DEVAL L. PATRICK
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH
JOAN A. MAGAGNA
SHARON N. PERLEY (D.C. Bar #446165)
Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 307-0663

MICHAEL J. YAMAGUCHI
United States Attorney
Northern District of California
MARY BETH UITTI
Civil Chief
United States Attorney's Office
Northern District of California
450 Golden Gate Ave.
San Francisco, CA 94102
(415) 436-7200

Attorneys for United States
as Amicus Curiae


                        UNITED STATES DISTRICT COURT
                      NORTHERN DISTRICT OF CALIFORNIA
                                OAKLAND DIVISION

                        )
JOAN ARMSTRONG, et al., )      No. C-94-2307 CW
                        )
           Plaintiffs,  )      UNITED STATES'
                        )      AMICUS CURIAE MEMORANDUM
                        )      OF LAW IN SUPPORT OF
     v.                 )      PLAINTIFFS' OPPOSITION TO
                        )      DEFENDANTS' MOTION FOR
PETE WILSON, et al.,    )      SUMMARY JUDGMENT
                        )
           Defendants.  )      Date: July 19, 1996
                        )      Time: 10:30 a.m.
                        )      Place: Courtroom 2
                        )

                             TABLE OF CONTENTS


INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


        I.      The ADA And The Rehabilitation Act Apply To
                State Correctional Facilities . . . . . . . . . . . .2

                A.      Ninth Circuit Case Law Holds That
                        The Rehabilitation Act Applies to
                        State Prisons and Suggests That The
                        ADA Applies As Well . . . . . . . . . . . . .3

                B.      The Plain Language Of The Statutes
                        And Deference To The Department
                        Of Justice Regulations Further Support
                        The Conclusion That The
                        Rehabilitation Act And The ADA Apply
                        To State Prisons . . . . . . . . . . . . . . 8

                        1.      The plain language of the statutes
                                demonstrates that the Rehabilitation
                                Act and Title II apply to state
                                correctional facilities . . . . . . .9

                        2.      Deference to Department of Justice
                                regulations requires the conclusion
                                that the Rehabilitation Act and Title
                                II apply to state correctional
                                facilities . . . . . . . . . . . . . 9


        II.     Defendants Are Not Immune From Suit
                Under The Eleventh Amendment . . . . . . . . . . . . 14

                A.      Congress Acted Within Its
                        Constitutional Powers In Abrogating
                        The State's Eleventh Amendment Immunity
                        Under Both Section 504 And Title II . . . . .16

                B.      Ex Parte Young Allows Plaintiffs
                        To Seek Prospective Injunctive Relief . . . .22


CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

                                       i

                        (ILLEGIBLE) AUTHORITIES

Cases

Atascadero State Hosp ILLEGIBLE
        473 U.S. 234 (19 . . . . . . . . . . . . . . . . . . . . passim

Austin v. Pennsylvani ILLEGIBLE Corrections,
        876 F. Supp. 143a. 1995) . . . . . . . . . . . . . . . . . . 4

Baker v. McNeil Islan ILLEGIBLE Ctr.,
        859 F.2d 124 (9 ILLEGIBLE) . . . . . . . . . . . . . . . . . 6

Bechtel v. East Penn ILLEGIBLE of Lehigh County,
        No. Civ. A. 93-48 WL 3396
        (E.D. Pa. Jan. 4, . . . . . . . . . . . . . . . . . . . 12, 14

Beehler v. Jeffes, 664 931
        (M.D. Pa. 1986) . . . . . . . . . . . . . . . . . . . . . . .6

Bonner v. Lewis, 857 F9th Cir. 1988) . . . . . . . . . . . . . .passim

Bradford v. Iron City (ILLEGIBLE
        No. 82-303-C(4), ILLEGIBLE
        (E.D. Mo. June 13, . . . . . . . . . . . . . . . . . . . . .21

Bullock v. Gomez, No. 9B (RMCx),
        slip op. (C.D. Cal1996) . . . . . . . . . . . . . . . . passim

Canterino v. Wilson, 54 174
        (W.D. Ky. 1982), a F.2d 862
        (6th Cir. 1989), c ILLEGIBLE
        493 U.S. 991 (1989 . . . . . . . . . . . . . . . . . . . . . 6

Casey v. Lewis, 834 F. ILLEGIBLE (D. Ariz. 1993) . . . . . . . . . . 4

Chatoff v. City of New ILLEGIBLE
        No. 92 Civ. 0604 (ILLEGIBLE WL 202441
        (S.D.N.Y. June 30, . . . . . . . . . . . . . . . . . . . .  14

Chevron U.S.A., Inc. v. ILLEGIBLE
        Defense Council, In S. 837 (1984) . . . . . . . . . . . . . 12

City of Cleburne v. Cleb ILLEGIBLE Ctr.,
        473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . 19

City of Richmond v. J.A.
        488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . . . 21

Clarkson v. Coughlin, 898 1019
        (S.D.N.Y. 1995) . . . . . . . . . . . . . . . . . . . . passim
Concerned Parents to Save Dreher Park Ctr. v.
        City of West Palm Beach, 846 F. Supp. 986
        (S.D. Fla. 1994) . . . . . . . . . . . . . . . . . . . .10, 12

Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) . . . . . . . . . .5

Cruz v. Collazo, 450 F. Supp. 235 (D.P.R. 1979) . . . . . . . . . . .6

Donnell v. Illinois Bd. of Educ., 829 F. Supp. 1016
        (N.D. Ill. 1993) . . . . . . . . . . . . . . . . . . . 4, 6, 8

Edelman v. Jordan, 415 U.S. 651 (1995) . . . . . . . . . . . . .22, 23

E.E.O.C. v. County of Calumet, 686 F.2d 1249
        (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . 18

E.E.O.C. v. Wyoming, 460 U.S. 226 (1983) . . . . . . . . . . . . . .21

Ex Parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . passim

Fiedler v. American Multi-Cinema, Inc.,
        871 F. Supp. 35 (D.D.C. 1994) . . . . . . . . . . . . . 12, 14

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . . . . 15-18

Franklin v. Gwinnett County Pub. Sch.,
        503 U.S. 60 (1992) . . . . . . . . . . . . . . . . . . .22, 24

Garcia v. San Antonio Metro. Transit. Auth.,
        469 U.S. 528 (1985) . . . . . . . . . . . . . . . . . . . . .5

Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . . . . 3

Green v. Johnson, 513 F. Supp. 965 (D. Mass. 1981) . . . . . . . . . 6

Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . . . . . .22, 23

Guardians Ass'n v. Civil Serv. Comm'n of
        the City of New York, 463 U.S. 582 (1983) . . . . . . . . . 22

Harris v. Thigpen, 941 F.2d 1495
        (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . 4

Heart of Atlanta Motel, Inc. v. United States,
        379 U.S. 241 (1964) . . . . . . . . . . . . . . . . . . . . 21

Helen L. v. DiDario, 46 F.3d 325
        (3d Cir. 1995), cert. denied sub nom.
        Pennsylvania Sec'y of Pub. Welfare v.
        Idell S.,  U.S. , 116 S. Ct. 64 (1995) . . . . . . . . . . .12


                                        iii

Innovative Health Systems, Inc. v. City
        of White Plains, No. 95 CV 9642 (BDP),
        slip op. (S.D.N.Y. 1996) . . . . . . . . . . . . . . 9, 12, 14

Jackson v. Hayakawa, 682 F.2d 1344
        (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . 22

Jeldness v. Pearce, 30 F.3d 1220        
(9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Jones v. Illinois Dep't of Rehabilitative Servs.,
        504 F. Supp. 1244 (N.D. Ill. 1981) . . . . . . . . . . . . .21

Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . . . 20, 21

Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993),
        cert. denied sub nom. Hoskins v. Kinney,
        U.S. , 114 S. Ct. 1545 (1994) . . . . . . . . . . . . . . . 12

Klinger v. Nebraska Dep't of Correctional Servs.,
        824 F. Supp. 1374 (D. Neb. 1993),
        rev'd on other grounds, 31 F.3d 727
        (8th Cir. 1994), cert. denied,
        ___U.S.___ , 115 S. Ct. 1177 (1995) . . . . . . . . . . . . .6
Lane v. Pena, U.S. , S. Ct. ,
        No. 95-365, 1996 WL 335334 (June 20, 1996) . . . . . . . . .16

Los Angeles Branch NAACP v. Los Angeles
        Unified Sch. Dist., 714 F.2d 946 (9th Cir. 1993),
        cert. denied sub nom. California State Dep't of
        Educ. v. Los Angeles Branch NAACP,
        467 U.S. 1209 (1984) . . . . . . . . . . . . . . . . . . . .22

Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995) . . . . . . . . . 4

Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994) . . . . . . . . . . . . . 4

Lyng v. Payne, 476 U.S. 926 (1986) . . . . . . . . . . . . . . . . .12

Martin v. Voinovich, 840 F. Supp. 1175
        (S.D. Ohio 1993) . . . . . . . . . . . . . . . . . . . . . .19

McCulloch v. Maryland, 17 U.S. (4 Wheat.)
        316 (1819) . . . . . . . . . . . . . . . . . . . . . . . . .21

Milliken v. Bradley, 433 U.S. 267 (1977) . . . . . . . . . . . . . .23

Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996) . . . .4, 10, 11

Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) . . . . 4, 7, 12


                                        iv
Outlaw v. City of Dothan, No. CV-92-A-1219-S,
        1993 WL 735802 (M.D. Ala. Apr. 27, 1993) . . . . . . . .passim

Papasan v. Alain, 478 U.S. 265 (1986) . . . . . . . . . . . 14, 22, 23

Pennhurst State Sch. and Hosp. v. Halderman,
        465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . . .14

Pennsylvania v. Union Gas, 491 U.S. 1 (1989) . . . . . . . . . . . .15

Petersen v. University of Wis. Bd. of Regents,
        818 F. Supp. 1276 (W.D. Wis. 1993) . . . . . . . . . . .12, 14

Rewolinski v. Morgan, 896 F. Supp. 879
        (E.D. Wis. 1995) . . . . . . . . . . . . . . . . . . . . . . 4

River Forest Sch. Dist. No. 90 v. Illinois
        State Bd. of Educ., No. 95 C 5353,
        1996 WL 89055 (N.D. Ill. Feb. 28, 1996) . . . . . . . . . . 21

Rivera Flores v. Puerto Rico Telephone Co.,
        776 F. Supp. 61 (D.P.R. 1991) . . . . . . . . . . . . . . . 21

Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642 (8th Cir. 1994) . . . 24

Santiago v. New York State Dep't of
        Correctional Servs., 945 F.2d 25 (2d Cir. 1991),
        cert. denied, 502 U.S. 1094 (1992) . . . . . . . . . . . . .19

Seminole Tribe of Fla. v. Florida, U.S. ,
        116 S. Ct. 1114 (1996) . . . . . . . . . . . . . . . . .passim

Simmons v. Indiana, 904 F. Supp. 877 (N.D. Ind. 1995) . . . . . . . .4

Sites v. McKenzie, 423 F. Supp. 1190
        (N.D. W. Va. 1976) . . . . . . . . . . . . . . . . . . . . . 4

Stanley v. Darlington County Sch. Dist.,
        879 F. Supp. 1341 (D.S.C. 1995),
        rev'd in part on other grounds, F.3d,
        No. 95-1828, 95-1827, 1996 WL 278235
        (4th Cir. May 28, 1996) . . . . . . . . . . . . . . . . . . 19

Thomas Jefferson Univ. v. Shalala, U.S.,
        114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . .11

Timmons v. New York State Dep't of Correctional Servs.,
        887 F. Supp. 576 (S.D.N.Y. 1995) . . . . . . . . . . . . . . 4

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995),
        cert. denied, U.S., 116 S. Ct. 772 (1996) . . . . . . . . .3-5

                                        vTugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) . . . . . . . . . 12

United States v. Morton, 467 U.S. 822 (1983) . . . . . . . . . . . .12

United States v. Yonkers Bd. of Educ.,
        893 F.2d 498 (2d Cir. 1990) . . . . . . . . . . . . . . . . 19

W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) . . . . . . . . . . . . .24

Welch v. Texas Dep't of Highways and Pub. Transp.,
        483 U.S. 468 (1987) . . . . . . . . . . . . . . . . . . . . 21

Women Prisoners of the Dist. of Columbia
        Dep't of Corrections v. District of Columbia,
        877 F. Supp. 634 (D.D.C. 1994), vacated in part
        on other grounds, 899 F. Supp. 659 (D.D.C. 1995) . . . . . . 6


Constitutional Provisions

U.S. Const. art. I, S8, cl. 1 . . . . . . . . . . . . . . . . . 17, 21

U.S. Const. art. I, S8, cl. 3 . . . . . . . . . . . . . . . . . 15, 18

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . .passim

U.S. Const. amend. XI . . . . . . . . .. . . . . . . . . . . . .passim


Statutes

United States Code, Title 29, S 794 . . . . . . . . . . . . . . passim

United States Code, Title 42

        S 12101(a)(7) . . . . . . . . . . . . . . . . . . . . . . . 20
        S 12101(b)(1) . . . . . . . . . . . . . . . . . . . . . . . .2                                          
        S 12101(b)(4) . . . . . . . . . . . . . . . . . . . . . . . 18
        SS 12131-34 . . . . . . . . . . . . . . . . . . . . . . passim
        S 12131(1) . . . . . . . . . . . . . . . . . . . . . . . . . 9
        S 12131(2) . . . . . . . . . . . . . . . . . . . . . . . . .11
        S 12132 . . . . . . . . . . . . . . . . . . . . . . . . .3, 10
        S 12134 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
        S 12202 . . . . . . . . . . . . . . . . . . . . . . . . . . 16
        S 2000d-7 . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Code of Federal Regulations, Title 28

        S 35.190 (b)(6) . . . . . . . . . . . . . . . . . . . . . . 13
        part 36, Appendix A . . . . . . . . . . . . . . . . . . . . 14
        part 42 (G) Appendix B subpart (c) (2) . . . . . . . . . . .13
        S 42.522(b) . . . . . . . . . . . . . . . . . . . . . . . . 14
                                        vi        S 42.540(h) . . . . . . . . . . . . . . . . . . . . . . .12-13
        S 42.540(j) . . . . . . . . . . . . . . . . . . . . . . . . 13

U.S. Code of Federal Regulations, Title 41,
        subpart 101-19.6, Appendix A . . . . . . . . . . . . . . . .14




Miscellaneous

45 Fed. Reg. 37620 (1980) . . . . . . . . . . . . . . . . . . . . . 13

59 Fed. Reg. 31808 (1994) . . . . . . . . . . . . . . . . . . . . . 14

59 Fed. Reg. 31676 (1994) . . . . . . . . . . . . . . . . . . . . . 14

131 Cong. Rec. 22,344 (1985) . . . . . . . . . . . . . . . . . . . .17

131 Cong. Rec. 22,346 (1985) . . . . . . . . . . . . . . . . . . . .17

132 Cong. Rec. 28,622-28,623 (1986) . . . . . . . . . . . . . . . . 17

132 Cong. Rec. 28,624 (1986) . . . . . . . . . . . . . . . . . .17, 20

H.R. Conf. Rep. No. 955, 99th Cong., 2d Sess. 78-79 (1986) . . . . .17

Pub. L. No. 99-506, tit. X, S 1003, 100 Stat. 1845 (1986) . . . . . 16

S. 1579, 99th Cong., 1st Sess. (1985) . . . . . . . . . . . . . 17, 18

S. Rep. No. 388, 99th Cong., 2d Sess. 27 (1986) . . . . . . . . . . 17

Title II Technical Assistance Manual at II-6.0000,
        II-6.3300(6) . . . . . . . . . . . . . . . . . . . . . . . .14













                                        vii
1                                  INTRODUCTION

2       This class action was filed against various California state

3 officials by a certified plaintiff class comprising present and

4 future state inmates and parolees with mobility, sight, hearing,

5 learning, or kidney disabilities. Plaintiffs allege that

6 Defendants have violated Title II of the Americans with

7 Disabilities Act ("Title II" or "the ADA"), 42 U.S.C. SS 12131-

8 34, and Section 504 of the Rehabilitation Act of 1973 ("Section

9 504" or "the Rehabilitation Act"), 29 U.S.C. S 794, by building

10 and/or renovating prison facilities that do not comply with

11 federal accessibility standards, by excluding Plaintiffs from a

12 wide range of correctional programs on the basis of Plaintiffs'

13 disabilities, by failing to make reasonable accommodations to

14 Plaintiffs in the programs and activities that Defendants provide

15 to prison inmates, and by failing to provide appropriate

16 auxiliary aids and services to Plaintiffs where necessary for

17 effective communication.

18      Defendants have moved for summary judgment, arguing that the

19 protections of the ADA and Rehabilitation Act do not extend to

20 inmates in state correctional facilities, and that Defendants are

21 immune from liability pursuant to the Eleventh Amendment. Both

22 arguments should be rejected. As we demonstrate below, Title II

23 of the ADA and Section 504 do apply to prisons, because the

24 statutes apply to all public entities and all recipients of

25 federal financial assistance, respectively. In addition,

26 Defendants are not immune from suit because Congress has
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 1 -1 abrogated the State's Eleventh Amendment immunity and, in any

2 event, Defendants are state officials who can be sued in their

3 official capacity for declaratory and injunctive relief under the

4 doctrine of Ex Parte Young, 209 U.S. 123 (1908).
5

6                               ARGUMENT

7 I     THE ADA AND THE REHABILITATION ACT APPLY TO STATE
        CORRECTIONAL FACILITIES

8        The Americans with Disabilities Act, 42 U.S.C. S 12101 et

9   seq., is Congress' most extensive piece of civil rights

10   legislation since the Civil Rights Act of 1964. Its purpose is

11   to provide "a clear and comprehensive national mandate for the

12   elimination of discrimination against individuals with

13   disabilities." 42 U.S.C. S 12101(b)(1). The ADA's coverage is      

14   accordingly broad -- prohibiting discrimination on the basis of

15   disability in employment, state and local government programs and

16   services, transportation systems, telecommunications, commercial

17   facilities, and the provision of goods and services offered to

18   the public by private businesses. This action involves Title II

19   of the ADA, which prohibits disability discrimination by state

20   and local governments.

21        The ADA extends the protections of Section 504 of the

22   Rehabilitation Act of 1973, 29 U.S.C. S 794, the first federal

23   statute to provide broad prohibitions against discrimination on

24   the basis of disability. Plaintiffs also allege violations of

25   Section 504, which prohibits discrimination in programs and

26   activities receiving federal financial assistance (including

27   U.S. Amicus Curiae Memorandum
28 No. C-94-2307                - 2 -1 federally assisted programs and activities of state and local

2 governments).

3       The substantive provisions of Title II of the ADA and

4 Section 504 are strikingly similar. Section 504 provides in

5 pertinent part:

6       No otherwise qualified individual with a disability in
        the United States . . . shall, solely by reason of his
7       or her disability, be excluded from the participation
        in, be denied the benefits of, or be subjected to
8       discrimination under any program or activity receiving
        Federal financial assistance . . . .
9
   29 U.S.C. S 794(a).
10
        Title II provides:
11
        [N]o qualified individual with a disability shall, by
12      reason of such disability, be excluded from
        participation in or be denied the benefits of the
13      services, programs, or activities of a public entity,
        or be subjected to discrimination by any such entity.
14
   42 U.S.C. S 12132.
15
        A.      Ninth Circuit Case Law Holds That The Rehabilitation
16              Act Applies to State Prisons And Suggests That The ADA
                Applies As Well
17
        The Ninth Circuit has held that Section 504 applies to state
18
   correctional facilities. Bonner v. Lewis, 857 F.2d 559, 562 (9th
19
   Cir. 1988).1 Bonner also supports the conclusion that Title II
20
21____________________
        1 This conclusion was recently reaffirmed in Gates v.
22 Rowland, 39 F.3d 1439, 1446-47 (9th Cir. 1994). Defendants
   assert that Gates suggests that the Ninth Circuit is "beginning
23 to rethink its decision in Bonner that state prisons are subject
   to the Rehabilitation Act." Def's Mem. at 14 (quoting Torcasio
24 v. Murray, 57 F.3d 1340, 1349 n.7 (4th Cir. 1995), cert. denied,
   116 S. Ct. 772 (1996)). This suggestion is without merit. In
25 Gates, the Court articulated the standard of review for
   determining how the Rehabilitation Act is to be applied in a
26 prison setting, not whether the statute should be applied at all.
   Gates, 39 F. 3d at 1446-47.
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 3 -1 of the ADA applies to state prisons. See Bullock v. Gomez, No.

2 95-6634 LGB (RMCx), slip op. at 5 (C.D. Cal. May 6, 1996)

3 (attached hereto as Exhibit 1) ("Under the current law in the

4 Ninth Circuit this court is led to conclude that the ADA applies

5 to state correctional facilities.") (citing Bonner).2

6       Bullock explicitly rejected the same argument Defendants

7 make here, that dicta in a recent Fourth Circuit decision is a

8 basis to conclude, contrary to Bonner, that state prisons are not

9 covered by Title II and Section 504. Defendants improperly rely

10 on Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert.

11 denied, 116 S. Ct. 772 (1996), a qualified immunity case in which

12 the Fourth Circuit held that the defendants were entitled to

13 immunity because, "it was not then clearly established that

14 either [the ADA or the Rehabilitation Act] applied to state
15  -------------------
16      2 Numerous courts have applied the Rehabilitation Act
   and/or Title II of the ADA in the correctional facility context.
17 See, e.g., Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994)
   (Rehabilitation Act); Harris v. Thigpen, 941 F.2d 1495 (11th Cir.
18 1991) (Rehabilitation Act); Niece v. Fitzner, 922 F. Supp. 1208
   (E.D. Mich. 1996) (Title II); Austin v. Pennsylvania Dep't of
19 Corrections, 876 F. Supp. 1437 (E.D. Pa. 1995) (Title II and
   Rehabilitation Act); Love v. McBride, 896 F. Supp. 808 (N.D. Ind.
20 1995) (Title II); Rewolinski v. Morgan, 896 F. Supp. 879 (E.D.
   Wis. 1995) (Title II); Simmons v. Indiana, 904 F. Supp. 877 (N.D.
21 Ind. 1995) (Title II); Clarkson v. Coughlin, 898 F. Supp. 1019
   (S.D.N.Y. 1995) (Rehabilitation Act and Title II); Timmons v. New
22 York State Dep't of Correctional Servs., 887 F. Supp. 576
   (S.D.N.Y. 1995) (Rehabilitation Act); Outlaw v. City of Dothan,
23 No. CV-92-A-1219-S, 1993 WL 735802 (M.D. Ala. Apr. 27, 1993)
   (Title II and Rehabilitation Act); Noland v. Wheatley, 835 F.
24 Supp. 476 (N.D. Ind. 1993) (Title II); Donnell v. Illinois Bd. of
   Educ., 829 F. Supp. 1016 (N.D. Ill. 1993) (Rehabilitation Act);
25 Casey v. Lewis, 834 F. Supp. 1569 (D. Ariz. 1993) (Rehabilitation
   Act); Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W. Va. 1976)
26 (Rehabilitation Act).
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 4 -1 prisons." Id. at 1352. Torcasio queried, without holding,

2 whether these statutes apply to state correctional facilities at

3 all. However, Bonner, not Torcasio, is the law of this Circuit.

4 See Bullock, slip op. at 3. Moreover, while determining that the

5 defendants in Torcasio were entitled to qualified immunity, the

6 Fourth Circuit acknowledged that federal guidelines provide

7 evidence tht it is now established that the ADA applies to state

8 prisons. Torcasio, 57 F.3d at 1351; see also Bullock at 3.3

9       Defendants, relying on Torcasio, assert that prison

10 management is an "integral state function" into which federal

11 courts should not interfere. Def.'s Mem. at 3-4. This argument

12 misstates the law. While federal courts have acknowledged that

13 deference is due to the decisions of state officials, the courts

14 cannot abdicate their duties to enforce important civil rights

15 protections. Indeed, in a recent decision under Title II of the

16 ADA, the Ninth Circuit reversed a district court that had refused

17 to examine the lawfulness of a state legislative action. Crowder

18 v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). The Court of Appeals

19 directed that the lower courts must apply federal law:

20              We are mindful of the general principle that courts
        will not second-guess the public health and safety decisions
21      of state legislatures acting within their traditional police
        powers. However, when Congress has passed
22      antidiscrimination laws such as the ADA . . . , it is
        incumbent upon the courts to insure that the mandate of
23      federal law is achieved.

24 Id. at 1485 (citation omitted). See also Garcia v. San Antonio
25 ____________________
        3 This Court should therefore reject the analysis of other
26 courts that have found the ADA inapplicable to prisons (see cases
   cited in Def.'s Mem. at 8).
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 5 -

1 Metro. Transit Auth., 469 U.S. 528, 546-47 (1985) (states are not

2 immune from federal regulation of their "integral state

3 functions").4

4       Defendants argue that applying the ADA and Section 504 in

5 the prison context will lead to absurd results.5 But the only

6 issue here is whether Title II and Section 504 apply to state

7 correctional institutions, not how the nondiscrimination

8 requirements should be applied to particular sets of facts.

9 Neither the ADA nor Section 504 requires a fundamental alteration

10 in the way prisons operate -- indeed, the unique features of any

11 state program, including prisons, must be taken into account in
12 determining what the statutes require in a particular situation.6
13 ___________________
        4 Not surprisingly, the Ninth Circuit and other federal
14 courts have applied various federal anti-discrimination statutes
   to correctional facilities. See Jeldness v. Pearce, 30 F.3d 1220
15 (9th Cir. 1994) (Title IX of the 1964 Civil Rights Act); Baker v.
   McNeil Island Corrections Ctr., 859 F.2d 124 (9th Cir. 1988)
16 (racial discrimination) (Title VII of the 1964 Civil Rights Act).

17 See also Women Prisoners of the Dist. of Columbia Dep't of
   Corrections v. District of Columbia, 877 F. Supp. 634, 672
18 (D.D.C. 1994) (Title IX), vacated in part on other grounds, 899
   F. Supp. 659 (D.D.C. 1995); Klinger v. Nebraska Dep't of
19 Correctional Servs., 824 F. Supp. 1374, 1431 (D. Neb. 1993)
   (same), rev'd on other grounds, 31 F.3d 727 (8th Cir. 1994),
20 cert. denied, 115 S.Ct. 1177 (1995); Donnell v. Illinois Bd. of
   Educ., 829 F. Supp. 1016 (N.D. Ill. 1993) (Individuals with
21 Disabilities Education Act); Canterino v. Wilson, 546 F. Supp.
   174, 209 (W.D. Ky. 1982) (Title IX), aff'd, 875 F.2d 862 (6th
22 Cir. 1989), cert. denied, 493 U.S. 991 (1989); Green v. Johnson,
   513 F. Supp. 965, 976 (D. Mass. 1981) (Individuals with
23 Disabilities Education Act); Cruz v. Collazo, 450 F. Supp. 235
   (D. P.R. 1979)(same); Beehler v. Jeffes, 664 F. Supp. 931, 940
24 (M.D. Pa. 1986) (Title IX).

25      5 See Def.'s Mem. at 10.

26      6 Cf. Jeldness v. Pearce, 30 F.3d 1220, 1225 (9th Cir. 1994)
   (upholding application of Title IX of the Civil Rights Act of 1964
27  to state prisons but acknowledging that "Title IX's requirements

28 U.S. Amicus Curiae Memorandum
   No. C-94-2307 CW             - 6 -1 Put simply, neither statute calls for an abrogation of common

2 sense.

3       Nor do the statutes mandate that prisons create particular

4 programs or activities for prisoners or provide "special

5 treatment" for inmates with disabilities. They simply require

6 the state to provide as equal an opportunity as that provided to

7 inmates without disabilities to participate in, and benefit from,

8 the programs, activities, and services of the state prison system

9 -- whatever they happen to be. Thus, in the end, Defendants'

10 attempt to trivialize state inmates' right to non-discrimination

11 must fail.

12      As the facts in this case and others demonstrate, the ADA

13 and Section 504 protect the important civil rights of prison

14 inmates. For example, without the protections of the ADA and

15 Section 504, an inmate could be misdiagnosed and forced to take

16 psychotropic medications for no other reason than that, because

17 of his physical disability, he was unable to communicate with his

18 physician. See, e.g., Bonner, 857 F.2d at 564; Clarkson v.

19 Coughlin, 898 F. Supp. 1019, 1041 (S.D.N.Y. 1995). An inmate

20 could be denied the benefit of his wife's visit for no other

21 reason than that he has a disability. See, e.g., Bullock, slip

22 op. at 1. An inmate could be denied the benefit of bathing for

23 no other reason than that he has a disability. Outlaw v. City of

24 Dothan, No. CV-92-A-1219-S, 1993 WL at 735802 *1-*2 (M.D. Ala.

25 Apr. 27, 1993); Noland v. Wheatley, 835 F. Supp. 476, 480-81
26 __________________
   must be analyzed in the context of the prison environment").
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 7 -1 (N.D. Ind. 1993). And without the ADA or Section 504, inmates

2 could be denied the benefits of the educational, vocational,

3 and/or rehabilitative programs that prisons offer -- and often

4 use as the basis for early release or parole -- for no other

5 reason than that the inmates have disabilities. Clarkson, 898 F.

6 Supp. at 1030-31; Donnell v. Illinois Bd. of Educ., 829 F. Supp.

7 1016, 1018 (N.D. Ill. 1993).

8       B.      The Plain Language Of The Statutes And Deference To The
                Department Of Justice Regulations Further Support The
9               Conclusion That The Rehabilitation Act And The ADA
                Apply To State Prisons
10
        Defendants suggest that neither the Rehabilitation Act nor
11
   the ADA should be applied to state correctional facilities,
12
   "absent unmistakable congressional intent to do so." Def.'s Mem.
13
   at 6. There is no support for this broad and conclusory
14
   statement. Indeed, the Ninth Circuit has found to the contrary.
15
   See Jeldness v. Pearce, 30 F.3d 1220, 1225 (9th Cir. 1994)
16
   (expressly considering and rejecting the argument that federal
17
   civil rights statutes should not apply to state correctional
18
   facilities absent clear expression of congressional intent). The
19
   plain language of Title II and Section 504 demonstrates that the
20
   statutes apply to state prisons. See infra. Furthermore, to the
21
   extent there is any question concerning the question of coverage,
22
   Department of Justice regulations -- most of which Defendants
23
   ignore7 -- answer the question in the affirmative.
24
25 ____________________
        7 See Def.'s Mem. at 12 (suggesting that "there is nothing
26 in the ADA or the federal regulations to indicate that the ADA is
   applicable to prison programs").
27 
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 8 -1       1.      The plain language of the statutes demonstrates
                that the Rehabilitation Act and Title II apply to
2               state correctional facilities

3       Section 504 prohibits disability-based discrimination by

4 "any program or activity receiving federal financial assistance."

5 29 U.S.C. S 794(a) (emphasis added). Title II prohibits

6 disability-based discrimination by any "public entity," i.e.,

7 "any State or local government" and "any department, agency,

8 special purpose district, or other instrumentality of State or

9 States or local government." 42 U.S.C. S 12131 (1) (A) & (B)

10 (emphasis added). State correctional facilities clearly fall

11 within both definitions: they receive federal financial

12 assistance,8 and Departments of Corrections are "departments" of

13 the state. See Outlaw, 1993 WL 735802 *3 ("under common usage

14 and understanding of the terms [service, program, or activity,]

15 the jail and all of its facilities, including the shower,

16 constitute a service, program or activity of the City . . . to

17 which the ADA applies"). See also Innovative Health Systems,

18 Inc. v. City of White Plains, No. 95-CV-9642 (BDP), slip op. at

19 11 (S.D.N.Y. June 12, 1996) (attached hereto as Exhibit 2)

20 (holding that Title II applies to the "normal function[s] or

21 operation[s] of a governmental entity," including local zoning

22 activities). In Innovative Health Systems, the court recited the

23 broad language of Title II and found

24      no suggestion in the statute that zoning or any other type
        of public action is to be excluded from this broad mandate.
25  _____________________
26      8 See Statement of Stipulated Facts at 1 (California
   Department of Corrections receives federal financial assistance).
27 
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 9 -1       Moreover, the last phrase of Title II's prohibition is even
        more expansive, stating simply that no individual with a
2       disability may be 'subjected to discrimination' by a public
        entity.
3
   Id., slip op. at 12 (emphasis added).
4
        Defendants argue that because they have the discretion to
5
   determine what services, programs and/or activities they provide
6
   to prison inmates, such activities do not fall within Title II's
7
   mandate. See Def.'s Mem. at 9. Government activities, however,
8
   typically involve the exercise of such discretion. As Niece v.
9
   Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996), a case applying
10
   Title II in the prison context, explained:
11
        [Defendant's] argument . . . misses the point. The ADA
12      does not require a government entity to provide any
        particular service. Rather, the ADA requires that, if
13      the entity does in fact provide a service . . . "it
        must use methods or criteria that do not have the
14      purpose or effect of impairing its objectives with
        respect to individuals with disabilities."
15
   Id. at 1217 (quoting Concerned Parents to Save Dreher Park Ctr.
16
   v. City of West Palm Beach, 846 F. Supp. 986, 991 (S.D. Fla.
17
   1994).
18
        Defendant's tortured textual reading of the ADA is equally
19
   without merit. The heading for Title II -- Public Services --
20
   refers not to those services available to all members of the
21
   general public (see Def.'s Mem. at 8), but rather, to those
22
   services provided by public entities. See 42 U.S.C. S 12132.
23
   Similarly, Defendants' argument notwithstanding, prison inmates
24
   are clearly "qualified" for the programs Defendants offer. A
25
   "qualified individual with a disability" is
26
        an individual with a disability who, with or without
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 10 -1       reasonable modifications to rules, policies, or
        practices, the removal of architectural, communication,
2       or transportation barriers, or the provision of
        auxiliary aids and services, meets the essential
3       eligibility requirements for the receipt of services or
        the participation in programs or activities provided by
4       a public entity.

5 42 U.S.C. S 12131(2). Plaintiffs fall within this definition.

6 See, e.g., Bonner, 857 F.2d at 562 ("As a prison inmate, Bonner

7 is qualified (sometimes required) to participate in activities

8 such as disciplinary proceedings, Honor Dorm Review Committee

9 hearings, counseling, rehabilitation, medical services, and other

10 prison activities."); Clarkson, 898 F. Supp. at 1035-36

11 (prisoners are "qualified individuals" under both Section 504 and

12 Title II); Outlaw, 1993 WL 735802 at *3 (prison inmate is

13 "qualified individual with a disability" within the meaning of

14 Title II). Cf. Niece, 922 F. Supp. at 1217-18 (deaf individual

15 who was denied effective means by which to communicate with her

16 fiance, a prison inmate, is otherwise qualified).

17      2.      Deference to Department of Justice regulations
                requires the conclusion that the Rehabilitation
18              Act and Title II apply to state correctional
                facilities
19
        The implementing regulations for Section 504 and Title II
20
   make it even clearer that state correctional institutions are
21
   covered by these statutes. Congress explicitly delegated to the
22
   Department of Justice the authority to promulgate regulations
23
   under both Section 504 and Title II. 29 U.S.C. S 794(a); 42
24
   U.S.C. S 12134. Accordingly, the Department's regulations and
25
   its interpretation thereof are entitled substantial deference.
26
   Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994);
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 11 -1 Martin v. Occupational Safety & Health Review Comm'n., 499 U.S.

2 144, 150 (1991), citing Lyng v. Payne, 476 U.S. 926, 939 (1986);

3 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

4 467 U.S. 837, 844 (1984) (where Congress expressly delegates

5 authority to an agency to issue legislative regulations, the

6 regulations "are given controlling weight unless they are

7 arbitrary, capricious, or manifestly contrary to the statute");

8 United States v. Morton, 467 U.S. 822, 834 (1983). Indeed, "[a]s

9 the author of the [ADA] regulation, the Department of Justice is

10 also the principal arbiter as to its meaning." Fiedler v.

11 American Multi-Cinema, Inc., 871 F. Supp. 35, 38 (D.D.C. 1994),

12 citing Thomas Jefferson Univ., 114 S. Ct. at 2386.9

13      As explained above, Section 504 provides that no otherwise

14 qualified individual with a disability shall, solely becouse of

15 his or her disability, be denied the "benefits" of any "program"

16 receiving federal financial assistance. 29 U.S.C. S 794. DOJ

17 regulations expressly define the term "program" to include the

18 "operations of a department of corrections," 28 C.F.R.
19
   ___________________
20      9 See also Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d
   Cir. 1995) (relying extensively on DOJ Title II regulations and
21 its interpretation thereof), cert. denied sub nom. Pennsylvania
   Sec'y of Pub. Welfare v. Idell S., 116 S. Ct. 64 (1995); Kinney
22 v. Yerusalim, 9 F.3d 1067, 1071-1073 (3d Cir. 1993) (same), cert.
   denied sub nom. Hoskins v. Kinney, 114 S. ct. 1545 (1994);
23 Innovative Health Systems, slip op. at 13-14, nn. 3 & 4 (same);
   Bullock, slip op. at 6-7 (same); Concerned Parents, 846 F. Supp.
24 at 989 n.9 (same); Tugg v. Towey, 864 F. Supp. 1201, 1205 n.6
   (S.D. Fla. 1994) (same); Bechtel v. East Penn School Dist. of
25 Lehigh County, No. Civ. A. 93-4898, 1994 WL 3396, *2-*3 (E.D. Pa.
   1994) (same); Petersen v. University of Wis. Bd. of Regents, 818
26 F. Supp. 1276, 1279 (W.D. Wis. 1993) (same); Noland, 835 F.
   Supp. at 483 (N.D. Ind. 1993) (same).
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 12 -1 S 42.540(h), and define the term "benefit" to include

2 "disposition," "sentencing," and "confinement," 28 C.F.R.

3 S 42.540(j). Similarly, DOJ regulations promulgated under the

4 ADA specifically list "correctional institutions" as one of the

5 "programs, services, [or] regulatory activities relating to law

6 enforcement, public safety, and the administration of justice"

7 that are subject to the requirements of Title II. 28 C.F.R. S

8 35.190(b)(6). See Bullock, slip op. at 6-7

9       The Department's interpretative analysis accompanying both

10 regulations further demonstrates that the ADA and Section 504

11 apply to state prison facilities. The preamble to the Section

12 504 regulations requires that

13      [f]acilities available to all inmates or detainees,
        such as classrooms, infirmary, laundry, dining areas,
14      recreation areas, work areas, and chapels, must be
        readily accessible to any handicapped person who is
15      confined to that facility. Beyond insuring the
        physical accessibility of facilities, detention and
16      correctional agencies must insure that their programs
        and activities are accessible to handicapped persons.
17      . . In making housing and program assignments, such
        [correctional] officials must be mindful of the
18      vulnerability of some handicapped inmates to physical
        and other abuse by other inmates. The existence of a
19      handicap alone should not, however, be the basis for
        segregation of such inmates in institutions or any part
20      thereof where other arrangements can be made to satisfy
        safety, security, and other needs of the handicapped
21      inmate.

22 28 C.F.R. part 42 (G) Appendix B subpart (c) (2); 45 Fed. Reg.

23 37620, 37630 (June 3, 1980) (emphasis added).

24      Finally, the DOJ Title II Technical Assistance Manual

25 specifically lists "jails and prisons" as types of facilities

26 that, if constructed or altered after the effective date of the

   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 13 -1 ADA (January 26, 1992), must be designed and constructed so that

2 they are readily addessible to and usable by individuals with

3 disabilities. Title II Technical Assistance Manual at II-6.0000,

4 II-6.3300(6). DOJ Technical Assistance Manuals are also entitled

5 deference. See Innovative Health Systems, slip op. at 13-14 n.4;

6 Fiedler, 871 F. Supp. at 37 n.4; Bechtel, 1994 WL 3396, *2-*3;

7 Petersen, 818 F. Supp. at 1279; Chatoff v. City of New York, No.

8 92 Civ. 0604 (RWS), 1992 WL 202441 *2 (S.D.N.Y. June 30, 1992).10

9
  II      DEFENDANTS ARE NOT IMMUNE FROM SUIT UNDER THE ELEVENTH
10        AMENDMENT

11      The Eleventh Amendment generally bars citizen suits against

12 a state and its agencies and instrumentalities. Seminole Tribe

13 of Fla. v. Florida, 116 S. Ct. 1114, 1124-25; 1127-28 (1996);

14 Papasan v. Alain, 478 U.S. 265, 276 (1986); Pennhurst State Sch.

15 and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Eleventh
16 __________________
17      10 The design standards applicable to facilities covered by
   Section 504 and Title II also include specific provisions
18 relating to jails, prisons, and "other detention or correctional
   facilities." The Section 504 regulations adopt the Uniform
19 Federal Accessibility Standards, which apply to all federal
   agencies and all entities receiving federal financial assistance.
20 See 28 C.F.R. S 42.522(b);41 C.F.R. subpart 101-19.6 Appendix
   A. UFAS was promulgated in 1984. It was specifically
21 incorporated into the DOJ Section 504 regulations, which apply to
   the construction of and/or alterations to prisons by DOJ-funded
22 entities, in 1988. See 28 C.F.R. S 42.522(b) (as amended,
   February 4, 1988). Under Title II, covered entities building new
23 facilities can choose to follow UFAS or the ADA Accessibility
   Guidelines for Buildings and Facilities (ADAAG), 28 C.F.R. part
24 36, Appendix A, in meeting their obligations under the ADA.
   Proposed amendments to the Title II regulations include
25 guidelines specific to "detention and correctional facilities."
   See 59 Fed. Reg. 31808, 31816 (June 20, 1994) (proposed
26 amendments to DOJ Title II regulation) (adopting interim final
   rule of the Architectural and Transportation Barriers Compliance
27 Board, at 59 Fed Reg. 31676, 31770 (June 20, 1994).

28 U.S. Amicus Curiae Memorandum
   No. C-94-2307 CW             - 14 -1 Amendment immunity can be waived by the state, however, or

2 Congress may expressly abrogate it. Atascadero State Hosp. v.

3 Scanlon, 473 U.S. 234, 241-42 (1985).

4       Citing to the Supreme Court's recent decision in Seminole,

5 Defendants argue that Congress did not have the authority to

6 abrogate Eleventh Amendment immunity for Section 504 or the ADA,

7 and that they therefore are immune from liability. In Seminole,

8 the Court held that the Indian Commerce Clause of the

9 Constitution, Art. I, S 8, cl. 3, does not afford Congress the

10 authority to abrogate Eleventh Amendment immunity. In reaching

11 this conclusion, the Court also reversed Pennsylvania v. Union

12 Gas, 491 U.S. 1 (1989), which held that Congress enjoyed such

13 power under the Commerce Clause. Seminole recognized, however,

14 that Congress does have such power pursuant to Section 5 of the

15 Fourteenth Amendment." We demonstrate below that Congress

16 properly exercised this authority in abrogating state immunity

17 under the ADA and Section 504.

18      Moreover, Seminole left undisturbed the doctrine of Ex Parte

19 Young, 209 U.S. 123 (1908), which allows individuals to seek

20 injunctive and declaratory relief in a federal suit against state

21 officials without compromising a state's Eleventh Amendment

22 immunity. Seminole, 116 S. Ct. at 1131 n.14 & n.16. The instant

23 action falls within the doctrine of Ex Parte Young.
24
   ___________________
25      11 See Seminole 116 S. Ct. at 1125 (reaffirming Fitzpatrick
   v. Bitzer, 427 U.S. 445 (1976), where the Court held that
26 Congress may abrogate Eleventh Amendment immunity pursuant to the
   Fourteenth Amendment).
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 15 -1       A.      Congress Acted Within Its Constitutional Powers In
                Abrogating The State's Eleventh Amendment Immunity
2               Under Both Section 504 and Title II

3       In Seminole, the Supreme Court articulated a two-part test

4 to determine whether Congress has properly abrogated the States'

5 Eleventh Amendment immunity:

6       [F]irst, whether Congress has unequivocally expressed
        its intent to abrogate immunity; and second, whether
7       Congress has acted pursuant to a valid exercise of
        power.
8
   116 S. Ct. at 1123 (citations, quotations, and brackets omitted).
9
        Section 504 and Title II both satisfy the "unequivocal
10
   expression" requirement. See 42 U.S.C. S 2000d-7 (" A State
11
   shall not be immune under the Eleventh Amendment . . . from suit
12
   in Federal Court for a violation of section 504 of the
13 
   Rehabilitation Act of 1973 . . . ."); 42 U.S.C. S 12202 ("A State
14
   shall not be immune under the eleventh amendment . . . from an
15
   action in Federal or State court of competent jurisdiction for a
16
   violation of this chapter."). See also Lane v. Pena, No. 95-365,
17
   __S. Ct.__, 1996 WL 335334 *5-*6 (June 20, 1996) (S 2000d-7 is
18
   unequivocal waiver of States' Eleventh Amendment immunity).
19
        Congress abrogated state immunity under Section 504 in 1986,
20
   when it enacted 42 U.S.C. S 2000d-7.12 Congress enacted the
21
   statute in response to the Supreme Court's decision a year
22
   earlier in Atascadero State Hosp. v. Scanlon, 473 U.S. 234
23
   (1985), which held that Section 504 did not "specifically"
24
   ____________________
25      12 Section 2000d-7, although placed in the statute books
   with Title VI of the 1964 Civil Rights Act, was enacted as part
26 of the Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506,
   Tit. X, S 1003, 100 Stat. 1845 (1986).
27 
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 16 -1 "subject the States to federal jurisdiction" and thus did not

2 abrogate the Eleventh Amendment. Id. at 246. The legislative

3 history is clear that in enacting S 2000d-7, Congress relied upon

4 its Section 5 powers.13 See, e.g., S. Rep. No. 388, 99th Cong.

5 2d Sess. 27 (1986); 131 Cong. Rec. 22,346 (1985); 132 Cong. Rec.

6 28,624 (1986);14 see Fitzpatrick, 427 U.S. at 453 n.9 (relying
7 _____________________
        13 Congress also enacted S 2000d-7 pursuant to its Spending
8 Clause powers. See nn. 14 & 16, infra.

9       14 The bill that became Section 2000d-7 was originally
   introduced by Senator Cranston on August 1, 1985 as the Civil
10 Rights Remedies Equalization Act. S. 1579, 99th Cong, 1st Sess.
   (1985). See 131 Cong. Rec. 22,344 (Aug. 1, 1985). He explained
11 that the bill was intended to respond to Atascadero by making it
   clear that Congress intended to subject states to suit under
12 various civil rights provisions, including Section 504. He
   concluded his remarks by discussing the source of authority for
13 such a law.

14      Finally, I would note my understanding that, as has been
        clearly established in Supreme Court cases, including the
15      Atascadero case, over the past 21 years, the Congress has
        the authority to waive the States' 11th amendment immunity
16      under the following provisions of the Constitution: the
        commerce clause, the spending clause, and section 5 of the
17      14th amendment. In my view, this legislation is clearly
        authorized by at least the latter two provisions.
18
   Id. at 22,346.
19
        The bill was reported out of the Senate Committee on Labor
20 and Human Resources as part of the Rehabilitation Act Amendments
   of 1986. The Report noted that Atascadero had held that Congress
21 could "limit the [Eleventh] amendment when legislating pursuant
   to Section 5 of the Fourteenth Amendment and clearly implied that
22 an exception could be provided under the Spending Clause." S.
   Rep. No. 388, 99th Cong., 2d Sess. 27 (1986).
23
        The bill passed the Senate and was sent to conference to be
24 reconciled with a House bill that did not contain a similar
   provision. The conference adopted the Senate provision. See
25 H.R. Conf. Rep. No. 955, 99th Cong., 2d Sess. 78-79 (1986). On
   returning from conference, Senator Cranston reiterated that the
26 purpose of the provision was to reverse the decision in
   Atascadero. 132 Cong. Rec. 28,622-28,623 (Oct. 3, 1986). He
27   
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 17 -1 on legislative history to determine that "Congress exercised its

2 power under S 5 of the Fourteenth Amendment").

3       That Congress relied on its Section 5 powers in abrogating

4 state immunity under Title II of the ADA is even clearer. In

5 enacting the statute, Congress specifically invoked its "power to

6 enforce the fourteenth amendment." 42 U.S.C. S 12101(b) (4).15

7       Finally, there can be little dispute that Congress'
8 abrogation of state immunity in disability discrimination cases

9 is a proper exercise of its Section 5 powers. The Supreme Court

10 has held that persons with disabilities are entitled to

11 protection from discrimination under the Fourteenth Amendment.

12 ___________________
13 also submitted for the record a letter from the Department of 
   Justice supporting the provision and explaining that:
14
        Atascadero provides the blueprint for Congressional action
15      to waive the eleventh amendment's ban to suit in Federal
        court under the fourteenth amendment and the spending power.
16      The proposed amendment . . . fulfills the requirements that
        the Supreme Court laid out in Atascadero. Thus, to the
17      extent that the proposed amendment is grounded on
        congressional powers under section five of the fourteenth
18      amendment, S. 1579 makes Congress' intention "unmistakably
        clear in the language of the statute" to subject States to
19      the jurisdiction of Federal courts. 105 S. Ct. at 3147. See
        Fitzpatrick versus Bitzer, 427 U.S. 445 (1976). To the
20      extent that the proposed amendment is grounded on
        congressional spending powers, S. 1579 makes it clear to
21      states that their receipt of Federal funds constitutes a
        waiver of their eleventh amendment immunity.
22
   Id. at 28,624.
23
        15 In enacting the ADA, Congress also invoked its powers
24 under the Commerce Clause, because the Act reaches the conduct of
   private entities as well as public entities. See 42 U.S.C. S
25 12101(b) (4). The Fourteenth Amendment, rather than the Commerce
   Clause, is the traditional constitutional authority for
26 legislation proscribing state conduct. See EEOC v. County of
   Calumet, 686 F.2d 1249, 1253 (7th Cir. 1982).
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 18 -1 City of Cleburne v. Cleburne Living Ctr. 473 U.S. 432, 446-47

2 (1985). Moreover, the very premise of the Court's decision in

3 Atascadero was that Congress had the authority under Section 5 to
4 abrogate the states' immunity in cases brought pursuant to

5 Section 504, but had failed to express its intent to do so

6 unequivocally. Atascadero, 473 U.S. at 244 n.4.

7       The only case to consider specifically whether Congress had

8 the constitutional authority to abrogate Eleventh Amendment

9 immunity under the both Section 504 and the ADA thus has found

10 that the Fourteenth Amendment affords such authority. Martin v.

11 Voinovich, 840 F. Supp. 1175, 1186-87 (S.D. Ohio 1993). Cf.

12 United States v. Yonkers Bd. of Educ., 893 F.2d 498, 503 (2d Cir.

13 1990) (Title VI action) (S 2000d-7 is valid exercise of Congress'

14 Section 5 authority); Santiago v. New York State Dep't of

15 Correctional Servs., 945 F.2d 25, 31 (2d Cir. 1991) ("Acting

16 under S 5, Congress has repeatedly enacted legislation that has

17 clearly stated Congress' intention to abrogate states' immunity

18 from damage actions in a variety of contexts, [including 42

19 U.S.C. S 2000d-7]."), cert. denied, 502 U.S. 1094 (1992); Stanley

20 v. Darlington County Sch. Dist., 879 F. Supp. 1341, 1363-1364

21 (D.S.C. 1995) (Title VI action) (upholding abrogation under S

22 2000d-7), rev'd in part on other grounds, __ F.3d__, 1996 WL

23 278235 (4th Cir. May 28, 1996).16

24 ___________________
25      16 Moreover, at least with respect to Plaintiffs' Section
   504 claims, the State has waived its immunity by accepting
26 federal financial assistance. As noted above, states may waive
   their Eleventh Amendment immunity. Seminole, 116 S. Ct. at 1128.
27 In Atascadero, the Court stated that if a statute "manifest[ed] a
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 19 -1        Moreover, both the ADA and Section 504 are, themselves, as

2 required by Section 5, "appropriate legislation" to enforce the

3 Equal Protection Clause. Katzenbach v. Morgan, 384 U.S. 641,

4 649-50 (1966). First, both Title II and Section 504 prohibit

5 discrimination on the basis of disability by government actors.

6 And, as Congress has found, individuals with disabilities

7 comprise:

8       a discrete and insular minority who have been faced
        with restrictions and limitations, subjected to a
9       history of purposeful unequal treatment, and relegated
        to a position of political powerlessness in our
10      society, based on characteristics that are beyond the
        control of such individuals and resulting from
11      stereotypic assumptions . . .

12 42 U.S.C. S 12101(a)(7). As such, both statutes may be regarded

13 as enactments to enforce the protections of the Fourteenth

14 Amendment. Morgan, 384 U.S. at 651. Second, the substantive

15 provisions of both statutes are "plainly adapted to that end

16 [i.e., enforcing the Equal Protection Clause]," see id. -- they

17 are designed to ensure that persons with disabilities, including

18 prison inmates, are protected from discriminatory state conduct
19 _____________________
20 clear intent to condition participation in the programs funded
   under the Act on a State's consent to waive its constitutional
21 immunity," the federal courts would have jurisdiction because the
   states would have waived their Eleventh Amendment immunity by
22 accepting funds. 473 U.S. at 247. It was in response to
   Atascadero that Congress enacted 42 U.S.C. S 2000d-7, making
23 clear that Congress intended the States to be sued in federal
   court under Section 504 if they accepted federal funds. See 132
24 Cong. Rec. 28,624 (Oct. 3, 1986) ("To the extent that the
   proposed amendment is grounded on congressional spending powers,
25 S. 1579 makes it clear to states that their receipt of Federal
   funds constitutes a waiver of their eleventh amendment
26 immunity.").  Thus, states accepting federal funds after 1986
   know that as part of their "contract" with the federal
27 government, they are consenting to suit in federal court.

28 U.S. Amicus Curiae Memorandum
   No. C-94-2307 CW             - 20 -1 and are provided an opportunity to benefit from the programs,

2 services, and activities provided by covered entities equal to

3 that provided to non-disabled individuals. Lastly, the statutes

4 "are consistent with 'the letter and spirit of the

5 constitution.'" Id. (quoting McCulloch v. Maryland, 17 U.S. (4

6 Wheat.) 316, 421 (1819)); see id. at 648-49 (Section 5 authorizes

7 Congress not only to provide remedies for violations of the

8 Fourteenth Amendment, but also to amplify its substantive

9 protections).17 Both Title II and Section 504 are thus valid

10 exercises of Congress' Section 5 powers. Id. at 651.18
11 ____________________
        17 Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469,
12 490 (1989) (O'Connor, J., concurring and dissenting) (Congress'
   power to enforce the Fourteenth Amendment includes "the power to
13 define situations which Congress determines threaten principles
   of equality and to adopt prophylactic rules to deal with those
14 situations").

15      18 Citing case law under Title VI and Title IX, Defendants
   argue that Section 504 is not legislation enacted pursuant to the
16 Fourteenth Amendment, but rather, to the Spending Clause. Def.'s
   Mem. at 18. Congress, however, may enact legislation pursuant to
17 more than one source of constitutional authority. See, e.g.,
   EEOC v. Wyoming, 460 U.S. 226, 243 (1983) (upholding Age
18 Discrimination in Employment Act as an exercise of the Commerce
   Clause power without deciding whether it could also be upheld as
19 an exercise of the Fourteenth Amendment); see also Heart of
   Atlanta Motel, Inc. v. United States, 379 U.S. 241, 280 (1964)
20 (Douglas, J., concurring) ("In determining the reach of an
   exertion of legislative power, it is customary to read various
21 granted powers together."). Here, Congress enacted Section 504
   pursuant to both the Fourteenth Amendment and the Spending
22 Clause. See e.g., Welch v. Texas Dep't of Highways and Public
   Transp., 483 U.S. 468, 471 n.2 (1987) ("The Rehabilitation Act
23 was passed pursuant to S 5 of the Fourteenth Amendment.");
   Atascadero, 473 U.S. at 244-245 n.2 (same); River Forest Sch.
24 Dist. No. 90 v. Illinois State Bd. of Educ., 1996 WL 89055, *6
   (N.D. Ill. Feb. 28, 1996) (same); Rivera Flores v. Puerto Rico
25 Telephone Co., 776 F. Supp. 61, 66 (D.P.R. 1991) (Spending
   Clause); Bradford v. Iron City C-4 School District, 1984 WL 1443,
26 *7 (E.D. Mo. June 13, 1984) (Spending Clause and Fourteenth
   Amendment); Jones v. Illinois Department of Rehabilitative
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 21 -1       B.      Ex Parte Young Allows Plaintiffs To Seek Prospective
                Injunctive Relief
2
        "[T]he Eleventh Amendment does not bar actions against state
3
   officers in their official capacities if the plaintiffs seek only
4
   a declaratory judgment or injunctive relief.'" Los Angeles
5
   Branch NAACP v. Los Angeles Unified Sch. Dist., 714 F.2d 946, 952
6
   (9th Cir. 1993) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1350
7
   (9th Cir. 1982)), cert. denied sub nom., California State Dep't
8
   of Educ. v. Los Angeles Branch NAACP, 467 U.S. 1209 (1984). See
9
   also Papasan, 478 U.S. at 277-78; Green v. Mansour, 474 U.S. 64,
10
   68 (1985). Actions against state officers in their official
11
   capacity for damages, however, are barred. See Edelman v.
12
   Jordan, 415 U.S. 651, 665-670 (1995).
13
        The distinction between allowable actions for prospective
14
   relief versus disallowed actions for retroactive monetary relief
15
   has its basis in Ex Parte Young, 209 U.S. 123 (1908). In Young,
16
   a federal court had enjoined the Minnesota Attorney General from
17
   enforcing an unconstitutional state law. The Supreme Court
18
   upheld the injunction, on the grounds that when a state official
19
   acts unconstitutionally, he acts ultra vires and is "stripped of
20
   his official or representative character," and thus of any
21
   immunity the state might have been able to provide. Id. at 160.
22
   Under the Young doctrine, a federal court may enjoin state
23
   ____________________
   Services, 504 F. Supp. 1244, 1257 (N.D. Ill. 1981) (Fourteenth
24 Amendment). Cf. Franklin v. Gwinnett County Pub. Sch., 503 U.S.
   60, 75 n.8 (reserving judgment on "which power Congress utilized
25 in enacting Title IX"); Guardians Ass'n v. Civil Service Comm'n  
26  of the City of New York, 463 U.S. 582, 596 (1983) (Title VI)
    (Spending Clause).
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 22 -1 officials to conform their future conduct to the requirements of

2 federal law. See Papasan, 478 U.S. at 277-78.

3       As noted above, suits against state officers for money

4 damages are barred, under the theory that the judgment would in

5 reality be one against the state. Edelman, 415 U.S. at 665-70.

6 Suits for equitable relief, however, even if they will have an

7 impact on state treasuries, are still viable. Id. at 667. See

8 Milliken v. Bradley, 433 U.S. 267, 289 (1977) (Ex Parte Young

9 "permits federal courts to enjoin state officials to conform

10 their conduct to requirements of federal law, notwithstanding a

11 direct and subsequential impact on the state treasury.") As the

12 Court has explained, "[r]emedies designed to end a continuing

13 violation of federal law are necessary to vindicate the federal

14 interest in assuring the supremacy of that law." Green, 474 U.S.

15 at 68 (citations omitted).

16      The instant action falls squarely within the doctrine of Ex

17 Parte Young. Plaintiffs have sued state officers in their

18 official capacities, rather than the state itself. They have

19 sought only declaratory and injunctive relief in order to remedy

20 an ongoing violation of federal law. While the requested relief

21 may have a subsequent impact on the state treasury, any such

22 impact would be ancillary to bringing an end to a violation of

23 federal law. See Papasan, 478 U.S. at 278.

24      Seminole does not disturb the principles of Ex Parte Young.

25 Seminole, 116 S. Ct. at 1131 n.14 & n.16. The Court in Seminole

26 indicated, however, that a suit against state officials is not

27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 23 -1 permissible under an Ex Parte Young theory where a statute

2 provides for specific limited remedies against the state itself,

3 which the Court found to be the case under the Indian Gaming

4 Regulatory Act. Id. at 1132-33.19 By contrast, Section 504 and

5 Title II afford private litigants the full remedial powers of the

6 federal courts. See Franklin v. Gwinnett County Pub. Sch., 503

7 U.S. 60, 71-73 (1992) (Title IX of the 1964 Civil Rights Act --

8 which, like Section 504 and Title II of the ADA, affords a

9 private litigant the remedies available under Title VI of the

10 1964 Civil Rights Act - - provides a private litigant the full

11 panoply of remedies).20

12

13
 4
   ___________________
15      19 As the Court explained, the remedial scheme provided by
   Congress in IGRA is quite limited:
16
        For example, where the court finds that the state has
17      failed to negotiate, the only remedy prescribed is an
        order directing the State and the Indian tribe to
18      conclude a compact within 60 days. And if the parties
        disregard the court's order and fail to conclude a
19      compact within the 60-day period, the only sanction is
        that each party then must submit a proposed compact to
20      a mediator who selects the one which best embodies the
        terms of the Act. Finally, if the State fails to
21      accept the compact selected by the mediator, the only
        sanction against it is that the mediator shall notify
22      the Secretary of the Interior who then must prescribe
        regulations governing Class II gaming on the tribal
23      lands at issue.

24 Seminole, 116 S. Ct. 1132-33 (emphasis added).

25      20 See, e.g., W.B. v. Matula, 67 F.3d 484, 494 (3d Cir.
   1995) (applying Franklin to Section 504 action); Rodgers v.
26 Magnet Cove Public Schools, 34 F.3d 642, 645 (8th Cir. 1994)
   (same).
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 24 -1

2                               CONCLUSION

3       For the reasons set forth above, Defendants' Motion for

4 Summary Judgment should be denied.

5

6                                       Respectfully submitted,

7

8 MICHAEL J. YAMAGUCHI                  DEVAL L. PATRICK
  United States Attorney                Assistant Attorney General
9 Northern District of California       Civil Rights Division

10

11

12 MARY BETH UITTI                      JOHN L. WODATCH
   Civil Chief                          JOAN A. MAGAGNA
13 United States Attorney's Office      SHARON N. PERLEY
   Northern District of California      Attorneys
14 450 Golden Gate Ave.                 Disability Rights Section
   San Francisco, CA 94102              Civil Rights Division
15 (415) 436-7200                       U.S. Department of Justice
                                        P.O. Box 66738
16                                      Washington, D.C. 20035-6738
                                        (202) 307-0663
17

18

19

20

21

22

23

24

25

26
27
   U.S. Amicus Curiae Memorandum
28 No. C-94-2307 CW             - 25 -1

2

3

4

5                       IN THE UNITED STATES DISTRICT COURT

6                     FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 JOHN ARMSTRONG, et al.,                       No. C 94-2307 CW

9               Plaintiffs,                     ORDER DENYING DEFENDANTS'
                                                MOTION FOR SUMMARY
10                                              JUDGMENT
        v.                                      
11
   PETE WILSON, et al.,
12
                Defendants.
13

14

15      Plaintiffs, a certified class consisting of all present and

16 future California state prison inmates and parolees with

17 mobility1, sight, hearing, learning or kidney disabilities, have

18 moved for injunctive relief under Title II of the Americans with
19
   Disabilities Act ("ADA"), 42 U.S.C. SS 12131 - 34, and Section.
20
   504 of the Rehabilitation Act of 1973 ("the Rehabilitation Act"
21
   or "Section 504"), 29 U.S.C. S 794. Defendants, various
22
   California state officials being sued in their official
23
   capacities, have moved for summary judgment pursuant to the
24
   Stipulation and Order for Procedures to Determine Liability and
25
26 Remedy entered on July 9, 1996 (the "Stipulation"). The United

27 States Department of Justice ("DOJ") has submitted an amicus
28 ________________
        1 Prisoners with mobility impairments who are housed at
   the Correctional Medical Facility at Vacaville are excluded
   from the class.1  brief in support of Plaintiffs' opposition. The matter was heard

2  on July 19, 1996. Having considered all of the papers filed by

3  the parties and oral argument on the motion, the Court denies the

4  motion.
   
5
                                FACTS
6
        Defendants move to strike Plaintiffs' separate statement of
7
   undisputed facts. The Court grants the motion on the grounds
8
   that the parties have stipulated that this summary judgment
9
   motion is to be decided solely on the facts included in the
10
   parties' joint statement of Stipulated Facts.
11

12      The following is a brief summary of the facts as provided in

13 the Statement of Stipulated Facts. The California Department of

14 Corrections ("CDC") operates over 31 prisons housing in excess of

15 130,000 inmates. Some of these facilities receive federal

16 financial assistance. The CDC has conducted surveys to identify

17 certain inmates with disabilities. These surveys have found

18
   that: (1) 345 inmates use wheelchairs due to permanent
19
   disabilities; (2) 650 inmates have permanent lower extremity
20
21 impairments which may require the use of an assistive device such

22 as a walker, cane or prosthesis; (3) 141 inmates are deaf or have

23 hearing impairments such that, even with a hearing aid, they are

24 not able to hear effectively or to hear emergency warnings; (4)

25   219 inmates are blind or have vision that cannot be corrected to

26
   20/100 with corrective lenses. HIV-positive inmates are placed
27
   in various units in facilities throughout the system. Inmates
28
   with mental health problems are clustered and frequently

   separated from other inmate populations.


                                21       The CDC initiated a self-evaluation in 1995 pursuant to the

2  requirements of the ADA, but has not completed it. In April,

3  1995, the CDC established and implemented a new administrative

4  grievance procedure which inmates and parolees with disabilities

5  may use to submit grievances or requests for accommodations on

6  matters related to their disabilities. There remain significant

7  problems in implementing this procedure.

8       The CDC's written policies and procedures for emergencies do

9  not specifically address the evacuation of prisoners with

10 disabilities. Some CDC facilities do not have visual alarms or

11 strobe lights to warn prisoners with hearing impairments of

12 emergencies. When emergency situations arise in prison areas

13 other than living units, some inmates with disabilities may not

14 be aware of, or be able to respond to, emergency warnings of

15 impending danger.

16      Most inmates who participate in educational classes,

17 vocational training, or have work assignments, including those

18 with disabilities, earn 1/2 time sentence credits to reduce their

19 time in custody. Health care providers classify inmates as

20 "totally medically disabled," "medically unassigned," or "light

21 restricted duty." A "totally medically disabled" classification

22 allows the inmate to earn 1/2 time sentence credits without being

23 required to participate in a program, while a "medically

   unassigned" classification allows the inmate to earn 1/3 time
24
   sentence credits. A "light restricted duty" classification
25
   allows the inmate to participate in programs in accordance with a
26  
   specified restriction due to a physical or mental condition.
27

28

                                3
1  Some inmates with severe disabilities have been inappropriately

2  classified as medically unassigned rather than totally medically

3  disabled and only earn 1/3 instead of 1/2 time credits against

4  their sentences. Inmates designated as "light restricted duty"

5   may be assigned to jobs that are inappropriate for their

6   limitations. The range of vocational programs available to

7   inmates with disabilities is more limited than that available to

8   other inmates.

9

10                              LEGAL STANDARD

11      Summary judgment is properly granted when no genuine and

12 disputed issues of material fact remain, and when, viewing the

13 evidence most favorably to the non-moving party, the movant is

14 clearly entitled to prevail as a matter of law. Fed. R. Civ. P.

15   56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

16   Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-

17   89 (9th Cir. 1987). For the purposes of this motion, the parties

18   have stipulated that there are no material facts in dispute. The

19   Court, therefore, must decide whether the moving party is

20   entitled to summary judgment as a matter of law.

21

22                              DISCUSSION

23 Defendants argue that the protections of the ADA and the

24 Rehabilitation Act do not extend to inmates or parolees of state

25 correctional facilities and that Defendants are immune from

26 ILLEGIBLE Amendment of the United States

27 Constitution. While the Ninth Circuit has held that the

28 Rehabilitation Act applies to state prisons, it has not yet

   considered whether the ADA is applicable to state correctional


                                41  facilities.2  Nor has the Ninth Circuit ruled on whether state

2  prison officials have immunity under the Eleventh Amendment for

3  violations of the ADA and the Rehabilitation Act. These, then,

4   are issues of first impression in this Circuit.

5                                        I.

6
        APPLICABILITY OF THE ADA AND THE REHABILITATION ACT TO
7                       STATE CORRECTIONAL FACILITIES

8       The Court will not address Defendants' argument that

9  prisoners and parolees are adequately protected under the First,

10 Eighth, and Fourteenth Amendments of the United States

11 Constitution and, therefore, the protections provided under the

12 Rehabilitation Act and the ADA are unnecessary. One need only

13 look to the undisputed stipulated facts of this case to find that

14 this argument is erroneous. Furthermore, it is not the proper

15 role of the judiciary to preempt Congress' decision that there is

16 a need for such legislation.

17 A. Ninth Circuit Case Law

18

19      1. Rehabilitation Act

20
        Although the Ninth Circuit has held, in Bonner v. Lewis, 857
21
   F.2d 559, 562 (9th Cir. 1988), that the Rehabilitation Act
22
   applies to state prison facilities, Defendants argue that this
23
   Court should arrive at a different result. Defendants argue
24

25 ________________________

26      2       Only one district court in the Ninth Circuit has
        squarely addressed the issue of whether the ADA applies
27      to prisons. Bullock v. Gomez, 929 F.Supp. 1299 (C.D.
        Cal. 1996) held that the ADA does apply to prisons. In
28      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.

                                51  that, since Bonner was decided, the Supreme Court has clarified

2  the proper analysis to be used by a district court to determine

3  the applicability of federal statutes to state prisons.

4  Defendants contend that utilization of this analysis will lead to

5  the conclusion that neither the Rehabilitation Act nor the ADA

6  are applicable to state prisons. The Court does not agree.

7       Section 504 of the Rehabilitation Act of 1973 states, in

8  pertinent part:

9

10      No otherwise qualified individual with a disability in
        the United States, . . . shall, solely by reason of her
11      or his disability, be excluded from the participation
        in, be denied the benefits of, or be subjected to
12      discrimination under any program or activity receiving
        Federal financial assistance. . .
13
   29 U.S.C. S 794.
14

15      In Bonner, the Ninth Circuit based its holding primarily on

16 the plain language of the Act, which states that it "applies to

17 any program or activity receiving Federal financial

18 assistance", and on the Justice Department's implementing

19 regulations which require compliance by correctional facilities
20
   under 28 C.F.R. S 2.503(f). Bonner, 857 F.2d at 562. The court
21
   noted that "[t]he Supreme Court has repeatedly emphasized that
22
   federal regulations are 'an important source of guidance on the
23
   meaning of S 504.'" Id.(citing School Board of Nassau County v.
24
   Arline, 480 U.S. 273 (1987)(parenthetical emitted) and
25
26 Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 & nn.14-16

27 (1984)).

28      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

                                6United States District Court
For the Northern District of California

 1 applicable to prison inmates who "are hardly in need of help to

 2 live independently within their prisons." Id. Instead, the

 3 court viewed the goals of independent living and vocational

 4 rehabilitation as mirroring the goals of prison officials who

 5 "attempt to rehabilitate prisoners and prepare them to lead

 6 productive lives once their sentences are complete." Id.
 7 
        In Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), the Ninth
 8
 9 Circuit elaborated on its holding in Bonner. First, the court,

10 citing Bonner, reaffirmed that "the Act is applicable to prisons

11 receiving federal financial assistance." Gates, 39 F.3d at 1446.

12 The court noted, however, that the Rehabilitation Act was

13 intended for use within the general population, and was not

14 specifically tailored to deal with the prison environment. Id.

15 The court reasoned that, "just as constitutional rights of
16
   prisoners must be considered in light of the reasonable
17
   requirements of effective prison administration, so must
18
   statutory rights applicable to the nation's general population be
19
   considered in the light of effective prison administration." Id.
20
21 The court held that the standard explicated by the Supreme Court

22 in Turner v. Safley, 482 U.S. 78 (1987) for reviewing

23 constitutional rights in a prison setting should also be used

24 when reviewing the rights provided by the Rehabilitation Act in a

25 prison setting. Id. at 1447. In Turner, the Supreme Court

26 articulated the rule that, "'when a prison regulation impinges on
27
   inmates' constitutional rights, the regulation is valid if it is
28
   reasonably related to legitimate penological interests'".
   Id. (quoting Turner, 482 U.S. at 89).


                    7United States District Court
For the Northern District of California

 1      Other courts, and Defendants, have interpreted Gates to mean

 2 that the Ninth Circuit is retreating from its holding in Bonner.

 3 See e.g. Torcasio v. Murray, 57 F.3d 1340, 1349 n.7 (4th Cir.

 4 1995), cert. denied by Torcasio v. Angelone, 116 S. Ct. 772
 5
   (1996) and Little v. Lycoming County, 912 F.Supp. 309, 819
 6
   (M.D.Pa. 1996). The Court disagrees. Gates is a reaffirmation
 7
   and clarification of Bonner, not a retreat from it.
 8
 9      Defendants argue that subsequent to Bonner, the Supreme

10 Court, in Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991),

11 clarified the proper analysis for determining whether a federal

12 enactment is applicable to state prisons. They contend that, in

13 Gregory, the Court stated a new rule that requires that Congress

14 make its intention unmistakably clear in the language of the

15 statute if it intends to alter the usual constitutional balance
16
   between the States and the federal government in traditionally
17
   sensitive areas. Defendants conclude that, had the Ninth Circuit
18
   applied this "new" plain statement rule in Bonner, it would have
19
   held differently.
20

21      The Court disagrees. The plain statement rule was not

22 originally articulated in Gregory. Although Gregory recites this

23 rule, it cites prior cases as authority. One of the cases cited

24 in Gregory is United States v. Bass, 404 U.S. 336, 349 (1971) in

25 which the Court stated that, "[i]n traditionally sensitive areas,
26
   such as legislation affecting the federal balance, the
27
   requirement of clear statement assures that the legislature has
28
   in fact faced, and intended to bring into issue the critical

   matters involved in the judicial decision." Gregory, 501 U.S. at


                    8United States District Court
For the Northern District of California

 1 461 (citing Bass, 404 U.S. at 349). Gregory also cites Rice v.

 2 Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) for the

 3 proposition that, "Congress should make its intention clear and

 4 manifest' if it intends to pre-empt the historic powers of the
 5
   States." Gregory, 501 U.S. at 461. Even Seminole Tribe of
 6
   Florida v. Florida, 116 S. Ct. 1114, 1185 (1996), the case
 7
   Defendants use to support their proposition that Gregory adopted
 8
   a new rule, cites Bass as well as Gregory. It is clear that the
 9
10 "new" rule Defendants proffer has been part of our jurisprudence

11 for many decades. It is patently unreasonable to assume that the

12 Ninth Circuit did not take this rule into consideration in

13 deciding Bonner. Although not explicitly stating that it was

14 applying the plain statement rule, in Bonner the Ninth Circuit

15 did look for Congressional intent to apply the Rehabilitation Act
16
   to state prisons and found such intent in the plain language of
17
   the statute and the DOJ's implementing regulations. Bonner, 857
18
   F.2d at 562.
19

20      Defendants point to two post-Gregory Ninth Circuit cases to

21 illustrate that, had the Ninth Circuit used the plain statement

22 rule in Bonner, it would not have held the Act applicable to

23 state prisons. In Hale v. Arizona, 993 F.2d 1387, 1393, 1395

24 (9th Cir. 1993) (en banc), cert. denied, 510 U.S. 946 (1993), the

25 Ninth Circuit declined to extend the protections of the Federal
26
   Labor Standards Act to inmates required by state law to work at
27
   hard labor, but determined that the Act may be applicable to
28
   inmates in other employment situations. In Jeldness v. Pearce,

30 F.3d 1220 (9th Cir. 1994), the Ninth Circuit held that Title


                    9United States District Court
For the Northern District of California

 1 IX, which prohibits discrimination on the basis of sex by any

 2 educational program receiving federal funding, applies to state
 3
   prisons. Id. at 1225. In Hale and Jeldness the Ninth Circuit
 4
   focused on a list of statutorily exempt programs which did not
 5
   include prisons and determined that noninclusion in an exempt
 6
   list creates a strong implication of inclusion. Hale, 993 F.2d
 7
   at 1392; Jeldness, 30 F.3d at 1225.
 8
        Defendants contend that the analyses in Hale and Jeldness
 9
10 rejected the basis for the Ninth Circuit's conclusion in Bonner,

11 because, in Bonner, the court merely based its holding on the

12 expansive language of the Rehabilitation Act. However, the

13 Bonner court also based its holding upon the DOJ's implementing

14 regulations that specifically bring state prisons within the
15
   ambit of the Act. Bonner, 857 F.2d at 362.
16
        Congress delegated to the head of each agency the authority
17
   to promulgate regulations under the Rehabilitation Act. 29
18
   U.S.C. S 794(a). The DOJ regulations define the term "program"
19
   as including the "operations of a department of corrections," and
20
21 the term "benefit" as including "sentencing, confinement, or

22 other prescription of conduct." 28 C.F.R. SS 42.540(h) and (j).

23 In Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

24 Inc., 467 U.S. 837, 843-44 (1984) the Court held that, where
25
   Congress has left a gap for the agency to fill, the agency's
26
   regulations "are given controlling weight unless they are
27
   arbitrary, capricious, or manifestly contrary to the statute."
28
   This Court can find nothing that is arbitrary or capricious in

   the DOJ's regulations. The broad language of the statute which


                    10 1       Defendants contend that utilization of the plain statement

 2 rule will lead to the conclusion that the ADA does not apply to

 3
   state prisons. The Court does not agree. ILLEGIBLE
 4
         The Ninth Circuit has indicated that the ADA is to be
 5
   judicially interpreted in the same manner as the Rehabilitation
 6
   Act. Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th
 7
   Cir. 1995), cert. denied, 116 S. Ct. 711 (1996). This
 8
   determination is based on the substantially identical language in
 9
10 the two Acts and the legislative history of the ADA which

11 indicates that Congress intended judicial interpretation of the

12 Rehabilitation Act to be incorporated by reference into

13 interpretation of the ADA. Id.
14
        Pursuant to Collings, the Court must apply the Ninth
15
   Circuit's reasoning in Bonner to decide whether the ADA applies
16
   to state correctional facilities and programs. As noted above,
17
   the broad language of the Rehabilitation Act is repeated in the
18
   ADA. The ADA expands the reach of the anti-discrimination
19
   provisions of the Rehabilitation Act from "any public facility
20
21 that receives Federal funding" to "any public entity." As it did

22 in the Rehabilitation Act, Congress has specifically delegated

23 authority to the DOJ to promulgate regulations implementing the

24 ADA. 42 U.S.C. S 12134(a). The DOJ's regulations provide that

25 "all programs, services, and regulatory activities relating to
26
   law enforcement, public safety, and the administration of
27
   justice, including courts and correctional institutions" are
28
   governed by the ADA. 28 C.F.R. S 35.190(b) (6). The Court finds

   that the expansive language of the ADA, together with the DOJ's


                    13 1 regulations which it promulgated pursuant to a specific

 2 Congressional delegation of authority, lead to the conclusion

 3
   that the ADA is applicable to state correctional institutions.
 4
   Following the Ninth Circuit's instruction in Gates, the Court
 5
   also concludes that, like the Rehabilitation Act, the ADA must be
 6
   applied in a prison environment with consideration of legitimate
 7
   penological interests. See Gates, 39 F.3d at 1447.
 8
   B. Case Law in Other Circuits
 9
10 Defendants argue that this Court should be persuaded by

11 cases in other circuits in which, Defendants contend, the courts

12 have held the Rehabilitation Act or the ADA are inapplicable to

13 prisons.
14
   Three circuits have directly addressed this issue.3 As
15
   discussed above, the Third Circuit has held that the
16
   Rehabilitation Act and the ADA apply to state and local
17
   correctional institutions. The Tenth Circuit has held that the
18
   Rehabilitation Act and the ADA are inapplicable to state prison
19
   employment programs. In Williams v. Meese, 926 F.2d 994 (10th
20
21 Cir. 1991), the court held that the Rehabilitation Act is not

22 applicable to federal prison employment and vocational programs

23
 ______________
24
   3 As noted by Defendants, the Seventh Circuit, in a
25 recent opinion by Judge Posner, stated that, "It is very far
   from clear that prisoners should be considered 'qualified
26 individuals' within the meaning of the [ADA]. Could
   Congress really have intended disabled prisoners to be
27 mainstreamed into an already highly restricted prison
   society? . . . [T]here are formidable practical objections
28 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.

                    141 because the "Federal Bureau of Prisons does not fit the

2 definition of 'programs or activities' governed by [the
3
  Rehabilitation Act]." Williams, 926 F.2d at 997. Relying upon
4
  Williams, and without any further explanation, the Tenth Circuit
5
  held in White v. Colorado, 82 F.3d 364 (10th Cir. 1996), that the
6
  ADA does not apply to state prison employment situations. White,
7
  82 F.3d at 367.
8
        The Fourth Circuit, in Torcasio v. Murray, did not actually
9
10 hold that the Rehabilitation Act and the ADA do not apply to

11 state prisons, but strongly intimated that they do not.

12 Torcasio, a qualified immunity case, held that it was not clearly

13 established, at the time of the alleged discrimination, that
14
   either the Rehabilitation Act or the ADA applied to state
15
   prisons. Torcasio v. Murray, 57 F.3d 1340, 1352 (4th Cir. 1995),
16
   cert. denied, 116 S. Ct. 771 (1996). The violations were alleged
17
   to have occurred in April, 1993 through the spring, 1994. The
18
   Torcasio court took the Ninth Circuit's 1988 Bonner decision into
19
   consideration in its discussion. In analyzing the DOJ
20
21 regulations, however, the Torcasio court failed to locate the

22 specific sections which provide that the Rehabilitation Act

23 applies to correctional institutions. Id. at 1351. The court

24 looked at 28 C.F.R. S 42.503(f), the only section specifically
25
   cited in Bonner, and dismissed it as too general to establish
26
   that the DOJ intended the Rehabilitation Act to apply to prisons.
27
   The court did not mention the sections, in the definitional parts
28
   of the regulations, that indicate that the Rehabilitation Act

   applies to state prisons. See 28 C.F.R. SS 42.540 (h) and (j).


                                151  The court similarly did not mention 28 C.F.R. S 35.190(b)(6), the

2  regulation that specifies that the ADA applies to state prisons.
3
   The court intimated that, had the plaintiff been able to show
4
   that the regulations specifically applied to state prisons, it
5
   might have held differently. Id.
6
        As discussed above, Torcasio also erroneously concluded that
7
   in Gates the Ninth Circuit retreated from its holding in Bonner.
8
   Torcasio, 57 F.3d. at 1346, 1349 n.7. Also, as noted by
9
10 Plaintiffs, the questions raised in Torcasio as to whether prison

11 programs qualify as "programs" under the Rehabilitation Act and

12 the ADA, were answered in the affirmative by the Ninth Circuit in

13 Bonner. Bonner, 857 F.2d at 562("the [Rehabilitation] Act's
14
   goals of independent living and vocational rehabilitation should
15
   in fact mirror the goals of prison officials as they attempt to
16
   rehabilitate prisoners and prepare them to lead productive
17
   lives. . . .")
18
                                II.
19
                IMMUNITY UNDER THE ELEVENTH AMENDMENT
20

21      Defendants argue that the Eleventh Amendment provides them

22 with immunity from liability under the Rehabilitation Act and the

23 ADA. Defendants acknowledged, during oral argument, that their

24 reasoning would lead to the conclusion that the Rehabilitation

25
   Act and the ADA are not applicable to any state agency.
26
        In Seminole Tribe v. Florida, 116 S. Ct. 1114, 1123 (1996),
27
   the Supreme Court reiterated the principle that, pursuant to the
28
   Eleventh Amendment, States may not be sued in federal court

   unless Congress, acting pursuant to a valid exercise of its


                                161  power, unequivocally expresses its intent to abrogate the States'

2  immunity. Id.(citing Green v. Mansour, 474 U.S. 64, 68 (1985)).
3
   Defendants concede that Congress clearly expressed its intent in
4
   the Rehabilitation Act and the ADA to abrogate the States'
5
   immunity. The issue to be resolved is whether, in abrogating the
6
   States' immunity, Congress acted pursuant to a valid exercise of
7
   its power.
8
        In Seminole Tribe, the Court explained that Congressional
9
10 authority to abrogate States' immunity had been previously found

11 under two provisions of the Constitution. Id. at 1125. In

12 Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56 (1976), the Court had

13 held that S 5 of the Fourteenth Amendment allowed Congress to
14
   abrogate States' immunity from suit and, in Pennsylvania v. Union
15
   Gas Co., 491 U.S. 1, 19-20 (1989), the Court had held that the
16
   Interstate Commerce Clause granted Congress the power to abrogate
17
   immunity. Id. In Seminole Tribe the Court overruled Union Gas
18
   so that Congress now has authority to abrogate the states'
19
   immunity pursuant only to the Fourteenth Amendment. Id. at 1131.
20
21      Defendants argue that Congress lacks authority to abrogate

22 their immunity under the Rehabilitation Act or the ADA because

23 neither was validly enacted pursuant to the Fourteenth Amendment.

24 Plaintiffs disagree, and also argue that Defendants, because they
25
   are state officials, are not immune from suit for injunctive
26
   relief under the doctrine of Ex parte Young, 309 U.S. 123 (1908).
27
   A. The ADA Was Enacted Pursuant to the Fourteenth Amendment
28
        The ADA specifically states that its purpose is "to invoke

   the sweep of congressional authority, including the power to



                                171  enforce the fourteenth amendment and to regulate commerce, in

2  order to address the major areas of discrimination faced day to

3  day by people with disabilities." 42 U.S.C. S 12101(b) (4). In
4
   spite of this explicit statement by Congress, Defendants argue
5
   that simply because Congress has stated that the legislation was
6
   enacted pursuant to its Fourteenth Amendment authority does not
7
   make it so.
8
9       The Equal Protection Clause of the Fourteenth Amendment

10 provides that "[n]o State shall . . . deny to any person within

11 its jurisdiction the equal protection of the laws." Section 5 of

12 the Amendment states that "[t]he Congress shall have power to

13 enforce, by appropriate legislation, the provisions of this

14
   article." As explained by the Supreme Court,". . . S 5 is a
15
   positive grant of legislative power authorizing Congress to
16
   exercise its discretion in determining whether and what
17
   legislation is needed to secure the guarantees of the Fourteenth
18
   Amendment." Katzenbach v. Morgan, 3ILLEGIBLE4 U.S. 641, 648 (1966).
19
   Section 5 is intended to provide to Congress the same broad
20

21 powers expressed in the Necessary and Proper Clause, art. I, S ILLEGIBLE,

22 cl. ILLEGIBLE Id. at 6ILLEGIBLE0. The standard to be used in determining

23 whether legislation is appropriate under the Necessary and Proper

24 Clause was formulated in McCulloch v. Maryland, 17 U.S. (4

25 Wheat.) 316, 421 (1819):

26
        Let the end be legitimate, let it be within the scope
27      of the constitution, and all means which are
        appropriate, which are plainly adapted to that end,
28      which are not prohibited, but consist with the letter
        and spirit of the constitution, are constitutional.
   Id.


                                181       Using the McCulloch test, to determine if legislation

2  enacted pursuant to the Fourteenth Amendment is appropriate, a

3  court must determine whether the legislation: (1) is plainly

4
   adapted to the end of enforcing the Equal Protection Clause, and
5
   (2) is not prohibited by, but is consistent with the "letter and
6
   spirit of the constitution." Morgan, 384 U.S. at 651.
7
        Defendants cite Pierce v. King for the proposition that the
8
   ADA is not adapted to enforcing the Fourteenth Amendment. Pierce
9
10 v. King, 918 F.Supp 932, 940 (E.D.N.C. 1996). The argument in

11 Pierce begins with the assumption that "[t]he Fourteenth

12 Amendment has traditionally been understood as protecting

13 individuals from state action that would infringe upon individual
14
   liberties." Id. The argument continues with the contention
15
   that the ADA is unlike traditional anti-discrimination laws
16
   because the ADA creates entitlements whereas the traditional laws
17
   seek to produce and environment in which individuals are treated
18
   in a neutral manner. Id. Defendants contend that mandates for
19
   prisons to conduct self-evaluations, complete transition plans,
20
   establish grievance procedures, and provide notice of the ADA to
21
22 inmates are administrative burdens that are unconnected with the

23 Fourteenth Amendment's prohibition against discrimination. They

24 say that obligations to identify inmates with learning

25 disabilities and to provide special programs for them distort
26
   notions of equal treatment. Similarly, they contend that the
27
   requirement of certain structural accessibility features goes far
28
   beyond anything that could be based on the Fourteenth Amendment.

        The court disagrees with Defendants' theory. Some of the


                                191  findings made by Congress in enacting the ADA are that:

2  (1) discrimination against disabled individuals in the form of

3  isolation and segregation is a serious and pervasive social

4  problem; (2) disabled individuals are a discrete and insular

5  minority who have been subjected to a history of unequal

6  treatment and relegated to a position of political powerlessness

7  based upon false stereotypical assumptions; and, (3) the Nation's

8  goals are to assure equality, full participation, independent

9  living and economic self-sufficiency to individuals with
10
11 disabilities. 42 U.S.C. S 12101(a). Congress indicated in the

12 ADA that it intended to invoke its full authority under the

13 Fourteenth Amendment to address nationwide discrimination against

14 the disabled. 42 U.S.C. S 12101(b)(4).

15        Rectifying discrimination often has taken the form of the

16  prohibition of action that is discriminatory. Perhaps, as

17  Defendants argue, this is the traditional manner in which

18  legislation under the Fourteenth Amendment has been framed.

19  However, eliminating discrimination may require affirmative
20
21 relief. See City of Richmond v. J.A. Croson Co., 488 U.S. 469,

22 490 (1989) (O'Conner, J., concurring and dissenting) ("The power to

23 'enforce' [the Fourteenth Amendment] may at times also include

24 the power to define situations which Congress determines threaten

25 principles of equality and to adopt prophylactic rules to deal

26 with these situations.")
27
        The goal of the ADA, to eliminate discrimination against an
28 identifiable group of individuals, is a proper invocation of the

   Equal Protection Clause. See City of Cleburne v. Cleburne Living


                                201 Ctr., 473 U.S. 432, 446-ILLEGIBLE (1985) (holding that persons with

2 disabilities are entitled to protection under the Fourteenth

3 Amendment). The practical effect of the ADA will be to eliminate

4 barriers against entry into physical structures, into ongoing

5 programs and services, and into the mainstream of society itself

6 for many individuals with disabilities. While this may require

7 affirmative measures on the part of correctional institutions to

8 insure inclusion of those who are now excluded from the
9
10 mainstream of prison life, the requirement of such measures does

11 not exceed the authority granted to Congress under S 5 of the

12 Fourteenth Amendment. The ADA, therefore, meets the first prong

13 of the McCulloch test.

14        Defendants have not argued that the ADA is inconsistent with

15 the letter and spirit of the constitution. The Court, therfore,

16 finds that the ADA meets the second prong of the McCulloch test.
17 That Congress has invoked the Commerce Clause as well as the

18 Fourteenth Amendment as authority for the ADA does not alter the

19 conclusion that, under the McCulloch standard, the ADA is

21 legitimate legislation, pursuant to the Fourteenth Amendment,

22 focused on deterring discrimination on the part of the states.

23 See EEOC v. County of Calumet, ILLEGIBLE F.2d 1249, 1253 (7th Cir.

24 1982) (noting that Congress, in enacting modern civil rights

25 legislation, reaches private discrimination indirectly through

26 the Commerce Clause and reaches state discrimination directly

27 through the Fourteenth Amendment). The Court holds that the ADA

28 was legitimately enacted pursuant to Congress' authority under

the Fourteenth Amendment.

                                211  B. The Rehabilitation Act was Enacted Pursuant to the Spending
      Clause and the Fourteenth Amendment
2
        Unlike the ADA, the Rehabilitation Act is silent as to the

3  constitutional authority under which it was enacted. Defendants
4
5  contend that a close reading of the statute, together with an

6  analogy to similar statutes, leads to the conclusion that the

7  Rehabilitation Act is authorized by Congress' spending power, and

8  not by the Fourteenth Amendment. That the Rehabilitation Act

9  applies only to those entities that receive federal funds is the

10 primary basis for Defendants' contention.
11
        Defendants point to Title VI, 42 U.S.C. S 2000d et seq., and

12 Title IX, 20 U.S.C. S 1681 et seq., of the Civil Rights Act of

13 1964 as support for their argument. Title VI prohibits

14 discrimination on the basis of race, color, or national origin by
15
16 any program or activity receiving federal financial assistance.

17 42 U.S.C. S 2000d. Based upon the legislative history, the

18 Supreme Court determined that Congress intended to enact Title VI

19 pursuant to its spending power. Guardians Ass'n v. Civil Serv.
20
   Comm'n v. Comm'n of New York, 463 U.S. 582, 598-99 (1983). Title
21
   IX prohibits discrimination on the basis of sex by any
22
   educational program or activities receiving federal financial
23
   assistance. 20 U.S.C. S 1681(a). The Supreme Court has reserved
24
   the question of whether Title IX was enacted under the Spending
25
   Clause or under the Fourteenth Amendment. Franklin v. Gwinnett
26

27 County Pub. Schs., 503 U.S. 60, 75 n.8 (1992). The Fifth

28 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., ILLEGIBLE F.3d

                                221  1006, 1012 n. 14 (5th Cir. 1996), petition for cert. filed, 65

2  U.S.L.W. 3033 (U.S. Jul.1, 1996) (No. 96-4). First, Title IX was

3  modeled after Title VI and uses identical language. That the

4  Supreme Court in Guardians Ass'n held that Title VI was enacted

5  pursuant to the Spending Clause strongly suggests that Title IX

6  also was enacted under the Spending Clause. Id. Second, Title

7  IX regulates purely private educational institutions. The

8  receipt of federal funds does not transform a private school into

9  a state actor for purposes of the Fourteenth Amendment. Id.
10
11 Third, the funding incentives provided in Title IX indicate that

12 Congress did not intend to impose absolute obligations on the

13 States. Id. Defendants' argument that the Rehabilitation Act,

14 like Titles VI and IX, is enacted under the Spending Clause

15 because it, too, applies only to those entities that receive

16 federal funding is well-taken. However, the contentions of

17 Plaintiffs and amicus that the Rehabilitation Act was enacted

18 under the Fourteenth Amendment are also persuasive. Furthermore,

19 because the language and purpose of the Rehabilitation Act are

20 virtually identical to that of the ADA, and because this Court
21
22 has found that the ADA was validly enacted pursuant to the

23 Fourteenth Amendment, it follows that the Rehabilitation Act,

24 also, was enacted under the Fourteenth Amendment.

25      Plaintiffs point out that two Supreme Court cases indicate

26 that the Rehabilitation Act was passed under the Fourteenth

27 Amendment. In Atascadero State Hosp. v. Scanlon, the Supreme

28 Court stated, "Petitioners conceded . . . that the Rehabilitation

   Act was passed pursuant to S 5 of the Fourteenth Amendment.
                                231  Thus, we first analyze S 504 in light of Congress' power under

2  the Fourteenth Amendment to subject unconsenting States to

3  federal court jurisdiction." Scanlon, 473 U.S. 234, 244 n.4

4  (1985). Because the issue of Congressional authority was not in

5  dispute in Scanlon, that case is not determinative of the issue.

6  The Supreme Court noted in Welch v. Texas Dept. of Highways and

7  Pub. Transp. that "[t]he question in Scanlon was whether S 504 of

9  the Rehabilitation Act of 1973, 29 U.S.C. S 794, makes state

10 agencies subject to suits for retroactive monetary relief in

11 federal court. The Rehabilitation Act was passed pursuant to S 5

12 of the Fourteenth Amendment. Congress therefore had the power to

13 subject unconsenting states to suit in federal court." Welch,

14 483 U.S. 468, 472 n.2 (1987) (citing Scanlon). Welch provides

15 further evidence that the Supreme Court considers that Congress

16 enacted the Rehabilitation Act pursuant to the Fourteenth

17 Amendment. But, this statement is dicta.

18        In Dep't of Educ., State of Haw. v. Katherine D., the
19
20 district court held that the Rehabilitation Act was enacted

21 pursuant to Congress' power under the Fourteenth Amendment.

22 Katherine D., 531 F.Supp. 517, 530 (D.C. Haw. 1982), aff'd in

23 part, rev'd in part on other grounds, 727 F.2d 809 (9th Cir.

24 1983), cert. denied, 471 U.S. 1117 (1985). The court based its

25 holding on its analysis of legislative history and Congress'

26 intent, as specifically explicated in the Act, to effectuate

27 equal opportunity for disabled citizens. Id. The court

28 concluded that this legislative goal is "precisely the specific

   legislative intent to effectuate the equal protection rights
                                241  guaranteed by the Fourteenth Amendment which [the Supreme Court]

2  recognized." Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456

3  (1976) and Hutto v. Finney, 437 U.S. 678 (1978)).

4        Congress may enact legislation pursuant to more than one of

5  its constitutional powers. See EEOC v. County of Calumet, 686

6  F.2d at 1253. The Court finds that Congress utilized its

7  authority under the Spending Clause and under S 5 of the

8  Fourteenth Amendment of the Constitution in enacting the

10 Rehabilitation Act. Because the Court finds that Congressional

11 authority for the ADA and the Rehabilitation Act arises in the

12 Fourteenth Amendment, the Eleventh Amendment does not immunize

13 Defendants from suit.

14 c. Doctrine of Ex parte Young

15      Even if Defendants were immune under the Eleventh Amendment,

16 their immunity would be subject to the exception of Ex parte

17 Young, 209 U.S. 123, 155-56 (1908). Ex parte Young created an

18 exception to the principle that States may not be sued in federal
19
20 court unless they consent, or unless Congress, pursuant to a

21 valid exercise of power, unambiguously expresses its intent to

22 abrogate the States' immunity. Green v. Mansour, 474 U.S. 64, 63

23 (1985). Ex parte Young held that the Eleventh Amendment does not

24 preclude federal courts from granting prospective injunctive

25 relief to prevent individual state officials from violating

26 federal law. Young, 209 U.S. at 155-56; Green, 474 U.S. at 68.

27
        Citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S.

28 682, 687 (1949) superseded in part by 5 U.S.C. S 702, Defendants

   argue that Young is inapplicable because Plaintiffs' claims are


                                251  essentially directed against the State, not against the

2  individuals named in the suit. In Larson, the Court explained

3  that a suit nominally addressed to a government employee, but

4  which actually requires relief against the government, is barred

5  because the court, in the absence of consent, has no jurisdiction

6  over a suit against the government. Larson, 337 U.S. at 638.

7  However, there are exceptions to this rule. Id. at 689. One
8
9  exception is a case in which the statute conferring power on the

10 government employee is unconstitutional, because the conduct

11 against which relief is sought is beyond the employee's powers

12 and is, therefore, not the conduct of the government. Id. at

13 690. This exception is based on the same reasoning as that

14 relied upon in Young. "The theory of Young was that an

15 unconstitutional statute is void, and therefore does not impart

16 to [the official] and immunity from responsibility to the supreme

17 authority of the United States'". Green, 474 U.S. at 68 (citing

18 Young, 209 U.S. at 159-60). By the same token, Young also held
19
20 that officials do not have immunity for a continuing violation of

21 federal law. Id.

22      That courts have applied the Young doctrine in cases in

23 which inmates sue state prison officials for violations of

24 federal law is further evidence that Larson does not apply to the

25 case at bar. See e.g. Thompson v. Enomoto, 915 F.2d 1383, 1390

26 (9th Cir. 1990), cert. denied by Rowland v. Thompson, 502 U.S.

27 1071 (1992) (holding that state officials not immune, under Young,

28 from suits alleging constitutional violations); Duran v.

   Carruthers, 885 F.2d 1485, 1489 (10th Cir. 1989), cert. denied,


                                26

1  493 U.S. 1056 (1990) (under Young, prison officials not immune

2  from suit alleging violations of federal constitution and federal

3  statutes). Here, Plaintiffs seek prospective injunctive relief

4  only against state officials acting in their official capacity.

5  Under these circumstances, Larson does not apply.

6       Defendants also argue that, because the ADA and the

7  Rehabilitation Act have detailed enforcement schemes limiting

8  remedies against the State, they come under the exception to Ex
9 
10 parte Young applied by the Supreme Court in Seminole Tribe. In

11 Seminole Tribe, the Court stated that ". . . where Congress has

12 prescribed a detailed scheme for the enforcement against a State

13 of a statutorily created right, a court should hesitate before

14 casting aside those limitations and permitting an action against

15 a state officer based upon Ex parte Young." Seminole Tribe, 116

16 S. Ct. at 1132.

17      The Indian Gaming Regulatory Act (the "IGRA") was the

18 subject of the Court's inquiry in Seminole Tribe. Id. at 1119.

19 The Court found that the IGRA provides for specific limited
20 
21 remedies against the State. Id. The Court reasoned that the

22 limited statutory remedies would be superfluous if a state

23 official could be exposed to the full remedial powers of a

24 federal court in an action brought under Ex parte Young. Id. at

25 1133. The Court also reasoned that Congress' creation of the

26 limited remedial scheme is a strong indication that it had no

27 wish to expose States to liability under Ex parte Young. Id.

28         Defendants argue that, like the IGRA, the Rehabilitation Act

   and the ADA have limited remedial schemes, but Defendants do not


                                271 specify what they are. To the contrary, the Ninth Circuit has

2 held that "the full panoply of remedies, including equitable

3 relief and monetary damages" are available under the

4 Rehabilitation Act. Smith v. Barton, 914 F.2d 1330, 1338 (9th

5 Cir. 1990), cert. denied, 501 U.S. 1217 (1991); see also Franklin

6 v. Gwinnett County Pub. Schs., 503 U.S. at 72-73 (stating that the

7 Rehabilitation Act provides a private litigant the full panoply
8
9 of remedies). The ADA specifically incorporates the "remedies,

10 procedures, and rights" of the Rehabilitation Act. 42 U.S.C. S

11 12133. Under Ex parte Young, Defendants are not immune from this

12 lawsuit.

13                              CONCLUSION

14      For the foregoing reasons, Defendants' motion for summary

15 judgment is DENIED.

16

17 IT IS SO ORDERED.

18

19

20 Dated: SEP 20 1996                           CLAUDIA WILKEN
                                                CLAUDIA WILKEN
21                                              UNITED STATES DISTRICT JUDGE

22 Copies mailed to counsel

23 as noted on the following page

24

25

26

27

28



                                28---F.Supp.----                                                  Page 1
(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. SS 12131--34, and Section
504 of the Rehabilitation Act of 1973 ("the
Rehabilitation Act" or "Section 504"), 29
U.S.C. S 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.
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  *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

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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. S 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

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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. S 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. SS
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

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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. S
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. S
12132 which states that it applies to all public
entities and 42 U.S.C. S 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. S 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

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administration of justice, including courts and
correctional institutions" are governed by the
ADA. 28 C.F.R. S 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. S
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. SS 42.540(h) and
(j). The court similarly did not mention 28
C.F.R. S 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

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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. S 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
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"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. S 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.
S 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

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---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. S
2000d et seq., and Title IX, 20 U.S.C. S 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. S 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 Circuti, 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 S 5
of the Fourteenth Amemdment. Thus, we first
analyze S 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

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--- F.Supp. ---                                                 Page 10
(Cite as: 1996 WL 580847, *11 (N.D.Cal.))

question in Scanlon was whether S 504 of the
Rehabilitation Act of 1973, 29 U.S.C. S 794,
makes state agencies subject to suits for
retroactive monetary relief in federal court.
The Rehabilitation Act was passed pursuant to
S 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 S 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 statue 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

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(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. S 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 qulaified
        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 form 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

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                                                                11 WESTLAW
                           No. 96-16870
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE NINTH CIRCUIT

                JOHN ARMSTRONG, et al.,

                                        Plaintiffs-Appellees
                        v.

                PETE WILSON, et al.,

                                        Defendants-Appellants

                ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE NORTHERN DISTRICT OF CALIFORNIA

                   BRIEF FOR THE UNITED STATES AS INTERVENOR
                              AND AMICUS CURIAE

                                        ISABELLE KATZ PINZLER
                                          Acting Assistant Attorney General

                                        JESSICA DUNSAY SILVER
                                        SETH M. GALANTER
                                          Attorney
                                          Department of Justice
                                          P. O. Box 66078
                                          Washington, D.C. 20035-6078
                                          (202) 307-9994



                                TABLE OF CONTENTS
                                                                     PAGE

INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION . . . . . . . . .2

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT:

        I.      DEFENDANTS ARE NOT ENTITLED TO ELEVENTH
                AMENDMENT IMMUNITY UNDER THE DOCTRINE OF
                EX PARTE YOUNG . . . . . . . . . . . . . . . . . . . . .9

        II.     THE ABROGATION OF ELEVENTH AMENDMENT IMMUNITY
                CONTAINED IN THE AMERICANS WITH DISABILITIES ACT
                IS A VALID EXERCISE OF CONGRESS' POWER UNDER
                SECTION 5 OF THE FOURTEENTH AMENDMENT . . . . . . . . .12

                A.      The ADA Is An Enactment To Enforce
                        The Equal Protection Clause . . . . . . . . . .14

                B.      The ADA Is Plainly Adapted To Enforcing
                        The Equal Protection Clause . . . . . . . . . .20

                        1.      Congress has broad power to enforce
                                the Equal Protection Clause. . . . . . 22

                        2.      Congress found that persons with
                                disabilities required accommodations
                                to obtain equally meaningful access
                                to programs and facilities . . . . . . 24

                        3.      Congress' determination that it was
                                necessary for States to modify their
                                programs and facilities in order to
                                provide equally meaningful access
                                is consistent with the principles
                                of equality contained in the Equal
                                Protection Clause . . . . . . . . . . .26

                        4.      The specific provisions of the
                                ADA challenged by the defendants
                                are plainly adapted to providing
                                equally meaningful access to
                                persons with disabilities . . . . . . .29

                                - i -TABLE OF CONTENTS (cont'd):                                          PAGE

                C.      The ADA Is Consistent With The Letter
                        And Spirit Of The Constitution . . . . . . . . 32

        III.    42 U.S.C. 2000d-7 VALIDLY REMOVES ELEVENTH
                AMENDMENT IMMUNITY FOR CLAIMS UNDER SECTION
                504 OF THE REHABILITATION ACT OF 1973 . . . . . . . . .34

                A.      The Abrogation Of Eleventh Amendment
                        Immunity Contained In 42 U.S.C. 2000d-7
                        Is A Valid Exercise Of Congress' Power
                        Under Section 5 Of The Fourteenth
                        Amendment . . . . . . . . . . . . . . . . . . .35

                B.      The State Waived Its Eleventh Amendment
                        Immunity To Section 504 Suits By Accepting
                        Federal Funds After The Enactment Of
                        Section 2000d-7. . . . . . . . . . . . . . . . 40

        IV.     TITLE II OF THE ADA AND SECTION 504 APPLY TO
                STATE PRISONS . . . . . . . . . . . . . . . . . . . . .42

                A.      The Plain Language Of Both Statutes Applies
                        To State Entities That Operate Prisons . . . . 43

                B.      Administrative Interpretations Of Section
                        504 And Title II Of The ADA Confirm Their
                        Application To State Prisons . . . . . . . . . 50

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

ATTACHMENT A
                        TABLE OF AUTHORITIES

CASES:

Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . 24, 25, 26

Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977) . . . . . . . . . .18-19

Atascadero State Hosp. v. Scanlon, 473 U.S.
        234 (1985) . . . . . . . . . . . . . . . . . . . . . . . . passim

Bell v. New Jersey, 461 U.S. 773 (1983) . . . . . . . . . . . . . . . .42


                                - ii -CASES (continued):                                                   PAGE

Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir.
        1979), cert. denied, 446 U.S. 928 (1980) . . . . . . . . . 23, 29

Board of Educ. v. Rowley, 458 U.S. 176 (1982) . . . . . . . . . . . . .19

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . .6, 9, 43, 45

City of Cleburne v. Cleburne Living Ctr.,
        473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . .14, 15, 25

City of Richmond v. J.A. Croson Co., 488 U.S.
        469 (1989) . . . . . . . . . . . . . . . . . . . . . . .26-27, 29

City of Rome v. United States, 446 U.S. 156
        (1980) . . . . . . . . . . . . . . . . . . . . . . . . .22, 33-34

Counsel v. Dow, 849 F.2d 731 (2d Cir.), cert.
        denied, 488 U.S. 955 (1988) . . . . . . . . . . . . . . . . . .20

Crawford v. Pittman, 708 F.2d 1028
        (5th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . .20

Crowder v. Kitagawa, 81 F.3d 1480
        (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . .passim

David D. v. Dartmouth Sch. Comm., 775 F.2d 411
        (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986) . . . . . .20

De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978),
        cert. denied, 441 U.S. 965 (1979) . . . . . . . . . . . . . . .25

Department of Educ. v. Katherine D., 531 F. Supp. 517
        (D. Haw. 1982), rev'd in part on other grounds,
        727 F.2d 809 (9th Cir. 1983), cert. denied,
        471 U.S. 1117 (1985) . . . . . . . . . . . . . . . . . . . . . 36

Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . . . . .1

Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) . . . . . . . . . . 50
Duffy v. Riveland, 98 F.3d 447
        (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . .passim

EEOC v. Arabian American Oil Co.,
        499 U.S. 244 (1991) . . . . . . . . . . . . . . . . . . . .54, 55

EEOC v. County of Calumet, 686 F.2d 1249
        (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . .18


                                - iii -
CASES (continued):                                                   PAGE

EEOC v. Wyoming, 460 U.S. 226 (1983) . . . . . . . . . . . . . . . 19, 36

Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . . . . . . 11, 40

Ex parte Virginia, 100 U.S. (10 Otto)
        339 (1879) . . . . . . . . . . . . . . . . . . . . . . . . passim

Ex parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . . .passim

Ferguson v. City of Phoenix, 931 F. Supp.
        688 (D. Ariz. 1996) . . . . . . . . . . . . . . . . . . . . . .53

Fiedler v. American Multi-Cinema, Inc.,
        871 F. Supp. 35 (D.D.C. 1994) . . . . . . . . . . . . . . . . .53

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . 13, 21, 32, 38

Florida Dep't of Health & Rehabilitative Servs.
        v. Florida Nursing Home Ass'n, 450 U.S. 147
        (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Fullilove v. Klutznick, 448 U.S. 448 (1980) . . . . . . . . . .22, 29, 37

Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . . . passim

Grano v. Department of Dev., 637 F.2d 1073
        (6th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . .23

Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . . . . . . . 10, 11

Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . 48, 49

Griffin v. Illinois, 351 U.S. 12 (1956) . . . . . . . . . . . . . . . .27

Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . . . . . . . . .45

Hodgson v. University of Texas Med. Branch, No. G-95-612,
        1997 WL 50173 (S.D. Tex. Feb. 6, 1997) . . . . . . . . . . . . 19

Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla.
        1996), appeal pending, No. 96-5388 (11th Cir.) . . . . . . . . 39

Inmates of Allegheny County Jail v. Wecht, No. 95-3402,
        1996 WL 474106 (3d Cir. Aug. 22, 1996),
        vacated for reh'g en banc, 93 F.3d 1146 (1996),
        dismissed as moot (Dec. 4, 1996) . . . . . . . . . . . . . 46, 49

Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) . . . . . . . 32, 45, 49


                                - iv -CASES (continued):                                                   PAGE

Jenness v. Fortson, 403 U.S. 431 (1971) . . . . . . . . . . . . . . . .23

Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . . . . .passim

Keller v. United States, 213 U.S. 138 (1909) . . . . . . . . . . . . . 38

Kimel v. Florida Bd. of Regents, 1996 U.S.
        Dist. Lexis 7995 (N.D. Fla. May 17, 1996),
        appeal pending, No. 96-2788 (11th Cir.) . . . . . . . . . . . .19

Lane v. Pena, 116 S. Ct. 2092 (1996) . . . . . . . . . . . . . . . 34, 41

Lau v. Nichols, 483 F.2d 791 (9th Cir. 1973),
        rev'd, 414 U.S. 563 (1974) . . . . . . . . . . . . . . . . . . 25

Lau v. Nichols, 414 U.S. 563 (1974) . . . . . . . . . . . . . . 25, 27-28

Lewis v. Casey, 116 S. Ct. 2174 (1996) . . . . . . . . . . . . . . . . 28

Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) . . . . . . . . . . . 11

M.L.B. v. S.L.J., 117 S. Ct. 555 (1996) . . . . . . . . . . . . . . . .27

MacPherson v. University of Montevallo,
        938 F. Supp. 785 (N.D. Ala. 1996),
        appeal pending, No. 96-6947 (11th Cir.) . . . . . . . . . . . .19

Maher v. Gagne, 448 U.S. 122 (1980) . . . . . . . . . . . . . . . .17, 18

Martin v. Voinovich, 840 F. Supp. 1175
        (S.D. Ohio 1993) . . . . . . . . . . . . . . . . . . . . . . . 39

Massachusetts Bd. of Retirement v. Murgia,
        427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . . . .15

Mayer v. University of Minn., 940 F. Supp. 1474
        (D. Minn. 1996) . . . . . . . . . . . . . . . . . . . . . .16, 39

Missouri v. Jenkins, 115 S. Ct. 2038 (1995) . . . . . . . . . . . . 30-31

Mitten v. Muscogee County Sch. Dist., 877 F.2d 932
        (11th Cir. 1989), cert. denied,
        493 U.S. 1072 (1990) . . . . . . . . . . . . . . . . . . . . . 20

Mockaitis v. Harcleroad, No. 96-35901,
        1997 WL 27111 (9th Cir. Jan. 27, 1997) . . . . . . . . . . . . 28

Natural Resources Defense Council v. California
        Dep't of Transp., 96 F.3d 420 (9th Cir. 1996) . . . . . . . 10-11


                                - v -CASES (continued):                                                   PAGE

Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996) . . . . . . . . .39

Oregon v. Mitchell, 400 U.S. 112 (1970) . . . . . . . . . . . . . . . .17

Oregon Pub. Utility Comm'n v. ICC, 979 F.2d.778
        (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . .48

Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994) . . . . . . . . . . . . 46

Papasan v. Allain, 478 U.S. 265 (1986) . . . . . . . . . . . . . . . . 10

Petty v. Tennessee-Missouri Bridge Comm'n,
        359 U.S. 275 (1959) . . . . . . . . . . . . . . . . . . . . . .40

Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . .8

Quern v. Jordan, 440 U.S. 332 (1979) . . . . . . . . . . . . . . . . . 11

Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694
        (1st Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . .18

Ross v. Moffitt, 417 U.S. 600 (1974) . . . . . . . . . . . . . . . . . 27

Sandin v. Conner, 115 S. Ct. 2293 (1995) . . . . . . . . . . . . . . . 34

Santiago v. New York State Dep't of Correctional
        Servs., 945 F.2d 25 (2d Cir. 1991),
        cert. denied, 502 U.S. 1094 (1992) . . . . . . . . . . . . 19, 39

Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996),
        petition for cert. filed, 65 U.S.L.W. 3370
        (U.S. Oct. 29, 1996) (No. 96-710) . . . . . . . . . . . . . . .37

Scanlon v. Atascadero State Hosp., 735 F.2d 359
        (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . .35

Schmidt v. Oakland Unified Sch. Dist., 662 F.2d 550
        (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . .22

Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114
        (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990),
        cert. denied, 501 U.S. 1217 (1991) . . . . . . . . . . . . . . 24

South Carolina v. Katzenbach, 383 U.S. 301
        (1966) . . . . . . . . . . . . . . . . . . . . . . . . 22, 28, 33

South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . .42


                                - vi -CASES (continued):                                                   PAGE

Southeastern Community College v. Davis,
        442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . . . . . .47

Stanley v. Darlington County Sch. Dist.,
        879 F. Supp. 1341 (D.S.C. 1995),
        rev'd in part on other grounds,
        84 F.3d 707 (4th Cir. 1996) . . . . . . . . . . . . . . . . . .39

Stinson v. United States, 508 U.S. 36 (1993) . . . . . . . . . . . . . 51

Students of Cal. Sch. for the Blind v. Honig,
        736 F.2d 538 (9th Cir. 1984), vacated,
        471 U.S. 148 (1985) . . . . .  36

Teichgraeber v. Memorial Union Corp., 946 F. Supp. 900
        (D. Kan. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 19

Thomas Jefferson Univ. v. Shalala,
        114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . .50-51

Timmer v. Michigan Dep't of Commerce,
        104 F.3d 833 (6th Cir. 1997) . . . . . . . . . . . . . 14, 37, 38

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995),
        cert. denied, 116 S. Ct. 772 (1996) . . . . . . . . . . . .passim

Tyler v. City of Manhattan, 857 F. Supp. 800
        (D. Kan. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Butler, 297 U.S. 1 (1936) . . . . . . . . . . . . .37-38

United States v. California Mobile Home Park
        Management Co., 29 F.3d 1413 (9th Cir. 1994) . . . . . . . . . 24

United States v. Culbert, 435 U.S. 371 (1978) . . . . . . . . . . . . .48

United States v. Gainey, 380 U.S. 63 (1965) . . . . . . . . . . . . 28-29

United States v. Harris, 106 U.S. (16 Otto)
        629 (1883) . . . . . . . . . . . . . . . . . . . . . . . . . . 38

United States v. Horton, 601 F.2d 319 (7th Cir.),
        cert. denied, 444 U.S. 937 (1979) . . . . . . . . . . . . . . .23

United States v. Marengo County Comm'n,
        731 F.2d 1546 (11th Cir.), cert. denied,
        469 U.S. 976 (1984) . . . . . . . . . . . . . . . . . . . . . .23

United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) . . . . . . . . . .37


                                - vii -CASES (continued):                                                   PAGE

United States v. Yonkers Bd. of Educ., 893 F.2d 498
        (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 39

United States R.R. Retirement Bd. v. Fritz,
        449 U.S. 166 (1980) . . . . . . . . . . . . . . . . . . . . . .15

United Steelworkers of America v. Weber, 443 U.S.
        193 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Welch v. Texas Dep't of Highways & Pub. Transp.,
        483 U.S. 468 (1987) . . . . . . . . . . . . . . . . . . . . . .36

Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996) . . . . . . . . .14

Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948) . . . . . . . . . . .36

CONSTITUTION, STATUTES AND REGULATIONS:

United States Constitution:

        Art. I, S 8, Cl. 1, Spending Clause . . . . . . . . . . . .passim
        Art. I, S 8, Cl. 3, Commerce Clause . . . . . . . . . .14, 19, 38
        Art. VI, Supremacy Clause . . . . . . . . . . . . . . . . . . .11

Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . passim
Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . passim

        Section 1, Due Process Clause . . . . . . . . . . . . . . . . .18
        Section 1, Equal Protection Clause . . . . . . . . . . . . passim
        Section 5 . . . . . . . . . . . . . . . . . . . . . . . . .passim

Age Discrimination in Employment Act,
        29 U.S.C. 621 et seq. . . . . . . . . . . . . . . . . . . . . .18

Americans with Disabilities Act (ADA) . . . . . . . . . . . . . . .passim

        42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . . . . .21
        42 U.S.C. 12101(a) (5) . . . . . . . . . . . . . . . . . . 21, 24
        42 U.S.C. 12101(a) (7) . . . . . . . . . . . . . . . . . . . . 21
        42 U.S.C. 12101(b) (4) . . . . . . . . . . . . . . . . . . . . 14
        42 U.S.C. 12102(2) (A) . . . . . . . . . . . . . . . . . . . . 25

      Title II . . . . . . . . . . . . . . . . . . . . . . . . . . passim
        42 U.S.C. 12131(1) (B) . . . . . . . . . . . . . . . . . . . . 44
        42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . . . 25, 46
        42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . . . .44
        42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . . . . . 2
        42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . . . . . 2
        42 U.S.C. 12134(a) . . . . . . . . . . . . . . . . . . .2, 50, 54
        42 U.S.C. 12134(b) . . . . . . . . . . . . . . . . 29, 30, 44, 54

                                - viii -CONSTITUTION, STATUTES AND REGULATIONS:                              PAGE
      
      Title IV:
        42 U.S.C. 12201(a) . . . . . . . . . . . . . . . . . . . . . . 45
        42 U.S.C. 12202 . . . . . . . . . . . . . . . . . . . . . . . .12
        42 U.S.C. 12206(c) (3) . . . . . . . . . . . . . . . . . . .2, 53
        42 U.S.C. 12212 . . . . . . . . . . . . . . . . . . . . . . . .30

Civil Rights Act of 1964, Title VII,
        42 U.S.C. 2000e et seq. . . . . . . . . . . . . . . . . . . . .13

Civil Rights Remedies Equalization Act,
        42 U.S.C. 2000d-7 . . . . . . . . . . . . . . . . . . . . .passim

Education Amendments of 1972, Title IX, 20 U.S.C. 1681(a) . . . . . . .45

Individuals with Disabilities Education Act,
        20 U.S.C. 1400 et seq. . . . . . . . . . . . . . . . . . . . . 19

Rehabilitation Act of 1973, Section 504,
        29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . . . . .passim
        29 U.S.C. 794(a) . . . . . . . . . . . . . . . . . .2, 43, 50, 54
        29 U.S.C. 794(b) . . . . . . . . . . . . . . . . . . . . . . . 44

Voting Rights Act, Section 5,
        42 U.S.C. 1973c . . . . . . . . . . . . . . . . . . . . . .23, 33

28 U.S.C. 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
28 U.S.C. 2403(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
42 U.S.C. 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
28 C.F.R. Pt. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
28 C.F.R. 35.102(a) . . . . . . . . . . . . . . . . . . . . . . . . . .51
28 C.F.R. 35.105-35.107 . . . . . . . . . . . . . . . . . . . . . . . .29
28 C.F.R. 35.130(b)(7) . . . . . . . . . . . . . . . . . . . . . . .31-32
28 C.F.R. 35.151(a)-(c) . . . . . . . . . . . . . . . . . . . . . . . .30
28 C.F.R. 35.151(c) . . . . . . . . . . . . . . . . . . . . . . . .31, 52
28 C.F.R. 35.190(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . 52
28 C.F.R. Pt. 35, App. A . . . . . . . . . . . . . . . . . . . . . 51, 52

28 C.F.R. Pt. 36, App. A . . . . . . . . . . . . . . . . . . . . . . . 52

28 C.F.R. 39.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
28 C.F.R. 39.170(d)(1)(ii) . . . . . . . . . . . . . . . . . . . . . . 55
28 C.F.R. Pt. 39, Editorial Note . . . . . . . . . . . . . . . . . . . 55

28 C.F.R. 41.5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .29

28 C.F.R. Pt. 42, Subpart G . . . . . . . . . . . . . . . . . . . . . . 2
28 C.F.R. 42.502 . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

                                - ix -CONSTITUTION, STATUTES AND REGULATIONS:                              PAGE

28 C.F.R. 42.540(h) . . . . . . . . . . . . . . . . . . . . . . . . . .51
28 C.F.R. 42.540(j) . . . . . . . . . . . . . . . . . . . . . . . . . .51
28 C.F.R. 42.540(l) . . . . . . . . . . . . . . . . . . . . . . . . . .46

41 C.F.R. Pt. 101-19.6, App. A . . . . . . . . . . . . . . . . . . . . 52

45 Fed. Reg. 37,620 (1980) . . . . . . . . . . . . . . . . . . . . . . 51
45 Fed. Reg. 37,630 (1980) . . . . . . . . . . . . . . . . . . . . . . 51

59 Fed. Reg. 31,770-31,772 (1994) . . . . . . . . . . . . . . . . . . .53
59 Fed. Reg. 31,809 (1994) . . . . . . . . . . . . . . . . . . . . . . 52

61 Fed. Reg. 62,078-62,079 (1996) . . . . . . . . . . . . . . . . . . .53



LEGISLATIVE HISTORY:

H.R. Rep. No. 485, Pt. 2, 101st Cong.,
        2d Sess. (1990) . . . . . . . . . . . . . . . . . .24, 25, 29, 30
H.R. Rep. No. 485, Pt. 4, 101st Cong.,
        2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . 47
H.R. Rep. No. 558, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . 25

S. Rep. No. 388, 99th Cong., 2d Sess. (1986) . . . . . . . . . . . . .39
S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . .24, 30
S. Rep. No. 596, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . 25

131 Cong. Rec. 22,344 (1985) . . . . . . . . . . . . . . . . . . . . .38
131 Cong. Rec. 22,346 (1985) . . . . . . . . . . . . . . . . . . . . .38

132 Cong. Rec. 28,624 (1986) . . . . . . . . . . . . . . . . . . .39, 42

136 Cong. Rec. 10,870 (1990) . . . . . . . . . . . . . . . . . . . . .24
136 Cong. Rec. 11,467 (1990) . . . . . . . . . . . . . . . . . . .20, 24
136 Cong. Rec. 11,468 (1990) . . . . . . . . . . . . . . . . . . . . .20

S. 1579, 99th Cong., 1st Sess. (1985) . . . . . . . . . . . . . . . . 38



MISCELLANEOUS:

Americans with Disabilities Act Title II
        Technical Assistance Manual (1993) . . . . . . . . . . . . .2, 53

U.S. Commission on Civil Rights, Accommodating the Spectrum
        of Individual Abilities (1983) . . . . . . . . . . . . . . . . 24



                                     - x -                        IN THE UNITED STATES COURT OF APPEALS
                                FOR THE NINTH CIRCUIT

                                    No. 96-16870

                                JOHN ARMSTRONG, et al.,

                                                        Plaintiffs-Appellees

                                        v.

                                PETE WILSON, et al.,

                                                        Defendants-Appellants


                ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE NORTHERN DISTRICT OF CALIFORNIA

                    BRIEF FOR THE UNITED STATES AS INTERVENOR
                                AND AMICUS CURIAE

                        INTEREST OF THE UNITED STATES

        The United States appears as intervenor to defend the

constitutionality of Congress' abrogation of States' Eleventh

Amendment immunity for private suits under the Americans with

Disabilities Act (ADA) and Section 504 of the Rehabilitation Act

of 1973. The United States has a statutory right to intervene to

defend the constitutionality of its statutes, 28 U.S.C. 2403(a),

giving it an interest distinct from the private parties' claims

of injury. See Diamond v. Charles, 476 U.S. 54, 64-65 (1986).

Moreover, because of the inherent limitations on administrative

enforcement mechanisms and on the litigation resources of the

United States, the United States has an interest in ensuring that

                                - 2 -

these statutes may be enforced against States by private parties

acting as private attorneys general.

        The United States also appears as amicus curiae to address

the scope of these statutes. The Department of Justice has

significant responsibilities for the enforcement and

implementation of Title II of the ADA and Section 504. 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. 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; 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-

operated prison facilities.


        STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

        The United States agrees with the plaintiffs-appellees'

jurisdictional statement.


                                - 3 -

                        STATEMENT OF THE ISSUES

        1. Whether the doctrine of Ex parte Young applies to suits

brought against state officials for prospective injunctive relief

to remedy continuing violations of the Americans with

Disabilities Act (ADA) and Section 504 of the Rehabilitation Act

of 1973.

        2. Whether the statutory abrogation of Eleventh Amendment

immunity for suits under the ADA is a valid exercise of Congress'

authority under Section 5 of the Fourteenth Amendment.

        3. Whether the statutory abrogation of Eleventh Amendment

immunity for suits under Section 504 is a valid exercise of

Congress' authority under Section 5 of the Fourteenth Amendment

or the Spending Clause.

        4. Whether the ADA and Section 504 apply to state-operated

prisons.

                        STATEMENT OF THE CASE

        1. Plaintiffs, a class consisting of all present and future

inmates with mobility, sight, hearing, learning or kidney

disabilities, brought a suit seeking injunctive relief under the

ADA and Section 504 against various California state officials in

their official capacities (E.R. 18-32).1/

The parties entered a stipulation for procedures to
determine liability and remedy (E.R. 62-69). Under that
_________________
1/ E. R. refers to the appellants' Excerpts of Record. Br.__
refers the Appellants' Brief.


                                - 4 -

stipulation, the parties agreed that the defendants could file a

motion for summary judgment on the grounds that they were immune

from suit under the Eleventh Amendment and that the ADA and

Section 504 do not apply to state prisons (E.R. 65). If the

court denied their motion, the defendants agreed that a finding

of liability and stipulated remedial order would be entered

against them (E.R. 65).2/

        On September 20, 1996, the district court issued an opinion

denying the defendants' summary judgment motion on the Eleventh

Amendment and coverage questions (E.R. 114-141). The district

court then entered findings of facts and conclusions of law (E.R.

110-112) and a remedial order (E.R. 142-148) agreed to by the

parties. This timely appeal followed (E.R. 150-152).3/
______________________
2./ Defendant James Nielsen, Chairman of the California Board of
Prison Terms, did not enter the stipulation (E.R. 62), but joined
the motion for summary judgment. Because no injunction was
issued against defendant Nielsen, defendants concede (Br. 4) that
Nielsen's appeal is limited to questions of Eleventh Amendment
immunity. Although throughout this brief we will refer to the
state officials collectively as "defendants," that term is not
intended to include defendant Nielsen when discussing the
questions of statutory interpretation addressed in Part IV.

3/ Pursuant to the stipulation (E.R. 66), the district court
certified the question whether state prisons were covered by the
ADA and Section 504 for immediate interlocutory appeal pursuant
to 28 U.S.C. 1292(b) (E.R. 148). The state officials petitioned
for immediate interlocutory appeal (docketed at No. 96-80358).
On October 11, 1996, this Court issued its amended opinion in
Duffy v. Riveland, 98 F.3d 447 (1996), which applied both the ADA
and Section 504 in the prison context. On October 23, 1996, this
Court denied the state officials in this case permission to
appeal. On December 20, 1996, this Court denied the state
officials' motion for reconsideration, citing Duffy.



                                - 5 -

      2. Of the 131,632 inmates in California's 31 state-operated

prisons, 345 inmates use wheelchairs due to a permanent

disability; 650 use canes, prostheses, or walkers; 141 are deaf

or have a substantial hearing impairment (even when augmented

with a hearing aid); and 219 are blind or have vision that cannot

be corrected to 20/200 even with corrective lenses (E.R. 73-74).

        Some inmates with disabilities are subject to disparate

treatment by the state prison system. Inmates who use

wheelchairs and those on dialysis spend significantly longer

periods of time (up to a year in some instances) in "reception

centers," which process inmates upon entering prisons, than non-

disabled inmates (E.R. 78-79). While housed in reception

centers, inmates do not receive as much sentence credit and do

not have the same privileges as inmates in "mainline"

institutions (E.R. 79). In another example, inmates with

mobility impairments who require a catheter or Foley bag or

inmates on dialysis are totally excluded from work-furlough

programs (E.R. 89-90).

        Inmates with disabilities are also disadvantaged by the

failure of the prisons to accommodate their disabilities. For

example, some prisoners cannot fit their wheelchairs into their

cells or, if they can, cannot maneuver within their cells (E.R.

83). Similarly, some inmates cannot use the showers or toilets

because of mobility impairments (E.R. 83). In some instances,

inmates placed in an administrative segregation unit have had




                                - 6 -

their wheelchairs and prosthetic limbs removed without regard to

the inmate's medical needs or disciplinary record (E.R. 82).

        In addition, the prisons have sirens that sound for

disasters requiring evacuation, such as earthquakes and fire, but

do not have visual alarms or strobe lights to warn prisoners with

hearing impairments of emergencies (E.R 79-80). Similarly,

general announcements are made on a public address system, yet no

formal system exists to notify inmates with hearing impairments

of such announcements (E.R. 85).

        3. On the defendants' motion for summary judgment, the

district court held that the plaintiffs' claims under the ADA and

Section 504 were not barred by the Eleventh Amendment (E.R. 129-

141). It explained that because plaintiffs "seek prospective

injunctive relief only against state officials acting in their

official capacity," the suit was not barred by the Eleventh

Amendment because it fell within the doctrine of Ex parte Young

(E.R. 140). Moreover, it found that both statutes contained

express abrogations of Eleventh Amendment immunity and that these

abrogations were valid exercises of Congress' authority under

Section 5 of the Fourteenth Amendment (E.R. 129-138). Finally,

following this Court's decisions in Bonner v. Lewis, 857 F.2d 559

(9th Cir. 1988), and Gates v. Rowland, 39 F.3d 1439 (9th Cir.

1994), the district court rejected the defendants' argument that

the ADA and Section 504 do not apply to state-operated prisons

(E.R. 118-129).


                                - 7 -

        Pursuant to the parties' stipulation, the court entered a

remedial order that required the defendants (except defendant

Nielsen) to "submit guidelines, policies, procedures or plans" to

address various inadequacies at the prisons (E.R. 143-144). The

plaintiffs then had an opportunity to request an evidentiary

hearing on those plans to see if they comply with the ADA and

Section 504 (E.R. 144-145). That process is on-going (E.R. 65

(agreeing not to seek a stay pending appeal)).

                        SUMMARY OF ARGUMENT

        The Eleventh Amendment is no bar to this action brought by

private plaintiffs under the ADA and Section 504 to remedy

discrimination against persons with disabilities. First, under

the doctrine of Ex parte Young, federal courts have jurisdiction

to hear suits against state officials seeking prospective

injunctive relief in order to end a continuing violation of

federal law. Because only state officials are defendants in this

action, and because the only relief sought is a prospective

injunction, there is no Eleventh Amendment bar to the district

court's jurisdiction.

        If this Court finds it appropriate to reach the question,

both the ADA and Section 504 contain valid statutory abrogations

of Eleventh Amendment immunity. The abrogation in the ADA is a

valid exercise of Congress' power under Section 5 of the

Fourteenth Amendment, which authorizes Congress to enact

"appropriate legislation" to "enforce" the Equal Protection

                                - 8 -

Clause. In exercising that power, Congress is not limited to

legislating in regard to classifications that the courts have

found are "suspect." To the contrary, Congress is authorized by

the Fourteenth Amendment to enact whatever legislation it

determines is appropriate to secure to all persons "the enjoyment

of perfect equality of civil rights and the equal protection of

the laws." Ex parte Virginia, 100 U.S. (10 Otto) 339, 346

(1879).

        Nor is Congress limited to prohibiting intentional

discrimination. Congress found that persons with disabilities

were excluded from full participation in all aspects of society

in part because of policies and practices, neutral in their

inception, that imposed barriers to meaningful access. In light

of these findings, Congress required public entities to take

reasonable steps to modify their practices and physical

facilities so that persons with disabilities would have

meaningful access to all the services, programs, or activities of

those entities. This finely-tuned mandate is plainly adapted to

the underlying purpose of the Equal Protection Clause: "the

abolition of governmental barriers presenting unreasonable

obstacles to advancement on the basis of individual merit."

Plyler v. Doe, 457 U.S. 202, 222 (1982).

        The abrogation of Eleventh Amendment immunity for Section

504 actions is also valid under Section 5 of the Fourteenth

Amendment. In addition, the abrogation for Section 504 suits is


                                - 9 -

a valid exercise of Congress' power under the Spending Clause to
impose unambiguous conditions for receiving federal funds. In 42

U.S.C. 2000d-7, Congress put States on notice that accepting

federal funds waived their Eleventh Amendment immunity to

discrimination suits under Section 504. In either case, the

abrogation for Section 504 suits is constitutional and the

district court had jurisdiction over the action.

        Finally, because this Court has jurisdiction, it should

reaffirm its holding in Bonner v. Lewis, 857 F.2d 559 (9th Cir.

1988), Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), and Duffy

v. Riveland, 98 F.3d 447 (9th Cir. 1996), that state prisons are

covered by the ADA and Section 504 based on the plain language

and consistent administrative interpretations of these statutes.

                                ARGUMENT

                                   I

        DEFENDANTS ARE NOT ENTITLED TO ELEVENTH AMENDMENT IMMUNITY
                     UNDER THE DOCTRINE OF EX PARTE YOUNG

        Citing the Supreme Court's recent decision in Seminole Tribe

of Florida v. Florida, 116 S. Ct. 1114 (1996), the defendants

contend that Congress did not have the constitutional authority

to abrogate Eleventh Amendment immunity for suits brought by

private plaintiffs under Title II of the Americans with

Disabilities Act (ADA) or Section 504 of the Rehabilitation Act

of 1973 (Section 504). There is no need to reach this

constitutional question in this case because all the defendants



                                - 10 -

in this action are state officials sued in their official

capacities for prospective injunctive relief.

        Under the doctrine of Ex parte Young, 209 U.S. 123 (1908),

the Eleventh Amendment is no bar to "federal jurisdiction over a

suit against a state official when that suit seeks only

prospective injunctive relief in order to 'end a continuing

violation of federal law.'" Seminole Tribe, 116 S. Ct. at 1132

(quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). The

defendants do not contest the district court's holding (E.R. 140)

that only prospective injunctive relief is being sought.

Instead, they argue (Br. 34-35) that because the relief sought in

this case against the state officials is in reality against the

State, Ex parte Young is inapplicable. But States may only act

through their officials. And the Supreme Court recognized in

Papasan v. Allain, 478 U.S. 265, 278 (1986), that the Eleventh

Amendment is not a bar to seeking injunctive relief against state

officials under Ex parte Young even though such relief may have a

"substantial ancillary effect on the state treasury," so long as

the "relief * * * serves directly to bring an end to a present

violation of federal law."

        Second, the defendants argue (Br. 35-37) that Ex parte Young

should extend only to violations of federal constitutional law,

not federal statutory law. But they concede (Br. 35) that that

is not the law of this Circuit. See Natural Resources Defense

Council v. California Dep't of Transp., 96 F.3d 420, 422-423 (9th




                                - 11 -

Cir. 1996) (collecting cases). Moreover, such an argument

ignores that when state officials violate federal law, they also

violate the Supremacy Clause, U.S. Const. Art. VI, which makes

federal law "the supreme Law of the Land." See Green, 474 U.S.

at 68; see also Edelman v. Jordan, 415 U.S. 651 (1974)

(adjudicating case involving violation of federal statutory law

under Ex parte Young); Quern v. Jordan, 440 U.S. 332 (1979)

(same); Lussier v. Dugger, 904 F.2d 661, 670 n.10 (11th Cir.

1990) (collecting Section 504 cases litigated under Ex parte

Young).

        Since neither the State nor any arm-of-the-state was named

as a defendant in this action, it is not necessary to reach the

question of Congress' power to remove States' Eleventh Amendment

immunity. If this Court finds it appropriate to reach the

constitutional question, however, for the reasons discussed below

the statutory abrogations of Eleventh Amendment immunity enacted

for the ADA and Section 504 are valid.




                                - 12 -

                                  II
 
       THE ABROGATION OF ELEVENTH AMENDMENT IMMUNITY CONTAINED IN THE
             AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF
           CONGRESS' POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT

        In Seminole Tribe, the Supreme Court articulated a two-part

test to determine whether Congress has properly abrogated States'

Eleventh Amendment immunity:

        first, whether Congress has unequivocally expressed its
        intent to abrogate the immunity; and second, whether
        Congress has acted pursuant to a valid exercise of
        power.

116 S. Ct. at 1123 (citations, quotations, and brackets omitted).

        Section 12202 of Title 42 provides that a "State shall not

be immune under the eleventh amendment to the Constitution of the

United States from an action in [a] Federal or State court of

competent jurisdiction for a violation of this chapter." This

Court held in Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir.

1996), that the ADA contained the "unmistakably clear statutory

language" necessary to constitute an asbroation. Indeed, the

defendants concede (Br. 21) that Section 12202 clearly satisfies

the first requirement.

        The second inquiry under Seminole Tribe is whether "Congress

has the power to abrogate unilaterally the States' immunity from

suit." 116 S. Ct. at 1125. Here the Fourteenth Amendment

provides that authority. Section 5 of the Fourteenth Amendment

empowers Congress to enact "appropriate legislation" to "enforce"

the Equal Protection Clause. As the Supreme Court explained over




                                - 13 -
a hundred years ago:

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

Ex parte Virginia, 100 U.S. (10 Otto) 339, 345-346 (1879). A

statute is thus "appropriate legislation" to enforce the Equal

Protection Clause if the statute "may be regarded as an enactment

to enforce the Equal Protection Clause, [if] it is 'plainly

adapted to that end' and [if] it is not prohibited by but is

consistent with 'the letter and spirit of the constitution.'"

Katzenbach v. Morgan, 384 U.S. 641, 651 (1966).

        In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court

upheld the abrogation of States' Eleventh Amendment immunity in

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as

"appropriate" legislation under Section 5. It explained that

"[w]hen Congress acts pursuant to S 5, not only is it exercising

legislative authority that is plenary within the terms of the

constitutional grant, it is exercising that authority under one

section of a constitutional Amendment whose other sections by

their own terms embody limitations on state authority." Id. at

456. In Seminole Tribe, the Court reaffirmed the holding of

Fitzpatrick. See 116 S. Ct. at 1125, 1128, 1131 n.15. Thus, the

abrogation of Eleventh Amendment immunity in the ADA can be




                                - 14 -

upheld if the ADA is a valid exercise of Congress' Section 5

power.

        A.      The ADA Is An Enactment To Enforce The Equal
                Protection Clause

        The defendants concede (Br. 23-24 n.8) that Congress

intended to exercise its Section 5 authority in enacting the ADA.

Indeed, although Congress need not expressly invoke the

constitutional powers upon which it relied, it did so in the ADA.

Congress' express intent in enacting the ADA was "to invoke the

sweep of congressional authority, including the power to enforce

the fourteenth amendment * * *, in order to address the major

areas of discrimination faced day-to-day by people with

disabilities." 42 U.S.C. 12101 (b)(4).4/

        Nor can the defendants dispute that discrimination on the

basis of disability is subject to scrutiny under the Equal

Protection Clause. In City of Cleburne v. Cleburne Living

Center, 473 U.S. 432 (1985), the Court unanimously declared

unconstitutional a decision by a city to deny a special use
____________________
4/ The defendants' reliance (Br. 23-24) on Wilson-Jones v.
Caviness, 99 F.3d 203 (6th Cir. 1996), is therefore
inappropriate. Wilson-Jones addressed the question whether the
Fair Labor Standards Act (FLSA), a statute that was not directed
at discrimination and expressly invoked only the Commerce Clause,
could be regarded as an enactment to enforce the Equal Protection
Clause. Unlike the FLSA, Congress expressly invoked the
Fourteenth Amendment in the text of this anti-discrimination
statute. Thus there can be no question that Congress intended
the statute to be regarded as Section 5 legislation. See Timmer
v. Michigan Dep't of Commerce, 104 F.3d 833, 838-842 (6th Cir.
1997) (limiting Wilson-Jones).



                                - 15 -

permit for the operation of a group home for people with mental

retardation. Although a majority declined to deem

classifications on the basis of mental retardation as "quasi-

suspect," it held that this did not leave persons with such

disabilities "entirely unprotected from invidious

discrimination." Id. at 446. Instead, it found a violation of

the Equal Protection Clause because "the record [did] not reveal

any rational basis" for the decision to deny a special use

permit. Id. at 448.

        The defendants argue (Br. 24-27) that the ADA cannot be

regarded as a statute to enforce the Equal Protection Clause

because classifications on the basis of disability are not

"suspect." But suspectness describes the degree of scrutiny by

which a court examines legislative actions. The concept does not

govern the power of Congress to legislate pursuant to its plenary

power under Section 5. As the Court noted in Massachusetts Board

of Retirement v. Murgia, 427 U.S. 307, 314 (1976), the

rational-basis standard for evaluating most equal protection

claims "reflect[s] the Court's awareness that the drawing of

lines that create distinctions is peculiarly a legislative task

and an unavoidable one." That "the line might have been drawn

differently * * * is a matter for legislative, rather than

judicial, consideration." United States R.R. Retirement Bd. v.

Fritz, 449 U.S. 166, 179 (1980). But the institutional

limitations that generally constrain the judiciary to employ a


                                - 16 -

standard of rational review in evaluating claims based on the

Equal Protection Clause are, by definition, inapplicable to

Congress.

        Not only is Congress institutionally better suited to making

such determinations, it is also charged by the Constitution with

the responsibility for making such determinations. Although

federal courts have an important role to play in protecting

individuals from State infringement of Fourteenth Amendment

rights, Section 5 has vested in Congress the authority to enact

legislation it believes necessary to enforce those rights --

giving it power over the States greater than that entrusted in

the judiciary. "It is not said that the judicial power of the

general government shall extend to enforcing the prohibition and

protecting the rights and immunities guaranteed. * * * It is the

power of Congress which has been enlarged." Ex parte Virginia,

100 U.S. at 345. Thus "[t]he fact that the Supreme Court has

subjected governmental classifications involving suspect classes

to a higher level of scrutiny than other classifications does not

prevent Congress from finding that another class of persons has

been subjected to a history of unequal treatment and legislating

pursuant to its enforcement powers under the Fourteenth Amendment

to protect that class of persons from arbitrary discrimination."

Mayer v. University of Minn., 940 F. Supp. 1474, 1479 (D. Minn.

1996).



                                - 17 -

        Oregon v. Mitchell, 400 U.S. 112 (1970), in which a majority

of the Court invalidated Congress' attempt to lower the voting

age in state elections from 21 to 18, is not to the contrary.

The statute at issue in Oregon was not struck down because it

involved age -- a non-suspect characteristic. Rather, it was

invalidated because it imposed a nationwide voting age by

altering qualifications for state elections -- a power committed

to the States by the express language of the Constitution -- and

because it did not purport to remedy discrimination of any

kind.5/

        Any implication in Oregon that Congress was limited in

exercising its Section 5 authority to legislate only with regard

to suspect classifications was repudiated by the Supreme Court in

Maher v. Gagne, 448 U.S. 122 (1980). In Maher, the plaintiff

brought a suit under 42 U.S.C. 1983 against a state official

___________________
5/ Justice Black took the position that the Constitution
reserved to the States the power to establish voter
qualifications in state and local elections and, unless necessary
to remedy racial discrimination, Congress could not interfere
with the States' exercise of that power. See 400 U.S. at 130.
Justice Harlan voted to invalidate the legislation because, in
his view, the Fourteenth Amendment simply did not encompass
"political rights" or, more specifically, the right to vote and,
therefore, Congress had no power to legislate with respect to
voter qualifications pursuant to Section t. See 400 U.S. at 140.
Justice Stewart, writing for himself, Chief Justice Burger, and
Justice Blackmun, agreed with Justice Black that the Constitution
reserves to the States the power to set voter qualifications,
including reasonable age limitations, and concluded that, unlike
the situation presented in Katzenbach v. Morgan, there was no
basis for regarding reduction of the minimum voting age to 18 as
necessary to prevent invidious discrimination of any sort. See
400 U.S. at 203-206.


                                - 18 -

alleging that certain state AFDC regulations violated the

Fourteenth Amendment's Equal Protection and Due Process Clauses

by creating arbitrary, but non-suspect, classifications. Id. at

124-125 & n.5. After the parties entered into a consent decree,

the plaintiff sought attorneys fees pursuant to 42 U.S.C. 1988.

The state official argued that such an award was barred by the

Eleventh Amendment. The Supreme Court held to the contrary,

explaining that "[u]nder S 5 Congress may pass any legislation

that is appropriate to enforce the guarantees of the Fourteenth

Amendment. A statute awarding attorney's fees to a person who

prevails on a Fourteenth Amendment claim falls within the

category of 'appropriate' legislation." Id. at 132. The Court

specifically declined to limit Congress' Section 5 authority to

certain types of Fourteenth Amendment claims. See id. at 133

n.16; see also id. at 134-135 (Powell, J., concurring in part).

        We are aware of no court of appeals decision that has

adopted the approach advocated by the defendants in this case and

limited Congress' Section 5 authority to legislation regarding

"suspect" classifications. To the contrary, the courts of

appeals have unanimously upheld the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. 621 et seq., as a valid exercise

of Congress' Section 5 authority, despite the fact that age is

not a suspect classification. See, e.g., Ramirez v. Puerto Rico

Fire Serv., 715 F.2d 694, 698-700 (1st Cir. 1983); EEOC v. County

of Calumet, 686 F.2d 1249, 1251-1252 (7th Cir. 1982); Arritt v.



                                - 19 -

Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); see also Santiago

v. New York State Dep't of Correctional Servs., 945 F.2d 25, 30

(2d Cir. 1991) (dictum), cert. denied, 502 U.S. 1094 (1992).6/

The sole district court opinion upon which the defendants rely

(Br. 26) is against the weight of authority and is currently on

appeal. See MacPherson v. University of Montevallo, 938 F. Supp.

785 (N.D. Ala. 1996), appeal pending, No. 96-6947 (11th Cir.).7/

        Courts have reached a similar conclusion in cases involving

the Individuals with Disabilities Education Act, 20 U.S.C. 1400

et seq., which requires "access to specialized instruction and

related services which are individually designed to provide

educational benefit to the handicapped child." Board of Educ. v.

Rowley, 458 U.S. 176, 201 (1982). The four courts of appeals to

address the question have held that Congress validly exercised

___________________
6/ The defendants are incorrect in stating (Br. 25) that a
majority of the Court in EEOC v. Wyoming, 460 U.S. 226 (1983),
"suggested" that the ADEA was not a valid exercise of Congress'
Section 5 authority. The Court held that the ADEA as applied to
States was a valid exercise of Congress' Commerce Clause
authority and expressly left the Fourteenth Amendment question
open. See id. at 243-244 & n.18. Justice Stevens stated at the
beginning of his concurrence that he "join[ed] the Court's
opinion," but that he wished to add "additional comments" about
"the origins and purpose of the Commerce Clause." Id. at 244.

7/ The United States has intervened in that appeal to defend the
constitutionality of the abrogation. Every other reported
opinion after Seminole Tribe has upheld the ADEA's abrogation.
See Hodgson v. University of Texas Med. Branch, No. G-95-612,
1997 WL 50173 (S.D. Tex. Feb. 6, 1997); Teichgraeber v. Memorial
Union Corp., 946 F. Supp. 900 (D. Kan. 1996); Kimel v. Florida
Bd. of Regents, 1996 U.S. Dist. Lexis 7995 (N.D. Fla. May 17,
1996), appeal pending, No. 96-2788 (11th Cir.).


                                - 20 -

its Section 5 authority to abrogate States' Eleventh Amendment

immunity for suits alleging that children with disabilities had

been deprived of rights guaranteed by the Act. See Mitten v.

Muscogee County Sch. Dist., 877 F.2d 932, 937 (11th Cir. 1989),

cert. denied, 493 U.S. 1072 (1990); Counsel v. Dow, 849 F.2d 731,

737 (2d Cir.), cert. denied, 488 U.S. 955 (1988); David D. v.

Dartmouth Sch. Comm., 775 F.2d 411, 421 n.7 (1st Cir. 1985),

cert. denied, 475 U.S. 1140 (1986); Crawford v. Pittman, 708 F.2d

1028, 1036-1038 (5th Cir. 1983).

        Like these statutes, the ADA can be regarded as legislation

to enforce the Equal Protection Clause. As Representative

Dellums explained during the enactment of the ADA, "we are

empowered with a special responsibility by the 14th amendment to

the Constitution to ensure that every citizen, not just those of

particular ethnic groups, not just those who arguably are 'able-

bodied,' not just those who own property -- but every citizen

shall enjoy the equal protection of the laws." 136 Cong. Rec.

11,467 (1990); see also id. at 11,468 (remarks of Rep. Hoyer).

        B.      The ADA Is Plainly Adapted To Enforcing The Equal
                Protection Clause

        The defendants next argue (Br. 30-32) that some provisions

of the ADA are not "plainly adapted" to enforcing the Equal

Protection Clause. Although not entirely clear, the defendants

appear to concede (Br. 30) that a "straightforward prohibition




                                - 21 -

against discrimination" is "plainly adapted" to eliminating

discrimination against persons with disabilities.

        In enacting the ADA, Congress found that persons with

disabilities have been "faced with restrictions and limitations

* * * resulting from stereotypic assumptions not truly indicative

of the individual ability of such individuals to participate in,

and contribute to, society," 42 U.S.C. 12101 (a) (7), and that such

discrimination "persists in such critical areas as * * * access

to public services," id. at 12101 (a) (3). It also found that

individuals with disabilities "continually encounter various

forms of discrimination, including outright intentional

exclusion, the discriminatory effects of architectural * * * and

communication barriers, overprotective rules and policies, [and]

failure to make modifications to existing facilities and

practices." Id. at 12101 (a) (5). It was certainly "plainly

adapted" to the Equal Protection Clause for Congress to prohibit

States from intentionally discriminating on the basis of

disability and to eliminate States' Eleventh Amendment immunity

in order that federal courts could adjudicate such claims and

award appropriate relief. See Fitzpatrick, 427 U.S. at 456.

        The defendants also appear to concede (Br. 30) that Congress

could "mandate that physical facilities be accessible to persons

in wheelchairs." What it cannot do, according to the defendants

(Br. 30-32), is prescribe how such meaningful access is to be

procedurally achieved or substantively measured. Because the




                                - 22 -

legal foundations of their concession are critical to

understanding the validity of the various challenged provisions,

we discuss them below in detail.

        1.      Congress has broad power to enforce the Equal
                Protection Clause

        "It is fundamental that in no organ of government, state or

federal, does there repose a more comprehensive remedial power

than in the Congress, expressly charged by the Constitution with

competence and authority to enforce equal protection guarantees."

Fullilove v. Klutznick, 448 U.S. 448, 483 (1980) (opinion of

Burger, C.J.); see Schmidt v. Oakland Unified Sch. Dist., 662

F.2d 550, 557 n.8 (9th Cir. 1981).

        Congress' Section 5 power is thus not limited to prohibiting

animus-based discrimination. "Congress is not circumscribed by

any such artificial rules." South Carolina v. Katzenbach, 383

U.S. 301, 327 (1966). Pursuant to Section 5, Congress may enact

"[w]hatever legislation is appropriate * * * to secure to all

persons the enjoyment of perfect equality of civil rights and the

equal protection of the laws against State denial or invasion."

Ex parte Virginia, 100 U.S. (10 Otto) 339, 345-346 (1879). This

includes the power to prohibit or modify rules, policies and

practices that have a disparate effect on a class or individual,

regardless of the intent behind those actions. Thus in South

Carolina v. Katzenbach, 383 U.S. at 325-337, and again in City of

Rome v. United States, 446 U.S. 156, 177 (1980), the Supreme




                                - 23 -

Court upheld the constitutionality of Section 5 of the Voting

Rights Act, 42 U.S.C. 1973c, which prohibits covered

jurisdictions from implementing any electoral change that was

discriminatory in effect. Similarly, this Court in Blake v. City

of Los Angeles, 595 F.2d 1367, 1373 (9th Cir. 1979), cert.

denied, 446 U.S. 928 (1980), upheld the application of Title

VII's disparate impact standard to States as a valid exercise of

Congress' Section 5 authority. See also Grano v. Department of

Dev., 637 F.2d 1073, 1080 n.6 (6th Cir. 1980) (collecting Title

VII cases from other circuits); United States v. Marengo County

Comm'n, 731 F.2d 1546, 1559 n.20 (11th Cir.) (collecting Fair

Housing Act cases), cert. denied, 469 U.S. 976 (1984).

        In exercising its broad plenary power under Section 5,

Congress is not limited to prohibiting unequal treatment of

similarly situated individuals. Congress may determine that

meaningful equality requires some consideration of the

differences among people. For "[s]ometimes the grossest

discrimination can lie in treating things that are different as

though they were exactly alike." Jenness v. Fortson, 403 U.S.
431, 442 (1971); see also United States v. Horton, 601 F.2d 319,

324 (7th Cir.), cert. denied, 444 U.S. 937 (1979). The

Fourteenth Amendment grants to Congress the "discretion in

determining whether and what legislation is needed" to address

such discrimination. Katzenbach v. Morgan, 384 U.S. at 651.



                                - 24 -

        2.      Congress found that persons with disabilities required
                accommodations to obtain equally meaningful access to
                programs and facilities

        After extensive investigation (and long experience with the

analogous nondiscrimination requirement contained in Section

504), Congress found that the exclusion of persons with

disabilities from programs and benefits was not just a result of

discriminatory animus; it was also a result of "thoughtlessness

or indifference -- of benign neglect" to the interaction between

"neutral" rules and persons with disabilities. 8 As a result,

Congress determined that for an entity to treat persons with

disabilities as it did those without disabilities was not

sufficient to eliminate discrimination and give persons with

disabilities equally meaningful access to every aspect of

society. See 42 U.S.C. 12101(a)(5); see also U.S. Commission on

Civil Rights, Accommodating the Spectrum of Individual Abilities

99 (1983); Crowder v. Kitagawa, 81 F.3d 1480, 1483-1484 (9th Cir.

1996); United States v. California Mobile Home Park Management

Co., 29 F.3d 1413, 1417 (9th Cir. 1994); Smith v. Barton, 914

F.2d 1330, 1339 & n.13 (9th Cir. 1990), cert. denied, 501 U.S.

1217 (1991). 9 Such access is denied when the State refuses to

___________________
8 S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989) (quoting
without attribution Alexander v. Choate, 469 U.S. 287, 295
(1985)); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 29
(1990) (same); 136 Cong. Rec. 10,870 (1990) (Rep. Fish); id. at
11,467 (Rep. Dellums).

9 "For example, under [the ADA], local and state governments
                                               (continued...)


                                - 25 -

acknowledge the "real and undeniable differences between [persons

with disabilities] and others." Cleburne, 473 U.S. at 444; see

also Lau v. Nichols, 483 F.2d 791, 806 (9th Cir. 1973)

(Hufstedler, J., dissenting from the denial of reh'g en banc),

rev'd, 414 U.S. 563 (1974); De La Cruz v. Tormey, 582 F.2d 45,

56-57 (9th Cir. 1978), cert. denied, 441 U.S. 965 (1979).

        The ADA's requirement that public entities make "reasonable

modifications to rules, policies, or practices" for a "qualified

individual with a disability," 42 U.S.C. 12131(2), is a

thoughtfully crafted response to Congress' findings regarding the

treatment of persons with disabilities and comports with the

purposes underlying the Equal Protection Clause. By definition,

persons with disabilities have "a physical or mental impairment

that substantially limits one or more * * * major life

activities." 42 U.S.C. 12102(2)(A). Thus, as to that life

activity, "the handicapped typically are not similarly situated

to the nonhandicapped." Alexander, 469 U.S. at 298. Congress is

____________________
9 (...continued)
are required to provide curb cuts on public streets. The
employment, transportation, and public accommodation sections of
this Act would be meaningless if people who use wheelchairs were
not afforded the opportunity to travel on and between the
streets." H.R. Rep. No. 485, Pt. 2, supra, at 84. Similarly,
Congress intended "that the telephone emergency services operated
by local and state governments be accessible to [hearing impaired
and speech impaired] individuals. This means that such telephone
emergency systems must be equipped with technology that gives
these individuals direct access to emergency services." H.R.
Rep. No. 558, 101st Cong., 2d Sess. 63 (1990); S. Rep. No. 596,
101st Cong., 2d Sess. 67-68 (1990); see also H.R. Rep. No. 485,
Pt. 2, supra, at 39, 85.


                                - 26 -

not required to ignore this reality and be satisfied with nominal

equality. When the only toilets and showers provided are

inaccessible to persons who use wheelchairs (E.R. 83), and when

the general announcements and evacuation alerts are given in a

manner inaccessible to persons with hearing impairments (E.R. 80,

85), these persons with disabilities are not being granted equal

access.

        3.      Congress' determination that it was necessary for
                States to modify their programs and facilities in order
                to provide equally meaningful access is consistent with
                the principles of equality contained in the Equal
                Protection Clause
        In the ADA, Congress attempted to redress this

discrimination by mandating that "qualified handicapped

individual[s] must be provided with meaningful access to the

benefit that the [entity] offers." Alexander, 469 U.S. at 301

(emphasis added). 10 Congress' mandate is consistent with the

principles of equality embodied in the Equal Protection Clause.

"The power to 'enforce' [the Equal Protection Clause] 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." City of


10 Alexander was discussing Section 504 of the Rehabilitation
Act. This Court, however, has held that Title II of the ADA
imposes substantive requirements similar to Section 504. See,
e.g., Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996);
Crowder, 81 F.3d at 1484.



                                - 27 -

Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (opinion of

O'Connor, J.).

        In a series of Supreme Court cases beginning with Griffin v.

Illinois, 351 U.S. 12 (1956), and culminating in M.L.B. v.

S.L.J., 117 S. Ct. 555 (1996), the Court has instructed that

principles of equality are sometimes violated by treating unlike

persons alike. In these cases, the Supreme Court has held that a

State violates the Equal Protection Clause in treating indigent

parties appealing from certain court proceedings as if they were

not indigent. Central to these holdings is the acknowledgement

that "a law nondiscriminatory on its face may be grossly

discriminatory in its operation." 117 S. Ct. at 569 (quoting

Griffin, 351 U.S. at 17 n.11). The Court held in these cases

that even though States are applying a facially neutral policy by

charging all litigants equal fees for an appeal, the Equal

Protection Clause requires States to waive such fees in order to

ensure equal "access" to appeal. Id. at 560. Nor is it

sufficient if a State permits an indigent person to appeal

without charge, but does not provide free trial transcripts. The

Court has declared that the State cannot "extend to such indigent

defendants merely a 'meaningless ritual' while others in better

economic circumstances have a 'meaningful appeal.'" Id. at 569

n.16 (quoting Ross v. Moffitt, 417 U.S. 600, 612 (1974)).

        Although only resolving a question of statutory

construction, the Supreme Court in Lau v. Nichols, 414 U.S. 563


                                - 28 -

(1974), again rejected the notion that equality is always

realized by treating everyone alike. In that case, involving the

education of students who did not speak English, it explained

that "there is no equality of treatment merely by providing

students with the same facilities, textbooks, teachers, and

curriculum; for students who do not understand English are

effectively foreclosed from any meaningful education." Id. at

566; see also Lewis v. Casey, 116 S. Ct. 2174, 2182 (1996)

(holding that State has not met its obligation to provide

illiterate prisoners access to courts simply by providing a law

library).

        There is no need for this Court to decide whether every

"reasonable modification" required by the ADA could be ordered by

a court under the authority of the Equal Protection Clause. "The

legislative power is not confined to ratifying restrictions

placed on the states by the judiciary * * * ." Mockaitis v.

Harcleroad, No. 96-35901, 1997 WL 27111, at *8 (9th Cir. Jan. 27,

1997). It is enough that Congress found that the ADA was

appropriate legislation to redress the rampant inequalities it

discovered in its almost 20-year examination of the question.

Because Congress bears primary responsibility for enforcing the

Fourteenth Amendment, see South Carolina v. Katzenbach, 383 U.S.

at 326, "significant weight should be accorded the capacity of

Congress to amass the stuff of actual experience and cull

conclusions from it." United States v. Gainey, 380 U.S. 63, 67




                                - 29 -

(1965); see J.A. Croson Co., 488 U.S. at 490; Fullilove, 448 U.S.

at 483; Katzenbach v. Morgan, 384 U.S. at 652-653; Blake, 595

F.2d at 1373 (congressional finding that "widespread

discrimination against minorities exists in State * * *

employment" sufficient to extend Title VII disparate impact

standard to States under Section 5).

        4.      The specific provisions of the ADA challenged by the
                defendants are plainly adapted to providing equally
                meaningful access to persons with disabilities

        In light of the above principles, the defendants' scatter-

shot attack on various requirements of the ADA must fail because

each requirement is plainly adapted to providing equally

meaningful access to persons with disabilities.

        First, the defendants argue (Br. 30) that the provisions of

28 C.F.R. 35.105 through 35.107 that require public entities to

perform a self-evaluation of their current programs, to notify

program participants of their rights under the ADA, and to

establish a publicized complaint procedure, are all beyond

Congress' Section 5 authority. 11 But Congress believed that

much of the burden on persons with disabilities was caused by

___________________
11 Congress specifically required these provisions when it
provided that the regulations promulgated under the ADA "shall be
consistent with * * * the coordination regulations under part 41
of Title 28, Code of Federal Regulations * * * applicable to
recipients of Federal financial assistance under [Section 504]."
42 U.S.C. 12134(b); see H.R. Rep. No. 485, Pt. 2, supra, at 97-
98; Crowder, 81 F.3d at 1484. Provisions analogous to those
challenged by the defendants existed in Part 41. See 28 C.F.R.
41.5(b).



                                - 30 -

disregard of the effects of neutral policies on persons with

disabilities and ignorance as to the particular circumstances and

needs of such individuals. See S. Rep. No. 116, supra, at 6-7.

In an attempt to lift this veil of ignorance and facilitate

voluntary settlement of disputes, see 42 U.S.C. 12212, Congress

appropriately required public entities to evaluate their programs

and services in conjunction with the affected community and to

create channels of communication by which persons with

disabilities needing accommodations could make their needs known.

See Tyler v. City of Manhattan, 857 F. Supp. 800, 815 (D. Kan.

1994); S. Rep. No. 116, supra, at 34-35; H.R. Rep. No. 485, Pt.

2, supra, at 65-66.

        Second, the defendants argue (Br. 30-31) that the

regulations detailing accessibility standards for construction

and alterations commenced after January 26, 1992, see 28 C.F.R.

35.151(a)-(c), are too detailed. But Congress is not limited to

legislating in generalities. 12 To so hold would "depreciate

both congressional resourcefulness and congressional

responsibility for implementing the Amendment." Katzenbach v.

Morgan, 384 U.S. at 648; see also Missouri v. Jenkins, 115 S. Ct.

___________________
12 Congress required that regulations concerning "program
accessibility" be "consistent with regulations and analysis as in
part 39 of title 28 of the Code of Federal Regulations,
applicable to federally conducted activities under [Section
504]." 42 U.S.C. 12134(b). Provisions analogous to those
challenged by the defendants existed in Part 39. See 28 C.F.R.
39.151.



                                - 31 -

2038, 2061 (1995) (O'Connor, J., concurring). Moreover, as

discussed at pp. 52-53, infra, the defendants err in suggesting

that the codes governing accessibility incorporated by the

regulation are not tailored to the prison context. In any event,

the regulations make clear that "[d]epartures from particular

requirements of either standard by the use of other methods shall

be permitted when it is clearly evident that equivalent access to

the facility or part of the facility is thereby provided." 28

C.F.R. 35.151(c).

        Finally, the defendants claim (Br. 31) that the ADA requires

it to "identify inmates with learning disabilities and provide

special education instructors for them." The ADA does not

require the defendants to provide any educational programs at

all. However, the defendants have decided that it is in their

interest to make such programs available to inmates and in fact

reward inmates who participate in such programs with extra

sentence credits (E.R. 52, 57, 80-82). In such circumstances,

the ADA requires that these programs not unnecessarily exclude,

either intentionally or unintentionally, inmates with

disabilities and that the defendants make "reasonable

modifications" when the modifications are "necessary to avoid

discrimination on the basis of disability," unless they can

demonstrate that the modifications would "fundamentally alter the

nature of the service, program, or activity." 28 C.F.R.





                                - 32 -

35.130 (b) (7) (emphasis added).13/ This finely-tuned balance

between the interests of persons with disabilities and public

entities is undoubtedly plainly adapted to Congress' goal of

equally meaningful access to persons with disabilities.

        C.      The ADA Is Consistent With The Letter And Spirit Of The
                Constitution

        Finally, the defendants argue (Br. 33) that the ADA as

applied to prisons is inconsistent with principles of federalism

and thus violates the spirit of the Constitution. As an initial

matter, we note that the defendants did not raise this claim

below (E.R. 134) and therefore this Court should not reach it.

        If this Court chooses to reach that issue, the defendants

are simply incorrect. The Fourteenth Amendment "fundamentally

altered the balance of state and federal power struck by the

Constitution." Seminole Tribe, 116 S. Ct. at 1125. Thus a long

"line of cases has sanctioned intrusions by Congress, acting

under the Civil War Amendments, into the judicial, executive, and

legislative spheres of autonomy previously reserved to the

States." Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976). For

example, in Ex parte Virginia, the Supreme Court upheld

____________________
13/ As part of determining the reasonableness of any
modification, a court will not (as the defendants claim (Br. 31))
"disregard the prison context." To the contrary, the
reasonableness of any modification is a case-specific inquiry
that necessarily takes into account the fact that these programs
occur in prison. See Gates v. Rowland, 39 F.3d 1439, 1446-1447
(9th Cir. 1994); Jeldness v. Pearce, 30 F.3d 1220, 1224-1225,
1228-1229 (9th Cir. 1994) (discussing Title IX's application to
prison programs).


                                - 33 -

legislation that made it a federal crime for state judges to

exclude jurors on the basis of race. The Court rejected the

State's claim that "the selection of jurors for her courts and

the administration of her laws belong to each State; that they

are her rights." 100 U.S. at 346. Instead, it explained, a

State cannot "deny to the general government the right to

exercise all its granted powers, though they may interfere with

the full enjoyment of rights she would have if those powers had

not been thus granted. Indeed, every addition of power to the

general government involves a corresponding diminution of the

governmental powers of the States. It is carved out of them."

Ibid.

        Similarly, in South Carolina v. Katzenbach, the Supreme

Court upheld Section 5 of the Voting Rights Act, 42 U.S.C. 1973c,

which requires States subject to its provisions to obtain

approval from the Attorney General or the District Court for the

District of Columbia before implementing any law or regulation

affecting voting. Although Justice Black, dissenting on this

point, claimed that the federalism "mean[s] at least that the

States have power to pass laws and amend their constitutions

without first sending their officials hundreds of miles away to

beg federal authorities to approve them," 383 U.S. at 359 (Black,

J., concurring and dissenting), the Court upheld the provision as

a permissible exercise of Congress' enforcement powers under the

Fifteenth Amendment. See id. at 334-335; see also City of Rome,

                                - 34 -

446 U.S. at 178-180 (reaffirming the constitutionality of Section

5 against federalism challenge).

        The defendants suggest (Br. 33) that the operation of

prisons is such an integral state activity that it is immune from

Congress' Section 5 power. Certainly it is not more (and

possibly less) integral than enacting laws and holding jury

trials, yet the Court held that the spirit of the Constitution

was not violated by federal involvement (including the threat of

criminal penalties) in such state affairs. Just as "prisoners do

not shed all constitutional rights at the prison gate," Sandin v.

Conner, 115 S. Ct. 2293, 2301 (1995), Congress is not barred by

prison gates from enacting legislation under Section 5 of the

Fourteenth Amendment.

                                III

       42 U.S.C. 2000d-7 VALIDLY REMOVES ELEVENTH AMENDMENT IMMUNITY
       FOR CLAIMS UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973

        Section 2000d-7 of Title 42 provides that a "State shall not

be immune under the Eleventh Amendment of the Constitution of the

United States from suit in Federal court for a violation of

section 504 of the Rehabilitation Act of 1973." Section 2000d-7

is an express abrogation of Eleventh Amendment immunity. See

Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996); Lane v.

Pena, 116 S. Ct. 2092, 2099 (1996). As with the ADA, the only

question is whether it is a valid exercise of any of Congress'

powers.



                                - 35 -

        As explained more fully below, Congress properly abrogated

Eleventh Amendment immunity from Section 504 claims pursuant to

its authority under Section 5 of the Fourteenth Amendment.

Moreover, the State waived its Eleventh Amendment immunity to

Section 504 suits when it elected to accept federal funds after

the effective date of Section 2000d-7.

        A.      The Abrogation Of Eleventh Amendment Immunity Contained
                In 42 U.S.C. 2000d-7 Is A Valid Exercise Of Congress'
                Power Under Section 5 Of The Fourteenth Amendment

        For the reasons discussed in Part II, Section 2000d-7 is a

valid exercise of Congress' authority under Section 5 of the

Fourteenth Amendment to permit private suits against States for

discriminating against individuals with disabilities in violation

of federal law. The defendants argue (Br. 27-29) that because

Section 504 is Spending Clause legislation, the abrogation of

Eleventh Amendment immunity for Section 504 suits contained in

Section 2000d-7 is an invalid Spending Clause enactment. We

believe both the premise and conclusion of that argument are

incorrect.

        1. First, the Supreme Court has stated and this Court has

held that, as applied to public entities, Section 504 was enacted

pursuant to the Fourteenth Amendment. In Scanlon v. Atascadero

State Hospital, 735 F.2d 359, 361 (9th Cir. 1984), this Court

held that Congress validly abrogated States' Eleventh Amendment

immunity for suits alleging discrimination on the basis of

disability pursuant to Section 5 in Section 504 of the

                                - 36 -

Rehabilitation Act. See also Students of Cal. Sch. for the Blind

v. Honig, 736 F.2d 538, 544 (9th Cir. 1984), vacated, 471 U.S.

148 (1985); Department of Educ. v. Katherine D., 531 F. Supp.

517, 530 (D. Haw. 1982), rev'd in part on other grounds, 727 F.2d

809 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985).

Although the Supreme Court reversed because of the absence of an

express abrogation (an absence remedied by 42 U.S.C. 2000d-7), it

did not question this Court's holding as to the constitutional

basis of Section 504. See Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 244-245 n.4 (1985). Indeed, in Welch v. Texas

Department of Highways & Public Transportation, 483 U.S. 468

(1987), the Supreme Court stated, albeit in dictum, that "[t]he

Rehabilitation Act was passed pursuant to S 5 of the Fourteenth

Amendment. Congress therefore had the power to subject

unconsenting States to suit in federal court." Id. at 472 n.2

(citations omitted).

        Assuming the question were still open in this Circuit, the

defendants' argument contradicts the longstanding rule of

judicial review (which they invoke (Br. 23-24 n.8)) that "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); EEOC v. Wyoming,

460 U.S. 226, 243-244 n.18 (1983) (quoting Woods). The courts

can strike down laws only if they exceed Congress' constitutional

authority or otherwise violate rights guaranteed by the



                                - 37 -

Constitution. Nothing in the Constitution, however, requires

Congress to identify the constitutional provision by which it

legislates. Congress is not required "to play Show and Tell with

the federal courts at the peril of invalidation of a

Congressional statute." United States v. Rybar, 103 F.3d 273,

282 (3d Cir. 1996).

        As the Seventh Circuit recently held, "a statute's

constitutionality should not depend on the ability of

congressional staff to write a plausible brief for it into the

committee reports. * * * [I]t is not the motive of the

legislators that is important * * *, but whether the statute they

pass is within the scope of their constitutional authority."

Sasnett v. Sullivan, 91 F.3d 1018, 1020-1021 (1996), petition for

cert. filed, 65 U.S.L.W. 3370 (Oct. 29, 1996) (No. 96-710). The

Sixth Circuit reached a similar conclusion in Timmer v. Michigan

Department of Commerce, 104 F.3d 833, 842 (6th Cir. 1997),

holding that it "discerned no persuasive reasons * * * why the

courts should frustrate [Congress' intent to abrogate] simply

because the legislative history does not contain the words 'S 5

of the Fourteenth Amendment.'" These holdings are consistent

with Supreme Court precedent that statutes must be upheld against

constitutional attack if they are within any of Congress' power.

See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 473-478 (1980)

(opinion of Burger, C.J.); United States v. Butler, 297 U.S. 1,



                                - 38 -

61 (1936); Keller v. United States, 213 U.S. 138, 147 (1909);

United States v. Harris, 106 U.S. (16 Otto) 629, 635-636 (1883).

        2. Moreover, assuming arguendo that Section 504 as enacted

in 1973 was solely Spending Clause legislation, that would not be

dispositive as to the constitutional basis of Section 2000d-7.

In Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976), the Court

found that the abrogation of States' Eleventh Amendment immunity

for Title VII suits was a valid exercise of Congress' Section 5

authority, even though Title VII itself was originally enacted

pursuant to the Commerce Clause. See United Steelworkers of

America v. Weber, 443 U.S. 193, 207 n.6 (1979). Similarly, the

abrogation of States' Eleventh Amendment immunity in Section 504

is a valid exercise of Congress' Section 5 authority, even if

Section 504 itself was originally enacted solely pursuant to the

Spending Clause. See Timmer, 104 F.3d at 838 n.7.14/


14/     Although Congress need not state its intent to rely upon its
Section 5 authority in the text or legislative history, the
legislative history of Section 2000d-7 makes clear that Congress
so intended. See Fitzpatrick, 427 U.S. at 453 n.9 (relying on
legislative history in determining whether "Congress exercised
its power under S 5 of the Fourteenth Amendment").

        Section 2000d-7 was originally introduced by Senator
Cranston as the Civil Rights Remedies Equalization Act, S. 1579,
99th Cong., 1st Sess. (1985), as a response to the Supreme
Court's decision in Atascadero State Hospital v. Scanlon, 473
U.S. 234 (1985). See 131 Cong. Rec. 22,344 (1985). Senator
Cranston described the proposed legislation as "clearly
authorized" by both the Spending Clause and Section 5 of the
Fourteenth Amendment. Id. at 22,346. The Senate Committee
Report likewise referred to both of these constitutional
provisions as permitting abrogation of state immunity. See S.
                                              (continued...)


                                - 39 -

        Not surprisingly, every court that has considered the

constitutional basis of Section 2000d-7 since Seminole Tribe was

decided has held it was a proper exercise of Congress' Section 5

authority.15/ This is the same conclusion courts reached prior

to Seminole Tribe.16/








___________________
14/ (...continued)
Rep. No. 388, 99th Cong., 2d Sess. 27 (1986).

        After the Senate version of the bill was adopted in
conference, Senator Cranston submitted for the record a letter
from the Department of Justice stating that

        [t]he proposed amendment * * * fulfills the requirements
        that the Supreme Court laid out in Atascadero. Thus, to the
        extent that the proposed amendment is grounded on
        congressional powers under section five of the fourteenth
        amendment, [it] makes Congress' intention "unmistakably
        clear in the language of the statute" to subject States to
        the jurisdiction of Federal courts.

132 Cong. Rec. 28,624 (1986) (citations omitted).

15/ In addition to the district court below, see Hunter v.
Chiles, 944 F. Supp. 914, 917 (S.D. Fla. 1996), appeal pending,
No. 96-5388 (11th Cir.); Mayer v. University of Minn., 940 F.
Supp. 1474, 1478-1480 (D. Minn. 1996); Niece v. Fitzner, 941 F.
Supp. 1497, 1501-1504 (E.D. Mich. 1996).

16/ See United States v. Yonkers Bd. of Educ., 893 F.2d 498, 503
(2d Cir. 1990); Santiago v. New York State Dep't of Correctional
Servs., 945 F.2d 25, 31 (2d Cir. 1991) (dictum), cert. denied,
502 U.S. 1094 (1992); Stanley v. Darlington County Sch. Dist.,
879 F. Supp. 1341, 1363-1364 (D.S.C. 1995), rev'd in part on
other grounds, 84 F.3d 707 (4th Cir. 1996); Martin v. Voinovich,
840 F. Supp. 1175, 1187 (S.D. Ohio 1993).



                                - 40 -

        B.      The State Waived Its Eleventh Amendment Immunity To
                Section 504 Suits By Accepting Federal Funds After The
                Enactment Of Section 2000d-7

        Since Congress had authority under the Fourteenth Amendment

to abrogate the States' Eleventh Amendment immunity, it is

unnecessary to consider whether Congress may also, pursuant to

the Constitution's Spending Clause, Art. I, S 8, Cl. 1, require

the waiver of States' Eleventh Amendment immunity as a condition

of receiving federal financial assistance. Nonetheless, the

defendants' contention that the Supreme Court's decision in

Seminole Tribe somehow prohibits such an exercise of the Spending

Clause power is incorrect. To the contrary, Congress may

condition the receipt of federal funds on a waiver of Eleventh

Amendment immunity so long as, as here, the statute provides

unequivocal notice to the States of this condition.

        States may waive their Eleventh Amendment immunity. See

Seminole Tribe, 116 S. Ct. at 1128; Petty v. Tennessee-Missouri

Bridge Comm'n, 359 U.S. 275, 276 (1959). It is well-settled that

a State may "by its participation in the program authorized by

Congress * * * in effect consent [] to the abrogation of that

immunity." Edelman v. Jordan, 415 U.S. 651, 672 (1974); see also

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985)

("[a] State may effectuate a waiver of its constitutional

immunity by * * * waiving its immunity to suit in the context of

a particular federal program").



                                - 41 -

        In Atascadero, the Court stated that if a statute
"manifest[ed] a clear intent to condition participation in the

programs funded under the Act on a State's consent to waive its

constitutional immunity," the federal courts would have

jurisdiction over States that accepted federal funds. 473 U.S.

at 247; see also Florida Dep't of Health & Rehabilitative Servs.

v. Florida Nursing Home Ass'n, 450 U.S. 147, 153 (1981) (Stevens,

J., concurring). It was in response to Atascadero that Congress

enacted 42 U.S.C. 2000d-7, making unambiguously clear that

Congress intended the States to be amenable to suit in federal

court under Section 504 if they accepted federal funds. See Lane

v. Pena, 116 S. Ct. at 2100 (acknowledging "the care with which

Congress responded to our decision in Atascadero by crafting an

unambiguous waiver of the States' Eleventh Amendment immunity" in

Section 2000d-7). The defendants cannot now claim that suits

against it under Section 504 are barred, as the State consented

to such suits when it accepted federal funding after Section

2000d-7 took effect (E.R. 112).

        The defendants may argue that Seminole Tribe precludes

Congress from using its Spending Clause power to abrogate a

State's Eleventh Amendment immunity. Although the effect is the

same, when Congress acts under the Spending Clause, it does not

abrogate Eleventh Amendment immunity. Instead, Congress

conditions the receipt of federal funds on a waiver of that

immunity by the States themselves. As the Department of Justice



                                - 42 -

explained to Congress at the time the statute was being

considered, "[t]o the extent that the proposed amendment is

grounded on congressional spending powers, [it] makes it clear to

states that their receipt of Federal funds constitutes a waiver

of their [E]leventh [A]mendment immunity." 132 Cong. Rec. 28,624

(1986). Section 2000d-7 thus embodies exactly the type of

unambiguous condition discussed by the Court in Atascadero,

putting States on express notice that part of the "contract" for

receiving federal funds was the requirement that they consent to

suit in federal court for alleged violations of Section 504.

Since the State accepted federal funds after the effective date

of Section 2000d-7, it has waived its Eleventh Amendment immunity

to suit in this case. "Requiring States to honor the obligations

voluntarily assumed as a condition of federal funding * * *

simply does not intrude on their sovereignty." Bell v. New

Jersey, 461 U.S. 773, 790 (1983); see South Dakota v. Dole, 483

U.S. 203, 210 (1987).

                                IV

      TITLE II OF THE ADA AND SECTION 504 APPLY TO STATE PRISONS

        Since this Court has subject-matter jurisdiction over the

defendants, it can address the question of whether the ADA and

Section 504 were intended to cover programs and activities of

state prisons. Relying primarily on Torcasio v. Murray, 57 F.3d

1340 (4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996) -- a

Fourth Circuit decision addressing a question of qualified



                                - 43 -

immunity17/ -- the defendants argue (Br. 5-20) that Section 504

and Title II of the ADA do not apply to state prisons. This

Court should reaffirm its holdings in Bonner v. Lewis, 857 F.2d

559 (9th Cir. 1988), Gates v. Rowland, 39 F.3d 1439 (9th Cir.

1994), and Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996), that

state prisons are covered by Section 504 and the ADA based on the

plain language and consistent administrative interpretations of

these statute.

        A.      The Plain Language Of Both Statutes Applies To State
                Entities That Operate Prisons

        Section 504 provides 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. 794(a).

        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 * * * a

___________________
17/ Torcasio did not decide whether either Section 504 or Title
II of the ADA applies to prisons. Rather, it concluded that the
individual defendants in that case were entitled to qualified
immunity on three alternative 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. See id. at 1344, 1353-1355. Third,
it held that the individual defendants could reasonably have
believed that their actions were lawful. See id. at 1355-1356.



                                - 44 -

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 district court found (E.R.

112) that "[s]some programs of the California Department of

Corrections receive federal financial assistance." Thus under

the plain language of the statute, all of the "operations" of the

California Department of Corrections are subject to Section 504's

requirements.

        Similarly, 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
        services, programs, or activities of a public entity,
        or be subjected to discrimination by any such entity.

42 U.S.C. 12132.

        Congress directed that Title II of the ADA be interpreted in

a manner consistent with Section 504. See 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

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).

        In Torcasio, the Fourth Circuit stated that prisons

"generally do not provide 'services,' 'programs,' or 'activities'

as those terms are ordinarily understood." 57 F.3d at 1347. But


                                - 45 -

this Court held in Bonner, 857 F.2d at 562, that "prison

activities, such as disciplinary proceedings and counseling" fell

within the "plain language of * * * the Act itself." See also

Duffy, 98 F.3d at 455 (holding that ADA applied to inmate with

hearing impairment who was forced to participate in disciplinary

and classification hearings); Gates, 39 F.3d at 1446-1447

(holding that Section 504 applied to HIV-positive inmates who

wished to participate in the prison's "food service program");

Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir. 1991)

(dictum) (agreeing with Bonner). Similarly, in Jeldness v.

Pearce, 30 F.3d 1220, 1224-1225 (9th Cir. 1994), this Court held

that the "broad language" of Title IX of the Education Amendments

of 1972, 20 U.S.C. 1681 (a), which prohibit sex discrimination in

"any education program or activity receiving Federal financial

assistance," applied to state prisons.

        The defendants make two text-based arguments why these

statutes should not apply to prisons. First, they suggest (Br.

12, 14-15) that an inmate cannot be a "qualified" individual with

a disability because most services, programs, or activities in

prison are compulsory. See Torcasio, 57 F.3d at 1347. But this

Court has held that the term "qualified" is not limited to

voluntary activities -- it can include mandatory disciplinary

proceedings. See Duffy, 98 F.3d at 454; Bonner, 857 F.2d at 562.

More generally, "it would be anomalous to follow the Fourth

Circuit's suggestion in Torcasio that the Rehabilitation Act and


                                - 46 -

the ADA are inapplicable to programs and services that are

obligatory in nature. Such a limitation would appear to immunize

disability-based discrimination in the provision of such

compulsory services as public education, jury service, and

mandatory inoculations. Nothing in the texts of the ADA and the

Rehabilitation Act hints at such a result." Inmates of Allegheny

County Jail v. Wecht, No. 95-3402, 1996 WL 474106, at *10 n.14

(3d Cir. Aug. 22, 1996), vacated for reh'g en banc, 93 F.3d 1146

(1996), dismissed as moot (Dec. 4, 1996) [Attachment A].18/

        The defendants also suggest (Br. 12) that the term

"qualified individual" would be rendered superfluous if it

referred to no qualification other than being an inmate. 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). Under this definition, drawn from
Rehabilitation Act regulations, see 28 C.F.R. 42.540(l),

"qualified" cannot be read to require that the services are not

generally available. Thus, for example, a public park is a

service to which persons with disabilities cannot be excluded,

see Crowder v. Kitagawa, 81 F.3d 1480, 1487 n.1 (9th Cir. 1996)


18/ Although the panel opinion in Inmates of Allegheny County
Jail was vacated and thus has no precedential value, the panel's
discussion retains its persuasive authority. See Orhorhaghe v.
INS, 38 F.3d 488, 493 n.4 (9th Cir. 1994).



                                - 47 -

(O'Scannlain, J., dissenting), despite the fact that parks impose

no "qualifications" for their use. Instead, the definition of

"qualified" is intended to set forth the common sense proposition

that entities that are covered by the Act need not jettison any

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).

        Second, the defendants argue (Br. 12-14) that the services,

programs or activities it provides (such as shelter, prison jobs,

vocational programs, educational classes and medical services)

are not for the "benefit" of inmates, but rather serve the

State's penological interest. But the reason the State operates

prisons is irrelevant to whether the inmates "benefit" from the

programs provided. Indeed, many government services provided to

the public (such as vaccination programs) could be viewed at some

level as serving the government's interest by reducing future

costs. Moreover, even if the term "benefits" could be read so

narrowly, neither Section 504 or the ADA are limited to

protecting the "benefits" of services, programs or activities.

Section 504 also prohibits "exclu[sion] from * * * participation"

and "subject[ion] to discrimination" in any program or activity

receiving federal financial assistance. Similarly, the ADA

prohibits "exclu[sion] from participation in * * * the services,

programs, or activities of a public entity" and "subject[ion] to


                                - 48 -

discrimination by any such entity." These independent

prohibitions are not limited to the provision of "benefits." See

Crowder, 81 F.3d at 1483.19/

        Finally, relying on principles of federalism, the defendants

argue (Br. 5-11) that Congress did not make sufficiently clear

that it intended to cover prisons. But as discussed above,

prisons fall within the plain language of the statute. Thus the

presumption that Congress does not intend to alter the usual

federal-state balance relied upon in Gregory v. Ashcroft, 501

U.S. 452, 460-461 (1991), is inapplicable. The plain statement

rule applied in Gregory to measure the scope of an ambiguous

exception is simply a "rule of statutory construction to be

applied where statutory intent is ambiguous." Id. at 470; see

United States v. Culbert, 435 U.S. 371, 379 (1978).

        Unlike the statute in Gregory, these statutes are without

exceptions for any state function. Both Section 504 and Title II

speak unambiguously of their application to state and local

governments and to "any" or "all" of their operations. And in

each statute, Congress has made clear that it intended the

____________________
19/ In a claim directed only at the ADA, the defendants argue
(Br. 11-12) that the use of the phrase "Public Services" in the
heading of Title II indicates a limit on the scope of the
statute. First, headings cannot be used to limit the plain
meaning of the statutory text. See Oregon Pub. Utility Comm'n v.
ICC, 979 F.2d 778, 780 (9th Cir. 1992). Second, the phrase
"Public Services" does not signify that it applies only to
services that are open to the public. Rather, it indicates
coverage of all services provided by public entities.

                                - 49 -

provisions to apply to the States by expressly abrogating

Eleventh Amendment immunity. 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." "This Court cannot

judicially impose a special exception to these statutes for

correctional institutions." Jeldness, 30 F.3d at 1225.

        To the extent the defendants suggest that Congress must

specifically identify state prisons in the statutory text if it

wishes to regulate them, such a claim would in fact be contrary

to the holding in Gregory. See 501 U.S. at 467 ("This does not

mean that the Act must mention judges explicitly[.]"). Once it

is clear that Congress intended to include the States within the

sweep of the statutes, Congress is not required to detail each

aspect of state services that it intends to cover. As the panel

in Inmates of Allegheny County Jail explained (1996 WL 474106, at

*8):

           We of course acknowledge that the management of prisons
        is a governmental responsibility of great importance. But
        so too are the management of police and firefighting forces,
        the management of child protection services, and the
        management of the court system -- state functions routinely
        understood to be covered by the Rehabilitation Act and the
        ADA notwithstanding that these functions are not expressly
        referred to in either of the statutes.
        This Court appears to have followed similar reasoning in

Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996), when it held



                                - 50 -

that the ADA applied to a quarantine law enacted by the state to

protect the public health. While acknowledging that "public

health and safety decisions of state legislatures" are "within

their traditional police powers," the Court explained that "when

Congress has passed antidiscrimination laws such as the ADA

* * *, it is incumbent upon the courts to insure that the mandate

of federal law is achieved." Id. at 1485. Certainly if public

health laws are covered by the ADA without specific mention, so

too are prisons.

        B.      Administrative Interpretations Of Section 504 And
                Title II Of The ADA Confirm Their Application To
                State Prisons

        As set forth in the regulations and the other administrative

materials cited below, the Department of Justice has interpreted

both Section 504 and Title II of the ADA to apply to correctional

facilities. Congress expressly authorized the Department of

Justice to issue regulations implementing both Section 504 and

Title II of the ADA. See 29 U.S.C. 794(a); 42 U.S.C. 12134(a).

In view of Congress' delegation, the Department's regulations

"must be given 'legislative and hence controlling weight unless

they are arbitrary, capricious, or clearly contrary to the

statute.'" Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir.

1996). The same is true of the preamble or commentary

accompanying the regulations, since both are part of the

Department's official interpretation of legislation. See Thomas


                                - 51 -

Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994); Stinson

v. United States, 508 U.S. 36, 45 (1993).

        1. The regulations promulgated by the Department of Justice

to enforce Section 504 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) (emphasis added). The term "[b]enefit" includes

"provision of services, financial aid or disposition (i.e.,

treatment, handling, decision, sentencing, confinement, or other

prescription of conduct)." 28 C.F.R. 42.540(j) (emphasis added).

In promulgating the regulations, the Department made clear that

services and programs provided by "jails, prisons, reformatories

and training schools, work camps, reception and diagnostic

centers, pre-release and work release facilities, and community-

based facilities" are covered by Section 504. 45 Fed. Reg.

37,620, 37,630 (1980).

        2. The regulations promulgated under Title II of the ADA

similarly protect persons with disabilities who are incarcerated

in prisons. The 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 at 456 (1996). The


                                - 52 -

preamble to the Department's ADA regulations 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.

        Furthermore, 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]all 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).

        Finally, both accessibility codes incorporated by the

Department of Justice regulations, 28 C.F.R. 35.151(c), make

specific reference to prisons. The Uniform Federal Accessibility

Standards, 41 C.F.R. Pt. 101-19.6, App. A at 10, lists "jails,

prisons, reformatories" and "[o]ther detention or correctional

facilities" as institutions to which the accessibility standards

apply. Similarly, the Department of Justice has proposed

adoption of an amended Americans with Disabilities Act

Accessibility Guidelines, 28 C.F.R. Pt. 36, App. A, to include

specific accessibility guidelines for detention and correctional

facilities. See 59 Fed. Reg. 31,809 (1994). The proposed

guidelines, which modify certain generally applicable


                                - 53 -

accessibility requirements to address security concerns, are

reprinted at pages 31,770-31,772. These proposed amendments are

not yet in force, but are expected to be formally promulgated

this year. See 61 Fed. Reg. 62,078-62,079 (1996).20

        3. 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 Rehabilitation Act and the ADA apply to state correctional

facilities.21

________________________
20      The Department of Justice is also charged with creating a
technical assistance manual. See 42 U.S.C. 12206(c)(3). The
Department of Justice's Title II Technical Assistance Manual
specifically lists "jails and prisons" as types of facilities
that must be designed and constructed so that they are readily
accessible to and usable by individuals with disabilities. See
Title II Technical Assistance Manual at II-6.0000, II-6.3300(6).
This Manual is also entitled to deference. See, e.g., Ferguson
v. City of Phoenix, 931 F. Supp. 688, 694-696 (D. Ariz. 1996);
Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35, 36-37
n.4 (D.D.C. 1994).

21      The Fourth Circuit in 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,
                                            (continued ...)



                                - 54 -

        Relying on EEOC v. Arabian American Oil Co., 499 U.S. 244

(1991), however, the defendants argue (Br. 16-17) that these

regulations are not entitled to deference. In Arabian American,

the Court held that a presumption against extraterritorial

application of statutes was not overcome by the EEOC's

interpretation of Title VII. See id. at 248-249. However, there

is no similar presumption against applying statutes that clearly

cover States to state prisons.

        Moreover, the regulations discussed above stand in stark

contrast to the administrative interpretation the Court found

insufficient in Arabian American. First, unlike the EEOC with

respect to Title VII, see id. at 257, Congress specifically

authorized the Department of Justice to promulgate regulations to

implement Section 504 and Title II of the ADA. See 29 U.S.C.

794(a); 42 U.S.C. 12134(a). Indeed, as to Title II, Congress

dictated the specific content of the regulation when it required

that various parts of the regulations be "consistent" with

previously promulgated Section 504 regulations. See 42 U.S.C.

12134(b); Crowder, 81 F.3d at 1484. These Section 504

___________________
21 (...continued)
because they would 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 Guidelines had not yet
been finally adopted by the Department of Justice.
Significantly, however, the court acknowledged that the
Guidelines "may provide some evidence that it is now established
that the ADA applies to state prisons." Ibid.

                                - 55 -

regulations expressly included prisons within their coverage.

See, e.g., 28 C.F.R. 39.170(d)(1)(ii); 28 C.F.R. Pt. 39,

Editorial Note, at 675, 683 (1996). Second, unlike the EEOC's

interpretation in Arabian American, the Department of Justice's

determination that Section 504 and Title II cover prisons has

been consistent and longstanding. Thus neither of the reasons

articulated by the Court in Arabian American for failing to give

the regular level of deference to an agency's construction of the

statute it is charged with enforcing are applicable to the

Department of Justice's regulations concerning Section 504 and

Title II of the ADA.

                                CONCLUSION

        The district court's judgment should be affirmed.

                                     Respectfully submitted,

                                     ISABELLE KATZ PINZLER
                                       Acting Assistant Attorney General




                                        JESSICA DUNSAY SILVER
                                        SETH M. GALANTER
                                          Attorneys
                                          Department of Justice
                                          P.O. Box 66078
                                          Washington, D.C. 20035-6078
                                          (202) 307-9994



                                - 56 -

                        STATEMENT OF RELATED CASES

        The appellants in Clark v. State of California, No. 96-

16952, which is also calendared before this panel, have mounted a

similar challenge to the constitutionality of the abrogations in

the ADA and Section 504.

        Similarly, one of the issues raised by the appellants

(California officials sued in their official capacities) in Hale

v. Belshe, No. 97-15177, is whether the ADA's abrogation of

Eleventh Amendment immunity is constitutional.






                        CERTIFICATE OF COMPLIANCE

        Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the

answering brief of the United States uses a monospaced typeface

of 10.5 or less characters per inch, is appropriately double-

spaced, and contains 12,591 words.







February 25, 1997                               SETH M. GALANTER
                                                  Attorney


















                                ATTACHMENT A









                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 on their own behalf and on behalf
                        of all others similarly situated,

                                                        Appellants

                                        v.
                CYRIL H. WECHT, President of the Allegheny County
                Board of Prison Inspectors, and the other members
                of the Board; THOMAS FOERSTER and WILLIAM H. HUNT,
                   Commissioners for Allegheny County; FRANK J.
                LUCCHINO, Controller 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. CALIGUIRI,
                Mayor of the City of Pittsburgh, HARRIET MCCRAY;
                MSGR. CHARLES OWEN RICE; and CHARLES KOZAKIEWICZ,
               Warden of the Allegheny County Jail, and WILLIAM B.
                ROBINSON, Executive Director of Prison Inspectors;
                and CYRIL WECHT, THOMAS FOERSTER and WILLIAM H.
                  HUNT, as Commissioners of Allegheny County,

                                        v.

                       THE COMMONWEALTH OF PENNSYLVANIA; THE
                   COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF
                 CORRECTIONS; DAVIS S. OWENS, JR., Commissioner,
                 Department of Corrections; and ERSKIND DERAMUS,
                 Deputy Commissioner, Department of Corrections



                On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                           (D.C. Civil No. 76-00743)


                            Argued December 2, 1996

                                        1

Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,
         GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS,
         McKEE, Circuit Judges.


                            O R D E R

        After argument and consideration of the issues raised

in the above matter, and noting that the order of the district

court that is the subject of the appeal was dated May 26, 1995

and expired by its own terms one year from that date, it is

hereby

        O R D E R E D that this appeal is dismissed as moot.1

        Each party to bear its own costs.

                                                By the Court,



                                                Chief Judge


Attest:




P. Douglas Sisk, Clerk







1. This order is without prejudice to the right of the
appellants to raise the issue that the program of Allegheny
County that was the subject of the appeal is in violation of the
Rehabilitation Act of 1973 and the Americans With Disabilities
Act of 1990 in another appropriate proceeding.

                                2




                        CERTIFICATE OF SERVICE

        I hereby certify that on February 25, 1997, two copies of

the foregoing Brief for the United States As Intervenor and

Amicus Curiae were served by first-class mail, postage prepaid,

on the following counsel:

                James M. Humes
                Deputy Attorney General
                50 Fremont Street, Room 300
                San Francisco, California 94105

                Donald Specter
                Prison Law Office
                General Delivery
                San Quentin, California 94964

                Elain B. Feingold
                1542 Scenic Avenue
                Berkeley, California 94708

                Michael W. Bien
                Rosen, Bien & Asaro
                155 Montgomery Street, 8th Floor
                San Francisco, California 94104

                Warren E. George
                McCutchen, Doyle, Brown & Enersen, LLP
                Three Embarcadero Center
                San Francisco, California 94111

                Eve Shapiro
                Howard, Rice, Nemerovski, Canady, Falk & Rabkin
                Three Embarcadero Center, Seventh Floor
                San Francisco, California 94111-4065






                                        SETH M. GALANTER
                                          Attorney
                                          Department of Justice
                                          P.O. Box 66078
                                          Washington, D.C. 20035-6078
                                          (202) 307-9994