No. 98-536

IN THE

6XSUHPH&RXUWRIWKH8QLWHG6WDWHV

 OCTOBER TERM, 1998

OLMSTEAD,

Petitioner,

v.

L.C. ex rel. Zimring, et. al.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICUS CURIAE OF

THE NATIONAL COUNCIL ON DISABILITY

IN SUPPORT OF RESPONDENTS

ROBERT L. BURGDORF JR.

University of the District of 

 Columbia

David A. Clarke School of Law

4250 Connecticut Avenue, N.W.

Building 38, Room 204

Washington, DC 20008

(202) 274-7334

Counsel of Record for Amicus 

 Curiae

Balmar Legal Publishing Department, Washington, DC (202) 682-9800
i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS ...................................................... 1

SUMMARY OF THE ARGUMENT ..................................... 2

ARGUMENT ......................................................................... 5

I. PROHIBITING UNNECESSARY ISOLATION

AND SEGREGATION OF INDIVIDUALS

WITH DISABILITIES IN TREATMENT AND

HABILITATION PROGRAMS WAS A KEY

COMPONENT OF THE ORIGINAL ADA

PROPOSAL DEVELOPED BY AMICUS .......................5

A. The National Council on Disability and

the Origins of the ADA ...................................... 5

B. Conceptual Underpinnings of the Integration

Mandate of the ADA ............................................ 8

II. THE ADA PROHIBITS UNNECESSARY

ISOLATION AND SEGREGATION OF INDIVIDUALS WITH DISABILITIES IN TREATMENT

AND HABILITATION PROGRAMS .......................... 15

A. The Statutory Language of the ADA ............... 15

B. The Legislative History .................................... 19

C. ADA Regulations ............................................. 25

III. CONCLUSION ........................................................ 26
ii

TABLE OF AUTHORITIES

Cases Pages

Alexander v. Choate, 469 U.S. 287 (1985) ........................ [13]

Bragdon v. Abbott, 118 S.Ct. 2196 (1998) .....................[4, 26]

Campbell v. Greer, 831 F.2d 700 (7th Cir. 1987) ..............[20]

Chevron, U.S.A., Inc. v. Nuclear Regulatory Defense

Council, Inc., 467 U.S. 837 (1984) ......................[4, 25, 26]

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) .......................................................[14]

Consumer Product Safety Comm’n v. GTE Sylvania,

Inc., 447 U.S. 102 (1980) ...............................................[20]

Green v. Bock Laundry Machine Co., 490 U.S. 504

(1989). ............................................................................[20]

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

(1982) .............................................................................[20]

In re Marriage of Carney, 598 P.2d 36 (Cal. 1979) ...........[13]

Pennsylvania Dept. of Corrections v. Yeskey,

118 S.Ct. 1952 (1998) ....................................[4, 18, 19, 25]

Sedima, S.P.R.L. v. Imrex Co., 473

U.S. 479 (1985) ..............................................................[19]

STATUTES

The Americans with Disabilities Act of 1990,

42 U.S.C. § 12101 et seq. (1994) .............................. passim

29 U.S.C. § 781 (1994) ....................................................[1, 5]

42 U.S.C. § 12101(a)(2) (1994) ............................................[3]

42 U.S.C. § 12101(a)(3) (1994) .....................................[4, 18]

42 U.S.C. § 12101(a)(7) (1994) ..........................................[16]

42 U.S.C. § 12101(a)(8) (1994) ...............................[3, 16, 19]
iii

Pages

42 U.S.C. § 12101(a)(9) (1994) ..........................................[17]

42 U.S.C. § 12101(b)(1) (1994) ..................................... [4, 19]

42 U.S.C. § 12131(1)(A) (1994) ........................................[18]

42 U.S.C. § 12131(1)(B) (1994) ........................................[18]

42 U.S.C. § 12132 (1994) ........................................[4, 17, 18]

42 U.S.C. § 12134(a) (1994) ....................................[3, 17, 25]

42 U.S.C. § 12134(b) (1994).................................... [3, 17, 25]

Pub. L. No. 98-221, tit. I, § 142, 98 Stat. 27 (1984)

(codified as amended at 29 U.S.C. § 781) ........................[5]

Pub. L. No. 100-630, tit. II, § 205(a), 102 Stat. 3310

(1988) ...............................................................................[5]

REGULATIONS

28 C.F.R. § 35.130(d) (1998) ...................................[4, 25, 26]

28 C.F.R part 41 .......................................................... [17, 25]

28 C.F.R. § 41.51(d) (1998)..................................... [4, 17, 25]

LEGISLATIVE AUTHORITIES

H.R. 4498, 100th Cong. 2d Sess. (1988) ..............................[7]

S. 2345, 100th Cong., 2d Sess., 134 CONG. REC. 9379-

9382 (1988) ......................................................................[7]

H.R. REP. NO. 101-485 pt. 2 (1990) (Committee on

Education and Labor), reprinted in 1990

U.S.C.C.A.N. 303 ..............................................[17, 21, 22]

H.R. REP. NO. 101-485 pt. 3 (1990) (Committee on the

Judiciary), reprinted in 1990

U.S.C.C.A.N. 445......................................... [20, 21, 22, 28]

S. REP. NO. 101-116 (1989) .............................[17, 20, 21, 22]
iv

117 CONG. REC. 45,974 (1971) (statement of Rep.

Vanik) .............................................................................[13]

Pages

118 CONG. REC. 526 (1972) (statement of Sen. Percy)..... [13]

134 CONG. REC. 9375 (1988) (statement of Sen.

Weicker) ...................................................................[17, 21]

134 CONG. REC. 9599 (1988) (statement of Rep.

Coelho) .............................................................................[7]

135 CONG. REC. 8505 (1989)

(statement of Sen. Harkin) .................................[17, 21, 22]

135 CONG. REC. 8514 (1989)

(statement of Sen. Kennedy) .......................................... [24]

135 CONG. REC. 19800 (1989) (statement of Sen. Harkin) [21, 23]

135 CONG. REC. 19878 (1989) (statement of Sen. Chafee) ......[21]

136 CONG. REC. 10868 (1990) (statement of Rep.

Edwards) ....................................................................[21,22]

136 CONG. REC. 10872 (1990) (statement of

Rep. Weiss) ....................................................................[21]

136 CONG. REC. 10877 (1990) (statement of

Rep. Miller) ....................................................................[24]

136 CONG. REC. 11467 (1990) (statement of

Rep. Dellums) .................................................................[24]

Americans with Disabilities Act of 1988: Hearing on

H.R. 4498 Before the Subcommittee on Select

Education of the House Committee on Education and

Labor, 100th Cong. (1988).........................................[22,23]

Americans with Disabilities Act of 1989: Hearing on

S. 933 Before the Senate Committee on Labor and

Human Resources and the Subcommittee on the

Handicapped, 101st Cong. (1989) .................................[24]
v

OTHER AUTHORITIES

RICHARD ALLEN, LEGAL RIGHTS OF THE DISABLED AND

DISADVANTAGED (1969) ................................................[10]

Pages

ROBERT L. BURGDORF JR., THE LEGAL RIGHTS OF

HANDICAPPED PERSONS: CASES, MATERIALS, AND

TEXT (1980) ....................................................................[11]

Timothy M. Cook, The Americans with Disabilities

Act: The Move to Integration, 64 TEMP. L. REV.

393 (1991) ................................................................[16, 27]

Harlan Hahn, Paternalism and Public Policy,”

20 SOCIETY No. 3, 36 (March/April 1983) ....................[11]

Leonard Kriegel, Uncle Tom and Tiny Tim:

Some Reflections on the Cripple As Negro,

38 AM. SCHOLAR 412 (1969) .........................................[10]

Mark E. Martin, Note, Accommodating the Handicapped:

The Meaning of Discrimination Under Section 504

of the Rehabilitation Act, 55 N.Y.U. L. REV. 881

(1980) .............................................................................[15]

National Conference of State Legislatures, Saving

Medicaid Money: From Institutions to Community

Care, 25 STATE LEGISLATURES 7

(February 1999) ..............................................................[28]

NATIONAL COUNCIL ON DISABILITY, ACHIEVING

INDEPENDENCE: THE CHALLENGE FOR THE 21ST

CENTURY (1996) .......................................................[27, 28]

NATIONAL COUNCIL ON DISABILITY, EQUALITY OF

OPPORTUNITY: THE MAKING OF THE AMERICANS WITH

DISABILITIES ACT (1997) ..................................................[7]

NATIONAL COUNCIL ON THE HANDICAPPED, ON THE

THRESHOLD OF INDEPENDENCE (Andrea H. Farbman

ed., 1988) ..........................................................[6, 7, 15, 17]
vi

NATIONAL COUNCIL ON THE HANDICAPPED,

TOWARD INDEPENDENCE (1986) ...............[5, 6, 7, 8, 14, 15]

Joseph P. Shapiro, No Pity (1993) .......................................[9]

Pages

Jacobus tenBroek & Floyd W. Matson, The Disabled

 and the Law of Welfare, 54 CAL. L. REV. 809

(1966) ...........................................................................[8, 9]

Jacobus tenBroek, The Right to Live in the World: The

Disabled and the Law of Torts, 54 CAL. L. REV. 841

(1966) .........................................................................[9, 10]

U.S. COMM’N ON CIVIL RIGHTS, ACCOMMODATING

THE SPECTRUM OF INDIVIDUAL

ABILITIES (1983) ............................[6, 8, 11, 12, 13, 14, 15]
No. 98-536

IN THE

6XSUHPH&RXUWRIWKH8QLWHG6WDWHV

 OCTOBER TERM, 1998

OLMSTEAD,

Petitioner,

v.

L.C. ex rel. Zimring, et. al.,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE OF

THE NATIONAL COUNCIL ON DISABILITY

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

This brief amicus curiae is filed, pursuant to consents of

the parties filed with the Clerk,1 on behalf of the National

Council on Disability. The Council is an independent federal

agency comprised of 15 members appointed by the President

of the United States and confirmed by the U.S. Senate.

Pursuant to its statutory mandate, 29 U.S.C. § 781 (1994), the

Council is charged with reviewing federal laws, regulations,

programs, and policies affecting people with disabilities to

assess the effectiveness of such laws, regulations, programs,

–––––––––––––––––––––

1 Pursuant to this Court’s Rule 37.6, none of the parties authored this

brief in whole or in part and no one other than amicus or counsel

contributed money or services to the preparation and submission of this

brief.
2

and policies in meeting the needs of individuals with

disabilities, and making recommendations to the President,

the Congress, officials of federal agencies, and other federal

entities, regarding ways to better promote equal opportunity,

economic self-sufficiency, independent living, and inclusion

and integration into all aspects of society for Americans with

disabilities.

The Council plays a major role in developing disability

policy in America, and, in 1986, first proposed the concept of

the Americans with Disabilities Act (ADA), 42 U.S.C. §

12101 et seq. (1994), the statute at issue in this case. In 1988,

the Council developed the original ADA bill that was

introduced in the 100th Congress. Congress relied on and

acknowledged the influence of the Council and its reports

during congressional consideration and passage of the ADA;

members and staff of the Council testified at congressional

hearings on the legislation. Under its current statutory

mandate, the Council is responsible for gathering information

about the implementation, effectiveness, and impact of the

ADA. The Council is thus intensely interested in ensuring

that the ADA is implemented in a manner consistent with the

purposes for which it was proposed. It is also uniquely

qualified to provide the Court with information about the

background and framing of the ADA, implementation of the

Act, and other information concerning policy issues affecting

persons with disabilities. The Council is also particularly

concerned with and uniquely informed about the central issue

in this case -- the integration of individuals with disabilities in

the community, and, since the enactment of the ADA, has

continued to assess and report on progress in regard to this

critical issue.

SUMMARY OF ARGUMENT

Amicus articulated the need for an Americans with

Disabilities Act (ADA) and drafted the original ADA bill in

response to statutory mission statements that directed it to
3

assess the effectiveness of federal laws, regulations,

programs, and policies in meeting the needs of individuals

with disabilities, and to make recommendations to the

President and the Congress regarding ways to better promote

inclusion and integration into all aspects of society for

Americans with disabilities. Consequently, prohibiting

unnecessary segregation and isolation of people with

disabilities in various contexts, including state and local

government facilities that provide treatment and habilitation

services, was a central concern of the ADA proposal from its

inception. This concern was reflected in express terms at

each step of amicus’s efforts to call for an ADA, to draft an

ADA bill, to get it introduced in Congress in 1988, and to

participate actively in efforts in 1989 and 1990 to revise the

legislation and ultimately have it enacted.

Amicus’s efforts in regard to the ADA, the conceptual

underpinnings of the Act, the legislative history, the language

of the ADA, and the relevant federal regulations are all in

agreement regarding certain major principles that are critical

to the present case: First, that unnecessary isolation and

segregation of persons with disabilities is a form of

discrimination with serious negative effects. This principle is

recognized in the ADA statutory finding that “historically,

society has tended to isolate and segregate individuals with

disabilities, and ... such forms of discrimination against

individuals with disabilities continue to be a serious and

pervasive social problem.” 42 U.S.C. § 12101(a)(2) (1994).

Second, that integration of people with disabilities is a basic

and vital objective. This principle is embraced in the ADA’s

identification of “full participation” as one of “the Nation’s

proper goals regarding individuals with disabilities.” Id., §

12101(a)(8).

Third, that Title II requires state and local governments and

their instrumentalities to provide services in the most integrated

setting appropriate to the needs of individuals with disabilities.

This is accomplished in Title II provisions that direct the Attorney
4

General to promulgate regulations to delineate forms of

discrimination prohibited, which are to be consistent with a

specific set of prior regulations. 42 U.S.C. §§ 12134(a) & (b)

(1994). The referenced regulations include a specific requirement

that services are to be provided in “the most integrated setting

appropriate.” 28 C.F.R. § 41.51(d) (1998). Accordingly, the

ADA Title II regulations promulgated by the Attorney General in

July 1991 declare in clear and specific language: “A public entity

shall administer services, programs, and activities in the most

integrated setting appropriate to the needs of qualified individuals

with disabilities.” 28 C.F.R. § 35.130(d) (1998). Pursuant to the

analysis in Chevron, U.S.A., Inc. v. Nuclear Regulatory Defense

Council, Inc., 467 U.S. 837, 844 (1984) and Bragdon v. Abbott,

118 S.Ct. 2196, 2209 (1998), these regulations qualify for judicial

deference and are to be given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to the statute.

Fourth, that the prohibitions of discrimination in Title II of

the ADA apply to all services, programs, and activities of state

or local governments or their instrumentalities, including

treatment and habilitation services for people with disabilities.

This principle is reflected in the plain meaning of Title II of the

ADA’s application to “the services, programs, or activities of a

public entity,” stated without any exception. 42 U.S.C. § 12132

(1994). It is underscored by the construction accorded these

terms in Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct.

1952 (1998). It is further buttressed by the ADA’s stated

purpose of providing a “comprehensive national mandate for the

elimination of discrimination.” 42 U.S.C. § 12101(b)(1) (1994).

This principle is made manifestly clear in the congressional

findings establishing the factual foundation for the ADA by the

finding that “discrimination against individuals with disabilities

persists in such critical areas as . . . institutionalization,” id., §

12101(a)(3), and by unambiguous statements in the legislative

history.

The plain language of the statute, its legislative history,

its conceptual origins and pre-legislative history, the
5

implementing regulations, and the applicable judicial

precedents all point to the same conclusion -- that Title II of

the ADA requires state and local governments and their

instrumentalities to provide treatment and habilitation services

in the most integrated setting appropriate. In addition to all

the legal signposts proclaiming such a requirement, amicus

attests that it was, and is, good policy for individuals with

disabilities and for the nation.

ARGUMENT

I. Prohibiting Unnecessary Isolation and Segregation of

Individuals with Disabilities in Treatment and Habilitation

Programs Was a Key Component of the Original ADA

Proposal Developed by Amicus.

A. The National Council on Disability and the Origins

of the ADA

The Americans with Disabilities Act originated as a

proposal of amicus the National Council on Disability.2 The

statutory authorization of the Council expressly directed it to

review Federal laws and programs affecting persons with

disabilities and to assess the extent to which they “provide

incentives or disincentives to the establishment of

community-based services for handicapped individuals,

promote the full integration of such individuals in the

community, in schools, and in the workplace, and contribute

to the independence and dignity of such individuals.” Pub. L.

No. 98-221, tit. I, § 142, 98 Stat. 27 (1984) (codified as

amended at 29 U.S.C. § 781).

Based upon such assessment, the Council was charged,

inter alia, with issuing, by February 1986, a report to the

president and Congress analyzing federal laws and programs

–––––––––––––––––––––

 2

 The Council was initially named the National Council on the

Handicapped. Its name was changed to the National Council on Disability

in 1988. Pub. L. No. 100-630, tit. II, § 205(a), 102 Stat. 3310 (1988).
6

and presenting legislative recommendations to address

shortcomings identified. Id. In response to this statutory

mandate, the Council published a report to the president and

Congress in January 1986. NATIONAL COUNCIL ON THE

HANDICAPPED, TOWARD INDEPENDENCE (1986) (hereinafter

TOWARD INDEPENDENCE). In the report, the Council

presented 45 legislative recommendations in 10 broad topic

areas. The first recommendation was that

Congress should enact a comprehensive law

requiring equal opportunity for individuals with

disabilities, with broad coverage and setting clear,

consistent, and enforceable standards prohibiting

discrimination on the basis of handicap.

TOWARD INDEPENDENCE at 18.

The Council suggested that the proposed statute should be

named the Americans with Disabilities Act. See id. at 18.

Subsequent recommendations in the report described

what should be included in such a statute. See id. at 1921.

These recommendations spotlighted the importance of

integration as an integral component of prohibiting and

eliminating discrimination on the basis of disability; the

Council proclaimed bluntly that “[d]iscrimination should be

defined to include: a) Intentional exclusion; b) Unintentional

exclusion; c) Segregation . . .” Id. at 19, Recommendation 3,

and App., p. A-52 (same).

In describing the need for such legislation, amicus noted

persisting discrimination, “in such critical areas as . . .

institutionalization . . . .” Id., App. at A-3, quoting U.S. COMM’N

ON CIVIL RIGHTS, ACCOMMODATING THE SPECTRUM OF

INDIVIDUAL ABILITIES 159 (1983) [hereinafter ACCOMMODATING

THE SPECTRUM] Elsewhere in TOWARD INDEPENDENCE, amicus

complained of “the unnecessary and expensive institutionalization” of individuals with disabilities. TOWARD

INDEPENDENCE at 37. Amicus also called for “community-based
7

independent living support services” as a cost-efficient alternative

to large, isolated institutions. Id., App. at G-3.

In the Council’s 1988 follow-up report, ON THE

THRESHOLD OF INDEPENDENCE, the Council fleshed out its

concept of the ADA by publishing its own draft bill.

NATIONAL COUNCIL ON THE HANDICAPPED, ON THE

THRESHOLD OF INDEPENDENCE 2739 (Andrea H. Farbman

ed., 1988). The draft bill included a finding that

“segregation” is one of the “forms of discrimination.” Id. at

27, § 2(a)(4). It also included the Council’s statements of

proposed congressional findings, including that “society has

tended to isolate and segregate persons with disabilities” both

historically and on a continuing basis; and that “discrimination

against individuals with disabilities persists in such critical areas

as . . . institutionalization.” Id. at 27, §§ 2(a)(2) & (3).

With a few changes not relevant here,3 the Council’s draft

bill was introduced in the Senate April 28, 1988, and in the House

of Representatives on April 29, 1988. S. 2345, 100th Cong., 2d

Sess., 134 CONG. REC. 9379-9382 (1988); H.R. 4498, 100th

Cong. 2d Sess.; see 134 CONG. REC. 9599-9600 (1988) (statement

of Rep. Coelho). The ADA eventually was enacted in the

following Congress, after numerous congressional hearings, and

considerable negotiations, compromises, and revisions. As

subsection II.A below indicates, the final language of the ADA

enacted into law in 1990 retained the central focus on integration

and the prohibition of unnecessary isolation and segregation in

services for individuals with disabilities that had characterized the

Council’s version.

Based upon a great quantity of statistical information about

the numbers of persons with disabilities receiving treatment and

–––––––––––––––––––––

3 The nature of such changes and the circumstances surrounding the

Council’s decision to agree to the changes is described in NATIONAL

COUNCIL ON DISABILITY, EQUALITY OF OPPORTUNITY: THE MAKING OF

THE AMERICANS WITH DISABILITIES ACT 64-66 (1997).
8

habilitation services in institutions and other settings, and cost data

presented at various places in TOWARD INDEPENDENCE,

4 amicus

decried “the costly institutionalization of persons with

disabilities,” and advocated for “community-based” services. Id.,

App. at F-2, G-1. See also id. at 37 (“unnecessary and expensive

institutionalization”). Synthesizing its cost analysis, amicus

declared: “The question at hand, then, is not one of limited

resources; it is one of orientation, priority reassessment, and

funding reallocation to support community-based independent

living services. Id., App. at G-40.

At all times leading up to, during, and after developing

its ADA proposal, the Council has understood integration as

an inherent and indispensable element of prohibiting

discrimination on the basis of disability.

B. Conceptual Underpinnings of the Integration Mandate

of the ADA

The ADA did not suddenly emerge fully formed like

Athena from the head of Zeus. The Council’s crafting of the

proposed legislation and later congressional revisions of the

statutory language were informed by a conceptual framework

that had developed over the years and decades that preceded it.

One of the earliest formulations of what has since come

to be known as “disability rights” in America appeared in two

law review articles published in 1966 by Jacobus S. tenBroek,

a blind professor of political science and a distinguished legal

and constitutional scholar. The first article outlined two basic

approaches that a society can take regarding its citizens with

disabilities: custodialism or integration:

The older custodial attitude is typically expressed in

policies of segregation and shelter, of special

treatment and separate institutions. The newer

integrative approach focuses attention upon the

–––––––––––––––––––––

4 See id. App at G-4, F-31, G-34 to G-40.
9

needs of the disabled as those of normal people

caught at a physical and social disadvantage.

Jacobus tenBroek & Floyd W. Matson, The

Disabled and the Law of Welfare, 54 CAL. L. REV.

809, 816 (1966).5

Noting that integration emphasizes people with

disabilities’ “potential for full participation as equals in the

social and economic life of the community” and “maximize[s]

similarity, normality, and equality,” tenBroek concluded that

it was both the more equitable and the more practical option.

Id. at 815, 816, 822, 824, 83335. In the second article,

tenBroek reiterated the endorsement of integration over

custodialism, and went on to posit that people with disabilities

have legal and constitutional rights and to argue that artificial

barriers that keep such individuals from moving about in

society, and thus prevent integration, are illegal. Jacobus

tenBroek, The Right to Live in the World: The Disabled and

the Law of Torts, 54 CAL. L. REV. 841, 842-43, 847-52, 912-

18 (1966). TenBroek’s ideas — the choice between

custodialism and integration, and the legal system’s role in

protecting the rights of individuals with disabilities —

accurately framed the issues that would later be addressed by

what came to be termed “the disability rights movement.”

See, e.g., JOSEPH P. SHAPIRO, NO PITY 5, 11, 13 (1993).

TenBroek envisioned unnecessarily segregated treatment

institutions as the epitome of the evil that integration seeks to

eliminate. The very term “custodialism” imparts a concept of

unnecessarily segregated confinement. TenBroek described

“policies of segregation and shelter, of special treatment and

special institutions” as characteristic expressions of

custodialism.6 His concept of “the right to live in the world”

–––––––––––––––––––––

5

 The U.S. Commission on Civil Rights has described this article as

“seminal.” Accommodating the Spectrum at 67.

6

 Jacobus tenBroek & Floyd W. Matson, The Disabled and the Law of

Welfare, 54 CAL. L. REV. 809, 816 (1966).
10

is directly opposed to being forced to live outside the world,

i.e., in an unnecessarily isolated and segregated setting; and

he specifically referred to unnecessary confinement of

individuals with disabilities to “asylums” and “institutions” as

violations of “personal liberty” and contrary to the policy of

integrationism.7 To address the prevalent overly custodial

practices, tenBroek proclaimed “Integrationism the Answer.”8

In 1969, commentators suggested that the civil rights efforts

of African Americans during the 1960s provided a possible model

for people with disabilities in their efforts to achieve equality and

integration in American society;9

 the critical focus upon requiring

integration and eliminating segregation in this prototype is

obvious. One of these publications dramatized the problems

facing individuals with disabilities by describing a “Catalog of

Horrors” featuring examples predominantly involving residential

treatment facilities.10 It went on to examine in some detail

deprivations of rights resulting from “institutionalization” and

“treatment in residential care facilities” for persons with mental

retardation, “mental illnesses,” and physical disabilities.11 The

author characterized some societal practices of relegating

individuals with disabilities unnecessarily to such facilities as

“put[ting] folks away in human warehouses.”12 As a remedy

for such unnecessarily segregative practices, he advocated

–––––––––––––––––––––

7 Jacobus tenBroek, The Right to Live in the World: The Disabled and

the Law of Torts, 54 CAL. L. REV. 841, 848-51, 847-48 (1966).

8 Id. at 843.

9 RICHARD ALLEN, LEGAL RIGHTS OF THE DISABLED AND

DISADVANTAGED 7998 (1969); Leonard Kriegel, Uncle Tom and Tiny

Tim: Some Reflections on the Cripple As Negro, 38 AM. SCHOLAR 412

(1969).

10 Richard Allen, Legal Rights of the Disabled and Disadvantaged 23

(1969).

11 Id. at 11, 13-20, 32-37, 48-54-55.

12 Id. at 37 (internal quotation marks omitted).
11

“normalization,” a concept he defined as “to let the [person

with a disability] obtain an existence as close to the normal as

is possible” and called for it to be recognized as a legal right,

citing tenBroek’s writings.13

The first law school case book on the rights of people

with disabilities, published in 1980, compiled cases and

materials concerning discrimination involving almost every

facet of life in the United States. ROBERT L. BURGDORF JR.,

THE LEGAL RIGHTS OF HANDICAPPED PERSONS: CASES,

MATERIALS, AND TEXT (1980). The author summed up the

“history of society’s formal methods for dealing with [people

with disabilities]” as “segregation and inequality,” and

observed that “[i]ndividuals with [disabilities] have faced an

almost universal conspiracy to shunt them aside from the

mainstream of society . . . . Id. at 51.14 More than 100 pages

of the book addressed the problems of unnecessary

confinement of people with disabilities in state residential

treatment facilities, including a section on community

alternatives containing legal arguments for more integrated

treatment and habilitation programs. Id. ch. 6, pp. 599-701

(1980).

The first comprehensive study by an agency of the U.S.

government of discrimination faced by people with disabilities

–––––––––––––––––––––

13 Id. at 7-8; id. at 54-55, referring to tenBroek, The Right to Live in

the World: The Disabled and the Law of Torts, 54 CAL. L. REV. 841

(1966). The bracketed phrase “person with a disability” is substituted in

the text for the phrase “handicapped person” used in the original. This

change substitutes currently preferred terminology in accordance with the

preference of most individuals with disabilities and consumer

organizations of persons with disabilities. Similar changes, identified in

brackets, are made throughout this brief; these substitutions impart no

difference in meaning of quoted materials.

14 See also Harlan Hahn, Paternalism and Public Policy,” 20 Society

No. 3, 36, 38 (March/April 1983) (“the history of disabled persons in

America and elsewhere has been primarily a history of segregation and

discrimination”).
12

and the laws addressing discrimination occurred in 1983 with the

U.S. Commission on Civil Rights’ publication of its influential

report ACCOMMODATING THE SPECTRUM OF INDIVIDUAL

ABILITIES. This report provided both a summary of case law and

a conceptual framework for understanding and addressing

discrimination on the basis of disability. As one of its findings,

the U.S. Commission on Civil Rights declared:

Historically, society has tended to isolate and segregate

[people with disabilities]. Despite some improvements,

particularly in the last two decades, discrimination

against [persons with disabilities] continues to be a

serious and pervasive social problem.

Id. at 159.

The Commission also found that discrimination against

persons with disabilities “persists in such critical areas as ...

institutionalization ....” Id. It identified 21 major issue areas,

described as “not exhaustive,” in which people with

disabilities suffer discrimination. Id. at 16568. Among

these issues, the Commission included “Institutions and

Residential Confinement” and included as particular problem

areas “large-scale institutions,” “[d]enormalization,” and the

“[a]bsence of community alternatives.” Id. at 166. The

Commission fleshed out its outline of such issues in a specific

section titled “Institutionalization” in a chapter on types of

discrimination on the basis of disability. Id. at 32-35. The

Commission observed that “even the better institutions suffer

the ill effects of segregation” and that “[i]nstitutionalization

almost by definition entails segregation and isolation.” Id.

Indeed, the desire to segregate people with disabilities from

the rest of society was an express goal for the development of

such facilities. Id. at 33-34. The Commission concluded that,

despite “the fact that most training, treatment, and habilitation

services can be better provided to [persons with disabilities]

in small community-based facilities rather than in large,

isolated institutions,” a great many individuals with

disabilities “remain in segregative facilities.” Id. at 34-35.
13

The Commission devoted a major section of a chapter of

ACCOMMODATING THE SPECTRUM OF INDIVIDUAL ABILITIES to

examining “The Costs and Benefits of Full Participation”

including a specific section on “Institutionalization.” Id. at

69-82; 78-79. Before beginning such analysis, the

Commission cautioned, however, that cost considerations

should not be a determinative criterion for laws prohibiting

discrimination: “Many such initiatives, particularly civil

rights laws proscribing discrimination against [people with

disabilities] can be justified as a matter of simple equity and

basic human rights to which cost should not be used as an

excuse. Generally, the cost of eliminating discriminatory

practices does not justify continuing to discriminate . . . .” Id.

at 69. The Commission also noted that “[p]rojected costs

have frequently proven to be overestimated and contrary to

common sense and practicality.” Id. at 70. The

Commission’s conclusions about costs associated with

treatment and habilitation facilities, however, are

unequivocal:

Virtually all the relevant literature documents that

segregating [people with disabilities] in large,

impersonal institutions is the most expensive means

of care. Evidence suggests that alternative living

arrangements allowing institutionalized residents to

return to the community can save money.

Id. at 78.

To respond to the various forms of discrimination, the

Commission on Civil Rights called for the “full participation

or total integration” of people with disabilities, and invoked

federal nondiscrimination laws that “prohibit conduct,

policies, and practices that currently exclude, segregate, or

impede” people with disabilities. Id. at 68, 160, 164. The

Commission quoted a 1979 decision in which the California

Supreme Court observed that “[b]oth the state and federal

governments now pursue the commendable goal of total

integration of [persons with disabilities] into the mainstream
14

of society.” In re Marriage of Carney, 598 P.2d 36, 44 (Cal.

1979); see ACCOMMODATING THE SPECTRUM at 68.

In Alexander v. Choate, 469 U.S. 287 (1985), this Court, in

applying Section 504 of the Rehabilitation Act of 1973,

recognized the existence of “well-cataloged instances of invidious

discrimination against [persons with disabilities],” in addition to

discrimination against such individuals that is the product “of

thoughtlessness and indifference -- of benign neglect.” Id. at 295-

96 and n. 12. The Court also quoted congressional declarations

that discrimination against people with disabilities is one of

America’s “shameful oversights” that causes individuals with

disabilities “to live among society `shunted aside, hidden, and

ignored ...’” Id. at 295-6 (quoting 117 CONG. REC. 45,974 (1971)

(statement of Rep. Vanik); 118 CONG. REC. 526 (1972) (statement

of Sen. Percy)). This vision of discrimination as the “shunting

aside” of people with disabilities makes it clear why segregation

and unnecessary separation from the rest of society are the

essential evils that disability nondiscrimination laws are designed

to prohibit.

In separate opinions in City of Cleburne v. Cleburne Living

Center, 473 U.S. 432 (1985), five justices acknowledged the

history of severe and “grotesque” discrimination visited upon

people with mental retardation because of prejudice against them.

Id. at 454 (Stevens, J., joined by Burger, C.J., concurring)

(“history of unfair and often grotesque mistreatment” arising from

“prejudice and igorance”); id. at 461 (Marshall, J., joined by

Brennan & Blackmun, JJ., concurring in part and dissenting in

part) (“subject to a lengthy and tragic history of segregation and

segregation that can only be called grotesque” (internal quotation

marks and citation omitted)). In his partial dissent, Justice

Thurgood Marshall also wrote of a “regime of state-mandated

segregation and degradation.” Id. at 462. He also observed that

“[m]assive custodial institutions were built to warehouse the

retarded for life,” and that “lengthy and continued isolation . . . has

perpetuated the ignorance, irrational fears, and stereotyping that

long have plagued them.” Id. at 462, 464.
15

This conceptual background, in which discrimination

against people with disabilities was recognized as a serious

problem, unnecessary segregation of people with disabilities

was considered the essence of discrimination, and relegation

of people with disabilities to unnecessarily isolated and

segregated institutions was seen as an extreme form of such

discrimination, colored the framing of the ADA proposal by

amicus the National Council on Disability and the crafting

and enacting of the legislation by the Congress. Amicus’s

proposal of an ADA was strongly influenced by this

conceptual background, including, particularly, the U.S.

Commission on Civil Rights’ report ACCOMMODATING THE

SPECTRUM OF INDIVIDUAL ABILITIES. In its TOWARD

INDEPENDENCE report and its draft ADA bill, amicus

incorporated the Commission’s findings that “society has

tended to isolate and segregate persons with disabilities,” that

“discrimination against persons with disabilities persists in

such critical areas as . . . institutionalization . . .”; and that

“every day, people with disabilities encounter various forms

of discrimination, including . . . segregation . . . .” TOWARD

INDEPENDENCE, App. at A-3; ON THE THRESHOLD OF

INDEPENDENCE, at 27, §§ 2(a)(2), (3), & (4).

Amicus also quoted tenBroek’s articulation of the

distinction between “custodial” and “integrative” approaches

to disability, TOWARD INDEPENDENCE, App. at A-2, and

recounted the Commission on Civil Rights’ conclusion that

“government bodies at all levels of modern American society

have, with relative consistency, chosen full participation as

the desired objective for people with disabilities.” Id., citing

ACCOMMODATING THE SPECTRUM 67-69.15

–––––––––––––––––––––

15 In addition to discussing federal endorsements of the integrative or

full participation approach, the Commission’s report noted that many state

laws incorporate similar language. See id. at 68 n.7. The integrative

approach has been expressly adopted in United Nations declarations, in

court decisions, and by the disability community and business leaders.

See, e.g., id. at 6869. See also Mark E. Martin, Note, Accommodating
16

This societal objective was incorporated in amicus’s proposed

ADA bill in the form of a finding that “full participation” is one of

“the Nation’s proper goals regarding people with disabilities.” ON

THE THRESHOLD OF INDEPENDENCE, at 28, § 2(a)(7). In proposing

the ADA, amicus was fully aware of the problem of unnecessarily

segregated treatment and habilitation facilities and intended its

legislative proposal to address this problem.

II. The ADA Prohibits Unnecessary Isolation and Segregation

of Individuals with Disabilities in Treatment and Habilitation

Programs.

A. The Statutory Language of the ADA

Although the details of the final provisions of the ADA

as enacted by Congress vary in many respects from the

original ADA proposal developed by amicus, amicus believes

that the final statute is fully consistent with its original

proposal in terms of prohibiting placement of individuals with

disabilities in unnecessarily isolated and segregated treatment

and habilitation programs. Relevant to the present issues,

wording contained in amicus’s proposed ADA bill appears

verbatim in the final Act regarding the following:

 Identification of “full participation” as one of “the

Nation’s proper goals regarding individuals with

disabilities”

 Recognition that “historically, society has tended to

isolate and segregate individuals with disabilities”

 Finding that “discrimination against individuals with

disabilities persists in such critical areas as . . .

institutionalization”

42 U.S.C. §§ 12101(a)(8), (2), & (3) (1994).16

–––––––––––––––––––––

the Handicapped: The Meaning of Discrimination Under Section 504 of

the Rehabilitation Act, 55 N.Y.U. L. REV. 881, 898-99 (1980).

16 A related finding is that individuals with disabilities are
17

Another finding in the ADA derived word-for-word from

amicus’s draft bill concerns costs attributable to

discrimination: “the continuing existence of unfair and

unnecessary discrimination . . . costs the United States billions

of dollars in unnecessary expenses resulting from dependency

and nonproductivity.” 42 U.S.C. § 12101(a)(9) (1994); ON

THE THRESHOLD OF INDEPENDENCE, at 28, § 2(a)(8).17

–––––––––––––––––––––

a discrete and insular minority who have been faced with

restrictions and limitations, subjected to a history of

purposeful unequal treatment, and relegated to a position of

political powerlessness in our society, based on characteristics

that are beyond the control of such individuals and resulting

from stereotypic assumptions not truly indicative of the

individual ability of such individuals to participate in, and

contribute to, society . . . .

Id. § 12101(a)(7).

Some commentators have argued that the ADA in effect creates a

statutory requirement that government actions that segregate or otherwise

disadvantage people because of disability should be subjected to strict

judicial scrutiny similar to that applied to racial classifications. See, e.g.,

Timothy M. Cook, The Americans with Disabilities Act: The Move to

Integration, 64 TEMP. L. REV. 393, 43339 (1991).

17 Congress was well aware of the cost data and fiscal conclusions of

amicus in Toward Independence and On the Threshold of Independence as

it considered the ADA. See, e.g., S. Rep. No. 101-116 at 16-18 (1989)

[hereinafter Senate Report]; H.R. Rep. No. 101-485 pt. 2, at 43-47 (1990)

(Committee on Education and Labor), reprinted in 1990 U.S.C.C.A.N.

303, 325-26 [hereinafter Education & Labor Committee Report]. In

introducing the 1989 version of the ADA in the 101st Congress, Senator

Harkin devoted a substantial portion of his introductory statement to

discussing cost ramifications. 135 Cong. Rec. 8505, 8507-08 (1989)

(statement of Sen. Harkin). Among other observations he stressed “the

economic benefits to society in terms of reductions in the deficit from

getting people . . . out of institutions . . . .” Id. at 8507-08 (emphasis

added). See also 134 Cong. Rec. 9375, 9378 (1988) (statement of Sen.

Weicker) (“the costs associated with this bill are a small price to pay for

opening up our society to persons with disabilities”).
18

Title II of the ADA, whose provisions apply in the

current case, is very straightforward. It declares: (1) that

“public entities” shall be prohibited from discriminating “by

reason of disability,” 42 U.S.C. § 12132 (1994); (2) that the

dimensions of such prohibition shall be spelled out in

regulations to be promulgated by the Attorney General, 42

U.S.C. § 12134(a) (1994); and (3) that such regulations shall

be consistent with the Act and with prior regulations found at

28 C.F.R part 41, 42 U.S.C. § 12134(b) (1994). Regarding

the issue of unnecessarily isolated and segregated services,

the latter regulations, issued in 1978 and applicable to

recipients of federal financial assistance, establish an

unambiguous mandate to “administer programs and activities

in the most integrated setting appropriate to the needs of

qualified [persons with disabilities].” 28 C.F.R. § 41.51(d)

(1998).

Congress could hardly have been clearer in requiring that

services for individuals with disabilities must be provided in

the most integrated setting appropriate.

Petitioner contends that this requirement does not apply

to a certain category of services -- those designed and

rendered specifically for individuals with disabilities and not

for individuals without disabilities. Amicus notes that many

state and local governments provide a variety of social

service, housing, health care, and other programs some of

whose services are arguably equivalent to services provided at

treatment and habilitation facilities serving individuals with

disabilities. Such a line of argument is superfluous, however,

because the simple fact is that the Act does not admit of the

exception the petitioners suggest.

By its terms, Title II’s prohibitions of discrimination

apply to “the services, programs, or activities of a public

entity.” 42 U.S.C. § 12132 (1994). The Act defines the term

“public entity” comprehensively to include “any State or local

government,” and “any department, agency, special purpose

district, or other instrumentality of a State or States or local
19

government.” 42 U.S.C. §§ 12131(1)(A) & (B) (1994). A

department, agency, or facility that provides treatment or

habilitation services for people with disabilities clearly falls

within the definition of “public entity.”

The statutory phrasing does not admit exceptions. Title

II’s definition of “public entity” and the phrase “services,

programs, or activities of a public entity” were construed in

Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct. 1952

(1998). This Court declared that “the ADA plainly covers

state institutions without any exception that could cast the

coverage of prisons into doubt.” Id. at 1954. The petitioners

in Yeskey argued that the ADA does not mention prisons and

prisoners. The Court noted the ADA reference, clearly

relevant in the present case, to discrimination in such critical

areas as . . . institutionalization,” 42 U.S.C. § 12101(a)(3)

(1994), and concluded that, even if the term

“institutionalization” were considered not to include penal

institutions, the broad statutory definition of “public entity”

would still encompass prisons, and the “services, programs, or

activities” they provide. Id. at 1955-56. The Court ruled that,

even assuming that Congress did not envision that the ADA

would be applied to state prisoners, “in the context of an

unambiguous statutory text that is irrelevant.” Id. at 1956. The

Court declared that “the fact that a statute can be `applied in

situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.’” Id. at 1956,

quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985).

The Court concluded that “the plain text of the ADA

unambiguously extends to state prison inmates. . . .” Id. at 1956.

In accordance with the Yeskey decision, and the ADA

statutory purpose of establishing a “comprehensive national

mandate for the elimination of discrimination,” 42 U.S.C. §

12101(b)(1) (1994), state residential treatment and

habilitation facilities, i.e., “institutions,” and the “services,

programs, or activities” they render are manifestly included

within the scope of the integration and other
20

nondiscrimination requirements of Title II pursuant to “the

plain text of the ADA.” Id.

Indeed, Petitioners’ suggestion of an exception for

treatment and habilitation services for people with disabilities

would undercut fundamental objectives reflected in statutory

language, including the goals of “full participation,” of

addressing societal practices that “isolate and segregate

individuals with disabilities,” of eliminating persisting

“discrimination against individuals with disabilities in such

critical areas as ... institutionalization,” and of establishing a

“comprehensive national mandate for the elimination of

discrimination.” 42 U.S.C. §§ 12101(a)(8), (2), (3), & (b)(1)

(1994). Petitioners’ purported exception would exclude from

the Act’s coverage a class of services that can result in one of

the most serious forms of isolation and unnecessary

segregation of individuals with disabilities. Nothing in the

Act supports such an anomaly.

B. The Legislative History

In reviewing federal laws, the standard is, of course, not

what Congress should have said in legislation but rather what

it did say; the courts are not to second guess the policy

choices underlying clear legislative language.18 The previous

sections have all pointed to a single conclusion -- that the

ADA mandates, clearly and unambiguously, that state and

local government treatment and habilitation service programs

for individuals with disabilities must provide such services in

–––––––––––––––––––––

18 See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570

(1982) (“Our task is to give effect to the will of Congress, and where its

will has been expressed in reasonably plain terms, `that language must

ordinarily be regarded as conclusive”), quoting Consumer Product Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). An exception

is where the plain language of a statute produces absurd results and the

statute “can’t mean what it says.” Green v. Bock Laundry Machine Co.,

490 U.S. 504, 511 (1989), quoting Campbell v. Greer, 831 F.2d 700, 703

(7th Cir. 1987).
21

the most integrated setting appropriate to the needs of the

individual with a disability. The legislative history of the

ADA only serves to reinforce the conclusion that Congress

intended the Act to prohibit unnecessary isolation and

segregation in treatment and habilitation services for

individuals with disabilities provided by instrumentalities of

state and local governments.

The legislative history makes clear that prohibiting

unnecessary isolation and segregation of individuals with

disabilities is a key objective of the Act as a whole and of

Title II in particular. The Committee reports are quite explicit

in this regard.19 Numerous statements during congressional

debates likewise stressed the fundamental importance of

prohibiting segregation.20 Two of the ADA Committee

–––––––––––––––––––––

19 See, e.g., S. REP. NO. 101-116 at 6 (1989) (“One of the most

debilitating forms of discrimination is segregation”) [hereinafter SENATE

REPORT]; id. at 20 (the ADA is “a clear and comprehensive national

mandate for the elimination of discrimination and for the integration of

persons with disabilities into the economic and social mainstream of

American life”); H.R. REP. NO. 101-485 pt. 3, at 26 (1990) (Committee

on the Judiciary), reprinted in 1990 U.S.C.C.A.N. 445, 449 (the ADA

“promises a new future: a future of inclusion and integration, and the end

of exclusion and segregation”) [hereinafter HOUSE JUDICIARY COMMITTEE

REPORT]; id. at 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. at 472-73

(“[t]he purpose of title II is to continue to break down barriers to the

integrated participation of people with disabilities in all aspects of

community life”; “integrated services are essential to accomplishing the

purposes of title II”).

20 See, e.g., 135 CONG. REC. 8505, 8506 (1989) (statement of Sen.

Harkin, sponsor of 1989 version of ADA) (ADA “sends a clear message to

... State and local governments ... that the full force of the Federal law will

come down on anyone who continues to subject persons with disabilities

to discrimination by segregating them....”). Similarly, see 134 CONG. REC.

9375 (1988) (statement of Sen. Weicker); 135 CONG. REC. 19800, 19803

(1989) (statement of Sen. Harkin); 136 CONG. REC. 10872 (1990)

(statement of Rep. Weiss); 135 CONG. REC. 19878 (1989) (statement of

Sen. Chafee) (ADA “will integrate fully those with disabilities into

everyday American life”).
22

reports included distinct sections discussing the effects of

segregation and other forms of discrimination upon

individuals with disabilities,21 and upon society as a whole.22

The legislative history underscores the conclusion

compelled by the statutory language that Congress did not

intend to exempt any category of programs, activities and

services from the integration requirement of Title II. The

Senate Committee report and the report of the House

Committee on Education and Labor declared in identical

language that the “first purpose” of Title II is “to make

applicable the prohibition against discrimination on the basis

of disability . . . to all programs, activities, and services

provided or made available by state and local governments or

instrumentalities or agencies thereto . . . .” SENATE REPORT at

44 (emphasis added); EDUCATION & LABOR COMMITTEE

REPORT at 84, reprinted in 1990 U.S.C.C.A.N. at 366

(emphasis added). Similarly the House Judiciary Committee

declared that Title II is intended “to cover all programs of

–––––––––––––––––––––

21 SENATE REPORT at 15-18; EDUCATION & LABOR COMMITTEE

REPORT at 41-47, reprinted in 1990 U.S.C.C.A.N. at 323-29. The

Committees cited testimony of various witnesses who described such

effects on persons with disabilities in the following terms: “has stripped us

as disabled people of pride and dignity,” of which “[t]he stigma scars for

life,” SENATE REPORT at 16; EDUCATION & LABOR COMMITTEE REPORT at

42, reprinted in 1990 U.S.C.C.A.N. at 324; caused feelings of “isolation,

the sense of helplessness and the sense of no ability to relate to other

people” resulting from “being held separate” and other forms of

discrimination, EDUCATION & LABOR COMMITTEE REPORT at 41,

reprinted in 1990 U.S.C.C.A.N. at 323; “robbed of our dignity, of our selfrespect . . .” and suffer “the elimination of dignity associated with being a

human being . . . .” Id. The Committees concluded that such

“[d]iscrimination results in social isolation and in some cases suicide.” Id.

at 42, reprinted in 1990 U.S.C.C.A.N. at 324; SENATE REPORT at 16.

22 The Committee reports identified such consequences as the waste of

human resources and the huge financial costs of maintaining individuals in

“dependency.” SENATE REPORT at 16-18; EDUCATION & LABOR

COMMITTEE REPORT at 43-47, reprinted in 1990 U.S.C.C.A.N. at 325-29.
23

state or local governments, regardless of the receipt of federal

financial assistance.” HOUSE JUDICIARY COMMITTEE REPORT

at 49, reprinted in 1990 U.S.C.C.A.N. at 472 (emphasis

added). Nor did the Committee state any exception to its

statement that “integrated services are essential to

accomplishing the purposes of title II.” Id. at 50, reprinted in

1990 U.S.C.C.A.N. at 473. In the statement accompanying

his introduction of the ADA bill in the Senate, Senator Harkin

noted that the Act was needed to address the absence of

protection against discrimination in “all services provided by

State and local governments. . . .” 135 CONG. REC. 8505,

8508 (1989) (statement of Sen. Harkin). Similarly, see, e.g.,

136 CONG. REC. 10868 (1990) (statement of Rep. Edwards)

(ADA extends protections “to all programs, activities and

services of State or local governments”).

The legislative history of the ADA not only demonstrates

that Congress intended to provide comprehensive protection

from unnecessary isolation and segregation of people with

disabilities under Title II, but also provides strong evidence that

Congress intended treatment and habilitation programs to be

subject to the integration mandate. One of the congressional

hearings on the ADA legislation in the 100th Congress devoted

considerable attention to institutionalization. Americans with

Disabilities Act of 1988: Hearing on H.R. 4498 Before the

Subcommittee on Select Education of the House Committee on

Education and Labor, 100th Cong. (1988). Witnesses provided

dramatic, and at times graphic, descriptions of the damaging

effects of segregated treatment facilities.23 Senator Harkin

–––––––––––––––––––––

23 See, e.g., id. at 62 (statement of Bill Knight, Chairman, Greater

Waterbury Consumer Action Forum) (“services are woefully inadequate

and a segregated society is created due to institutionalization”); id. at 65

(statement of Ed Preneta, Director, Connecticut Developmental

Disabilities Office) (“people with mental retardation locked up in

institutions;” ADA is “an opportunity to reach the most segregated

members of our society”); id. at 23 (statement of Elmer Bartels,

Commissioner, Massachusetts Rehabilitation Commission) (advocating “a
24

made the intent to address segregated treatment programs

crystal clear, when, in introducing the 1989 version of the

ADA in the 101st Congress, he expressly listed, as one of the

intended consequences of the legislation, “getting people . . .

out of institutions . . . .” 135 CONG. REC. 8505, 8508 (1989)

(statement of Sen. Harkin).

Subsequently during Senate hearings in 1989, former

Senator Weicker testified that our country had “created

monoliths of isolated care in institutions and in segregated

educational settings” and that “that isolation and segregation”

is “the basis of the discrimination faced by many disabled

people today.” Americans with Disabilities Act of 1989:

Hearing on S. 933 Before the Senate Committee on Labor and

–––––––––––––––––––––

reasonable level of services that cost less where people can live

independently in the community than it costs to keep people in dependent

settings within nursing homes, public health hospitals and institutions,”

and questioning “cost-effectiveness” of placing people with disabilities in

treatment facilities equivalent to “consigning them ... to `terminal’ care in

an institution”); id. at 101 (statement of Stanley Koslowski, Connecticut

Office of Protection and Advocacy) (describing the “stigma” associated

with “institutionalization” for psychiatric disabilities as “probably more

severe than any other stigma”); id. at 1066 (statement of William

Cavanaugh, consumer of Massachusetts mental health services)

(complaining of “abusive treatment and human rights violations” in

mental institutions). One witness with a disability spoke of what she

described as her “realistic,” “constant fear” that she might be

“institutionalized,” and described in graphic terms her experience of

residential treatment facilities:

. . . I have seen these institutions. The smell of human waste

and detergent has stuck in my throat. I have looked into the

vegetative eyes of its inmates in their sterile environments, I

have heard of the premature death ratio and prevalence of

pneumonia and necrotic decubitus, literally allowing them to

rot in their beds, these living dead, our imprisoned Americans

with disabilities. Id. at 163 (statement of Cindy Miller).

She added her plea that Congress should “[p]lease enact the ADA

quickly.” Id. at 172.
25

Human Resources and the Subcommittee on the Handicapped,

101st Cong. 215 (1989) (statement of Hon. Lowell Weicker).

In congressional debates on the ADA, Representative

Miller declared of people with disabilities that “[s]ociety has

made them invisible by shutting them away in segregated

facilities . . . .” 136 CONG. REC. 10877 (1990) (statement of

Rep. Miller). Senator Kennedy referred to “American

apartheid” and the “unthinking and unacceptable practices by

which disabled Americans today are segregated, excluded,

and fenced off from fair participation in our society . . . .”

135 CONG. REC. 8514 (1989) (statement of Sen. Kennedy).

During the final passage of the ADA in the House,

Representative Dellums declared:

The history of different, separate, and unequal

treatment of persons with disabilities could hardly

be clearer. . . . The Americans with Disabilities Act

is a plenary civil rights statute designed to halt all

practices that segregate persons with disabilities and

those that treat them inferior or differently. By

enacting the ADA, we are making a conscious

decision to reverse a sad legacy of segregation and

degradation.

136 CONG. REC. 11467 (1990) (statement of Rep.

Dellums).

The inclusion of “institutionalization” in the list of areas

of discrimination that the ADA would address was a

considered and informed decision of the Congress. The

legislative history further buttresses the conclusion mandated

by the language of Title II and its implementing regulations,

and the Yeskey decision, that Title II’s integration mandate

applies to state treatment and habilitation services for persons

with disabilities as covered services, programs, or activities of

a public entity. 
26

C. ADA Regulations

Title II regulations promulgated by the Attorney General

in July 1991 are clear, unambiguous, and comprehensive: “A

public entity shall administer services, programs, and

activities in the most integrated setting appropriate to the

needs of qualified individuals with disabilities.” 28 C.F.R. §

35.130(d) (1998).

These regulations were issued by the Attorney General

pursuant to the explicit statutory directive in Title II of the

ADA. 42 U.S.C. § 12134(a) (1994) (“Not later than 1 year

after July 26, 1990, the Attorney General shall promulgate

regulations in an accessible format that implement this

subtitle”). They also comport with the statutory directive that

such regulations shall be consistent with the Act and with

regulations found at 28 C.F.R part 41, implementing § 504 of

the Rehabilitation Act. 42 U.S.C. § 12134(b) (1994).

Regarding the issue of unnecessarily isolated and segregated

services, the ADA Title II regulations track very closely the

referenced regulations that required covered entities to

“administer programs and activities in the most integrated

setting appropriate to the needs of qualified [persons with

disabilities].” 28 C.F.R. § 41.51(d) (1998). It is clear that 28

C.F.R. § 35.130(d) represents a conscientious response by the

Attorney General to express congressional directives.

Because the Title II regulations were responsive to a

direct statutory mandate that assigned the task of fleshing out

the specific forms of discrimination contained in the broad

statutory prohibition of discrimination in public services,

these regulations qualify for “Chevron deference” and are to

be “given controlling weight unless they are arbitrary,

capricious, or manifestly contrary to the statute.” Chevron,

U.S.A., Inc. v. Nuclear Regulatory Defense Council, Inc., 467

U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

See, Bragdon v. Abbott, 118 S.Ct. 2196, 2209 (1998)

(Attorney General’s regulations under Title III of the ADA

entitled to Chevron deference).
27

The application and enforcement of 28 C.F.R. §

35.130(d) (1998) to prohibit unnecessary isolation and

segregation in treatment and habilitation services for

individuals with disabilities provided by instrumentalities of

state and local governments is entirely consistent with the

uniform and unwavering understanding of amicus in initiating

the ADA proposal, of members of Congress in revising and

passing the ADA, of the President in signing it into law, and

of the Attorney General in issuing Title II regulations, that

requiring integrated services and programs is a key

component of prohibiting discrimination on the basis of

disability.

III. Conclusion

In developing the ADA proposal and in producing the

original version of the ADA first introduced in Congress,

amicus intended that such a law would prohibit, inter alia, a

most virulent and damaging form of discrimination --

unnecessarily isolated and segregated treatment and

habilitation services for persons with disabilities. Congress

repeatedly sought the input of amicus on the pending

legislation, and several officers and staff of amicus were

invited to and did testify at congressional hearings. If, as the

legislation worked its way through Congress, there had been

even a hint that Title II would not prohibit unnecessarily

institutionalization, isolation, and segregation in treatment and

habilitation services provided by state and local government

entities, amicus would have protested vehemently. But there

was no such hint. Amicus was quite comfortable lending its

unequivocal support to the final version of the legislation.

Since the enactment of the ADA, amicus has continued

to monitor progress in regard to integration of treatment and

habilitation services for persons with disabilities. In a 1996

report to the President and Congress, amicus observed:

Historically, many people with disabilities,

particularly those with mental retardation or mental
28

illness, could access long-term services only if they

lived in institutional settings. Many people lived,

and continue to live, away from their families and

communities in institutions and nursing homes

because the community-based long-term services

they needed were not available to them. NATIONAL

COUNCIL ON DISABILITY, ACHIEVING

INDEPENDENCE: THE CHALLENGE FOR THE 21ST

CENTURY 96-97 (1996) (hereinafter ACHIEVING

INDEPENDENCE).

This despite the fact that numerous benefits -- to persons with

disabilities, to persons without disabilities, and to society in

general -- result from integrated services for people with

disabilities.24

ACHIEVING INDEPENDENCE provides data regarding

numbers of people with disabilities in treatment and

habilitation facilities, and the costs associated with such

services, id. at 99-100; after analyzing such information,

amicus concluded:

–––––––––––––––––––––

 24 See, e.g., Timothy M. Cook, The Americans with Disabilities Act:

The Move to Integration, 64 TEMP. L. REV. 393, 407414, 439-457 (1991)

and the authorities cited therein. Among the benefits of integrated

programs the author identifies, are the following:

1. Integration Substantially Improves the Perspective of

Nondisabled People Regarding Disability;

2. Integration Significantly Improves the Socialization of Persons

with Disabilities with Non-Disabled Peers;

3. Integrated Educational and Training Programs Enhance the Skills

Learned by Persons with Disabilities and Better Prepares Persons

with Disabilities for Employment; and

4. Integration Improves the Health, Independence, and Affect of

Persons with Disabilities, and Renders Persons with Disabilities

More Likely to Live, Work, and Recreate in Regular Community

Settings. Id. at 445-456.
29

Thousands of individuals continue to live in large

institutions and nursing homes when they could live

in smaller community settings. Too many people

with mental illness remain unserved or underserved

in the community. States vary dramatically in their

use of institutional services and in the amount of

money they spend on alternative services.

Id. at 100.25

Vigorous implementation of the integration mandate of

Title II of the ADA to prohibit unnecessary isolation and

segregation in regard to treatment and habilitation services for

individuals with disabilities provided by state and local

government instrumentalities will bring to fruition the

declaration of the House Judiciary Committee that the ADA

“promises a new future: a future of inclusion and integration,

and the end of exclusion and segregation.” HOUSE JUDICIARY

COMMITTEE REPORT at 26, reprinted in 1990 U.S.C.C.A.N. at

449.

CONCLUSION

For the foregoing reasons, amicus respectfully urges the

Court to affirm the decision of the United States Court of

Appeals for the Eleventh Circuit.

–––––––––––––––––––––

 25 For current figures regarding institutional populations and

comparisons of costs of institutions and community-based programs, see

National Conference of State Legislatures, Saving Medicaid Money: From

Institutions to Community Care, 25 STATE LEGISLATURES 7 (February

1999).
30

Respectfully submitted,

ROBERT L. BURGDORF JR.

University of the District of 

 Columbia

David A. Clarke School of Law

4250 Connecticut Avenue, N.W.

Building 38, Room 204

Washington, DC 20008

(202) 274-7334

Counsel of Record for Amicus 

 Curiae