* The Honorable Thomas M. Reavley, Senior Judge, Unit ed States Court of

Appeals for the Fifth Circuit, sitting by designati on.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PHOEBE THOMPSON, DEAN ECOFF, and MARCIA E. WADE, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellees,

v. STATE OF COLORADO,

Defendant-Appellant.

UNITED STATES OF AMERICA,
Intervenor. No. 99-1045

ORDER Filed October 9, 2001

Before BRISCOE, Circuit Judge, REAVLEY , Senior Circuit Judge, * and MURPHY, Circuit Judge.

The court has before it two petitions for rehearing with suggestions for rehearing en banc in Thompson v. State of Colorado , No. 99-1045, one by appellees and one by the United States as interveno r. The panel has unanimously-2-

voted to deny the petitions for rehearing. Neverth eless, on its own motion, the panel hereby amends the opinion filed on August 7, 2001 as follows: on page 28, “The absence of numerous examples” is changed to re ad, “The identification of only a few examples”; on page 29, “Without numerous documented occurrences” is changed to read, “Based on the ‘minimal evidence of unconstitutional state discrimination’”; and on page 29, after “attempt to combat unconstitutional discrimination.”, is inserted, “ Garrett , 121 S. Ct. at 965-66.” The petitions for rehearing en banc were transmitte d to all of the judges of the court who are in regular active service as requ ired by Fed. R. App. P. 35. As no member of the panel and no judge in regular serv ice on the court requested that the court be polled, the en banc petitions are also denied.

Entered for the Court PATRICK FISHER, Clerk of Court by: Jeanne Leal Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 7 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PHOEBE THOMPSON, DEAN ECOFF, and MARCIA E. WADE, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellees,

v. STATE OF COLORADO,

Defendant-Appellant.

UNITED STATES OF AMERICA,
Intervenor. No. 99-1045

Appeal from the United States District Court for the District of Colorado (D.C. No. 96-S-1791)

Stephen R. Senn, Peterson & Myers, P.A., Lakeland, Florida; (J. Davis Connor, Peterson & Myers, P.A., Lakeland, Florida; Robert A ntonello, Robert G. Fegers, Antonello, Fegers & CEA, Winter Haven, Florida; Gle n F. Gordon, John A. Purvis, William R. Gray, Purvis, Gray & Gordon, LLP , Boulder, Colorado, with him on the briefs), for Plaintiffs-Appellees.* The Honorable Thomas M. Reavley, Senior Judge, Unit ed States Court of

Appeals for the Fifth Circuit, sitting by designati on. -2- Paul Farley, Special Assistant Attorney General, St ate of Colorado, (Ken Salazar, Attorney General, State of Colorado, with him on th e briefs), Denver, Colorado, for Defendant-Appellant. Jessica Dunsay Silver, Seth M. Galanter, Attorneys, Civil Rights Division, Department of Justice, Washington, D.C., filed brie fs on behalf of the Intervenor.

Before BRISCOE, Circuit Judge, REAVLEY , Senior Circuit Judge, * and MURPHY, Circuit Judge.

MURPHY , Circuit Judge.



### I. INTRODUCTION Plaintiffs-Appellees brought a class action suit ag ainst Defendant-Appellant State of Colorado (“Colorado”). Plaintiffs claimedthat the fee charged by Colorado for handicapped parking placards violated the Americans with Disabilities Act of 1990 (“ADA”) and implementing r egulations. After stipulating to various facts, both parties moved fo r summary judgment. In its motion for summary judgment, Colorado argued that P laintiffs’ claims were barred by the Eleventh Amendment. The district cou rt granted Plaintiffs’ motion for summary judgment and denied Colorado’s motion f or summary judgment. Colorado has appealed the district court’s decision ; jurisdiction to consider-3-

Colorado’s appeal arises under 28 U.S.C. § 1291. B ecause Colorado is entitled to Eleventh Amendment immunity, this court vacates the order of the district court granting Plaintiffs’ motion for summary judgm ent and denying Colorado’s motion for summary judgment. 

### II. FACTS AND PROCEDURAL HISTORY Under Colorado law, a “person with a disability” may apply for a special license plate or placard. See Colo. Rev. Stat. § 42-3-121(2)(a). The license pl ate and the placard allow the disabled person to park i n designated handicap parking
spaces. See id. § 42-4-1208(3)(a). The special license plates are supplied to the disabled at the same cost as standard license plate s. See id. § 42-3-121(2)(a)(I). In order to receive a placard, however, a fee must be paid. See id. § 42-3- 121(2)(d). The fee is not to exceed the actual cos t of issuing the placard; at the time of appellate briefing the fee was $2.25. See id. Plaintiffs brought a class action suit against Colo rado challenging the imposition of the placard fee. Plaintiffs claimed that the placard fee violated Title II of the ADA and the implementing regulation s promulgated by the Department of Justice. Title II of the ADA provide s that “no qualified individual with a disability shall, by reason of such disabili ty, be excluded from participation in or be denied the benefits of the services, progr ams, or activities of a public entity, or be subjected to discrimination by any su ch entity.” 42 U.S.C. § 12132.1 Plaintiffs also requested attorney fees and litigat ion costs. -4- The term “public entity” includes “any State or loc al government” and “any department, agency, special purpose district, or ot her instrumentality of a State or States or local government.” Id. § 12131(1). Plaintiffs also relied on 28 C.F.R. § 35.130(f), a regulation promulgated by the Departme nt of Justice for the purpose of implementing Title II of the ADA. See 28 C.F.R. § 35.101. Section 35.130(f) provides as follows:

A public entity may not place a surcharge on a part icular individual with a disability or any group of indivi duals with disabilities to cover the costs of measures, such a s the provision of auxiliary aids or program accessibility, that are r equired to provide that individual or group with the nondiscriminatorytreatment required by the [ADA] or this part. Plaintiffs requested two forms of relief in their c omplaint: (1) a declaration that it is unlawful for Colorado to require paymentfor the parking placards and a subsequent injunction preventing Colorado from char ging these fees in the future, and (2) reimbursement of previous fees paid by Plaintiffs for the placards after passage of the ADA. 1 Colorado was the only defendant named in the complaint. In its answer, Colorado claimed, inter alia , that it was entitled to immunity under the Eleventh Amendment. After stipulating to many relevant facts, both parties moved for summary judgment. Although Plaintiffs’ complaint sought both-5-

injunctive relief and reimbursement for past fees p aid, Plaintiffs’ motion for summary judgment was only for declaratory and injun ctive relief. The cross motions for summary judgment were referre d to a magistrate judge. The magistrate judge concluded that (1) the placard fee charged by Colorado violated Title II of the ADA and its imple menting regulations; (2) Colorado was not entitled to Eleventh Amendment imm unity; and (3) Title II of the ADA does not violate the Tenth Amendment. The magistrate judge thus recommended that Plaintiffs’ motion for summary jud gment be granted, that Colorado’s motion for summary judgment be denied, and that a schedule be set for certification of the plaintiff class claiming r eimbursement of fees paid to Colorado for placards. The district court adopted the magistrate judge’s r ecommendations over Colorado’s objections. Colorado appealed to this c ourt. After oral argument, this court formally abated the case following the Suprem e Court’s grant of certiorari in Florida Department of Corrections v. Dickson

. See 528 U.S. 1132 (2000). The Dickson case settled, however, and this case was then reac tivated. See Fla. Dep’t of Corr. v. Dickson , 528 U.S. 1184 (2000). This court further delayed deciding this case, however, in order to await the outcome of Board of Trustees of the University of Alabama v. Garrett and to allow the parties and the United-6-

States as intervenor to file supplemental briefs; t he Supreme Court decided
Garretton February 21, 2001. See 121 S. Ct. 955 (2001). 

### III. DISCUSSION On appeal, Colorado argues that it is entitled to E leventh Amendment immunity from Plaintiffs’ suit. Under circuit prec edent, a defendant’s assertion of Eleventh Amendment immunity calls into question the subject matter jurisdiction of the district court. See Martin v. Kansas , 190 F.3d 1120, 1126 (10th Cir. 1999), overruled on other grounds by Garrett , 121 S. Ct. at 967-68.
But see Idaho v. Coeur d’Alene , 521 U.S. 261, 267 (1997) (stating that the Eleventh Amendment “enacts a sovereign immunity fro m suit, rather than a nonwaivable limit on the Federal Judiciary’s subjec t-matter jurisdiction”); Cisneros v. Wilson , 226 F.3d 1113, 1136, 1137 (10th Cir. 2000) (Kelly , J., concurring in part and dissenting in part) (arguing that “[w]ere the Eleventh Amendment truly jurisdictional, a court would not b e free to ignore it” and stating that the court should not have reached the Eleventh Amendment issue), majority holding overruled on other grounds by Garrett , 121 S. Ct. at 967. Questions regarding jurisdiction must generally be answered b efore turning to the merits of

a case. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 93-102 (1998) (rejecting the doctrine of hypothetical jurisdictio n). The Supreme Court has held that the issue of whether a statute provides for su its against the states may be-7-

addressed before examining a defendant’s claim of E leventh Amendment immunity. See Vt. Agency of Natural Res. v. United States ex rel. Stevens , 529 U.S. 765, 778-79 (2000). Colorado, however, conced es that Title II of the ADA contemplates suits by private individuals against the states. Thus, Vermont Agencyis not applicable to this case and this court mustresolve whether Colorado is entitled to Eleventh Amendment immunity before i t can address whether Plaintiffs have stated a valid claim under Title II and its implementing regulations. The Eleventh Amendment provides: The Judicial power of the United States shall not b e construed to extend to any suit in law or equity, commenced o r prosecuted against one of the United States by Citizens of ano ther State, or by Citizens or Subjects of any Foreign State. The Eleventh Amendment has been understood as “evid encing and exemplifying” a concept of sovereign immunity implicit in the Con stitution broader than the explicit language of the amendment might suggest. Coeur d’Alene , 521 U.S. at 267-68; see also Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991). Thus, although the explicit language of the Elevent h Amendment applies only to suits in federal court against a state by citizens of another state, immunity has been extended to suits in federal court by citizens against their own state, such as the present suit. See Garrett , 121 S. Ct. at 962; Hans v. Louisiana , 134 U.S. 1,2 Plaintiffs have filed a Motion for Leave to Amend t o Add Party Defendant,

seeking to add Fred Fisher in his capacity as Executive Director of the Colorado Department of Revenue. This motion is obviously anattempt to make prospective injunctive relief possible through an Ex parte Youngsuit. It appears that, if this court were inclined to grant the motion, it would h ave the power to do so. See Newman-Green, Inc. v. Alfonzo-Larrain , 490 U.S. 826, 833 (1989) (concluding that appellate courts do have the power to dismiss a dispensable party whose presence spoils statutory diversity jurisdiction); Balgowan v. New Jersey , 115 F.3d 214, 216-17 (3d Cir. 1997) (granting motion to amend the complaint to add a state official as a defendant and to include a clai m for prospective declaratory and injunctive relief, thus making Ex parte Youngsuit possible). Nevertheless, there are considerations weighing against Plaintiffs’ mot ion. Allowing Plaintiffs to amend their complaint would substantially alter the -8- 15-21 (1890); cf. Alden v. Maine , 527 U.S. 706, 754 (1999) (holding that states possess sovereign immunity from federal suits in st ate courts). Certain exceptions to Eleventh Amendment immunity h ave been recognized. A state can waive its Eleventh Amendme nt immunity and consent to be sued. See Coeur d’Alene , 521 U.S. at 267. There has been no suggestion in this case, however, that Colorado consented to suitunder Title II of the ADA. In addition, the Court has often found federal jurisdi ction in suits against state officials seeking prospective injunctive relief. See Seminole Tribe v. Florida , 517 U.S. 44, 73 (1996). These suits are referred to as Ex parte Youngsuits, based on the Supreme Court case first recognizing this excep tion to Eleventh Amendment immunity. See Ex parte Young , 209 U.S. 123, 159-60 (1908). Because no state official has been named as a defendant in this suit , however, the Ex parte Young exception to Eleventh Amendment immunity is not app ropriate. 2relevant legal issues to be decided in this case. Under the current complaint, the

initial question that must be answered by this court is whether Colorado is entitled to Eleventh Amendment immunity. The main consideration in this analysis is whether Congress validly abrogated Colorado’s Eleve nth Amendment immunity in enacting Title II of the ADA. If Plaintiffs’ motio n to amend is granted, however, this court could address the district court’s awardof the prospective injunctive relief requested in Plaintiffs’ motion for summary judgment without regard to the Eleventh Amendment immunity question. See Ex parte Young , 209 U.S. 123, 159-60 (1908). In addition, after Plaintiffs filedtheir motion to amend, Colorado asserted a challenge to Congress’ ability to pass T itle II of the ADA pursuant to the Interstate Commerce Clause. If Plaintiffs’ mot ion to amend were granted, fairness would require this court to allow Defendants to press the Commerce Clause argument; more briefing and perhaps addition al oral argument would then be necessary to properly evaluate the Commerce Clau se issue. Allowing the amendment would wholly alter the complexion of this case. Furthermore, unlike in Balgowan , there has been no reversal of a prior Supreme Court case on which Plaintiffs relied in dr afting their complaint. In Balgowan , the plaintiffs had brought a claim against the Ne w Jersey Department of Transportation seeking monetary relief for alleg ed violations of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201-219 (1978). See 115 F.3d at 216. Under Supreme Court precedent at the time the plaintiffs in Balgowan filed suit, it appeared that the FLSA was a valid exercis e of Congress’ Commerce Clause power and that Congress could abrogate Eleve nth Amendment immunity through legislation enacted pursuant to the Commerc e Clause. See Pennsylvania v. Union Gas Co. , 491 U.S. 1, 19-20 (1989); Garcia v. San Antonio Metro. Transit Auth. , 469 U.S. 528, 555-56 (1985). In Seminole Tribe v. Florida , which was decided after the plaintiffs in Balgowan filed suit, the Supreme Court reversed Union Gas and held that Congress cannot abrogate Eleventh Am endment immunity by means of its Commerce Clause power. See 517 U.S. 44, 66 (1996). Thus, the Third Circuit allowed the plaintiffs to a mend their complaint, partly because of the plaintiffs’ reliance on Union Gas

. See Balgowan , 115 F.3d at 217. Plaintiffs in this case, however, have identified n o similar equitable consideration justifying their eleventh-hour request to amend the ir complaint. In Newman-Green the Supreme Court emphasized that the power of appellate courts to dismiss a nondiverse party “sho uld be exercised sparingly.” 490 U.S. at 837. This admonition applies to Plaint iffs’ motion to add a party, which has neither alleged nor shown that denial of the motion results in an advantage lost by the Plaintiffs or disadvantage in curred. For the above-stated -9-reasons, Plaintiffs’ Motion for Leave to Amend to A dd Party Defendant is

denied

. -10- Under certain circumstances Congress may abrogate astate’s Eleventh Amendment immunity. See Seminole Tribe , 517 U.S. at 55. First, Congress must “unequivocally express[] its intent to abrogate the immunity.” Green v. Mansour , 474 U.S. 64, 68 (1985). Congress has clearly expre ssed its intent to abrogate Eleventh Amendment immunity in the ADA. See 42 U.S.C. § 12202. Second, Congress must abrogate Eleventh Amendment immunity pursuant to a “constitutional provision granting Congress the pow er to abrogate.” Seminole Tribe , 517 U.S. at 59. After Seminole Tribe , only Section Five of the Fourteenth Amendment stands as a recognized source of power bywhich Congress can abrogate Eleventh Amendment immunity. See id. at 59-66 (overruling Pennsylvania v. Union Gas Co. , 491 U.S. 1 (1989), which held that Congress can abrogate Eleventh Amendment immunity pursuant to th e Interstate Commerce Clause). Congress relied on Section Five of the Fo urteenth Amendment in enacting the ADA. See 42 U.S.C. § 12101(b)(4). The mere recitation by Congress of Section Five as a basis for the ADA doe s not, however, end the inquiry; it is a function of the judicial branch to determine whether Congress was within its Section Five authority to abrogate the s tates’ Eleventh Amendment-11-

immunity by enacting Title II. See City of Boerne v. Flores , 521 U.S. 507, 527-29 (1997); Marbury v. Madison , 1 Cranch 137, 176-80 (1803). Both this court and the Supreme Court have recentlyconsidered whether the ADA is a valid abrogation of Eleventh Amendmentimmunity. In Martin v.
Kansas , this court considered a former corrections office r’s claims against the State of Kansas brought under Title I of the ADA. See 190 F.3d at 1123-25, 1129. Title I of the ADA prohibits certain employe rs, including the states, from “discriminat[ing] against a qualified individual wi th a disability” in matters related to employment. 42 U.S.C. § 12112(a); see also 42 U.S.C. § 12111(2), (5).
In Martin , this court concluded that “the ADA was a permissi ble exercise of Congress’ Section 5 enforcement powers” and thus va lidly abrogated Kansas’ Eleventh Amendment immunity. 190 F.3d at 1128. Itis not entirely clear from the opinion, however, whether the holding that the ADA was a valid abrogation of the states’ Eleventh Amendment immunity applied to all suits brought under the ADA or solely to Title I suits such as the one brou ght in Martin

. Compare
Martin , 190 F.3d at 1125-26 (describing ADA in terms of the duties imposed under Title I in matters of employment), with Johnson v. Oklahoma , Nos. 99-6322, 99-6427, 2000 WL 1114194, at *1 (10th Cir. Aug. 7, 2000) (unpublished disposition) (suggesting Martin ’s holding that the ADA validly abrogated the-12-

states’ Eleventh Amendment immunity applied to a cl aim brought under Title II of the ADA). This court again considered a claim brought under T itle I of the ADA in Cisneros v. Wilson

. See 226 F.3d at 1115. In Cisneros , the court considered whether Martin ’s holding that the ADA abrogated Eleventh Amendment immunity was still good law in light of the Supreme Court’s decision in Kimel v. Florida Board of Regents , 528 U.S. 62 (2000). See Cisneros , 226 F.3d at 1118. In Kimel , the Supreme Court held that Congress did not validl y abrogate the states’ Eleventh Amendment immunity in passing the Age Disc rimination in Employment Act, 29 U.S.C. §§ 621-634. See 528 U.S. at 82-83. This court concluded in
Cisneros that nothing in Kimelrequired the court to “revise the conclusions expressed” in Martin and thus confirmed the viability of Martin ’s conclusion that the ADA validly abrogated the states’ Eleventh Amen dment immunity. 226 F.3d
at 1128. Because both Cisneros and Martin were Title I cases, however, it was not necessary for the Cisneros court to determine whether Martin applied to the entire ADA or just Title I.
In Garrett , the Supreme Court held that Title I of the ADA wa s not a valid abrogation of the states’ Eleventh Amendment immuni ty. See 121 S. Ct. at 967- 68. The Court noted that the legislative record of the ADA did not identify a pattern of unconstitutional discrimination by the s tates and that even if such a3 Whatever the scope of Martin , clearly Garrettnow controls claims

brought pursuant to Title I. -13- record existed “the rights and remedies created by the ADA against the States would raise the same sort of concerns as to congrue nce and proportionality as were found in City of Boerne .” Id. at 966, 965. The Court, however, explicitly limited its ruling to Title I of the ADA and stated that it was “not disposed to decide [in Garrett] the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appr opriate legislation under § 5 of the Fourteenth Amendment.” Id. at 960 n.1. Against this backdrop of cases, this court must det ermine whether the validity of Congress’ attempt through Title II to a brogate the states’ Eleventh Amendment immunity is controlled by precedent. Garrett , although clearly instrumental in informing this court’s analysis, expressly disavows any holding on Title II of the ADA. See id. As stated above, it is not clear whether the deci sion in Martin was intended to apply to the entire ADA or only Ti tle I. 3 It is not necessary, however, for this court to resolve that because Garrettclarifies that when evaluating a claim under the ADA the abrogatio n analysis should be conducted on each specific title, not on the statut e as a whole. The Supreme Court held in Garrettthat Title I of the ADA was not a valid abrogation of Eleventh Amendment immunity; it did not render a de cision as to the entire ADA.4 While some courts have addressed the Eleventh Amend ment question by

broadly considering the entire ADA, see Coolbaugh v. Louisiana , 136 F.3d 430, 437-38 (5th Cir. 1998), other courts have gone in the opposite direction an d considered whether the specific regulation under wh ich the plaintiff makes a claim is a valid abrogation of Eleventh Amendment i mmunity. See Neinast v. Texas , 217 F.3d 275, 280–82 (5th Cir. 2000) (stating that 28 C.F.R. § 35.130(f) exceeds Congress’ Section Five power to enforce the Fourteenth Amendment), cert denied, 121 S. Ct. 1188 (2001); Brown v. N.C. Div. of Motor Vehicles , 166 F.3d 698, 701, 703-04 (4th Cir. 1999) (same), cert. denied, 121 S. Ct. 1186 (2001). This court agrees with the Ninth Circuit i n rejecting a specific “piecemeal analysis” of whether each regulation pas sed pursuant to Title II is a valid abrogation of Eleventh Amendment immunity. See Dare v. California , 191 F.3d 1167, 1176 n.7 (9th Cir. 1999), cert denied, 121 S. Ct. 1187 (2001); see also Alsbrook v. City of Maumelle , 184 F.3d 999, 1010 (8th Cir. 1999) (en banc) (holding that Title II of the ADA is not a valid ab rogation of Eleventh Amendment immunity). The analysis adopted by the S upreme Court in cases such as Garrettaddresses Congress’ability to abrogate Eleventh Amendment immunity by enacting legislation pursuant to its power to enforce the Fourteenth Amendment. The power of various agencies to enact regulations implementing legislation passed by Congress is an entirely diffe rent question, one that is generally approached with deference by the courts. See Olmstead v. Zimring , 527 U.S. 581, 597 (1999) (“Because the Department [of J ustice] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect. We need not inquire whether the degree of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc ., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), is in order; [i]t is e nough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts an d litigants may properly resort for guidance.” (quotations and citation omitted)). In this court’s view, it is simply inappropriate to apply the abrogation analys is to agency regulations. Thus, as the Supreme Court did with Title I inGarrett , this court will conduct the abrogation analysis by considering Title II in its entirety. -14- See id . Thus, even if Martin was a holding as to the entire ADA, Garrett demonstrates that it was error to conduct the abrog ation analysis at that level of generality. 4 See Currier v. Doran , 242 F.3d 905, 912 (10th Cir. 2001) (stating-15-

that a panel is not bound by a prior panel opinion when there is a superseding Supreme Court decision). Therefore, this court nowwrites on a clean slate in addressing whether Title II of the ADA is a valid abrogation of the states’ Eleventh Amendment immunity. Whether there has been an abrogation of Eleventh Am endment immunity is generally controlled by the “now familiar principle s” for determining whether the statute in question was validly passed pursuant to Section Five of the Fourteenth Amendment. Garrett , 121 S. Ct. at 963. Section Five gives Congress the power to enforce the guarantees of the Fourteenth Amendme nt by enacting “appropriate legislation.” U.S. Const. amend. XIV, § 5; see also Flores , 521 U.S. at 536. This power “includes the authority both to remedy and to deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibi ting a somewhat broader swath of conduct, including that which is not itsel f forbidden by the Amendment’s text.” Kimel , 528 U.S. at 81. When Congress has enacted legislation that exceeds the substantive guarantees of the Fourteenth Amendment, however, the legislation must exhibit “congruence and proportionality between the [constitutional] injury to be prevented or reme died and the means adopted to that end.” Flores , 521 U.S. at 520. In conducting the congruent and proportional analysis, courts look to the Congressional record t o determine “whether Congress-16-

identified a history and pattern of unconstitutiona l [conduct] by the States.”
Garrett , 121 S. Ct. at 964. In determining whether Title II is a valid abrogati on of Eleventh Amendment immunity, it is first important to deline ate with some care what conduct Title II prohibits or, perhaps more appropr iately in this case, what conduct Title II requires. Title II states that “ no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, o r activities of a public entity, or be subjected to discrimination by any such entity .” 42 U.S.C. § 12132. A cursory reading of the statutory language can leave the impression that Title II simply prohibits intentional exclusion aga inst the disabled solely because of their status as “disabled.” A more thorough rev iew, however, reveals that, rather than preventing public entities from treatin g the disabled differently than the nondisabled, Title II requires that public enti ties make certain accommodations for the disabled in order to ensure their access to government
programs. See Bonnie Poitras Tucker, The ADA’s Revolving Door: Inherent Flaws in the Civil Rights Paradigm , 62 Ohio St. L.J. 335, 344 (2001) (stating that “[s]imple equal treatment does not result in [the d isabled’s] inclusion into mainstream society” and that “[t]he ADA recognizes this need for different treatment”). That Title II of the ADA requires acc ommodations by public entities-17-

is evident from other portions of the statute, the regulations implementing Title II, and caselaw interpreting the statute. The findings section of the ADA (applicable to all titles of the Act) states that individuals with disabilities continually encountervarious forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transporta tion, and communication barriers, overprotective rules and po licies, failure to make modifications to existing facilities and practices , exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jo bs, or other opportunities. 42 U.S.C. § 12101(5) (emphasis added). The definit ion of a “qualified individual with a disability” also illustrates the affirmative duty Title II imposes on public entities: The term “qualified individual with a disability” m eans an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation bar riers, or the provision of auxiliary aids and services , meets the essential eligibility requirements for the receipt of service s or the participation in programs or activities provided by a public enti ty. Id. § 12131(2) (emphasis added). In addition, Part B o f Title II delineates specific examples of what constitutes “discriminati on” by public entities in their public transportation services. See id. §§ 12141-12165. This section of the statute requires, inter alia , that all new public transportation vehicles be accessible to the disabled and that any public enti ty which operates a fixed route-18-

transportation system provide comparable services f or use by the disabled. See id. §§ 12142-12144. Thus, from the language of the statute it is clear Title II requires public entities to make accommodations for the disabled. The regulations issued by the Department of Justice implementing Title II confirmthis reading of the statute. Cf. Alexander v. Choate , 469 U.S. 287, 304-05 & n.24 (1985) (using regulat ions as a source of guidance in interpreting a statute). One regulation provides that [a] public entity shall make reasonable modificatio ns in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, un less the public entity can demonstrate that making the modification s would fundamentally alter the nature of the service, prog ram, or activity. 28 C.F.R. § 35.130(b)(7). The regulation on which Plaintiffs in this case have based their claim also demonstrates that public ent ities will be required to take certain “measures” in order to comply with Title II

. Id. § 35.130(f). Finally, many courts have recognized that Title II requires public entities to make accommodations for the disabled. See, e.g. , Popovich v. Cuyahoga County Court of Common Pleas , 227 F.3d 627, 638 (6th Cir. 2000) (stating that T itle II “imposes an affirmative obligation on public entiti es to accommodate disabled individuals”), rehearing en banc granted, opinion vacated (Dec. 12, 2000); Alsbrook v. City of Maumelle , 184 F.3d 999, 1009 (8th Cir. 1999) (en banc). Similarly, Section 504 of the Rehabilitation Act of 1973 (“§ 504”), which uses5 Compare 42 U.S.C. § 12132, with 29 U.S.C. § 794(a). -19- language almost identical to Title II in describing a violation by covered entities, 5 has been interpreted to require “reasonable accommo dations” to covered programs or services. See Sch. Bd. v. Arline , 480 U.S. 273, 287 n.17 (1987) (stating that “reasonable accommodations” by covered entities are required under § 504); Alexander , 469 U.S. at 299-301 (assuming without deciding th at § 504 provides for at least some disparate impact claims and that “reasonable accommodations . . . may have to be made”); Wynne v. Tufts Univ. Sch. of Med. , 932 F.2d 19, 25 (1st Cir. 1991) (en banc). Thus, the duty to accommodat e contained in Title II is well settled. It appears, however, that the duty to accommodate u nder § 12132 is not boundless. Regulations issued by the Department of Justice speak of “reasonable modifications” that do not “fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7); see also 42 U.S.C. § 12131(2) (defining “qualified individual with a disability” as an individual “who, with or without reasonable modifications . . ., meets the essential eligibili ty requirements for the receipt of services” (emphasis added)). Wh ile expressly avoiding any ruling on the validity of § 35.130(b)(7), the Supre me Court has interpreted the regulation to allow inquiry into whether an accommo dation is “reasonable” in light of, inter alia , “the resources available to the State.” Olmstead v. Zimring ,-20-

527 U.S. 581, 607, 592, 603-07 (1999). It is not n ecessary for purposes of this case to determine exactly when a state might refuse an accommodation because it is “unreasonable” or because it “fundamentally alte r[s] the nature of the service, program, or activity”; this court will assume that such a defense does exist in certain circumstances. The next step in determining whether Title II is a valid abrogation of Eleventh Amendment immunity “is to identify with so me precision the scope of the constitutional right at issue.” Garrett , 121 S. Ct. at 963. Section Five of the Fourteenth Amendment gives Congress the power to en force the provisions of the Fourteenth Amendment. Plaintiffs claim that Title II enforces both the Equal Protection Clause and the Due Process Clause. See U.S. Const. amend. XIV, § 1. The fundamental guarantee of the Equal Protection C lause is that “all persons similarly situated should be treated alike. ” City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985). Thus, a typical claim brought under the Equal Protection Clause challenges a classification or distinction made by the state. The reviewing court then determines the ser iousness with which the Equal Protection Clause treats the particular classificat ion and then applies the appropriate degree of judicial scrutiny to the stat e justifications for making the distinction.6 Although Cleburne dealt only with classifications based on mental

retardation, the Court’s decision in Garrett confirms that classifications based on disabilities, whether mental or otherwise, are subj ect only to rational basis review. See Bd. of Trustees of the Univ. of Ala. v. Garrett , 121 S. Ct. 955, 963-65 (2001). -21- The Supreme Court case of Cleburne follows this pattern. In Cleburne , the Court considered an Equal Protection challenge to acity ordinance that required a special use permit for construction of a group home for the mentally disabled. See id. at 435-37. The Court determined that “mental reta rdation” is not a quasisuspect class and that state legislation making cla ssifications based on mental retardation need only be rationally related to a le gitimate city interest. See id. at 442-46. Thus, a state violates the Equal Protectio n Clause if it makes distinctions between the disabled and nondisabled without a rati onal justification. 6 Of course, “a bare [] desire to harm a politically unpopular g roup” is not a legitimate state interest. See United States Dep’t of Agric. v. Moreno , 413 U.S. 528, 534 (1973). When a state acts with invidious intent there is an equal protection violation even if no facial distinction has been made and the stat e action merely has a disparate impact on the disabled. See Lee v. City of L.A. , 250 F.3d 668, 686-88 (9th Cir. 2001); Erickson v. Bd. of Governors of State Colls. & Univs. for Northeastern Ill.
Univ. , 207 F.3d 945, 950 (7th Cir. 2000). In contrast to the Equal Protection Clause prohibit ion on invidious discrimination against the disabled and irrational distinctions between the-22-

disabled and the nondisabled, Title II requires pub lic entities to recognize the unique position of the disabled and to make favorab le accommodations on their behalf. Thus, while the basic premise of the Equal Protection Clause is that similarly situated citizens should be treated alike , the mandate of the ADA is that those who are not similarly situated should be treated differently. The Equal Protection Clause does not generally require accomm odations on behalf of the disabled by the states. See Garrett , 121 S. Ct. at 964 (“If special accommodations for the disabled are to be required, they have to c ome from positive law and not through the Equal Protection Clause.”); Erickson , 207 F.3d at 951 (“[N]o one believes that the Equal Protection Clause establish es the disparate-impact and mandatory-accommodation rules found in the ADA.”). Plaintiffs correctly note that a fundamental intere st in voting inheres in the Equal Protection Clause. See Harper v. Va. Bd. of Elections , 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the ele ctorate, lines may not be drawn which are inconsistent with the Equal Protection Cl ause of the Fourteenth Amendment.”). Thus, state measures which have the effect of denying or diluting a citizen’s vote must be justified with a compellin g state interest. See id. at 670 (striking down state poll tax); Reynolds v. Sims , 377 U.S. 533, 568-69 (1964) (establishing the one person-one vote standard). I t is not clear whether the equal protection interest in voting requires states to make accommodations for the-23-

disabled in order to ensure their ability to vote. See Selph v. Council of L.A ., 390 F. Supp. 58, 61 (C.D.Cal. 1975) (holding that Equal Protection Clause does not require city to make polling places accessible to t he disabled when absentee voting is available); Whalen v. Heimann , 373 F. Supp. 353, 357 (D. Conn. 1974) (finding no equal protection violation in failing t o provide absentee ballots to those who are physically unable to vote and stating that “[a] physically incapacitated voter has no more basis to challenge a voting requirement of personal appearance than a blind voter can complain that the ballot is not printed in braille” and that it is not “the province of cou rts to weigh the relative ease or difficulty with which the state could accommodate i ts voting procedures to meet the needs of various handicapped voters”); cf. McDonald v. Bd of Election
Comm’rs , 394 U.S. 802, 806-11 & n.6 (1969) (holding that I llinois did not violate the Equal Protection Clause by refusing to give uns entenced inmates an absentee ballot, when there was no record evidence that inmates would be prevented from voting on election day). For purposes of this case only, this court assumes without deciding that the Equal Protection Clause r equires states and local entities either to make polling locations accessible to the disabled or to allow the disabled to vote by absentee ballot. Plaintiffs also rely on the Due Process Clause. Th e Due Process Clause of the Fourteenth Amendment has been interpreted to in corporate most of the-24-

guarantees found in the Bill of Rights; these incorporated provisions thus apply to the states as well as the federal government. See Duncan v. Louisiana , 391 U.S. 145, 148 (1968). Some of the incorporated guarante es of the first ten amendments require states, on certain occasions, to make accommodations for the disabled. For instance, a prison is required to pr ovide the disabled with accessible toilets in order to comply with the proh ibition against cruel and unusual punishment contained in the Eighth Amendment. See LaFaut v. Smith , 834 F.2d 389, 389-95 (4th Cir. 1987) (Powell, J., s itting by designation). In at least some instances, the failure of states to prov ide accessible courtrooms could conceivably be a violation of due process. See Faretta v. California , 422 U.S. 806, 819 n.15 (1975) (“[A]n accused has a right to be present at all stages of the trial where his absence might frustrate the fairnes s of the proceedings.”); Helminski v. Ayerst Labs ., 766 F.2d 208, 215 (6th Cir. 1985) (holding that a civil litigant’s “physical condition alone does not warrant his exclusion from the courtroom during any portion of the proceedings”). These examples do not exhaust the categories of rights protected by a req uirement for some level of accommodation under the Due Process Clause. See, e.g. , Youngberg v. Romeo , 457 U.S. 307, 309-10, 322 (1982) (holding that ment ally disabled individual who had been involuntarily committed to a state institu tion was entitled by Due Process Clause to “minimally adequate training”). For purposes of this case,7 Of course, whether a particular defendant is entitl ed to Eleventh

Amendment immunity is not always a straightforward question. See, e.g. , Ambus v. Granite Bd. of Educ. , 995 F.2d 992, 995-97 (10th Cir. 1993) (en banc) (applying four-part test to determine if local scho ol districts are entitled to Eleventh Amendment immunity). As a result of the d irective in Garrettthat only congressional findings of constitutional violations by beneficiaries of the Eleventh Amendment be considered, a determination t hat a statute is not a valid -25- however, it is sufficient to note that the Due Proc ess Clause does not contain the general mandate found in Title II, which requires a ccommodations by public entities in all of its “services, programs, or acti vities.” 42 U.S.C. § 12132. Thus, states can violate the Fourteenth Amendment r ights of the disabled in three different ways. First, facial distinctions b etween the disabled and nondisabled are unconstitutional unless rationally related to a legitimate state interest. Second, invidious state action against t he disabled is unconstitutional, even if facially neutral toward the disabled (such as neutral statutory language). Finally, in certain limited circumstances such as t hose involving voting rights and prison conditions, states are required to make at l east some accommodations for the disabled. Having explored the Fourteenth Amendment’s protecti ons of the disabled, this court next “examine[s] whether Congress identi fied a history and pattern of unconstitutional [conduct] by the States against th e disabled.” Garrett , 121 S. Ct. at 964. In conducting this inquiry, only constitut ional violations committed by beneficiaries of the Eleventh Amendment are conside red. 7 See id. at 965.abrogation of Eleventh Amendment immunity does not necessarily mean that the

statute is not a valid exercise of Congress’ power to enforce the Fourteenth Amendment. Because the Fourteenth Amendment applie s to local government entities not entitled to Eleventh Amendment immunity, the analysis of whether Congress has the power to enact legislation require s inquiry into constitutional violations by these entities in addition to entitie s entitled to Eleventh Amendment immunity. -26- Congress held thirteen hearings and created a speci al task force to assess the need for the ADA. See Garrett , 121 S. Ct. at 969-70 (Breyer, J., dissenting). As a result of these inquiries, Congress determinedthat “discrimination against individuals with disabilities persists in such crit ical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 42 U.S.C. § 12101(a)(3). Clearly, manyof the “critical areas” in which Congress determined “discrimination” to existapply to the states and come under the purview of Title II. Normally, congressi onal findings are entitled to much deference. See Walters v. Nat’l Ass’n of Radiation Survivors , 473 U.S. 305, 330 n.12 (1985). As explained above, however, Cong ress’ determination of what constitutes “discrimination” against the disabled d iffers from discrimination in the constitutional sense. See, e.g. , 42 U.S.C. § 12101(5). This court’s duty is therefore to determine “whether Congress identifieda history and pattern of unconstitutional[] discrimination by the States against the disabled.” Garrett , 121 S. Ct. at 964 (emphasis added).8 In fact, by the time Congress enacted the ADA everystate in the Union,

including Colorado, had enacted legislation requiri ng some accommodations on behalf of the disabled. See Garrett , 121 S. Ct. at 964 n.5; Colo. Rev. Stat. § 9-5- 101 to -112. -27- There is some evidence in the congressional record that unconstitutional discrimination against the disabled exists in government “services, programs, or activities.” See, e.g. , 2 Staff of the House Comm. on Educ. & Labor, 101st Cong., 2d Sess., Legislative History of Public Law 101-336: The Americans with Disabilities Act 1230 (Comm. Print 1990) [hereinaft er Legislative History ] (discussing neighborhood opposition to housing for the mentally disabled); see also Alexander , 469 U.S. at 295 n.12 (discussing § 504 of the Rehabilitation Act of 1973 and stating that “well-cataloged instances of invidious discrimination against the handicapped do exist”). However, most of these occurrences involve local officials and not the states. 8 See, e.g. , 3 Legislative History1872 (discussing invidious refusal by park commissioner to allow disabled person to swim in public pool). In any event, the vast major ity of incidents discussed in the legislative record involving government “services, programs, or activities” are refusals by public entities to make accommodations for the disabled. See, e.g. , Americans With Disabilities Act: Hearings on H.R. 2 273 Before the Subcomm. on Surface Transp. of the Comm. on Public Works and Tr ansp. , 101st Cong. 204-09 (1989) (statement of John Hudson, Social Work Coord inator at the National9 See H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990

U.S.C.C.A.N. 303; H.R. Rep. No. 101-485(III), at 49 -50 (1990), reprinted in 1990 U.S.C.C.A.N. 445. -28- Rehabilitation Hospital in Washington, D.C.) (discu ssing lack of adequate public transportation for the disabled in Montgomery County, Maryland). The identification of only a few examples of unconstitu tional discrimination against the disabled confirms the notion that Title II’s pr imary focus was the failure by public entities to make accommodations for the disa bled. See Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir. 1995) (stating that “the ADA evolved from an attempt to remedy the effects of benign neglect res ulting from the invisibility of the disabled” and that “invidious animus . . . was not the focus of . . . the ADA”(quotations omitted)); see also Americans With Disabilities Act of 1989: Hearing on H.R. 2273 Before the Comm. on the Judiciary & the Subcomm. on Civil & Constitutional Rights of the Comm. on the J udiciary , 101st Cong. 162 (1989) (statement of Laura D. Cooper, disabled atto rney) (“It is my firm belief that many, but not all[,] of the inaccessibility pr oblems that I have encountered are not so much the result of hostility or willful discrimination; rather, they are the result of benign neglect and a lack of understa nding or concern about how particular policies or practices affect the disable d patrons in our midst.”). The Supreme Court, in discussing § 504 of the Rehabilit ation Act of 1973, upon which Title II of the ADA was based, 9 has stated that10 This court was also unable to identify a history an d pattern of

unconstitutional state conduct in The Report of the Task Force on the Rights and Empowerment of Americans with Disabilities: From AD A to Empowerment (1990). -29- [d]iscrimination against the handicapped was percei ved by Congress to be most often the product, not of invidious anim us, but rather of thoughtlessness and indifference—of benign neglect. . . . Federal agencies and commentators on the plight of the hand icapped similarly have found that discrimination against th e handicapped is primarily the result of apathetic attitudes rather than affirmative animus. Alexander , 469 U.S. at 295-96 (footnote omitted). This lang uage is applicable to Title II of the ADA. Apathetic attitudes and refus als to make accommodations do not usually violate the Fourteenth Amendment. This court cannot conclude that Congress “identifie d a history and pattern” of unconstitutional discrimination by the states ag ainst the disabled. 10 Garrett , 121 S. Ct. at 964. Nor can this court find in the caselaw “extensive litigation and discussion of the constitutional violations.” Id. at 968 (Kennedy, J., concurring). Without this foundation, Title II cannot be conside red preventive or remedial legislation that is congruent and proportional to any constitutional violation. Based on the “minimal evidence of unconstitutional state discrimination” against the disabled, Title II’s accommodation requirement appears to be an attempt to prescribe a new federal standard for the treatment of the disabled rather than an attempt to combat unconstitutional discrimination. Garrett , 121 S. Ct. at 965-66.11 This court expresses no opinion on the constitution al power of Congress

to enact Title II of the ADA. Thus, Ex parte Youngsuits seeking prospective injunctive relief and suits against entities not pr otected by the Eleventh Amendment are not prohibited by this opinion. -30- In this respect, Title II resembles the Religious F reedom Restoration Act, which the Supreme Court struck down in Flores

. See 521 U.S. at 536; see also Erickson , 207 F.3d at 951 (“What the RFRA did for religion, the ADA does for disabilities.”). Thus, Title II is not a valid abr ogation of the states’ Eleventh Amendment immunity. 11 

### IV. CONCLUSION For the reasons stated above, Colorado is entitled to Eleventh Amendment immunity from Plaintiffs’ suit and the district cou rt erred in denying Colorado’s motion for summary judgment. We therefore VACATE the order of the district court granting summary judgment for Plaintiffs and denying summary judgment for Colorado and REMAND with instructions that summary judgment be entered for Colorado.