) (1996) . . . . . . . . . . . . . . . . .17
28 C.F.R. Pt. 36, App. A (1996) . . . . . . . . . . . . . . . .18
28 C.F.R. Pt. 39, Editorial Note (1996) . . . . . . . . . . . .16
28 C.F.R. 39.170(d)(1)(ii) (1996) . . . . . . . . . . . . . . .16
28 C.F.R. Pt. 42, Subpart G (1996) . . . . . . . . . . . . . . .2
28 C.F.R. 42.502 (1996) . . . . . . . . . . . . . . . . . . . .19
28 C.F.R. 42.522(b) (1996) . . . . . . . . . . . . . . . . . . 18
28 C.F.R. 42.540(h) (1996) . . . . . . . . . . . . . . . . . . 15
28 C.F.R. 42.540(j) (1996) . . . . . . . . . . . . . . . . . . 16
41 C.F.R. Subpart 101-19.6, App. A (1996) . . . . . . . . . . .18
45 Fed. Reg. 37620 (1980) . . . . . . . . . . . . . . . . . . .16
45 Fed. Reg. 37630 (1980) . . . . . . . . . . . . . . . . . . .16
59 Fed. Reg. 31676 (1994) . . . . . . . . . . . . . . . . . . .18
59 Fed. Reg. 31770-31772 (1994) . . . . . . . . . . . . . . . .18
59 Fed. Reg. 31808 (1994) . . . . . . . . . . . . . . . . . . .18
LEGISLATIVE HISTORY:
H.R. Rep. No. 485, Pt. 4, 101st Cong., 2d Sess. (1990),
      reprinted in 1990 U.S.C.C.A.N. 512 . . . . . . . . . . . 12
MISCELLANEOUS:
Americans with Disabilities Act Title II
      Technical Assistance Manual (1993) . . . . . . .  2, 15, 17
Webster's Third New World Dictionary (1986) . . . . . . .6, 7, 12
                                - iv -
01-07176
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             No. 95-3402
         INMATES OF THE ALLEGHENY COUNTY JAIL, THOMAS PRICE BEY,
           ARTHUR GOSLEE, ROBERT MALONEY, and CALVIN MILLIGAN,
                                                Plaintiffs-appellants
                                v.
        CYRIL H. WECHT, President of the Allegheny County Bd. of
        Prison Inspectors and the Other Members of the Board;
        THOMAS FOERSTER and WILLIAM H. HUNT, Commissioners for
       Allegheny County; EUGENE COON, Sheriff for Allegheny County;
        THE HONORABLE PATRICK R. TAMILIA; MICHAEL J. O'MALLEY, and
       MARION K. FINKELHOR, Judges, Court of Common Pleas of Allegheny
        County; RICHARD S. CALIGURI, Mayor of the City of Pittsburgh;
      HARRIET MCCRAY; MSGR. CHARLES OWEN RICE; and CHARLES KOZAKIEWICZ,
       Warden of Allegheny County Jail and WILLIAM R. ROBINSON,
       Executive Director of Prison Inspectors; and CYRIL WECHT,
       THOMAS FOERSTER, and WILLIAM H. HUNT, as Commissioners of
                           Allegheny County,
                                                Defendants-appellees
                                v.
           THE COMMONWEALTH OF PENNSYLVANIA; THE COMMONWEALTH OF
         PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DAVID S. OWENS, JR.,
        Commissioner, Department of Corrections, and ERSKIND DERAMUS,
              Deputy Commissioner, Department of Corrections,
                                                Defendants-appellees
             ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
                        INTEREST OF THE UNITED STATES
        The Department of Justice has significant responsibilities
for the enforcement and implementation of Title II of the
Americans with Disabilities Act (ADA) and Section 504 of the
01-07177
                                - 2 -
Rehabilitation Act of 1973. See 29 U.S.C. 794(a); 42 U.S.C.
12133, 12134. Pursuant to 29 U.S.C. 794(a), the Department has
issued regulations interpreting Section 504. See 28 C.F.R. Pt.
42, Subpart G (1996). Pursuant to 42 U.S.C. 12134(a) and 42
U.S.C. 12206(c)(3), the Department has issued regulations and a
Technical Assistance Manual implementing and interpreting Title
II. See 28 C.F.R. Pt. 35 (1996); Americans with Disabilities Act
Title II Technical Assistance Manual (1993). The outcome of this
appeal may affect the United States' ability to enforce Section
504 and Title II in the context of state or locally-operated
prison facilities.
                        STATEMENT OF THE ISSUE
        The United States will address the following issue:
Whether the requirements of Title II of the Americans with
Disabilities Act, 42 U.S.C. 12131-12134, and Section 504 of the
Rehabilitation Act, 29 U.S.C. 794, apply to state or locally-
operated prison facilities.
                        STATEMENT OF THE CASE
        This is a long-standing case filed in 1976 to challenge, on
constitutional grounds, the conditions in the Allegheny County
Jail. In orders entered in 1978 and 1980, the district court
found that conditions at the jail failed to satisfy
constitutional requirements, and that the defendants' failure to
provide services for mentally ill inmates violated the
Constitution. Inmates of the Allegheny County Jail v. Wecht,
(panel opinion), 93 F.3d 1124, 1127, vacated, reh'g en banc
01-07178
                                - 3 -
granted (3d Cir., Sept. 20, 1996). The district court ordered
the County to take a number of actions, including to provide
mental health services to inmates. Ibid. In 1988, the district
court ordered the jail closed, and in 1989, the parties
negotiated a consent decree which, inter alia, required the
defendants to create a "treatment/work release facility for the
mentally ill." Id. at 1127-1128.
        In 1995, following a series of proceedings in which the
County sought to relieve itself of the obligation to develop such
a facility, the parties reached a partial agreement on this
question. They agreed to eliminate the requirement of a separate
facility for persons with mental illness. 93 F.3d at 1128. In
place of this requirement, the County would create a "Forensic
Support Program," through which up to 25 inmates would receive
community-based mental health services. Ibid. The parties
agreed to certain eligibility requirements, including that the
participating inmates "must not pose an apparent risk of harm to
themselves or other[.]" Id. at 1129. The parties could not
agree, however, on whether inmates with a history of violence, or
who had been charged with violent crimes should be deemed
ineligible for the program. The County contended that such
inmates should be excluded from the program, while plaintiffs
argued that there should be individualized assessments to screen
out those who posed a safety risk. Ibid.
        On May 26, 1995, the district court entered an order
adopting the County's position on this eligibility requirement.
01-07179
                                - 4 -
The order provided that "only an inmate 'charged with a minor,
non-violent crime' and who did not have a 'past history of
violence'" would be eligible for the community-based programs.
93 F.3d at 1129, quoting May 26, 1995 district court order. It
is this provision, which plaintiffs allege to violate Title II of
the ADA and Section 504, that is at issue in this appeal.
        A divided panel vacated and remanded the district court
order. The majority ruled, first, that Section 504 and Title II
apply to state and local correctional facilities. 93 F.3d at
1130-1135. Judge Becker concurred in this part of the judgment
and joined this part of the majority opinion. Id. at 1144. The
panel majority next ruled that the question whether the disputed
provision of the May 26, 1995 order violated the ADA or Section
504 required further fact-finding, and should be examined on
remand, with "considerable weight to the unique needs of prison
administration" and deference "to the judgments of prison
officials." 93 F.3d at 1136, see id. at 1135-1143. Judge Becker
dissented from this part of the panel decision. Id. at 1144.
        On September 20, this Court vacated the panel opinion, and
granted the defendants' petition for rehearing en banc.
                                ARGUMENT
                   SECTION 504 AND TITLE II OF THE ADA
                     APPLY TO STATE AND LOCAL PRISONS
        A. The Plain Language Of Both Statutes Applies To
           State And Local Entities That Operate Prisons.
        Section 504 of the Rehabilitation Act, the first federal
statute to provide broad prohibitions against discrimination on
01-07180
                                - 5 -
the basis of disability, applies to discrimination in programs
and activities receiving federal financial assistance.  Title II
of the ADA, enacted in 1990, extends these protections and
prohibitions to all state and local government programs and
activities, regardless of whether they receive federal financial
assistance.
        The starting point in statutory construction is the language
of the statute. Bailey v. United States, 116 S. Ct. 501, 506
(1995). As the panel recognized, 93 F.3d at 1130-1131, an
examination of the plain language of Title II and Section 504
establishes that both statutes apply to state and local prison
facilities. See Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.
1988) (Section 504); Gates v. Rowland, 39 F.3d 1439, 1446-1447
(9th Cir. 1994) (Section 504); cf. Duffy v. Riveland, 98 F.3d 447
(9th Cir. 1996) (applying Title II and Section 504 to prisoner's
claim); Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994)
(applying Section 504 to prisoner's claim); Harris v. Thigpen,
941 F.2d 1495, 1522 (11th Cir. 1991) (Section 504). 1/
        The substantive provisions of the statutes are similar.
Section 504 provides in pertinent part:
                No otherwise qualified individual with a
                disability in the United States * * * shall,
______________________
1/ Two recent district court decisions have held Section 504
and Title II of the ADA applicable to prisons. See Armstrong v.
Wilson, No. C 94-2307 CW, 1996 WL 580847 (N.D. Cal., Sept. 20,
1996), appeal pending on other grounds, No. 96-16870 (9th Cir.),
Section 1292(b) appeal on coverage issue dismissed, No. 96-80358
(9th Cir.); Niece v. Fitzner, Civ. A. No. 94-CV-70718-DT, 1996 WL
588217 (E.D. Mich., Oct. 10, 1996). Copies of both decisions are
appended to this brief.
01-07181
                                - 6 -
                solely by reason of her or his disability, be
                excluded from the participation in, be denied the
                benefits of, or be subjected to discrimination
                under any program or activity receiving Federal
                financial assistance or under any program or
                activity conducted by any Executive agency[.]
29 U.S.C. 794(a).
                Title II of the ADA provides in pertinent part:
                no qualified individual with a disability shall,
                by reason of such disability, be excluded from
                participation in or be denied the benefits of the
                service, programs, or activities of a public
                entity, or be subjected to discrimination by any
                such entity.
42 U.S.C. 12132.
        The statutory definition of "[p]rogram or activity" in
Section 504 indicates that this term was intended to be all-
encompassing. It includes "all of the operations of -- (1) (A) a
department, agency, special purpose district, or other
instrumentality of a State or of a local government * * * any
part of which is extended Federal financial assistance." 29
U.S.C. 794(b) (emphasis added). The county jail authorities here
clearly fall within this definition.
        The ordinary meaning of the terms "program" and "activity"
in the context of state or local governmental entities also
includes correctional facilities operated by such entities. See
Bailey, 116 S. Ct. at 506 (a word in a statute "must be given its
'ordinary or natural' meaning"). "Activity" means, inter alia,
"natural or normal function or operation," and includes the
"duties or function" of "an organizational unit for performing a
specific function." Webster's Third New International Dictionary
01-07182
                                - 7 -
(1986) at 22. "Program" is defined as "a plan of procedure: a
schedule or system under which action may be taken toward a
desired goal." Id. at 1812. Certainly, operating a prison
facility falls within the "duties or functions" of local jail
authorities, and mental health programs are a part of such
authories' execution of a "plan of procedure." As the panel
wrote, "the different forms of treatment [at issue in this case]
may be properly described as 'programs' in that they are an
organized series of events for the provision of services.
Indeed, the treatment regimen at issue is in fact called the
'Forensic Support Program.'" 93 F.3d at 1135.
        Reflective of the similar language in the two statutes,
Congress directed that Title II of the ADA be interpreted in a
manner consistent with Section 504. 42 U.S.C. 12134(b),
12201(a). Thus, the terms "programs" and "activities" in Title
II have the same meaning as in Section 504. In addition, Title
II's definition of a "public entity" clearly encompasses a state
or local correctional facility or authority: "any department,
agency, * * * or other instrumentality of a State or States or
local government[.]" 42 U.S.C. 12131(1)(B) (emphasis added).
        Several courts nonetheless have questioned the applicability
of these statutes to prisons. See Torcasio v. Murray, 57 F.3d
1340, 1344-1346 (4th Cir. 1995), cert. denied, 116 S. Ct. 772
(1996) (coverage of prisons by Section 504 and Title II not
clearly established in qualified immunity context); Williams v.
Meese, 926 F.2d 994, 997 (10th Cir. 1991) (stating, in dicta,
01-07183
                                - 8 -
that in context of employment discrimination claim, Bureau of
Prisons "does not fit the definition of 'programs or activities'
governed by" Section 504);2/ White v. State of Colorado, 82 F.3d
364, 367 (10th Cir. 1996) (ADA does not apply to employment
discrimination claim brought by state prison inmate); Bryant v.
Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (speculating, without
deciding, that exclusion of prisoners from ADA coverage "may have
textual foundation in the term 'qualified individual.'")
        The only thorough discussion of the rationale for this
limited reading of the statutes is found in Torcasio. Torcasio
did not decide whether either Section 504 or Title II of the ADA
applies to prisons. Rather, it concluded that such coverage was
not clearly established at the time of the events at issue, and
that the individual defendants in that case therefore were
entitled to qualified immunity.3/ Of course, whether a statute
applies to an entity (the issue here) is a question quite
separate and distinct from whether its application is or was
"clearly established." But in reaching its qualified immunity
_____________________
2/The holding in Williams is inconsistent with Department of
Justice regulations implementing Section 504 with respect to
federally conducted programs, which make it clear that Section
504 does apply to federal prisons. See p. 16, infra.
3/Torcasio held that the individual defendants were entitled
to qualified immunity on three grounds. First, it held that it
was not clearly established "at the time" that either statute
applied to state prisons. Id. at 1343; see id. at 1344-1352.
Second, it held that it was not clearly established that either
statute provided protections to a morbidly obese prisoner such as
the plaintiff in that case. Id. at 1344, 1353-1355. Third, it
held that the individual defendants could reasonably have
believed that their actions were lawful. Id. at 1355-1356.
01-07184
                                - 9 -
ruling, the Torcasio court discussed the reach of the two statues
at length, and expressed its doubt that either applied to
prisons.
        First, the Torcasio court recognized that the broad language
prohibiting discrimination on the basis of disability in both
statutes "appears all-encompassing." 57 F.3d at 1344. But it
erroneously expressed its reluctance to find either applicable to
prisons, "absent a far clearer expression of congressional
intent." Ibid. The court relied (ibid.) upon a rule of
statutory construction set out in Will v. Michigan Dep't of State
Police, 491 U.S. 58, 65 (1989):
                if Congress intends to alter the "usual
                constitutional balance between the States and the
                Federal Government," it must make its intention to
                do so "unmistakably clear in the language of the
                statute." Atascadero State Hospital v. Scanlon,
                473 U.S. 234, 242 * * * (1985); see also Pennhurst
                State School and Hospital v. Halderman, 465 U.S.
                89, 99 * * * (1984).
Because it found the operation of prisons to be a "core state
function," 57 F.3d at 1345, and because neither Section 504 nor
Title II includes an express statement of their application to
correctional facilities, the Torcasio court expressed its doubt
that Congress had "clearly" intended either statute to apply to
state prisons. Id. at 1346.
        This extension of the clear statement rule was unwarranted.
Will, Atascadero, and Pennhurst all involved instances in which
there had been no express waiver or abrogation of the States'
traditional immunity from suit, either by the State itself
(Pennhurst), or by Congress (Will, Atascadero). Here, in
                                - 10 -
contrast, both Section 504 and Title II of the ADA contain an
"unequivocal expression of congressional intent to overturn the
constitutionally guaranteed immunity of the several states."
Pennhurst, 465 U.S. at 99 (internal quotation marks and citation
omitted). See 42 U.S.C. 2000d-7(a)(1) ("A State shall not be
immune under the Eleventh Amendment * * * from suit in Federal
court for a violation of section 504 of the Rehabilitation Act");
42 U.S.C. 12202 ("A State shall not be immune under the eleventh
amendment * * * from an action in Federal or State court of
competent jurisdiction for a violation of [the ADA]").
        It is true that, when "Congress intends to alter the usual
constitutional balance between the States and the Federal
Government, it must make its intention to do so unmistakably
clear in the language of the statute." Gregory v. Ashcroft, 501
U.S. 452, 460, 461 (1991) (internal quotation marks and citations
omitted). This requirement, however, is a "rule of statutory
construction to be applied where statutory intent is ambiguous."
Gregory, 501 U.S. at 470. As the panel in this case recognized,
93 F.3d at 1133, it is not a license to disregard clearly
expressed congressional intent.
        Torcasio's suggestion that Congress must specifically
identify state or local prisons in the statutory text, if it
wishes to regulate them, was expressly disavowed by the Supreme
Court in Gregory. See 501 U.S. at 467 ("This does not mean that
the Act must mention judges explicitly.") Congress need only
make the scope of a statute "plain." Ibid. And Congress has
01-07186
                                - 11 -
done that here. Both Section 504 and Title II speak
unambiguously of their application to state and local governments
and to "any" or "all" of their operations. In light of the clear
and all-encompassing language of both statutes, there is simply
no basis for requiring Congress to have detailed which of the
many important components of state and local governments were to
be included in the terms "any" and "all."4/
        Second, in an effort to find a textual basis for its narrow
reading of Section 504 and Title II, Torcasio opined that,
despite their broad language, certain provisions of the statutes
cast doubt on their applicability to prisons. 57 F.3d at 1346-
1347. The court stated its belief that prisons "generally do not
provide 'services,' 'programs,' or 'activities' as those terms
are ordinarily understood" and that "the definition of 'qualified
individual with a disability' is not naturally read as
encompassing inmates in state prisons." 57 F.3d at 1347. As
explained above, however (pp. 6-7, supra), the operations of
state or local correctional facilities fall quite naturally
within the terms "programs" and "activities." Similarly, the
fact that inmates are in prison involuntarily does not negate the
fact that prison officials provide them with benefits and
______________________
4/Decisions (cited in Torcasio, 57 F.3d at 1345) holding the
Fair Labor Standards Act, 29 U.S.C. 201 et seq., inapplicable to
prisoners are not to the contrary. Those decisions rest upon the
courts' conclusion that the necessary employee-employer
relationship did not exist. See, e.g., Harker v. State Use
Indus., 990 F.2d 131, 133-136 (4th Cir.), cert. denied, 510 U.S.
886 (1993); Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir.
1992), cert. denied, 507 U.S. 928 (1993).
01-07187
                                - 12 -
services in the form of food, shelter, medical care, recreation,
education, rehabilitation, and, as in this case, mental health
services.
        Nor are prisoners excluded from coverage because Section 504
and Title II protect only "qualified individual[s] with a
disability." That term is defined in Title II to mean:
                an individual with a disability who, with or
                without reasonable modifications * * * meets the
                essential eligibility requirements for the receipt
                of services or the participation in programs or
                activities provided by a public entity.
42 U.S.C. 12131(2). This definition, drawn from the
Rehabilitation Act regulations, is not intended to circumscribe
the entities covered by the Act. Rather, it sets forth the
common sense proposition that entities that are covered by the
Act need not jettison the essential eligibility requirements of
their programs or activities in order to avoid liability. See
Southeastern Community College v. Davis, 442 U.S. 397 (1979);
H.R. Rep. No. 485, Pt. 4, 101st Cong., 2d Sess. 38 (1990),
reprinted in 1990 U.S.C.C.A.N. 512, 528.
        Moreover, the terms "eligible" and "participate" do not, as
Torcasio stated (57 F.3d at 1347), "imply voluntariness" or
mandate that an individual seek out or request a service to be
covered. To the contrary, the term "eligible" simply describes
those who are "fitted or qualified to be chosen," without regard
to their own wishes. See Webster's Third New International
Dictionary at 736. In the context of this case, as the panel
noted, inmates must be "qualified" for the mental health services
01-07188
                                - 13 -
programs at issue by meeting certain "eligibility requirements,"
such as not posing a threat to oneself or others. 93 F.3d at
1135.
        Finally, the prohibitions of Title II are not limited to the
discriminatory exclusion of or denial of benefits to individuals
from services, programs, or activities. Title II also prohibits
public entities from subjecting individuals with disabilities to
discrimination by providing that "no qualified individual * * *
shall * * * be subjected to discrimination by any such entity."
42 U.S.C. 12132. This phrase must be construed to protect prison
inmates from discriminatory conduct regardless of whether prison
operations are considered to involve services, programs, or
activities, in order to avoid making it mere "surplusage" and
"altogether redundant." Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 115 S. Ct. 2407, 2413 (1995);
Gustafson v. Alloyd Co., 115 S. Ct. 1061, 1069 (1995). See
Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) (by this
provision, Congress intended to prohibit outright discrimination
as well as denial of services); Oak Ridge Care Ctr., Inc. v.
Racine County, Wis., 896 F. Supp. 867, 873 (E.D. Wis. 1995) (even
if zoning is not a service, program, or activity, "the statute's
catch-all phrase protects [plaintiffs] from being 'subjected to
discrimination'").
        In enacting the ADA, Congress "invoke[d] the sweep of [its]
authority, including the power to enforce the fourteenth
amendment and to regulate commerce, in order to address the major
01-07189
                                - 14 -
areas of discrimination faced day-to-day by people with
disabilities." 42 U.S.C. 12101(b)(4). The "critical areas" in
which "discrimination against individuals with disabilities
persists" were set forth in the statute, and include
"institutionalization." 42 U.S.C. 12101(a)(3).
        By their terms, Section 504 and Title II of the ADA cover
all aspects of state and local governance. Thus, if the plain
words of a statute are to guide the courts in interpreting it,
then both statutes must be held to apply to state and local
correctional facilities.
     B. Administrative Interpretations Of Section 504 And
        Title II Of The ADA Confirm Their Application To
        State And Local Prisons.
        Congress expressly authorized the Department of Justice to
issue regulations implementing both Section 504 and Title II of
the ADA, and to provide technical assistance to entities covered
by the ADA. 29 U.S.C. 794(a); 42 U.S.C. 12134(a), 12206. In
view of Congress's delegation, the Department's regulations
should be accorded "controlling weight unless [they are]
'arbitrary, capricious, or manifestly contrary to the statute.'"
ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994), quoting
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844 (1984); see also Babbitt, 115 S. Ct. at 2418
(1995). The same is true of the preamble or commentary
accompanying the regulations since both are part of the
department's official interpretation of legislation. Thomas
Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994); Stinson
01-07190
                                - 15 -
v. United States, 508 U.S. 36, 45 (1993), quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see also
United States v. Larionoff, 431 U.S. 864, 872-873 (1977). The
Department of Justice's Technical Assistance Manual is also
entitled to deference. See Innovative Health Sys., Inc. v. City
of White Plains, 931 F. Supp. 222, 233 n.4 (S.D.N.Y. 1996),
appeal pending, No. 96-7797 (2d Cir.); Fiedler v. American Multi-
Cinema, Inc., 871 F. Supp. 35, 36-37 n.4 (D.D.C. 1994); Tugg v.
Towey, 864 F. Supp. 1201, 1208 (S.D. Fla. 1994); Noland v.
Wheatley, 835 F. Supp. 476, 483 (N.D. Ind. 1993); Petersen v.
University of Wisconsin Bd. of Regents, 818 F. Supp. 1276, 1280
(W.D. Wis. 1993). As set forth in the regulations, and the other
administrative materials cited below, the Department of Justice
interprets both Section 504 and Title II of the ADA to apply to
correctional facilities.
        The regulations promulgated by the Department of Justice to
enforce Section 504 define the kinds of programs and benefits
that should be afforded to individuals with disabilities on a
nondiscriminatory basis. These definitions encompass prison
administration. The regulations define "program" to mean "the
operations of the agency or organizational unit of government
receiving or substantially benefiting from the Federal assistance
awarded, e.g., a police department or department of corrections."
28 C.F.R. 42.540(h) (1996) (emphasis added). The term
"[b]enefit" includes "provision of services, financial aid or
disposition (i.e., treatment, handling, decision, sentencing,
01-07191
                                - 16 -
confinement, or other prescription of conduct)." 28 C.F.R.
42.540(j) (emphasis added). The appendix to the regulations,
attached to the Final Rule (45 Fed. Reg. 37620, 37630 (1980)),
makes clear that services and programs provided by detention and
correctional agencies and facilities are covered by Section 504.
This coverage is broad, and includes "jails, prisons,
reformatories and training schools, work camps, reception and
diagnostic centers, pre-release and work release facilities, and
community-based facilities." Ibid. The appendix states that
those facilities designated for use by persons with disabilities
are "required to make structural modifications to accommodate
detainees or prisoners in wheelchairs." Ibid. Department of
Justice regulations applicable to federally conducted programs
also make it clear that institutions administered by the Federal
Bureau of Prisons are subject to Section 504. See 28 C.F.R.
39.170(d)(1)(ii) (Section 504 complaint procedure for inmates of
federal penal institutions); id. at 28 C.F.R. Pt. 39, Editorial
Note, at 675 (Section 504 regulations requiring nondiscrimination
in programs or activities of the Department of Justice apply to
the Federal Bureau of Prisons); id. at 676 (federally conducted
program is "anything a Federal agency does").
        The regulations promulgated under Title II of the ADA afford
similar protections to persons with disabilities who are
incarcerated in prisons, or otherwise institutionalized by the
state or its instrumentalities, regardless of the public
institution's receipt of federal financial assistance. The
01-07192
                                - 17 -
regulations state that the statute's coverage extends to "all
services, programs, and activities provided or made available by
public entities." 28 C.F.R. 35.102(a). This broad language is
intended to "appl[y] to anything a public entity does." 28
C.F.R. Pt. 35, App. A, Subpart A at 456. As part of its
regulatory obligations under Title II, the Department of Justice
is designated as the agency responsible for coordinating the
compliance activities of public entities that administer "[a]ll
programs, services, and regulatory activities relating to law
enforcement, public safety, and the administration of justice,
including courts and correctional institutions[.]" 28 C.F.R.
35.190(b)(6). The Preamble to the Department's ADA regulations
also makes express reference to the statute's application to
prisons, stating that an entity is required to provide
"assistance in toileting, eating, or dressing to individuals with
disabilities * * * where the individual is an inmate of a
custodial or correctional institution." 28 C.F.R. Pt. 35, App. A
at 468.
        The Department of Justice Title II Technical Assistance
Manual specifically lists "jails and prisons" as types of
facilities that, if constructed or altered after the effective
date of the ADA (January 26, 1992), must be designed and
constructed so that they are readily accessible to and usable by
individuals with disabilities. Title II Technical Assistance
Manual at II-6.0000, II-6.3300(6). The design standards
applicable to facilities covered by Section 504 and Title II also
01-07193
                                - 18 -
include specific provisions relating to correctional facilities.
The Department of Justice Section 504 regulations adopt the
Uniform Federal Accessibility Standards (UFAS), which apply to
federal agencies and entities receiving federal financial
assistance. 28 C.F.R. 42.522(b). UFAS lists "jails, prisons,
reformatories" and "[o]ther detention or correctional facilities"
as institutions to which the accessibility standards apply. 41
C.F.R. Subpart 101-19.6, App. A at 149. Under Title II, covered
entities building new or altering existing facilities may follow
either UFAS or the ADA Accessibility Guidelines for Buildings and
Facilities (ADAAG). 28 C.F.R. 35.151(c); see 28 C.F.R. Pt. 36,
App. A. Amendments to the ADAAG, adopted as an Interim Final
Rule, effective December 20, 1994, by the Architectural &
Transportation Barriers Compliance Board, include specific
accessibility guidelines for "detention and correctional
facilities." 59 Fed. Reg. 31676, 31770-31772 (1994). The
Department of Justice has proposed adoption of the interim final
rule. Id. at 31808.5/
        The specific provisions in the Justice Department's Section
504 and Title II regulations listing correctional facilities or
departments as covered entities, as well as the more detailed
discussions of prisons in the interpretive analyses and
accessibility guidelines under both statutes, confirm that the
_____________________
5/ The ADAAG is not effective until adopted by the Department
of Justice. See 42 U.S.C. 12134(c), 12204(a).
01-07194
                                - 19 -
Rehabilitation Act and the ADA apply to state or locally-operated
correctional facilities.
        Torcasio failed to consider most of these provisions. The
Torcasio court concluded that a single Section 504 regulation
cited by the plaintiff in that case failed clearly to establish
the statute's applicability to prisons because it merely repeated
the broad language of the statute, and did not expressly mention
prisons. 57 F.3d at 1350-1351, citing 28 C.F.R. 42.502. But the
court failed to take account of other provisions of both the
Section 504 and the Title II regulations set forth above that do
expressly apply the statutes to correctional facilities and/or
functions.
        Torcasio did acknowledge that the ADA Accessibility
Guidelines expressly apply to prisons, but concluded that,
because they did not become effective until after the plaintiff
in Torcasio had been paroled, they did not "show that the
applicability of the ADA to state prisons was clearly established
at the time [the plaintiff] was in prison in Virginia." 57 F.3d
at 1351. The court also noted that the ADAAG had not yet been
finally adopted by the Department of Justice. Significantly,
however, the court acknowledged that the ADAAG "may provide some
evidence that it is now established that the ADA applies to state
prisons[.]" Ibid.
01-07195
                                - 20 -
                              CONCLUSION
        This Court should hold that Section 504 of the
Rehabilitation Act and Title II of the ADA apply to state and
locally-operated prisons.
                                Respectfully submitted,
                               (Signature) Linda F. Thome
                                ___________________________
                                DEVAL L. PATRICK
                                 Assistant Attorney General
                                DAVID K. FLYNN
                                LINDA F. THOME
                                  Attorneys
                                  Department of Justice
                                  P.O. Box 66078
                                  Washington, D.C. 20035-6078
                                  (202) 514-4706
01-07196
                                ADDENDUM
01-07197
                                INDEX
Armstrong v. Wilson, No. C 94-2307 CW, 1996 WL
        580847 (N.D. Cal., Sept. 20, 1996), appeal
        pending on other grounds, No. 96-16870 (9th
        Cir.), Section 1292(b) appeal on coverage
        issue dismissed, No. 96-80358 . . . . . . . . . . . . . 1
Niece v. Fitzner, Civ. A. No. 94-CV-70718-DT,
        1996 WL 588217 (E.D. Mich., Oct. 10, 1996) . . . . . . 12
01-07198
--- F. Supp. ----
(Cite as: 1996 WL 580847 (N.D.Cal.))
      John ARMSTRONG, et al., Plaintiffs,
                     v.
      Pete WILSON, et al., Defendants.
              No. C 94-2307 CW.
United States District Court, N.D. California.
               Sept. 20, 1996.
Donald Specter, San Quentin
 George D. Prince, CA State Atty General,
San Francisco.
 Michael W. Bien Rosen Bien & Asaro, San
Francisco.
 Warren E. George McCutchen Doyle Brown
& Enersen, San Francisco.
  WILKEN
  *1 Plaintiffs, a certified class consisting of all present and future
California state prison inmates and parolees with mobility [FN1], sight,
hearing, learning or kidney disabilities, have moved for injunctive relief
under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 
12131--34, and Section 504 of the Rehabilitation Act of 1973 ("the
Rehabilitation Act" or "Section 504"), 29 U.S.C.  794. Defendants, various
California state officials being sued in their official capacities, have moved
for summary judgment pursuant to the Stipulation and Order for Procedures to
Determine Liability and Remedy entered on July 9, 1996 (the "Stipulation").
The United States Department of Justice ("DOJ") has submitted an amicus brief
in support of Plaintiffs' opposition. The matter was heard on July 19, 1996.
Having considered all of the papers filed by the parties and oral argument on
the motion, the Court denies the motion.
                FACTS
  Defendants move to strike Plaintiffs' separate statement of undisputed
facts. The Court grants the motion on the grounds that the parties have
stipulated that this summary judgment motion is to be decided solely on the
facts included in the parties' joint Statement of Stipulated Facts.
  The following is a brief summary of the facts as provided in the Statement
of Stipulated Facts. The California Department of Corrections ("CDC") operates
over 31 prisons housing in excess of 130,000 inmates. Some of these facilities
receive federal financial assistance. The CDC has conducted surveys to
identify certain inmates with disabilities. These surveys have found that: (1)
345 inmates use wheelchairs due to permanent disabilities; (2) 650 inmates
have permanent lower extremity impairments which may require the use of an
assistive device such as a walker, cane or prosthesis; (3) 141 inmates are
deaf or have hearing impairments such that, even with a hearing aid, they are
not able to hear effectively or to hear emergency warnings; (4) 219 inmates
are blind or have vision that cannot be corrected to 20/100 with corrective
lenses. HIV-positive inmates are placed in various units in facilities
throughout the system. Inmates with mental health problems are clustered and
frequently separated from other inmate populations.
  The CDC initiated a self-evaluation in 1995 pursuant to the requirements of
the ADA, but has not completed it. In April, 1995, the CDC established and
implemented a new administrative grievance procedure which inmates and
parolees with disabilities may use to submit grievances or requests for
accommodations on matters related to their disabilities. There remain
significant problems in implementing this procedure.
  The CDC's written policies and procedures for emergencies do not
specifically address the evacuation of prisoners with disabilities. Some CDC
facilities do not have visual alarms or strobe lights to warn prisoners with
hearing impairments of emergencies. When emergency situations arise in prison
areas other than living units, some inmates with disabilities may not be aware
of, or be able to respond to, emergency warnings of impending danger.
Copr. West 1996 No claim to orig. U.S. govt. works
                                        1
01-07199
--- F.Supp. ----  Page 2
(Cite as: 1996 WL 580847, *2 (N.D.Cal.))
  *2 Most inmates who participate in educational classes, vocational training,
or have work assignments, including those with disabilities, earn 1/2 time
sentence credits to reduce their time in custody. Health care providers
classify inmates as "totally medically disabled," "medically unassigned," or
"light restricted duty." A "totally medically disabled" classification allows
the inmate to earn 1/2 time sentence credits without being required to
participate in a program, while a "medically unassigned" classification allows
the inmate to earn 1/3 time sentence credits. A "light restricted duty"
classification allows the inmate to participate in programs in accordance with
a specified restriction due to a physical or mental condition. Some inmates
with severe disabilities have been inappropriately classified as medically
unassigned rather than totally medically disabled and only earn 1/3 instead of
1/2 time credits against their sentences. Inmates designated as "light
restricted duty" may be assigned to jobs that are inappropriate for their
limitations. The range of vocational programs available to inmates with
disabilities is more limited than that available to other inmates.
            LEGAL STANDARD
  Summary judgment is properly granted when no genuine and disputed issues of
material fact remain, and when, viewing the evidence most favorably to the
non-moving party, the movant is clearly entitled to prevail as a matter of
law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th
Cir.1987). For the purposes of this motion, the parties have stipulated that
there are no material facts in dispute. The Court, therefore, must decide
whether the moving party is entitled to summary judgment as a matter of law.
                DISCUSSION
  Defendants argue that the protections of the ADA and the Rehabilitation Act
do not extend to inmates or parolees of state correctional facilities and that
Defendants are immune from liability under the Eleventh Amendment of the
United States Constitution. While the Ninth Circuit has held that the
Rehabilitation Act applies to state prisons, it has not yet considered whether
the ADA is applicable to state correctional facilities. [FN2] Nor has the
Ninth Circuit ruled on whether state prison officials have immunity under the
Eleventh Amendment for violations of the ADA and the Rehabilitation Act.
These, then, are issues of first impression in this Circuit.
                    I.
      APPLICABILITY OF THE ADA AND THE
        REHABILITATION ACT TO STATE
                CORRECTIONAL
                 FACILITIES
  The Court will not address Defendants' argument that prisoners and parolees
are adequately protected under the First, Eighth, and Fourteenth Amendments of
the United States Constitution and, therefore, the protections provided under
the Rehabilitation Act and the ADA are unnecessary. One need only look to the
undisputed stipulated facts of this case to find that this argument is
erroneous. Furthermore, it is not the proper role of the judiciary to preempt
Congress' decision that there is a need for such legislation.
  A. Ninth Circuit Case Law
  1. Rehabilitation Act
  *3 Although the Ninth Circuit has held, in Bonner v. Lewis, 857 F.2d 559,
562 (9th Cir.1988), that the Rehabilitation Act applies to state prison
facilities, Defendants argue that this Court should arrive at a different
result. Defendants argue that, since Bonner was decided, the Supreme Court has
clarified the proper analysis to be used by a district court to determine the
applicability of federal statutes to state prisons. Defendants contend that
utilization of this analysis will lead to the conclusion that neither the
Rehabilitation Act nor the ADA are applicable to state prisons. The Court does
not agree.
  Section 504 of the Rehabilitation Act of 1973
Copr. C West 1996 No claim to orig. U.S. govt. works
                                2
01-07200
--- F.Supp. ----  Page 3
(Cite as: 1996 WL 580847, *3 (N.D.Cal.))
states, in pertinent part:
  No otherwise qualified individual with a
  disability in the United States, ... shall,
  solely by reason of her or his disability, be
  excluded from the participation in, be denied
  the benefits of, or be subjected to
  discrimination under any program or
  activity receiving Federal financial
  assistance.
29 U.S.C. S 794.
  In Bonner, the Ninth Circuit based its holding primarily on the plain
language of the Act, which states that it "applies to 'any program or activity
receiving Federal financial assistance'", and on the Justice Department's
implementing regulations which require compliance by correctional facilities
under 28 C.F.R.  42.503(f). Bonner, 857 F.2d at 562. The court noted that
"[t]he Supreme Court has repeatedly emphasized that federal regulations are
'an important source of guidance on the meaning of S 504.'" Id. (citing School
Board of Nassau County v. Arline, 480 U.S. 273 (1987) (parenthetical omitted)
and Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 & nn. 14-16 (1984)).
  The Ninth Circuit rejected the defendants' argument that, because the
purpose of the Rehabilitation Act is to foster vocational rehabilitation and
independent living, it is not applicable to prison inmates who "are hardly in
need of help to live independently within their prisons.", Id. Instead, the
court viewed the goals of independent living and Vocational rehabilitation as
mirroring the goals of prison officials who "attempt to rehabilitate prisoners
and prepare them to lead productive lives once their sentences are complete."
Id.
  In Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994), the Ninth Circuit
elaborated on its holding in Bonner. First, the court, citing Bonner,
reaffirmed that "the Act is applicable to prisons receiving federal financial
assistance.", Gates, 39 F.3d at 1446. The court noted, however, that the
Rehabilitation Act was intended for use within the general population, and was
not specifically tailored to deal with the prison environment. Id. The court
reasoned that, "just as constitutional rights of prisoners must be considered
in light of the reasonable requirements of effective prison administration, so
must statutory rights applicable to the nation's general population be
considered in the light of effective prison administration.", Id. The court
held that the standard explicated by the Supreme Court in Turner v. Safley,
482 U.S. 78(1987) for reviewing constitutional rights in a prison setting
should also be used when reviewing the rights provided by the Rehabilitation
Act in a prison setting. Id. at 1447. In Turner, the Supreme Court articulated
the rule that, "when a prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to legitimate
penological interests" '. Id. (quoting Turner, 482 U.S. at 89).
  *4 Other courts, and Defendants, have interpreted Gates to mean that the
Ninth Circuit is retreating from its holding in Bonner. See e.g. Torcasio v.
Murray, 57 F.3d 1340, 1349 n. 7 (4th Cir.1995), cert. denied by Torcasio V.
Angelone, 116 S.Ct. 772 (1996) and Little v. Lycoming County, 912 F.Supp. 809,
819 (M.D.Pa.1996). The Court disagrees. Gates is a reaffirmation and
clarification of Bonner, not a retreat from it.
  Defendants argue that subsequent to Bonner, the Supreme Court, in Gregory v.
Ashcroft, 501 U.S. 452, 460-61 (1991), clarified the proper analysis for
determining whether a federal enactment is applicable to state prisons. They
contend that, in Gregory, the Court stated a new rule that requires that
Congress make its intention unmistakably clear in the language of the statute
if it intends to alter the usual constitutional balance between the States and
the federal government in traditionally sensitive areas. Defendants conclude
that, had the Ninth Circuit applied this "new" plain statement rule in Bonner,
it would have held differently.
  The Court disagrees. The plain statement rule was not originally articulated
in Gregory. Although Gregory recites this rule, it cites prior cases as
authority. One of the cases cited
Copr. C West 1996 No claim to orig. U.S. govt. works
                                    3
01-07201
--- F.Supp. ---- Page 4
(Cite as: 1996 WL 580847, *4 (N.D.Cal.))
in Gregory is United States v. Bass, 404 U.S. 336, 349 (1971) in which the
Court stated that, "[i]n traditionally sensitive areas, such as legislation
affecting the federal balance, the requirement of clear statement assures that
the legislature has in fact faced, and intended to bring into issue the
critical matters involved in the judicial decision." Gregory, 501 U.S. at
461(citing Bass, 404 U.S. at 349). Gregory also cites Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947) for the proposition that, "Congress
should make its intention "clear and manifest' if it intends to pre-empt the
historic powers of the States." Gregory, 501 U.S. at 461. Even Seminole Tribe
of Florida v. Florida, 116 S.Ct. 1114, 1185 (1996), the case Defendants use to
support their proposition that Gregory adopted a new rule, cites Bass as well
as Gregory. It is clear that the "new" rule Defendants proffer has been part
of our jurisprudence for many decades. It is patently unreasonable to assume
that the Ninth Circuit did not take this rule into consideration in deciding
Bonner. Although not explicitly stating that it was applying the plain
statement rule, in Bonner the Ninth Circuit did look for Congressional intent
to apply the Rehabilitation Act to state prisons and found such intent in the
plain language of the statute and the DOJ's implementing regulations. Bonner,
857 F.2d at 562.
  Defendants point to two post-Gregory Ninth Circuit cases to illustrate that,
had the Ninth Circuit used the plain statement rule in Bonner, it would not
have held the Act applicable to state prisons. In Hale v. Arizona, 993 F.2d
1387, 1393, 1395 (9th Cir.1993)(en banc), cert. denied, 510 U.S. 946 (1993),
the Ninth Circuit declined to extend the protections of the Federal Labor
Standards Act to inmates required by state law to work at hard labor, but
determined that the Act may be applicable to inmates in other employment
situations. In Jeldness v. Pearce, 30 F.3d 1220 (9th Cir.1994), the Ninth
Circuit held that Title IX, which prohibits discrimination on the basis of sex
by any educational program receiving federal funding, applies to state
prisons. Id. at 1225. In Hale and Jeldness the Ninth Circuit focused on a list
of statutorily exempt programs which did not include prisons and determined
that noninclusion in an exempt list creates a strong implication of inclusion.
Hale, 993 F.2d at 1392; Jeldness, 30 F.3d at 1225.
  *5 Defendants contend that the analyses in Hale and Jeldness rejected the
basis for the Ninth Circuit's conclusion in Bonner, because, in Banner, the
court merely based its holding on the expansive language of the Rehabilitation
Act. However, the Bonner court also based its holding upon the DOJ's
implementing regulations that specifically bring state prisons within the
ambit of the Act. Banner, 857 F.2d at 362.
  Congress delegated to the head of each agency the authority to promulgate
regulations under the Rehabilitation Act. 29 U.S.C.  794(a). The DOJ
regulations define the term "program" as including the "operations of a
department of corrections," and the term "benefit" as including "sentencing,
confinement, or other prescription of conduct." 28 C.F.R.  42.540(h) and
(j). In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843-44 (1984) the Court held that, where Congress has left a gap for
the agency to fill, the agency's regulations "are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute."
This Court can find nothing that is arbitrary or capricious in the DOJ's
regulations. The broad language of the statute which indicates it reaches "any
program or activity receiving Federal financial assistance" imparts to federal
agencies, which includes the DOJ, the task of defining the term, "any
program". The inclusion of state departments of corrections is a permissible
construction of the term, "any program", and, under Chevron, this construction
must be given deference.
  The Court also finds persuasive the Third Circuit's reasoning in Inmates of
the Allegheny County Jail v. Wecht, 1996 WL 474106, *10 (3rd Cir.) regarding
the applicability of the plain statement rule to
Copr. C West 1996 No claim to orig. U.S. govt. works
                                  4
01-07202
---F.Supp.---  Page 5
(Cite as: 1996 WL 580847, *5 (N.D.Cal.))
decide whether the Rehabilitation Act and the ADA applies to correctional
facilities. In Inmates, the Third Circuit found that the language of the
Rehabilitation Act and of the ADA clearly indicates that they cover all
aspects of state and local governance. Id. at
  *6 (citing, as to the Rehabilitation Act, 29 U.S.C. S 794(a) which states
that the Act applies to "any program or activity receiving Federal financial
assistance" and 29 U.S.C.  794(b)(1)(A) which defines "program or activity"
to be "all of the operations of a department, agency, special purpose
district, or other instrumentality of a State or local government" and as to
the ADA, 42 U.S.C.  12132 which states that it applies to all public entities
and 42 U.S.C.  12131(1) which defines a "public entity" as "any State or
local government [and] any department, agency, special purpose district, or
other instrumentality of a State or States or local government.") Based on the
clear language of the statutes the court held that both the Rehabilitation Act
and the ADA apply to state and local correctional facilities. Id. The court
determined that the plain statement rule was inapplicable to its analysis
since this rule was not "intended by the Supreme Court to provide a canon of
statutory interpretation which can be of help in interpreting statutes whose
over-all design indisputably contemplates both that the policies and practices
of state as well as local governments are required to conform to norms
established by Congress ..." Id. at *9.
  *6 The Court rejects Defendants' argument that Bonner may apply in Arizona,
the state in which the case originated, but not in California. Defendants'
rationale is that in Arizona the goal of incarceration is rehabilitation,
while in California the goal of incarceration is punishment. Plaintiffs cite
many statutes in the California Penal Code and Regulations that indicate that,
while the goal of incarceration itself may be punishment, the goal of many
prison programs and activities is rehabilitation and reintegration of
convicted felons into society. The Court concludes that the Ninth Circuit's
analysis in Bonner is as correct today as it was in 1988 when the Ninth
Circuit reached its decision. The Court holds that the Rehabilitation Act
applies to prisons.
  2. The ADA
  In language almost identical to the Rehabilitation Act, the ADA provides, in
relevant part:
  [N]o 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 public entity.
42 U.S.C.  12132.
  Defendants contend that utilization of the plain statement rule will lead to
the conclusion that the ADA does not apply to state prisons. The Court does
not agree.
  The Ninth Circuit has indicated that the ADA is to be judicially interpreted
in the same manner as the Rehabilitation Act. Collings v. Longview Fibre Co.,
63 F.3d 828, 832 n.3 (9th Cir.1995), cert. denied, 116 S. Ct. 711 (1996). This
determination is based on the substantially identical language in the two Acts
and the legislative history of the ADA which indicates that Congress intended
judicial interpretation of the Rehabilitation Act to be incorporated by
reference into interpretation of the ADA. Id.
  Pursuant to Collings, the Court must apply the Ninth Circuit's reasoning in
Bonner to decide whether the ADA applies to state correctional facilities and
programs. As noted above, the broad language of the Rehabilitation Act is
repeated in the ADA. The ADA expands the reach of the anti- discrimination
provisions of the Rehabilitation Act from "any public facility that receives
Federal funding" to "any public entity." As it did in the Rehabilitation Act,
Congress has specifically delegated authority to the DOJ to promulgate
regulations implementing the ADA. 42 U.S.C. S 12134(a). The DOJ's regulations
provide that "all programs, services, and regulatory activities relating to
law enforcement, public safety, and the
Copr. West 1996 No claim to orig. U.S. govt. works
                                      5
01-07203
---F.Supp.---  Page 6
(Cite as: 1996 WL 580847, *6 (N.D.Cal.))
administration of justice, including courts and correctional institutions" are
governed by the ADA. 28 C.F.R.  35.190(b)(6). The Court finds that the
expansive language of the ADA, together with the DOJ's regulations which it
promulgated pursuant to a specific Congressional delegation of authority, lead
to the conclusion that the ADA is applicable to state correctional
institutions. Following the Ninth Circuit's instruction in Gates, the Court
also concludes that, like the Rehabilitation Act, the ADA must be applied in a
prison environment with consideration of legitimate penological interests. See
Gates, 39 F.3d at 1447.
  B. Case Law in Other Circuits
  *7 Defendants argue that this Court should be persuaded by cases in other
circuits in which, Defendants contend, the courts have held the Rehabilitation
Act or the ADA are inapplicable to prisons.
  Three circuits have directly addressed this issue. [FN3] As discussed above,
the Third Circuit has held that the Rehabilitation Act and the ADA apply to
state and local correctional institutions. The Tenth Circuit has held that the
Rehabilitation Act and the ADA are inapplicable to state prison employment
programs. In Williams v. Meese, 926 F.2d 994 (10th Cir.1991), the court held
that the Rehabilitation Act is not applicable to federal prison employment and
vocational programs because the "Federal Bureau of Prisons does not fit the
definition of 'programs or activities' governed by [the Rehabilitation Act]."
Williams, 926 F.2d at 997. Relying upon Williams, and without any further
explanation, the Tenth Circuit held in White v. Colorado, 82 F.3d 364 (10th
Cir.1996), that the ADA does not apply to state prison employment situations.
White, 82 F.3d at 367.
  The Fourth Circuit, in Torcasio v. Murray, did not actually hold that the
Rehabilitation Act and the ADA do not apply to state prisons, but strongly
intimated that they do not. Torcasio, a qualified immunity case, held that it
was not clearly established, at the time of the alleged discrimination, that
either the Rehabilitation Act or the ADA applied to state prisons. Torcasio v.
Murray, 57 F.3d 1340, 1352 (4th Cir.1995), cert. denied, 116 S.Ct. 771 (1996).
The violations were alleged to have occurred in April, 1993 through the
spring, 1994. The Torcasio court took the Ninth Circuit's 1988 Bonner decision
into consideration in its discussion. In analyzing the DOJ regulations,
however, the Torcasio court failed to locate the specific sections which
provide that the Rehabilitation Act applies to correctional institutions. Id.
at 1351. The court looked at 28 C.F.R.  42.503(f), the only section
specifically cited in Bonner, and dismissed it as too general to establish
that the DOJ intended the Rehabilitation Act to apply to prisons. The court
did not mention the sections, in the definitional parts of the regulations,
that indicate that the Rehabilitation Act applies to state prisons. See 28
C.F.R.  42.540(h) and (j). The court similarly did not mention 28 C.F.R. 
35.190(b)(6), the regulation that specifies that the ADA applies to state
prisons. The court intimated that, had the plaintiff been able to show that
the regulations specifically applied to state prisons, it might have held
differently. Id.
  As discussed above, Torcasio also erroneously concluded that in Gates the
Ninth Circuit retreated from its holding in Bonner. Torcasio, 57 F.3d. at
1346, 1349 n. 7. Also, as noted by Plaintiffs, the questions raised in
Torcasio as to whether prison programs qualify as "programs" under the
Rehabilitation Act and the ADA, were answered in the affirmative by the Ninth
Circuit in Bonner. Bonner, 857 F.2d at 562 ("the [Rehabilitation] Act's goals
of independent living and vocational rehabilitation should in fact mirror the
goals of prison officials as they attempt to rehabilitate prisoners and
prepare them to lead productive lives....")
                  II.
      IMMUNITY UNDER THE ELEVENTH
               AMENDMENT
  *8 Defendants argue that the Eleventh
Copr. West 1996 No claim to orig. U.S. govt. works
                                  6
01-07204
---F.Supp.---- Page 7
(Cite as: 1996 WL 580847, *8 (N.D.Cal.))
Amendment provides them with immunity from liability under the Rehabilitation
Act and the ADA. Defendants acknowledged, during oral argument, that their
reasoning would lead to the conclusion that the Rehabilitation Act and the ADA
are not applicable to any state agency.
  In Seminole Tribe v. Florida, 116 S.Ct. 1114, 1123 (1996), the Supreme Court
reiterated the principle that, pursuant to the Eleventh Amendment, States may
not be sued in federal court unless Congress, acting pursuant to a valid
exercise of its power, unequivocally expresses its intent to abrogate the
States' immunity. Id. (citing Green v. Mansour, 474 U.S. 64, 68 (1985)).
Defendants concede that Congress clearly expressed its intent in the
Rehabilitation Act and the ADA to abrogate the States' immunity. The issue to
be resolved is whether, in abrogating the States' immunity, Congress acted
pursuant to a valid exercise of its power.
  In Seminole Tribe, the Court explained that Congressional authority to
abrogate States' immunity had been previously found under two provisions of
the Constitution. Id. at 1125. In Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56
(1976), the Court had held that S 5 of the Fourteenth Amendment allowed
Congress to abrogate States' immunity from suit and, in Pennsylvania v. Union
Gas Co., 491 U.S. 1, 19-20 (1989), the Court had held that the Interstate
Commerce Clause granted Congress the power to abrogate immunity. Id. In
Seminole Tribe the Court overruled Union Gas so that Congress now has
authority to abrogate the States' immunity pursuant only to the Fourteenth
Amendment. Id. at 1131.
  Defendants argue that Congress lacks authority to abrogate their immunity
under the Rehabilitation Act or the ADA because neither was validly enacted
pursuant to the Fourteenth Amendment. Plaintiffs disagree, and also argue that
Defendants, because they are state officials, are not immune from suit for
injunctive relief under the doctrine of Ex parte Young, 209 U.S. 123 (1908).
  A. The ADA Was Enacted Pursuant to the Fourteenth Amendment
  The ADA specifically states that its purpose is "to invoke the sweep of
congressional authority, including the power to enforce the fourteenth
amendment and to regulate commerce, in order to address the major areas of
discrimination faced day to day by people with disabilities. 42 U.S.C. 
i2101(b)(4). In spite of this explicit statement by Congress, Defendants argue
that simply because Congress has stated that the legislation was enacted
pursuant to its Fourteenth Amendment authority does not make it so.
  The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o
State shall ... deny to any person within its jurisdiction the equal
protection of the laws." Section 5 of the Amendment states that "[t]he
Congress shall have power to enforce, by appropriate legislation, the
provisions of this article." As explained by the Supreme Court, "... S 5 is a
positive grant of legislative power authorizing Congress to exercise its
discretion in determining whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment." Katzenbach v. Morgan, 384 U.S. 641,
648 (1966). Section 5 is intended to provide to Congress the same broad powers
expressed in the Necessary and Proper Clause, art. I, S 8, cl. 18. Id. at 650.
The standard to be used in determining whether legislation is appropriate
under the Necessary and Proper Clause was formulated in McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 421 (1819):
  *9 Let the end be legitimate, let it be within
  the scope of the constitution, and all means
  which are appropriate, which are plainly
  adapted to that end, which are not
  prohibited, but consist with the letter and
  spirit of the constitution, are constitutional.
  Id.
  Using the McCulloch test, to determine if legislation enacted pursuant to
the Fourteenth Amendment is appropriate, a court must determine whether the
legislation: (1) is plainly adapted to the end of enforcing the Equal
Protection Clause, and (2) is not prohibited by, but is consistent with the
Copr. West 1996 No claim to orig. U.S. govt. works
                                    7
01-07205
--- F. Supp. ---- Page 8
(Cite as: 1996 WL 580847, *9 (N.D.Cal.))
"letter and spirit of the constitution." Morgan, 384 U.S. at 651.
  Defendants cite Pierce v. King for the proposition that the ADA is not
adapted to enforcing the Fourteenth Amendment. Pierce v. King, 918 F.Supp 932,
940 (E.D.N.C.1996). The argument in Pierce begins with the assumption that
"[t]he Fourteenth Amendment has traditionally been understood as protecting
individuals from state action that would infringe upon individual liberties."
Id. The argument continues with the contention that the ADA is unlike
traditional anti-discrimination laws because the ADA creates entitlements
whereas the traditional laws seek to produce an environment in which
individuals are treated in a neutral manner. Id. Defendants contend that
mandates for prisons to conduct self-evaluations, complete transition plans,
establish grievance procedures, and provide notice of the ADA to inmates are
administrative burdens that are unconnected with the Fourteenth Amendment's
prohibition against discrimination. They say that obligations to identify
inmates with learning disabilities and to provide special programs for them
distort notions of equal treatment. Similarly, they contend that the
requirement of certain structural accessibility features goes far beyond
anything that could be based on the Fourteenth Amendment.
  The Court disagrees with Defendants' theory. Some of the findings made by
Congress in enacting the ADA are that: (1) discrimination against disabled
individuals in the form of isolation and segregation is a serious and
pervasive social problem; (2) disabled individuals are a discrete and insular
minority who have been subjected to a history of unequal treatment and
relegated to a position of political powerlessness based upon false
stereotypical assumptions; and, (3) the Nation's goals are to assure equality,
full participation, independent living and economic self-sufficiency to
individuals with disabilities. 42 U.S.C.  12101(a). Congress indicated in the
ADA that it intended to invoke its full authority under the Fourteenth
Amendment to address nationwide discrimination against the disabled. 42 U.S.C.
 12101(b)(4).
  Rectifying discrimination often has taken the form of the prohibition of
action that is discriminatory. Perhaps, as Defendants argue, this is the
traditional manner in which legislation under the Fourteenth Amendment has
been framed. However, eliminating discrimination may require affirmative
relief. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490
(1989)(O'Conner, J., concurring and dissenting) ("The power to 'enforce' [the
Fourteenth Amendment] may at times also include the power to define situations
which Congress determines threaten principles of equality and to adopt
prophylactic rules to deal with those situations.")
  *10 The goal of the ADA, to eliminate discrimination against an identifiable
group of individuals, is a proper invocation of the Equal Protection Clause.
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47
(1985)(holding that persons with disabilities are entitled to protection under
the Fourteenth Amendment). The practical effect of the ADA will be to
eliminate barriers against entry into physical structures, into ongoing
programs and services, and into the mainstream of society itself for many
individuals with disabilities. While this may require affirmative measures on
the part of correctional institutions to insure inclusion of those who are now
excluded from the mainstream of prison life, the requirement of such measures
does not exceed the authority granted to Congress under S 5 of the Fourteenth
Amendment. The ADA, therefore, meets the first prong of the McCulloch test.
  Defendants have not argued that the ADA is inconsistent with the letter and
spirit of the constitution. The Court, therefore, finds that the ADA meets the
second prong of the McCulloch test. That Congress has invoked the Commerce
Clause as well as the Fourteenth Amendment as authority for the ADA does not
alter the conclusion that, under the McCulloch standard, the ADA is legitimate
legislation, pursuant to the Fourteenth Amendment, focused on deterring
Copr. C West 1996 No claim to orig. U.S. govt. works
                                        8
01-07206
--- F.Supp. ---  Page 9
(Cite as: 1996 WL 580847, *10 (N.D.Cal.))
discrimination on the part of the states. See EEOC v. County of Columet, 686
F.2d 1249, 1253 (7th Cir.1982) (noting that Congress, in enacting modern civil
rights legislation, reaches private discrimination indirectly through the
Commerce Clause and reaches state discrimination directly through the
Fourteenth Amendment). The Court holds that the ADA was legitimately enacted
pursuant to Congress' authority under the Fourteenth Amendment.
  B. The Rehabilitation Act was Enacted Pursuant to the Spending Clause and
the Fourteenth Amendment.
  Unlike the ADA, the Rehabilitation Act is silent as to the constitutional
authority under which it was enacted. Defendants contend that a close reading
of the statute, together with an analogy to similar statutes, leads to the
conclusion that the Rehabilitation Act is authorized by Congress' spending
power, and not by the Fourteenth Amendment. That the Rehabilitation Act
applies only to those entities that receive federal funds is the primary basis
for Defendants' contention.
  Defendants point to Title VI, 42 U.S.C.  2000d et seq., and Title IX, 20
U.S.C.  1681 et seq., of the Civil Rights Act of 1964 as support for their
argument. Title VI prohibits discrimination on the basis of race, color, or
national origin by any program or activity receiving federal financial
assistance. 42 U.S.C.  2000d. Based upon the legislative history, the Supreme
Court determined that Congress intended to enact Title VI pursuant to its
spending power. Guardians Ass'n v. Civil Serv. Comm'n V. Comm'n of New York,
463 U.S. 582, 598-99 (1983). Title IX prohibits discrimination on the basis of
sex by any educational program or activities receiving federal financial
assistance. 20 U.S.C. S 1681(a). The Supreme Court has reserved the question
of whether Title IX was enacted under the Spending Clause or under the
Fourteenth Amendment. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75
n. 8 (1992). The Fifth Circuit, in Rowinsky v. Bryan Indep. Sch. Dist., for a
variety of reasons, adopted the view that Title IX was enacted under the
Spending Clause. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 n. 14
(5th Cir.1996), Petition for cert. filed, 65 U.S.L.W. 3033 (U.S.Jul.1,
1996)(No. 96-4). First, Title IX was modeled after Title VI and uses identical
language.' That the Supreme Court in Guardians Ass'n held that Title VI was
enacted pursuant to the Spending Clause strongly suggests that Title IX also
was enacted under the Spending Clause. Id. Second, Title IX regulates purely
private educational institutions. The receipt of federal funds does not
transform a private school into a state actor for purposes of the Fourteenth
Amendment. Id. Third, the funding incentives provided in Title IX indicate
that Congress did not intend to impose absolute obligations on the States. Id.
Defendants' argument that the Rehabilitation Act, like Titles VI and IX, is
enacted under the Spending Clause because it, too, applies only to those
entities that receive federal funding is well-taken. However, the contentions
of Plaintiffs and amicus that the Rehabilitation Act was enacted under the
Fourteenth Amendment are also persuasive. Furthermore, because the language
and purpose of the Rehabilitation Act are virtually identical to that of the
ADA, and because this Court has found that the ADA was validly enacted
pursuant to the Fourteenth Amendment, it follows that the Rehabilitation Act,
also, was enacted under the Fourteenth Amendment.
  *11 Plaintiffs point out that two Supreme Court cases indicate that the
Rehabilitation Act was passed under the Fourteenth Amendment. In Atascadero
State Hosp. v. Scanlon, the Supreme Court stated, "Petitioners conceded ...
that the Rehabilitation Act was passed pursuant to  5 of the Fourteenth
Amendment. Thus, we first analyze  504 in light of Congress' power under the
Fourteenth Amendment to subject unconsenting States to federal court
jurisdiction." Scanlon, 473 U.S. 234, 244 n. 4 (1985). Because the issue of
Congressional authority was not in dispute in Scanlon, that case is not
determinative of the issue. The Supreme Court noted in Welch v. Texas Dept. of
Highways and Pub. Transp. that "[t]he
Copr. West 1996 No claim to orig. U.S. govt. works
                                    9
01-07207
--- F.Supp. ---  Page 10
(Cite as: 1996 WL 580847, *11 (N.D.Cal.))
question in Scanlon was whether  504 of the Rehabilitation Act of 1973, 29
U.S.C.  794, makes state agencies subject to suits for retroactive monetary
relief in federal court. 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." Welch, 483 U.S. 468, 472 n. 2
(1987)(citing Scanlon). Welch provides further evidence that the Supreme Court
considers that Congress enacted the Rehabilitation Act pursuant to the
Fourteenth Amendment. But, this statement is dicta.
  In Dep't of Educ., State of Haw. v. Katherine D., the district court held
that the Rehabilitation Act was enacted pursuant to Congress' power under the
Fourteenth Amendment. Katherine D., 531 F.Supp. 517, 530 (D.C.Haw.1982), aff'd
in Part, rev'd in part on other grounds, 727 F.2d 809 (9th Cir.1983), cert.
denied, 471 U.S. 1117 (1985). The court based its holding on its analysis of
legislative history and Congress' intent, as specifically explicated in the
Act, to effectuate equal opportunity for disabled citizens. Id. The court
concluded that this legislative goal is "precisely the specific legislative
intent to effectuate the equal protection rights guaranteed by the Fourteenth
Amendment which [the Supreme Court] recognized." Id., (citing Fitzpatrick v.
Bitzer, 427 U.S. 445, 456 (1976) and Hutto v. Finney, 437 U.S. 678 (1978)).
  Congress may enact legislation pursuant to more than one of its
constitutional powers. See EEOC v. County of Columet, 686 F.2d at 1253. The
Court finds that Congress utilized its authority under the Spending Clause and
under  5 of the Fourteenth Amendment of the Constitution in enacting the
Rehabilitation Act. Because the Court finds that Congressional authority for
the ADA and the Rehabilitation Act arises in the Fourteenth Amendment, the
Eleventh Amendment does not immunize Defendants from suit.
  C. Doctrine of Ex parte Young
  Even if Defendants were immune under the Eleventh Amendment, their immunity
would be subject to the exception of Ex parte Young, 209 U.S. 123, 155-56
(1908). Ex parte Young created an exception to the principle that States may
not be sued in federal court unless they consent, or unless Congress, pursuant
to a valid exercise of power, unambiguously expresses its intent to abrogate
the States' immunity. Green v. Mansour, 474 U.S. 64, 68 (1985). Ex parte Young
held that the Eleventh Amendment does not preclude federal courts from
granting prospective injunctive relief to prevent individual state officials
from violating federal law. Young, 209 U.S. at 155-56; Green, 474 U.S. at 68.
*12 Citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687
(1949) superseded in part by 5 U.S.C. S 702, Defendants argue that Young is
inapplicable because Plaintiffs' claims are essentially directed against the
State, not against the individuals named in the suit. In Larson, the Court
explained that a suit nominally addressed to a government employee, but which
actually requires relief against the government, is barred because the court,
in the absence of consent, has no jurisdiction over a suit against the
government. Larson, 337 U.S. at 688. However, there are exceptions to this
rule. Id. at 689. One exception is a case in which the statute conferring
power on the government employee is unconstitutional, because the conduct
against which relief is sought is beyond the employee's powers and is,
therefore, not the conduct of the government. Id. at 690. This exception is
based on the same reasoning as that relied upon in Young. "The theory of Young
was that an unconstitutional statute is void, and therefore does not 'impart
to [the official] any immunity from responsibility to the supreme authority of
the United States"'. Green, 474 U.S. at 68 (citing Young, 209 U.S. at 159-60).
By the same token, Young also held that officials do not have immunity for a
continuing violation of federal law. Id.
  That courts have applied the Young doctrine in cases in which inmates sue
state prison officials for violations of federal law is further
Copr. West 1996 No claim to orig. U.S. govt. works
                                         10  WESTLAW
01-07208

---F.Supp.----  Page 11
(Cite as: 1996 WL 580847, *12 (N.D.Cal.))
evidence that Larson does not apply to the case at bar. See e.g. Thompson v.
Enomoto, 915 F.2d 1383, 1390 (9th Cir.1990), cert. denied by Rowland v.
Thompson, 502 U.S. 1071 (1992) (holding that state officials not immune, under
Young, from suits alleging constitutional violations); Duran v. Carruthers,
885 F.2d 1485, 1489 (10th Cir.1989), cert. denied, 493 U.S. 1056 (1990)(under
Young, prison officials not immune from suit alleging violations of federal
constitution and federal statutes). Here, Plaintiffs seek prospective
injunctive relief only against state officials acting in their official
capacity. Under these circumstances, Larson does not apply.
  Defendants also argue that, because the ADA and the Rehabilitation Act have
detailed enforcement schemes limiting remedies against the State, they come
under the exception to Ex parte Young applied by the Supreme Court in Seminole
Tribe. In Seminole Tribe, the Court stated that "... where Congress has
prescribed a detailed scheme for the enforcement against a State of a
statutorily created right, a court should hesitate before casting aside those
limitations and permitting an action against a state officer based upon Ex
parte Young." Seminole Tribe, 116 S.Ct. at 1132.
  The Indian Gaming Regulatory Act (the "IGRA") was the subject of the Court's
inquiry in Seminole Tribe. Id. at 1119. The Court found that the IGRA provides
for specific limited remedies against the State. Id. The Court reasoned that
the limited statutory remedies would be superfluous if a state official could
be exposed to the full remedial powers of a federal court in an action brought
under Ex parte Young. Id. at 1133. The Court also reasoned that Congress'
creation of the limited remedial scheme is a strong indication that it had no
wish to expose States to liability under Ex parte Young. Id.
  *13 Defendants argue that, like the IGRA, the Rehabilitation Act and the ADA
have limited remedial schemes, but Defendants do not specify what they are. To
the contrary, the Ninth Circuit has held that "the full panoply of remedies,
including equitable relief and monetary damages" are available undee
the--Rehabilitation Act. Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990),
cert. denied, 501 U.S. 1217 (1991); see also Franklin v. Gwinnett County Pub.
Schs., 503 U.S. at 72- 73(stating that the Rehabilitation Act provides a
private litigant the full panoply of remedies). The ADA specifically
incorporates the "remedies, procedures, and rights" of the Rehabilitation Act.
42 U.S.C.  12133. Under Ex parte Young, Defendants are not immune from this
lawsuit.
            CONCLUSION
  For the foregoing reasons, Defendants'
motion for summary judgment is DENIED.
  IT IS SO ORDERED.
    FN1. Prisoners with mobility impairments who are
    housed at the Correctional Medical Facility at
    Vacaville are excluded from the class.
    FN2. Only one district court in the Ninth Circuit
    has squarely addressed the issue of whether the
    ADA applies to prisons. Bullock v. Gomez, 929
    F.Supp. 1299 (C.D.Cal.1996) held that the ADA
    does apply to prisons. In Fowler v. Gomez, 1995
    WL 779128, *2 (N.D.Cal.1995), a qualified
    immunity case, a judge of this Court found that
    there was no authority to "clearly establish" that the
    ADA applied to state prisons at the time of the
    alleged incident in question.
    FN3. As noted by Defendants, the Seventh Circuit,
    in a recent opinion by Judge Posner, stated that, "It
    is very far from clear that prisoners should be
    considered 'qualified individuals' within the
    meaning of the [ADA]. Could Congress really
    have intended disabled prisoners to be
    mainstreamed into an already highly restricted
    prison society? ... [T]here are formidable practical
    objections to burdening prisons with having to
    comply with the onerous requirements of the
    [ADA], ..." Bryant v. Madigan, 84 F.3d 246, 248
    (7th Cir.1996). This statement was dicta, however.
    The court proceeded to analyze the plaintiff's claim
    under the ADA. Id. at 249.
END OF DOCUMENT
Copr. West 1996 No claim to orig. U.S. govt. works
                                   11
01-07209
---F.Supp.----  Page 1
(Cite as: 1996 WL 588217 (E.D.Mich.))
       Linda Gail NIECE and Grant H.
 Hendrick, on behalf of all other similarly
      situated people with disabilities,
              Plaintiff(s),
                   v.
    Deputy Warden Pat FITZNER; Director
      Kenneth McGinnis; Warden Richard
      Johnson; Assistant Resident Unit
     Manager Tabor; Inspector Lockwood;
      Assistant Deputy Warden Roberts;
     Captain Hancock; Special Assistant
                  Brown;
   Michigan Department of Corrections, the
     individuals are being sued in their
     individual and official capacities,
              Defendant(s).
       Civ. A. No. 94-CV-70718-DT.
      United States District Court,
              E.D. Michigan.
              Oct. 10, 1996.
        ORDER ACCEPTING MAGISTRATE
            JUDGE'S REPORT AND
              RECOMMENDATION
  BORMAN, District Judge.
  *1 The Court has reviewed the Magistrate Judge's Report and Recommendation
submitted herein, and any all timely objections filed thereto. The Report and
Recommendation is hereby accepted. Accordingly,
  IT IS ORDERED that Defendant's Motion to Dismiss Plaintiffs' claims under
the Americans with Disabilities Act and the Rehabilitation Act is DENIED.
Extensive research has provided ample authority to support the Magistrate
Judge's Report and Recommendation concluding that Plaintiffs are not barred
from bringing suit against Defendants under either Act.
    REPORT AND RECOMMENDATION
          RECOMMENDATION
  The Court should deny defendants' motion to dismiss plaintiffs' claims under
the Americans with Disabilities Act and the Rehabilitation Act of 1973.
                REPORT
  I. Procedural Background
  Plaintiffs Linda Gail Niece (Niece) and Grant H. Hendrick (Hendrick) bring
this claim against defendants Michigan Department of Corrections and certain
MDOC employees assigned to the Carson City Temporary Facility (OTF) in Carson
City, Michigan. Hendrick is a low-security inmate at OTF, and is engaged to
Niece. Niece is deaf, and is also confined to a wheelchair due to a
neurological disorder called ataxia. Plaintiffs filed their complaint in 1994
pursuant to Titles II and IV of the Americans with Disabilities Act (ADA), 42
U.S.C.  12131-12134, 12203; Section 504 of the Rehabilitation Act of 1973,
29 U.S.C.  794; 42 U.S.C.  1983 and the First Amendment to the United States
Constitution; and the. Michigan Handicappers Civil Rights Act, MICH. COMP.
LAWS  37.1101 et seq. The complaint relates to certain alleged actions taken
by the prison officials in regard to telephone communication between Hendrick
and Niece, and in regard to visitations at the prison by Niece. [FN1]
  On May 18, 1995, defendants filed a motion to dismiss plaintiffs' ADA claims
against them. They argued that Hendrick lacks standing to pursue a claim under
the ADA because he is not disabled, and that Niece cannot establish that she
was discriminated against. On August 25, 1995, I issued a Report recommending
that defendants' motion be denied, except as to defendants Lockwood and
Roberts, whose actions occurred prior to the adoption of the ADA. On March 29,
1996, Judge Borman accepted this Report & Recommendation and entered an Order
denying defendants' motion to dismiss except as to defendants Lockwood and
Roberts.
  On May 13, 1996, defendants filed a second motion to dismiss plaintiff's
claims under the ADA and section 504 of the Rehabilitation Act
(section 504). Defendants argue that the
Copr. West 1996 No claim to orig. U.S. govt. works
                                       12
01-07210
---F.Supp.----  Page 2
(Cite as: 1996 WL 588217, *1 (E.D.Mich.))
claims against them under the ADA and section 504 are barred by the Eleventh
Amendment to the United States Constitution, and that plaintiffs have failed
to state a claim upon which relief can be granted because the ADA and section
504 do not apply to state prisons. On June 11, 1996, plaintiffs filed their
brief in opposition to defendants' motion, arguing that Congress has abrogated
the state's Eleventh Amendment immunity and that the ADA and section 504 do
apply to state prisons.
  II. Eleventh Amendment Immunity
  A. Eleventh Amendment Immunity Generally
  *2 The Eleventh Amendment provides:
  The Judicial power of the United States
  shall not be construed to extend to any suit
  in law or equity, commenced or prosecuted
  against one of the United States by Citizens
  of another State, or by Citizens or Subjects
  of any Foreign State.
U.S. CONST. amend. XI. Although the amendment expressly prohibits only suits
against states by citizens of other states, the Supreme Court has long held
that the Eleventh Amendment also bars suits by citizens of the state being
sued. See, Hans v. Louisiana, 134 U.S. 1 (1890); Welch v. Texas Dep't of
Highways and Public Transp., 483 U.S. 468, 472-73 (1987) (plurality opinion).
This immunity is based on a two part presupposition: (i) each state is a
sovereign entity; and (2) "it is inherent in the nature of sovereignty not to
be amenable to the suit of an individual without its consent." THE FEDERALIST
No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed.1961); see Seminole
Tribe of Florida v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Hans, 134
U.S. at 13. Thus, "in the absence of consent a suit in which the State or one
of its agencies or departments is named as the defendant is proscribed by the
Eleventh Amendment." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100 (1984); see also, Papasan v. Allain, 478 U.S. 265, 276 (1986). Further, as
the Supreme Court made clear in Will v. Michigan Dep't of State Police, 491
U.S. 58 (1989), the Eleventh Amendment bars suits against state officials sued
in their official capacity. See also, U.S. CONST. amend. XI.
  B. Abrogation of Eleventh Amendment Immunity
  Despite this bar from suit, in certain limited instances Congress may
abrogate the Eleventh Amendment immunity of the states by allowing suits
through federal statutes.
  In order to determine whether Congress has
  abrogated the States' sovereign immunity,
  we ask two questions: First, whether
  Congress has "unequivocally expresse[d] its
  intent to abrogate the immunity"; and
  second, whether Congress has acted
  "pursuant to a valid exercise of power."
Seminole Tribe, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68
(1985) (citations omitted). Thus, the Court must consider each of these
questions in turn.
  1. Unequivocal Expression of Intent to Abrogate Immunity
  "Congress' intent to abrogate the States' immunity from suit must be obvious
from 'a clear legislative statement.'" Seminole Tribe, 116 S.Ct. at 1123
(quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991)). "A
general authorization for suit in federal court is not the kind of unequivocal
statutory language sufficient to abrogate the Eleventh Amendment." Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985); accord Blatchford, 501 U.S.
at 786 n. 4 ("The fact that Congress grants jurisdiction to hear a claim does
not suffice to show Congress has abrogated all defenses to that claim.").
Thus, "Congress may abrogate the States' constitutionally secured immunity
from suit in federal court only by making its intention unmistakably clear in
the language of the statute." Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989);
see also, Welch, 483 U.S. at 474.
  a. Abrogation of Immunity Under the ADA
Copr. West 1996 No claim to orig. U.S. govt. works
                                         13
01-07211
---F.Supp.----  Page 3
(Cite as: 1996 WL 588217, *3 (E.D.Mich.))
  *3 The ADA contains a clear expression of Congress' intent to abrogate the
states' Eleventh Amendment immunity. Under the ADA:
  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. In any action
  against a State for a violation of the
  requirement of this chapter, remedies
  (including remedies both at law and in
  equity) are available for such a violation to
  the same extent as such remedies are
  available for such a violation in an action
  against any public or private entity other
  than a State.
42 U.S.C.  12202. "Section 12202 of the ADA is an unequivocal expression of
Congress' intent to abrogate the States' Eleventh Amendment immunity." Martin
v. Voinovich, 840 F.Supp. 1175, 1187 (S.D.Ohio 1993); accord Eisfelder v.
Michigan Dep't of Natural Resources, 847 F.Supp. 78, 82-83 (W.D.Mich.1993).
    b. Abrogation of Immunity Under the Rehabilitation Act
  Likewise, Congress as unequivocally expressed its intention to abrogate the
Eleventh Amendment of the states under the Rehabilitation Act of 1973. In
Atascardero State Hospital, supra, the Supreme Court held that the
Rehabilitation Act, as then enacted, did not properly abrogate the states'
Eleventh Amendment immunity. Thus, to correct this oversight, Congress amended
the Act in 1986 to include a provision abrogating Eleventh Amendment immunity:
  A State shall not be immune under the
  Eleventh Amendment of the Constitution of
  the United States for a violation of section
  794 of Title 29 (section 5 of the
  Rehabilitation Act) ... or the provisions of
  any other Federal statute prohibiting
  discrimination by recipients of Federal
  financial assistance.
42 U.S.C.  2000d-7(A); see S. REP. No. 388, 99th Cong., 2d Sess., at 27-28
(indicating that the abrogation of immunity provision was in direct response
to the Court's decision in Atascardero State Hospital). "Accordingly, the
Eleventh Amendment does not prevent plaintiffs from making claims against
defendants under  504 of the Rehabilitation Act." Martin, 840 F.Supp. at
1187; accord Eisfelder, 847 F.Supp. at 82-83.
2. Abrogation Made Under a Proper Exercise of Authority
  Because Congress clearly and unequivocally expressed its intention to
abrogate Eleventh Amendment immunity both under the ADA and under section 504,
the Court must next consider whether this abrogation was done under a proper
exercise of Congress' authority.
a. Seminole Tribe and Abrogation Under the Commerce Clause
  The Supreme Court recently addressed this matter in Seminole Tribe, supra.
In Seminole Tribe, the Court, in a 5-4 decision, held that the Commerce
Clause, U.S. CONST. art. I,  8, cl. 3, does not confer upon Congress the
authority to abrogate a state's Eleventh Amendment immunity from suit in
federal courts. The Court held:
  Even when the Constitution vests in
  Congress complete law-making authority
  over a particular area, the Eleventh
  Amendment prevents congressional
  authorization of suits by private parties
  against unconsenting States. The Eleventh
  Amendment restricts the judicial power
  under Article III, and Article I cannot be
  used to circumvent the constitutional
  limitations placed upon federal jurisdiction.
  *4 Seminole Tribe, 116 S.Ct. at 1131-32. Based on this holding, defendants
argue that Congress could not have abrogated Eleventh Amendment immunity under
the ADA and the Rehabilitation Act because these were both enacted under the
Congress' Commerce Clause power.
  b. Abrogation under the Fourteenth Amendment
  To the extent that the ADA and the Rehabilitation Act were enacted solely
under the commerce power, defendants' argument
Copr. West 1996 No claim to orig. U.S. govt. works
                                       14
01-07212
---F.Supp.----  Page 4
(Cite as: 1996 WL 588217, *4 (E.D.Mich.))
would, of course, prevail. However, both the ADA and the Rehabilitation Act
were also enacted under Congress' explicit power to enforce the 14th Amendment
"by appropriate legislation." U.S. CONST. amend XIV, S 5; accord 42 U.S.C. 
12101(b)(4) ("It is the purpose of [the ADA] ... to invoke the sweep of
congressional authority, including the power to enforce the fourteenth
amendment and to regulate commerce, in order to address the major areas of
discrimination faced day-to-day by people with disabilities.") (emphasis
added); S. REP. No. 388, 99th Cong., 2d Sess., at 27 (stating that the
abrogation of Eleventh Amendment immunity in 42 U.S.C.  2000d-7 was in
response to the Atascadero Court's indication that such an abrogation would be
permissible under section 5 of the Fourteenth Amendment). [FN2]
  In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976),the Court held:
  [W]e think that the Eleventh Amendment,
  and the principle of state sovereignty which
  it embodies, are necessarily limited by the
  enforcement provisions of  5 of the
  Fourteenth Amendment. In that section
  Congress is expressly granted authority to
  enforce "by appropriate legislation" the
  substantive provisions of the Fourteenth
  Amendment, which themselves embody
  significant limitations on state authority.
  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. We think
  that Congress may, in determining what is
  "appropriate legislation" for the purpose of
  enforcing the provisions of the Fourteenth
  Amendment, provide for private suits
  against States or state officials which are
  constitutionally impermissible in other
  contexts."
Id. at 456 (citation omitted) (footnote omitted) (emphasis added) Although
holding that the Commerce Clause does not provide proper authority for
Congress to abrogate the states' Eleventh Amendment immunity, the Court's
decision in Seminole Tribe left untouched the Fitzpatrick holding that section
5 of the Fourteenth Amendment does provide such authority. In distinguishing
Fitzpatrick, the Court reasoned:
  Fitzpatrick was based upon a rationale
  wholly inapplicable to the Interstate
  Commerce Clause, viz., that the Fourteenth
  Amendment, adopted well after the adoption
  ofthe Eleventh Amendment and the
  ratification of the Constitution, operated to
  alter the preexisting balance between state
  and federal power achieved by Article III
  and the Eleventh Amendment.
  *5 Seminole Tribe, 116 S.Ct. at 1128. Further, the majority's opinion
characterized the cases cited in Justice Stevens' dissent as being
inapplicable in the Commerce Clause setting because "those cases arose in the
context of a statute passed under the Fourteenth Amendment, where Congress'
authority to abrogate is undisputed." Id. at 1131 n. 15 (emphasis added).
Finally, in his dissent, Justice Stevens also construes the Court's opinion as
preserving Congress' power to abrogate the states' Eleventh Amendment immunity
under section 5 of the Fourteenth Amendment. See id. at 1134 (Stevens, J.,
dissenting). Accordingly, so long as the ADA and the Rehabilitation Act were
properly enacted under section 5 of the Fourteenth Amendment, Congress'
abrogation of Eleventh Amendment immunity was proper.
c. Congressional Authority to Enact the ADA and the Rehabilitation Act under
   the Fourteenth Amendment
  As noted above, section 5 of the Fourteenth Amendment states: "The Congress
shall have power to enforce, by appropriate legislation, the provisions of
this article." U.S. CONST. amend. XIV, S 5. Among the provisions of the
Fourteenth Amendment which Congress may so enforce is the right of citizens to
enjoy "the equal protection of the laws." U.S. CONST. amend. XIV, S 1.
Although the primary purpose behind the Fourteenth Amendment when originally
enacted was to protect the rights of African-Americans, Congress has broad
power under the amendment to enact legislation against an array of various
types of
Copr. West 1996 No claim to orig. U.S. govt. works
                                        15
01-07213
---F.Supp.----  Page 5
(Cite as: 1996 WL 588217, *5 (E.D.Mich.))
discrimination.
  In Katzenbach v. Morgan, the Court recognized Congress' broad powers under
section 5 of the Fourteenth Amendment:
  Thus the McCulloch v. Maryland standard is
  the measure of what constitutes
  "appropriate legislation" under  5 of the
  Fourteenth Amendment. Correctly viewed,
  5 is a positive grant of legislative power
  authorizing Congress to exercise its
  discretion in determining whether and what
  legislation is needed to secure the
  guarantees of the Fourteenth Amendment.
Katzenbach, 384 U.S. at 651; [FN3] see also, City of Richmond v. J.A. Croson
Co., 488 U.S. 469, 490 (1989) (O'Connor, J.) ("The power to 'enforce' [the
provisions of the Fourteenth Amendment] may at times also include the power to
define situations which Congress determines threaten principles of equality
and to adopt prophylactic rules to deal with those situations."); Archibald
Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights,
80 HARV. L. REV. 91, 107 (1966). Based on this language, lower courts have
noted:
  In exercising these enforcement powers under  5, Congress is not limited to
remedying inequalities which the courts would determine to be violative of the
Constitution. It may prohibit conduct which would not otherwise by unlawful,
in order to secure the guarantees of the Fourteenth Amendment[, and] ... great
deference is to be accorded to Congress' determination of what measures are
appropriate to that end. *6 Bond v. Stanton, 555 F.2d 172, 174-75 (7th
Cir.1977), cert. denied, 438 U.S. 916 (1978); see also, Flores v. City of
Boerne, Tex., 73 F.3d 1352, 1357 (5th Cir.1996); Corpus v. Estelle, 605 F.2d
175, 179-80 (5th Cir.1979), cert. denied, 445 U.S. 919 (1980).
  Further, "Congress's [sic] power under section 5 of the fourteenth amendment
clearly extends to protection of any group of persons invidiously
discriminated against by state law." United States v. Uvalde Consol. Indep.
Sch. Dist., 625 F.2d 547, 553 (5th Cir.1980). Thus, courts have upheld
legislation against a number of forms of discrimination under section 5 of the
Fourteenth Amendment. E.g., Flores v. City of Boerne, Tex., 73 F.3d 1352 (5th
Cir.1996) (Religious Freedom Restoration Act); Fontenot v. Louisiana Bd. of
Elementary & Secondary Educ., 835 F.2d 117 (5th Cir.1988) (attorney fees under
the Education of the Handicapped Act); Ramirez v. Puerto Rico Fire Serv., 715
F.2d 694 (1st Cir.1983) (Age Discrimination in Employment Act); American Fed.
of State, County & Mun. Employees v. Washington, 578 F.Supp. 846
(W.D.Wash.1983) (gender discrimination in employment), rev'd on other grounds,
770 F.2d 1401 (9th Cir.1985).
  The Rehabilitation Act of 1973 was enacted to, among other things, "empower
individuals with disabilities to maximize employment, economic
self-sufficiency, independence, and inclusion and integration into society,
through ... the guaranty of equal opportunity." 29 U.S.C.  701(b)(1)(F). The
act was enacted based in part on Congress' finding that
  individuals with disabilities continually
  encounter various forms of discrimination in
  such critical areas as employment, housing,
  public accommodations, education,
  transportation, communication, recreation,
  institutionalization, health services, voting,
  and public services.
29 U.S.C.  701(a)(5). Similarly, the ADA was enacted "to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities." 42 U.S.C.  12101(b)(1). As these provisions
make clear,
  [t]he Rehabilitation Act and the ADA were
  enacted to prevent old-fashioned and
  unfounded prejudices against disabled
  persons from interfering with those
  individuals' rights to enjoy the same
  privileges and duties afforded to all United
  States citizens.
Galloway v. Superior Ct. of Dist. of Columbia, 816 F.Supp. 12, 20
(D.D.C.1993). Both acts have the purpose of furthering "the traditional Equal
Protection goal of protecting a discrete class of individuals from arbitrary
and capricious actions...." United States Equal Employment Opportunity Comm'n
v. Calumet County, 686 F.2d 1249, 1252 (7th Cir.1982).
Copr. West 1996 No claim to orig. U.S. govt. works
                                       16
01-07214
---F.Supp.---  Page 6
(Cite as: 1996 WL 588217, *6 (E.D.Mich.))
Accordingly, both acts were valid exercises of Congress' power to "enforce, by
appropriate legislation," the Fourteenth Amendment's guaranty to each citizen
of the equal protection of the laws.
  3. Conclusion
  Because both the Rehabilitation Act of 1973 and the ADA are proper exercises
of Congress' power to enforce the provisions of the Fourteenth Amendment, and
because in both acts Congress has indicated in clear, unequivocal language its
intent to abrogate states' Eleventh Amendment immunity, the Court should
conclude that the Eleventh Amendment does not bar the plaintiffs' suit.
    III. APPLICATION OF SECTION 504 AND
  THE ADA TO STATE PRISONS [FN4]
  *7 Defendants' alternative grounds for dismissing plaintiffs' section 504
and ADA claims is that neither statute applies to state prisons. After
considering each statute separately, the Court should conclude that they both
apply to state prisons, for the reasons that follow. [FN5]
  A. Principles of Statutory Construction
  "In determining the meaning of [a] statute, we look not only to the
particular statutory language, but to the design of the statute as a whole and
to its object and policy." Crandon v. United States, 494 U.S. 152, 158 (1990);
see also, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987) (quoting
United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122 (1849)). It is a
"familiar canon of statutory construction that remedial legislation should be
construed broadly to effectuate its purposes." Tcherepnin v. Knight, 389 U.S.
332, 336 (1967) (broadly construing the Securities Exchange Act of 1934); see,
e.g., Atchinson, T. & S.F. Ry. v. Buell, 480 U.S. 557, 562 (1987) (Federal
Employer Liability Act); Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479,
497-98 (1985) (Racketeer Influenced Corrupt Organizations Act) Jefferson
County Pharmaceutical Ass'n, Inc. v. Abbott Lab., 460 U.S. 150, 158-59 (1983)
(Robinson-Patman Anti-Price Discrimination Act); Peyton v. Rowe, 391 U.S. 54,
64-65 (1968) (habeas corpus relief under 28 U.S.C. S 2241); Securities
Exchange Comm'n v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 185-86
(1963) (Investment Advisors Act of 1940). This broad construction is also
applied to civil rights statutes. Accord City of Memphis v. Greene, 451 U.S.
100, 120 (1981) (42 U.S.C. S 1982); Owen v. City of Independence, Mo., 445
U.S. 622, 635-36 (1980) (42 U.S.C. S 1983). Accordingly, a broad construction
is given to both the Rehabilitation Act, Moreno v. Consolidated Rail Corp., 63
F.3d 1404, 1415 (6th Cir. 1995), and to the ADA, Civic Ass'n of the Deaf of
New York City, Inc. v. Giuliani, 915 F.Supp. 622, 634 (S.D.N.Y.1996); Tyler v.
City of Manhattan, 849 F.Supp. 1429, 1441 (D.Kan. 1994); Kinney v. Yerusalim,
812 F.Supp. 547 (E.D.Pa.), aff'd, 9 F.3d 1067 (3d Cir.1993), cert. denied, 114
S.Ct. 1545 (1994).
  B. The Plain Meaning of Section 504 and the ADA
  By its terms, section 504 applies to "any program receiving Federal
financial assistance." 29 U.S.C.  794 (emphasis added). Similarly, title II
of the ADA applies to "any [public] entity," 42 U.S.C.  12132 (emphasis
added), which is further defined to include "any department, agency, special
purpose district, or other instrumentality of a State or States or local
government." 42 U.S.C.  12131(1)(B) (emphasis added).
  In construing a statute, especially a remedial one which must be construed
broadly to effectuate its purpose," '[t]he word "any" is generally used in the
sense of "all" or "every" and its meaning is most comprehensive.'" Fleck v.
KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir.1992) (quoting McCormick v.
Columbus Conveyor Co., 564 A.2d 907, 910 (Pa.1989)) (construing Pennsylvania
statute of repose); see also, United States v. Rosenwasser, 323 U.S. 360,
362-63 (1945) ("any" employee as used in Fair Labor Standards Act includes all
employees unless specifically excluded). Defendants do not dispute that the
Michigan Department of Corrections is a program receiving federal
Copr. C West 1996 No claim to orig. U.S. govt. works
                                       17
01-07215
---F.Supp.--- Page 7
(Cite as: 1996 WL 588217, *7 (E.D.Mich.))
assistance. Because it is a program receiving federal assistance, it is one of
any such programs covered by section 504. Likewise it is clear, and defendants
do not dispute, that MDOC is a department of the State of Michigan. See, e.g.,
Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir.1993). Because MDOC is a department
of the State of Michigan, it clearly comes under the definition of "public
entity" in 42 U.S.C.  12131 and is therefore subject to Title II of the ADA.
In addition, plaintiffs state claims of retaliation against defendants,
pursuant to 42 U.S.C.  12203. By its clear terms this statutory provision
applies to any person who discriminates against an individual in retaliation
for attempting to enforce rights under the ADA. [FN6]
  C. The Department of Justice Regulations Implementing Section 504 and the
     ADA.
  *8 The regulations promulgated by the Department of Justice implementing
both section 504 and Title II of the ADA make it clear that they both apply to
state prisons. Section 504 applies to "any program receiving Federal financial
assistance." 29 U.S.C.  794. The regulations interpreting this provision
define program as "the operations of the agency or organizational unit of
government receiving or substantially benefiting from the Federal assistance
awarded, e.g., a...department of corrections." 28 C.F.R.  42.540(h)(1995)
(emphasis added). Similarly, the regulations promulgated under the ADA charge
the Department of Justice to enforce compliance in "[a]ll programs, services,
and regulatory activities relating to law enforcement, public safety, and the
administration of justice, including courts and correctional institutions." 28
C.F.R.  35.190(b)(6) (1995) (emphasis added); see also 28 C.F.R. Part 35,
Appendix A, at 460-61 (1995) (explaining that under 28 C.F.R.  35.130(b)(8),
a public entity need not provide attendant care or similar assistance "except
in special circumstances, such as where the individual is an inmate of a
custodial or correctional institution."). [FN7]
  "[C]onsiderable weight should be accorded to an executive department's
construction of a statutory scheme it is entrusted to administer." Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).
In fact, such regulations are entitled to "controlling weight" unless they are
"arbitrary, capricious or manifestly contrary to the statute." Id. at 844. As
the Supreme Court has noted, the regulations implementing the Rehabilitation
Act provide "an important source of guidance on the meaning of S 504."
Alexander v. Choate, 469 U.S. 287, 304 n. 24 (1985); see also, School Bd. of
Nassau County v. Arline, 480 U.S. 273, 279 (1987). The same is true of the
regulations promulgated under the ADA: "Because Title II was enacted with
broad language and directed to the Department of Justice to promulgate
regulations [thereunder], the regulations which the Department promulgated are
entitled to substantial deference." Helen L. v. DiDario, 46 F.3d 325, 331 (3d
Cir.) (citing Blum v. Bacon, 457 U.S. 132, 141 (1982)), cert. denied, 116
S.Ct. 64 (1995). Accordingly, the Court should conclude that section 504 and
the ADA apply to state prisons.
  D. The Case Law Applying Section 504 and the ADA
  1. Case Law Under Section 504
  A long line of cases applies section 504 to state prisons. Thus, it is clear
that "the Rehabilitation Act applies with the same force and effect in
corrections institutions as it does in other federally funded programs."
Austin v. Pennsylvania Dep't of Corrections, 876 F.Supp. 1437, 1465 n. 17
(E.D.Pa.1995); accord Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir.1994); Harris
v. Thigpen, 941 F.2d 1495, 1522 n. 41 (11th Cir.1991); Bonner v. Lewis, 857
F.2d 559, 562 (9th Cir.1988); Journey v. Vitek, 685 F.2d 239, 242 (2d
Cir.1982); Sites v. McKenzie, 423 F.Supp. 1190, 1197 (N.D.W.Va.1976).
  *9 Contrary to defendants' assertion, Gates v. Rowland, 39 F.3d 1439 (9th
Cir.1994) does not limit the Bonner decision. In Gates, the Ninth Circuit
specifically reaffirmed its Bonner holding that the Rehabilitation "Act is
Copr. C West 1996 No claim to orig. U.S. govt. works
                                      18
01-07216
---F.Supp.--- Page 8
(Cite as: 1996 WL 588217, *9 (E.D.Mich.))
applicable to prisons receiving federal financial assistance." Gates, 39 F.3d
at 1446. The question in Gates was not whether the Rehabilitation Act applied,
but how it applied. Thus, it did not limit Bonner at all.
  Nor is Williams v. Meese, 926 F.2d 994 (10th Cir.1991) persuasive. In
Williams, the court held that section 504 does not apply to federal prisoners
"since the Federal Bureau of Prisons does not fit the definition of 'programs
or activities' governed by this section." Williams, 926 F.2d at 997. However,
the court merely made this blanket assertion without discussion of the
relevant statutory language, history of the Act, or regulations promulgated
thereunder; nor did the court discuss the reasoning behind its conclusion. For
this reason, Williams is not persuasive. Thus, the case law strongly favors
application of section 504 to state prisons.
  2. Case Law Under the ADA
  A number of courts have held, either explicitly or implicitly, that the ADA
applies to state prisons and that state prisoners may bring suit under the
ADA. Clarkson v. Coughlin, 898 F.Supp. 1019, 1035-37 (S.D.N.Y.1995) (reasoning
that section 504 applies to prisons and recognizing similarity between section
504 and ADA); Love v. McBride, 896 F.Supp. 808 (N.D.nd.1995) (allowing
inmate's suit under ADA although not explicitly addressing the issue);
Rewolinski v. Morgan, 896 F.Supp. 879, 881 (E.D.Wis.1995) (same); Noland v.
Wheatley, 835 F.Supp. 476, 483 (N.D.nd.1993)(same); Outlaw v. City of Dothan,
Ala., No. CV 92-A- 1219-S, 1993 WL 735802, at *4 (M.D.Ala. Apr. 27, 1993)
("The court holds that the Americans with Disabilities Act required the City
of Dothan to make the shower in its jail readily accessible to and usable by
the plaintiff."). Nonetheless, there are several cases, cited by defendants,
holding that the ADA is not applicable to state prisons. Because the cases
cited by defendants are either distinguishable or unpersuasively reasoned, the
Court should conclude that the ADA is applicable to state prisons.
  The case principally relied on by defendants is Torcasio v. Murray, 57 F.3d
1340 (4th Cir.1995). Torcasio did not decide the question now under
consideration. Rather, the court held only that the prison official defendants
in that case were entitled to qualified immunity from plaintiff's ADA and
section 504 claims because, at the time of the defendants' actions, "it was
not then clearly established that either statute applied to state prisons,"
thus entitling defendants to qualified immunity. Torcasio, 57 F.3d at 1352.
Thus, any discussion of whether the ADA applies to prison settings at all is,
at best, dicta. Even this dicta, however, is unpersuasive.
  *10 The Torcasio court stated that, because of the compelling state interest
involved in maintaining its own prisons, "Congress must speak unequivocally
before we will conclude that it has 'clearly' subjected state prisons to its
enactments." Id. at 1346. However, no such rule of statutory construction
seems to support this proposition. Indeed, the long line of prisoner civil
rights cases filed under 42 U.S.C. S 1983 would seem to belie this reasoning.
Section 1983 does not, by its explicit terms, "clearly" state that prison
officials are subject to an action under the statute. Yet, it cannot be
doubted that prisoners are protected by and may file suit under S 1983.
McCollum v. Mayfield, 130 F.Supp. 112, 116 (N.D. Cal. 195 S) ("an imprisoned
felon ... is empowered to due in the federal courts under this section.");
Siegel v. Ragen, 88 F.Supp. 996, 998 (N.D.Ill.1949) ("The fact that plaintiffs
are incarcerated in a penitentiary under convictions for felonies, does not
deprive them of the right to invoke the provisions of the Civil Rights Act."),
aff'd, 180 F.2d 785 (7th Cir.), cert. denied, 339 U.S. 990 (1950); Gordan v.
Garrson, 77 F.Supp. 477, 479 (E.D.Ill.1948). Similarly, the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. S 2000bb-1, does not explicitly state that
it proscribes the conduct of state prison officials or that state prisoners
are protected by it. Yet, since its adoption, courts have routinely applied
the RFRA to prisoner claims. E.g., Werner v. McCotter, 49 F.3d 1476, 1479
(10th Cir.1995); Bryant v. Gomez, 46 F.3d 948, 948 (9th Cir.1995) (per
curiam);
Copr. C West 1996 No claim to orig. U.S. govt. works
                                      19
01-07217
--- F.Supp. ----  Page 9
(Cite as: 1996 WL 588217, *10 (E.D.Mich.))
Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir.1994); Muslim v. Frame, 891
F.Supp. 226, 229 (E.D.Pa.1995); Woods v. Evatt, 876 F.Supp. 756, 761
(D.S.C.1995); Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y.1994). As the
application of these statutes shows, there is simply no support for the
Torcasio court's conclusion that state prisons must have been "clearly"
subjected to the provisions of the ADA.
  In a similar vein, the Torcasio court also relied on the Supreme Court's
language in Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), which
states: "If Congress intends to alter the 'usual constitutional balance
between the States and the Federal Government,' it must make its intention to
do so 'unmistakably clear in the language of the statute.'" Id. at 65 (quoting
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)); see Torcasio, 57
F.3d at 1344. Contrary to the conclusion of the Torcasio court, however,
Congress did make it "unmistakably clear" that it was altering the balance
between the states and the federal government. By its very terms, Title II of
the ADA proscribes the conduct of a state government and its department and
agencies. 42 U.S.C.  12131, 12132. Further, as discussed above, Congress
clearly abrogated the states' Eleventh Amendment immunity. 42 U.S.C.  12202.
These statutory provisions make "clear and manifest" Congress' intention "to
pre-empt the historic powers of the States" by enactment of the ADA. Will, 491
U.S. at 65 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
Thus, the ADA satisfies the Will requirements. In short, the reasoning of the
Torcasio court is unpersuasive in light of the plain language, legislative
history, the regulations promulgated thereunder, and the policies sought to be
advanced by the ADA. [FN8]
  *11 Defendants also rely on Pierce v. King, 918 F.Supp. 932 (E.D.N.C.1996).
This case is likewise distinguishable. Pierce dealt with the application of
the ADA to prison employment. Unlike visitation rights or telephone access,
prison employment does not constitute the provision of a "service" under the
meaning of Title II of the ADA. Rather, discrimination in employment comes
within the ambit of Title I. Whether an inmate qualifies as an employee under
the meaning of Title I is doubtful. See, e.g., Harker v. State Use Indus., 990
F.2d 131, 133 (4th Cir.) (state prisoners not entitled to minimum wage under
Fair Labor Standards Act because they are not within the meaning of the word
"employee" as used in the Act), cert. denied, 114 S.Ct. 238 (1993); Vanskike
v. Peters, 974 F.2d 806, 808 (7th Cir.1992) (same); but cf. Carter v. Dutchess
Community College, 735 F.2d 8, 12 (2d Cir.1984) (adopting "economic reality"
test, which in theory could permit a prisoner to qualify as an employee).
However, this question is quite different from the questions presented here:
whether state prison officials can deny services to qualified individuals on
the basis of a disability, and whether state prison officials can retaliate
against persons seeking to enforce their rights under the ADA. Thus, Pierce
has little, if anything, to contribute to the resolution of this case.
  Also troubling is the Pierce court's rejection of the Fourteenth Amendment
basis for this legislation. The court stated:
  Although framed in terms of addressing
  discrimination, the Act's operative remedial
  provisions demand not equal treatment, but
  special treatment tailored to the claimed
  disability. In this respect, the ADA differs
  radically from traditional anti-
  discrimination laws, such as Title VII, which
  seek only a state of affairs where individuals
  are treated in a neutral manner without
  regard to race, sex, age, etc. Unlike anti-
  discrimination laws, the ADA demands
  entitlement in order to achieve its goals.
  This the Fourteenth Amendment does not
  authorize.
Pierce, 918 F.Supp. at 940 (emphasis in original) Yet, this approach was
rejected by the Supreme Court in Alexander v. Choate, 469 U.S. 287 (1985), in
which the Court noted:
  Our use of the term "affirmative action" in
  this context has been severely criticized for
  failing to appreciate the difference between
  affirmative action and reasonable
  accommodation; the former is said to refer
  to a remedial policy for the victims of past
Copr. C West 1996 No claim to orig. U.S. govt. works
                                      20
01-07218
--- F.Supp. ----  Page 10
(Cite as: 1996 WL 588217, *11 (E.D.Mich.))
  discrimination, while the latter relates to
  the elimination of existing obstacles against
  the handicapped. Regardless of the aptness
  of our choice of words in [Southern
  Community College v.] Davis [, 442 U.S. 397
  (1979) ], it is clear from the context of Davis
  that the term "affirmative action" referred
  to those "changes," "adjustments," or
  "modifications" to existing programs that
  would be "substantial," 442 U.S. at 410, 411,
  n. 10, 413, or that would constitute
  "fundamental alteration[s] in the nature of a
  program ...," id., at 410, rather than those
  changes that would be reasonable
  accommodations.
*12 Alexander, 469 U.S. at 300-01 n. 20 (citations omitted). Thus, in
Alexander "the Court clarified that reasonable accommodation was a
nondiscrimination, not an affirmative action, obligation..." Robert L.
Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications
of a Second- Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413,
431 n. 96 (1991). Accordingly, the Pierce court's Fourteenth Amendment
concerns are unfounded.
    E. Policy Considerations
  Of course, the above discussion is not intended to diminish the conflicting
policy considerations at issue. On the one hand, Congress clearly sought to
"provide a clear and comprehensive mandate for the elimination of
discrimination against individuals with disabilities." 42 U.S.C. 
12101(b)(1). This was based on Congress' finding that "individuals with
disabilities are a discrete and insular minority who have been faced with
restrictions and limitations [and] subjected to a purposeful history of
unequal treatment," id. S 12101(a)(7), but who, "unlike individuals who have
experienced discrimination on the basis of race, color, sex, national origin,
religion, or age, ... have often had no legal recourse to redress such
discrimination." Id. S 12101(a)(4). President Bush described the ADA as "the
world's first comprehensive declaration of equality for people with
disabilities." President George Bush, Remarks by the President During Ceremony
for the Signing of the Americans with Disabilites Act of 1990, 2 (July 26,
1990), quoted in Robert L. Burgdorf, Jr., The Americans with Disabilities Act:
Analysis and Implications of a Second-Generation Civil Rights Statute, 26
HARV. C.R.-C.L. L. REV. 413, 413-14. The ADA is the culmination of a long,
arduous struggle on the part of persons with disabilities to attain equal
treatment through the civil rights laws. See generally, Heather K. by Anita K.
v. City of Mallend, Iowa, 887 F.Supp. 1249, 1263-66 (N.D.Iowa 1995); Burgdorf,
supra, at 413-34; Jones, Overview and Essential Requirements of the Americans
with Disabilities Act, 64 TEMP. L. REV. 471, 472-75 (1991).
  Balanced against these policy concerns are the states' strong interests in
the maintenance of state penal institutions, an interest traditionally
accorded strong deference by federal courts. See, e.g., Turner v. Safley, 482
U.S. 78, 89 (1987) ("[W]hen a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests."); Procunier v. Martinez, 416 U.S. 396, 412;
Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973); Price v. Johnston, 334 U.S.
266, 285 (1948) ("Lawful incarceration brings about the necessary withdrawal
or limitation of many privileges and rights."). Relying on this line of
Supreme Court precedent, the Torcasio court stated:
  There can be little doubt that application of
  the ADA and Rehabilitation Act would have
  serious implications for the management of
  state prisons, in matters ranging from cell
  construction and modification, to inmate
  assignment, to scheduling, to security
  procedures.
*13 Torcasio, 57 F.3d at 1346.
  However, application of the Rehabilitation Act and the ADA to state prisons
would not bring about the horrors portended by the Torcasio court. Under both
the ADA and section 504, an individual is qualified to receive the protections
of the statute only if he or she meets the eligibility requirements for the
particular service or program in question either as the program exists, or as
it would exist with "reasonable modification." 42
Copr. C West 1996 No claim to orig. U.S. govt. works
                                      21
01-07219
--- F.Supp. ----  Page 11
(Cite as: 1996 WL 588217, *13 (E.D.Mich.))
U.S.C.  12131(2); see 29 U.S.C.  794. [FN9] By its very definition,
"reasonable" would take into account the nature of the modification sought and
the circumstances in which the modification is sought. See, e.g., BLACK'S LAW
DICTIONARY 1265 (6th ed.1990) (defining reasonable as "fair, proper, just,
moderate, suitable under the circumstances) (emphasis added). Thus, for
example, a modification which would seriously jeopardize the security of other
inmates or of prison officials would not be "suitable under the
circumstances," and would therefore not by "reasonable."
  Particularly persuasive is the Sixth Circuit's recent decision in Sandison
v. Michigan High School Athletic Ass'n, 64 F.3d 1026 (6th Cir.1995). In
Sandison, the court considered whether the Michigan High School Athletic
Association's (MHSAA) age-eligibility rule violated section 504 and Title II
of the ADA as applied to a student who, because of a learning disability, was
two grades behind his age group. The MHSAA rule in question prohibited any
person who was 19 years old on or before September 1 or the school year in
question could not participate in high school athletics. Plaintiff filed suit
under, among other statutes, section 504 and Title II of the ADA. Id. at
1028-29.
  The court found that the age restriction is "a necessary requirement of the
interscholastic sports program" because it safeguards other, younger
competitors from injury and prevents unfair competitive advantage to older
participants. Id. at 1035. The court further reasoned that lifting the age
restriction would not be a "reasonable accommodation" as required under
section 504:
  Aside from the necessity of the program's
  requirement, the other question in the
  otherwise qualified inquiry is "'whether
  some "reasonable accommodation" is
  available to satisfy the legitimate interests
  of both the grantee and the handicapped
  person. And since it is part of the
  "otherwise qualified" inquiry, our precedent
  requires that the "reasonable
  accommodation" question be decided as an
  issue of fact.'"
  Id. at 1034 (quoting Doherty v. Southern College of Optometry, 862 F.2d 570,
575 (6th Cir.1988) (quoting Brennan v. Stewart, 834 F.2d 1248, 1261-62 (5th
Cir.1988)), cert. denied, 493 U.S. 810 (1989)) (emphasis added). The court
then noted that "[g]enerally, an '[a]ccomodation is not reasonable if it
either imposes undue financial and administrative burdens on a grantee, or
requires a fundamental alteration in the nature of [the] program.'" Id. at
1034 (quoting Arline, 480 U.S. at 287 n. 17 (citations omitted) (internal
quotation omitted)). Applying these rules, the court found that the only
possible accommodation would be to lift the age restriction, and such an
accommodation would fundamentally alter the sports program. Id. at 1034-35.
Accordingly, the age restriction did not violate section 504. Id. at 1035.
With respect to the plaintiff's claim under Title II of the ADA, the court
found that the same analysis applies to the "reasonable modification" language
of 42 U.S.C. S 12131(2), "add[ing] only that the word 'modification' 'connotes
moderate change.'" Id. at 1037 (quoting MCI Telecommunications Corp. v. AT & T
Co., 114 S.Ct. 2223, 2230 (1994).
  *14 As Sandison clearly illustrates, accommodations or modifications under
section 504 and Title II of the ADA must be reasonable, and "reasonable"
depends upon the nature of the service or program and the type of modification
in question. The policy concerns inherent in the maintenance of state
correctional facilities, such as security, discipline, and rehabilitation,
will not be frustrated by application of either section 504 or the ADA to
state prisons. Cf., Gates, 39 F.3d at 1447 (indicating that under the ADA, as
under the Constitution a regulation "'is valid if it is reasonably related to
legitimate penological interests.'") (quoting Turner, 482 U.S. at 89).
Accordingly, a consideration of the policy interests involved weighs in favor
of applying section 504 and the ADA to state prisons.
  IV. CONCLUSION
  In light of the foregoing, the Court should
Copr. C West 1996 No claim to orig. U.S. govt. works
                                      22
01-07220
---F.Supp.---- Page 12
(Cite as: 1996 WL 588217, *14 (E.D.Mich.))
conclude that Congress has properly abrogated the states' Eleventh Amendment
immunity, and thus plaintiffs' claim is not barred by that Amendment. Further,
the Court should conclude that the provisions of Title II and Title IV are
applicable to state prisons. Accordingly, because plaintiffs' have stated a
claim upon which relief may be granted, the Court should deny defendants'
motion to dismiss.
    NOTICE TO PARTIES REGARDING
            OBJECTIONS
  The parties to this action may object to and seek review of this Report and
Recommendation, but are required to act within ten (10) days of service of a
copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D. Mich. LR
72.1(d)(2). Failure to file specific objections constitutes a waiver of any
further right of appeal. United States v. Walters, 638 F.2d 947 (6th
Cir.1981); Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health &
Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise
some issues but fail to raise others with specificity, will not preserve all
the objections a party might have to this Report and Recommendation. Smith v.
Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987);
Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th
Cir.1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is
to be served upon this Magistrate Judge.
  Within ten (10) days of service of any objecting party's timely filed
objections, the opposing party may file a response. The response shall be not
more than five (5) pages in length unless by motion and order such page limit
is extended by the Court. The response shall address specifically, and in the
same order raised, each issue contained within the objections.
  FN1. The relevant facts alleged in the complaint are
  set forth in detail in my Report & Recommendation
  of August 25, 1995, at pages 1-6. Accordingly,
  they are not set forth in detail again here. Judge
  Borman's Order and my Report are reported at
  Niece v. Fitzner, 922 F.Supp. 1208
  (E.D.Mich.1996).
  FN2. Although Congress did not explicitly state that
  it was enacting the Rehabilitation Act or the
  abrogation of Eleventh Amendment immunity under
  42 U.S.C. S 2000d-7 pursuant to its enforcement
  powers under the Fourteenth Amendment, this can
  be fairly inferred from the findings and purposes
  behind the Rehabilitation Act, see 29 U.S.C. S 701,
  and from the Senate Report relating to 42 U.S.C. S
  2000d-7. "The ... constitutionality of action taken
  by Congress does not depend on recitals of the
  power which it undertakes to exercise." Woods v.
  Cloyd W. Miller Co., 333 U.S. 138, 144 (1948).
  Accordingly, the Supreme Court has noted: It is in
  the nature of our review of congressional legislation
  defended on the basis of Congress' powers under 
  5 of the Fourteenth Amendment that we be able to
  discern some legislative purpose or factual predicate
  that supports the exercise of that power. That does
  not mean, however, that Congress need anywhere
  recite the words "section 5" or "Fourteenth
  Amendment" or "equal protection".... Equal
  Employment Opportunity Comm'n v. Wyoming,
  460 U.S. 226, 243 n. 18 (1983). Thus, it is proper
  for the Court to infer that Congress intended to
  invoke its Fourteenth Amendment enforcement
  powers in enacting the Rehabilitation Act.
  FN3. In McCulloch v. Maryland, 17 U.S. (4
  Wheat. 316 (1819), the Court defined the scope of
  Congressional power under the Necessary and
  Proper Clause, U.S. CONST. art. I, S 8, cl. 18.
  Writing for the Court, Chief Justice Marshall
  established the classic formulation for the reach of
  Congressional power: Let the end be legitimate, let
  it be within the scope of the constitution, and all
  means which are appropriate, which are plainly
  adapted to that end, which are not prohibited, but
  consistent with the letter and spirit of the
  constitution, are constitutional. McCulloch, 17
  U.S. (4 Wheat.) at 421.
  FN4. Plaintiffs argue that the Court need not decide
  this issue here because it has already decided the
  issue in its acceptance of my previous Report &
  Recommendation. They argue that defendants
  raised this argument in their objections to that
  Report, and that Judge Borman's Order accepting
  Copr. C West 1996 No claim to orig. U.S. govt. works
                                  23
01-07220
---F.Supp.---- Page 13
(Cite as: 1996 WL 588217, *14 (E.D.Mich.))
  that report rejected all of defendants' objections. In
  addition, they argue, because the Court resolved the
  substantive issues raised by defendants' first motion
  to dismiss in their favor, the Court implicitly
  concluded that the ADA and Rehabilitation Act do
  apply to state prisons. Thus, they contend,
  defendants' argument on this issue is barred by the
  "law of the case" doctrine, which "precludes a court
  from re-examining an issue previously decided by
  itself or a higher court." Johns-Manville Corp. v.
  Guardian Indus. Corp., 116 F.R.D. 97, 101
  (E.D.Mich.1987). This doctrine applies whether
  the issue was decided "explicitly or by necessary
  inference from the disposition." Coal Resources,
  Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761,
  766 (6th Cir.1989) (internal quotation omitted).
  While I agree with plaintiffs that my earlier Report
  & Recommendation and Judge Borman's Order
  accepting that Report necessarily resolved this issue
  by implication, I nonetheless discuss the merits of
  defendants' argument. This is appropriate because:
  (1) it leads to the same conclusion as application of
  the law of the case doctrine; and (2) specifically
  with respect to the ADA, the law on this issue is
  largely undeveloped, necessitating that the Court
  make its reasoning on this issue clear and explicit.
  However, to the extent that defendants raise issues
  explicitly addressed in my previous Report, such as
  Hendrick's standing to sue under the ADA or
  Niece's eligibility to receive a "service" under the
  ADA, the law of the case doctrine applies and such
  issues are not reconsidered here.
  FN5. With respect to plaintiffs' ADA claims, the
  following discussion focuses primarily on the claims
  under Title II, 42 U.S.C. S 12132. Plaintiffs'
  retaliation claims under 42 U.S.C. S 12203 clearly
  prohibit prison officials from discriminating against
  an individual in retaliation for her participation in
  an investigation under the ADA. The plain language
  applies to any person, and there is no legitimate
  penological interest served by allowing such
  retaliation.
  FN6. In addition, Congress provided that nothing in
  [the ADA] shall be construed to apply a lesser
  standard that the standards applied under title V of
  the Rehabilitation Act of 1973 (29 U.S.C. 790 et
  seq.) or the regulations issued by Federal agencies
  pursuant to such title. 42 U.S.C. S 12201(a). As
  discussed below, the case law and regulations under
  the ADA at the time of its enactment held the
  Rehabilitation Act applicable to state prisons.
  Because it is assumed that Congress is
  knowledgeable of the existing law when it enacts
  legislation, Miles v. Apex Marine Corp., 498 U.S.
  19, 32 (1990), the Court should assume that
  Congress intended that the ADA apply to prisons.
  FN7. In addition, the regulations and case law
  applicable to interpreting section 504 are applicable
  in determining the contours of the ADA. See,
  Patton v. TIC United Corp., 77 F.3d 1235, 1245
  (10th Cir.1996); Helen L. v. DiDario, 46 F.3d
  325, 330 n. 7 (3d Cir.), cert. denied, 116 S.Ct. 64
  (1995).
  FN8. Defendants also rely on Staples v. Virginia
  Dep't of Corrections, 904 F.Supp. 487
  (E.D.Va.1995) and Little v. Lycoming County, 912
  F.Supp. 809 (M.D.Pa.1996). However, because
  these cases simply rely on the Torcasio reasoning,
  they are unpersuasive. See Staples, 904 F.Supp. at
  490; Little, 912 F.Supp. at 818-19.
  FN9. Although the language of section 504 itself
  does not explicitly provide that a person is a
  "qualified individual" under the section if
  reasonable accommodation can be made, it has been
  interpreted thusly. See, e.g., 857 F.2d 1073 (6th
  Cir.1988)
END OF DOCUMENT
Copr. C West 1996 No claim to orig. U.S. govt. works
                                    24
01-07221