No. 99-1240

IN THE

6XSUHPH&RXUWRIWKH8QLWHG6WDWHV

October Term, 2000

THE BOARD OF TRUSTEES OF THE UNIVERSITY,

OF ALABAMA AND THE ALABAMA

DEPARTMENT OF YOUTH SERVICES,

Petitioners,

v.

PATRICIA GARRETT AND MILTON ASH,

Respondents.

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) 682-9829
i

TABLE OF CONTENTS

Page

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

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

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

I. THE ADA WAS THE CULMINATION OF 25

YEARS OF METHODICAL CONGRESSIONAL

STUDY OF DISCRIMINATION ON THE BASIS

OF DISABILITY AND THE APPROPRIATE

REMEDIES TO ADDRESS SUCH DISCRIMINATION...................................................................................5

A. Congressional Investigation and Information

Base ..................................................................... 6

1. Hearings .................................................................6

 2. Congressionally Commissioned Studies.............6

3. Other Resources Before Congress.....................10

4. Overall Documentary Base for the ADA..........11

B. In Enacting the ADA, Congress Addressed

a Documented Pattern of Discrimination by

States That Falls Within Its Power to

Enforce the Fourteenth Amendment.......................11

1. Congress Addressed a Documented

Pattern of Discrimination by the States ............11

a. Congressional Findings .....................................11

b. Documentation of State Discrimination...........13

2. The Documented Pattern of Discriminatory

State Actions Warranted Legislative Action

Under Congress’s Section 5 Authority........ 17
ii

Page

II. IN CONSIDERING AND PASSING THE

ADA, CONGRESS NEGOTIATED AND

CRAFTED MODEST, CONGRUENT, AND

PROPORTIONAL REMEDIES FOR

IRRATIONAL AND UNFAIR DISCRIMINATION ON THE BASIS OF DISABILITY...........20

A. The ADA Prohibits Irrational and Unfair

Discrimination by the States ............................. 20

B. Simply Proscribing Intentional

Differential Treatment Because of

Disability Would Achieve a Mere Facade

of Formal Equality, Not Real Equality in

the Form of Meaningful Equal

Opportunity ....................................................... 22

1. Identical Treatment Can Result in

Discrimination........................................... 24

2. Exclusion and Other Egregious Deprivations

on the Basis of Disability Often Occur in the

Absence of Hostile Animus....................... 25

C. Congress Negotiated and Crafted Modest,

Congruent, and Proportional Requirements

and Coverage .......................................................... 27

CONCLUSION.................................................................................29

APPENDIX OF CONGRESSIONALLY

COMMISSIONED STUDIES OF

DISCRIMINATION ON THE BASIS OF

DISABILITY....................................................................A-1
iii

TABLE OF AUTHORITIES

CASES PAGES

Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162 (1999) ....... 29

Alexander v. Choate, 469 U.S. 287 (1985) ................. 8, 24, 25

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ...................................................... 3, 19

Fullilove v. Klutznick, 448 U.S. 448 (1980).......................... 30

Murphy v. United Parcel Service, 119 S.Ct. 2133 (1999) .... 29

Sutton v. United Airlines, 119 S.Ct. 2139 (1999).............. 5, 29

STATUTES

Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. §794a ................................................................ 22

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

§ 12101 et seq. (1990) ............................................... passim

The Civil Rights Restoration Act of 1987, Pub. L. No.

100-259, 102 Stat. 28 (1988)............................................. 22

The Fair Housing Amendments Act of 1988, Pub. L. No.

100-430, 102 Stat.1619 ..................................................... 22

Vocational Rehabilitation Act Amendments of 1965, Pub.

L. No. 89-333, 79 Stat. 1282 (1965) ................................... 7

29 U.S.C. § 701(a)(3), as amended by Pub. L. No.

102-569, tit. I, § 101, 106 Stat. 4346................................. 26

29 U.S.C. § 781 (1994) ....................................................... 1, 8

29 U.S.C. § 791 ..................................................................... 22

29 U.S.C. § 793 ..................................................................... 22

29 U.S.C. § 794a .................................................................. 22

29 U.S.C. §§ 794(b)(1)(A)-(B).............................................. 22
iv

PAGES

42 U.S.C. §§ 3604(f)(2)(B)-(C) ............................................ 22

42 U.S.C. § 3604(f)(3)(B) ..................................................... 22

42 U.S.C. § 3604(f)(3)(C) ..................................................... 22

42 U.S.C. § 12101(a)(2)........................................................ 12

42 U.S.C. § 12101(a)(3)........................................................ 12

42 U.S.C. § 12101(a)(7)....................................................... 21

42 U.S.C. § 12101(a)(9).................................................. 20, 21

42 U.S.C. § 12101(b)(2)........................................................ 23

42 U.S.C. §§ 12102(2) .......................................................... 29

42 U.S.C. § 12112(b)(5)(A) .................................................. 28

42 U.S.C. §§ 12132, 12131(1)(A) & (B) .............................. 12

42 U.S.C. § 12213 ................................................................. 23

Pub. L. No. 86-380, 73 Stat. 703 (1959) ................................. 8

Pub. L. No. 93-516, §§ 300-306, 88 Stat. 1631 (1974)..... 7, 17

Pub. L. No. 95-444, 92 Stat. 1067 (1978) ............................... 7

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

codified as amended at 29 U.S.C. § 781 ............................. 8

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

(1988) .................................................................................. 5

REGULATIONS

28 C.F.R. § 35.130(b)(7)....................................................... 23

28 C.F.R. § 35.150 ................................................................ 23

28 C.F.R. § 35.150(a)(3) ....................................................... 23

28 C.F.R. § 35.160(b)(1)....................................................... 23

28 C.F.R. 35.164 ................................................................... 23
v

PAGES

LEGISLATIVE AUTHORITIES

H.R. 4498, 100 th Cong. 2d Sess. (1988)................................ 8

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

9382 (1988) ......................................................................... 8

H.R. Rep. No. 101-485, pt. 1 (1990) (Committee on

Public Works and Transportation) ...................................... 6

H.R. Rep. No. 101-485, pt. 2 (1990) (Committee on

Education and Labor).......................................... 6, 9, 11, 24

H.R. Rep. No. 101-485, pt. 3 (1990) (Committee on the

Judiciary)............................................................................. 6

H.R. Rep. No. 101-485, pt. 4 (1990) (Committee on

Energy and Commerce)....................................................... 6

S. Rep. No. 64, 100th Cong., 2d Sess. 16 (1988) (Labor

and Human Resources Committee), reprinted in 1988

U.S.C.C.A.N. 3, 18............................................................ 22

S. Rep. No. 101-116 (1989) .................................... 6, 9, 11, 24

Americans with Disabilities Act: Hearings on H.R. 2273

Before the Subcomm. on Surface Transportation of the

House Comm. on Public Works and Transportation,

101st Cong. (1990).............................................................. 6

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).................................................. 9

Americans with Disabilities Act of 1989: Hearings on S.

933 Before the Senate Committee on Labor and

Human Resources and the Subcommittee on the

Handicapped, 101st Cong. (1989) ...................................... 9

117 CONG. REC. 45974 (1971) (statement of Rep. Vanik) ... 26
vi

PAGES

118 CONG. REC. 526 (statement of Rep. Percy).................... 26

134 CONG. REC. 9599-9600 (1988) (statement of Rep.

Coelho)................................................................................ 8

135 CONG. REC. S 10790 (Daily Ed. Sept. 7, 1989)

(remarks of Sen. Dole) ........................................................ 5

135 CONG. REC. S 10713 (Daily Ed. Sept. 7, 1989)

(statement of Sen. Harkin) ................................................ 28

135 CONG. REC. S 10715 (Daily Ed. Sept. 7, 1989)

(statement of Sen. Hatch).................................................. 28

136 CONG. REC. H 2429 (Daily Ed. May 17, 1990)

(statement of Rep. Bartlett) ............................................... 28

136 CONG. REC. H 2639 (Daily ed. May 22, 1990)

(statement of Rep. Dellums).............................................. 30

136 CONG. REC. S 9686 (Daily Ed. July 13, 1990)

(statement of Sen. Harkin) ................................................ 28

OTHER AUTHORITIES

ADVISORY COMMISSION ON INTERGOVERNMENTAL

RELATIONS, DISABILITY RIGHTS MANDATES: FEDERAL

AND STATE COMPLIANCE WITH EMPLOYMENT

PROTECTIONS AND ARCHITECTURAL BARRIER

REMOVAL (1989)................................................. 8, 9, 15, 16

Nancy Lee Jones, Judicial Decisions Discussing

“Program or Activity Receiving Federal Funds”

Under Section 504 of the Rehabilitation Act Before

and After Grove City College v. Bell, Congressional

Research Service, The Library of Congress (1985) ............ 6

Nancy Lee Jones, Overview of Major Issues Under

Section 504 of the Rehabilitation Act, Congressional

Research Service, The Library of Congress (1985) ............ 6
vii

PAGES

Nancy Lee Jones, Proposed Coverage of Handicapped

Persons By Title VII of the Civil Rights Act: An

Analysis of H.R. 370, Congressional Research Service,

The Library of Congress (1985)...................................... 6, 7

Louis Harris and Associates, The ICD Survey of

Disabled Americans: Bringing Disabled Americans

into the Mainstream (1986)............................................... 10

Louis Harris and Associates, The ICD Survey II:

Employing Disabled Americans, (1987) ..................... 10, 11

NATIONAL COUNCIL ON THE HANDICAPPED, ON THE

THRESHOLD OF INDEPENDENCE (Andrea H. Farbman

ed., 1988)................................................................. 8, 11, 13

NATIONAL COUNCIL ON THE HANDICAPPED, TOWARD

INDEPENDENCE (1986)............ 6, 8, 11, 13, 17,19, 20, 21, 27

Noakes Associates Architects, Access Maryland:

Handicapped Accessibility Survey (prepared under

State contract) (1980)........................................................ 14

Report of the Presidential Commission on the Human

Immunodefiency Virus Epidemic (1988)..................... 10, 11

Ronald Reagan, Memorandum to the Attorney General,

April 30, 1982 ................................................................... 17

Robert L. Burgdorf Jr., “Substantially limited”

Protection from Disability Discrimination: The

Special Treatment Model and Misconstructions of the

Definition of Disability, 42 VILL. L. REV. 409 (1997)...... 28

Task Force on Rights and Empowerment of

Americans with Disabilities, From ADA to

Empowerment: The Report of the Task Force

on Rights and Empowerment of Americans with

Disabilities (1990)..................... 9, 10, 11, 13, 15, 16, 21, 26
viii

PAGES

U.S. COMMISSION ON CIVIL RIGHTS, ACCOMMODATING

THE SPECTRUM OF INDIVIDUAL ABILITIES

(1983) ...................... 7, 11, 13, 14, 15, 17, 18, 19, 19, 26, 27

U.S. COMMISSION ON CIVIL RIGHTS, CIVIL RIGHTS

ISSUES OF HANDICAPPED AMERICANS: PUBLIC POLICY

IMPLICATIONS (1980)................................................... 13, 18

U.S. General Accounting Office, Persons with Disabilities:

Reports on Costs of Accommodations, A Briefing Report

to Congressional Requesters (January 4, 1990)...........................9

WEBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY

OF THE ENGLISH LANGUAGE (1989) .................................. 12

WEBSTER’S NEW COLLEGIATE DICTIONARY (7th Edition

1967).................................................................................. 12

WHITE HOUSE CONFERENCE ON HANDICAPPED

INDIVIDUALS, SPECIAL CONCERNS: STATE WHITE

HOUSE CONFERENCE WORKBOOK, 59 (U.S. Dept. of

Health, Education, and Welfare, Office of Human

Development, undated) ............................................... 17, 18

WHITE HOUSE CONFERENCE ON HANDICAPPED

INDIVIDUALS, VOLUME THREE: IMPLEMENTATION

PLAN (1978) ...................................................................... 14
No. 99-1240

IN THE

6XSUHPH&RXUWRIWKH8QLWHG6WDWHV

October Term, 2000

THE BOARD OF TRUSTEES OF THE UNIVERSITY,

OF ALABAMA AND THE ALABAMA

DEPARTMENT OF YOUTH SERVICES,

Petitioners,

v.

PATRICIA GARRETT AND MILTON ASH,

Respondents.

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,

 

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

programs, and policies affecting people 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. (1990), 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 interpreted and 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 particularly concerned with and

distinctively informed about issues that are at the core of these

cases -- the documented record of denials of equality and due

process to individuals with disabilities by State and local

governments, and the congruence and proportionality of the

measures the ADA imposes on governmental entities to address

and remedy the denials of equal protection and due process that

people with disabilities have experienced and continue to

experience.
3

SUMMARY OF ARGUMENT

The ADA was the culmination of 25 years of methodical

congressional study, measured legislative steps, and finely

tuned negotiation regarding the problem of discrimination on

the basis of disability and the appropriate remedies to address

such discrimination. The careful, step-by-step consideration,

unrivaled in civil rights law, that Congress afforded the issue

of disability discrimination produced a solid legal and factual

foundation for the ADA, engendered an enlightened and

sophisticated congressional understanding of the nature and

forms of discrimination on the basis of disability, and enabled

Congress to devise, field-test, and refine moderate, workable

remedies for such discrimination. Congress established

amicus, in part, to assist with these efforts; consistent with its

charge, amicus played a role in systematically examining such

discrimination and federal laws addressing it and in making

and explaining proposals, including, in particular, the ADA,

for ameliorating such discrimination.

In the ADA, Congress made explicit findings both that

discrimination on the basis of disability is pervasive, i.e.,

diffused throughout every part, in American society, and that

it persists in various particular areas of State functions and

activities, including “access to public services” and

employment. In making these findings, Congress had solid

support in the documentation before it. Also based on a solid

documentary foundation was Congress’s belief that even

though most States have laws prohibiting discrimination and

establishing services and protections, the States are

nonetheless engaged in widespread and serious discrimination

on the basis of disability.

Congress was also on solid ground in its conclusion that

State discrimination on the basis of disability has Fourteenth

Amendment significance. In considering the ADA, Congress

had before it a considerable body of case law holding various

forms of State discrimination on the basis of disability to be
4

violations of the Fourteenth Amendment. The Court’s

decision in City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432 (1985), decision makes it abundantly clear that some

types of discriminatory actions by governmental entities

violate equal protection because they are not “rational.” In

situations where, as with disability, “negative attitudes” and

“irrational prejudice” toward a class of citizens have become

the accepted practice and the standard way of dealing with

those citizens, and have become ingrained in the policies,

practices, and even the facilities of American society,

including particularly State governments and their

components, Congress is exercising a fundamentally

important role under the Fourteenth Amendment when it

identifies and prohibits such irrational actions.

Having identified a well-documented problem of State

discrimination in violation of the Fourteenth Amendment,

Congress negotiated extensively and crafted modest,

congruent, and proportional remedies for irrational and unfair

discrimination by States. Congress had good reason based on

past experience to know that a broadly-worded prohibition of

discrimination on the basis of disability would not be

sufficient to address such discrimination. Because identical

treatment can result in disability discrimination and because

exclusion and other egregious deprivations on the basis of

disability often occur in the absence of hostile animus,

Congress elected to provide real equality, and not just a

formal facade of equality, by establishing such ADA

requirements as reasonable accommodation, barrier removal,

auxiliary aids, proscribing standards or methods

administration that have the effect of discrimination, and

prohibiting of discriminatory qualification standards and

selection criteria, all of which had been developed and tested

under prior statutes and regulations.

These and other ADA provisions were carefully finetuned during protracted congressional consideration and

debates, involving extensive negotiations and compromises.
5

Amicus believes that, in contrast to its moderate original

version of the ADA, in enacting the final version of the ADA

Congress moved in the direction of crafting standards that are

unnecessarily lenient and limited. The ADA’s requirements

and coverage certainly are not incongruous or

disproportionate in relation to the serious pattern of State

discrimination they address.

ARGUMENT

I. The ADA Was the Culmination of 25 Years of

Methodical Congressional Study of Discrimination on

the Basis of Disability and the Appropriate Remedies to

Address Such Discrimination.

As the Court has recognized,2 the Americans with

Disabilities Act (ADA) had its origin in a proposal of amicus

the National Council on Disability.3 As the ADA passed the

Senate, Senator Dole observed:

The ADA is . . . a good example of bipartisanship in

action. The bill originated with an initiative of the

National Council on Disability, an independent

Federal body comprised of 15 members appointed

by President Reagan and charged with reviewing all

laws, programs, and policies of the Federal

Government affecting individuals with disabilities.

135 CONG. REC. S 10790 (Daily Ed. Sept. 7, 1989)

(remarks of Sen. Dole).

Amicus, in proposing the ADA, and the 101st Congress, in

enacting it, based their actions on a quarter century of prior

 

2 Sutton v. United Airlines, 119 S.Ct. 2139, 2147-48 (1999)

(recognizing the Council and its then staff person, the author of this brief,

as having proposed and written the original version of the ADA).

3 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

congressional investigation and documentation, and measured

legislative steps -- extraordinarily extensive factfinding and

investigation to establish a factual and legal foundation for

enactment of the ADA.

A. Congressional Investigation and Information Base

1. Hearings

Congress held eighteen hearings to consider the ADA --

two in the 100th Congress and sixteen in the 101st 4

 -- in

addition to scores of congressional hearings over the years

that examined discrimination on the basis of disability in

various areas of activity, such as education, employment,

transportation, housing, communications, residential

treatment facilities, and public buildings.

 2. Congressionally Commissioned Studies

In addition to its direct fact-gathering through its own

investigation and hearing processes and the resources and

compilations available to it through the Library of Congress

and the Congressional Research Service,5

 Congress formally

 

4 See S. Rep. No. 101-116, at 4-5 (1989) (listing 4 committee and

subcommittee hearings in 101st Cong., and a joint committee hearing in

100th Cong.); H.R. Rep. No. 101-485, pt. 2, at 24-28 (1990) (listing 4

committee and subcommittee hearings in 101st Cong., and a

subcommittee hearing and a joint committee hearing in 100th Cong.);

H.R. Rep. No. 101-485, pt. 3, at 24 (1990) (listing 4 committee and

subcommittee hearings in 101st Cong.); H.R. Rep. No. 101-485, pt. 4, at

28-29 (1990) (listing 2 subcommittee hearings in 101st Cong.). The report

of the House Committee on Public Works and Transportation, H.R. Rep.

No. 101-485, pt. 1 (1990) does not describe its hearings, but two

subcommittee hearings were held in the 101st Congress. See Americans

with Disabilities Act: Hearings on H.R. 2273 Before the Subcomm. on

Surface Transportation of the House Comm. on Public Works and

Transportation, 101st Cong. (1990).

5 For example, three reports of the Congressional Research Service

were cited as authority in amicus’s report proposing the ADA. TOWARD
7

sought additional information and recommendations by

establishing, by statute or congressional appointment, several

investigatory and advisory instrumentalities, and vesting them

with responsibility for studying various facets of

discrimination on the basis of disability and proposing ways

to address and eliminate it.

These instrumentalities include:

(a) the National Commission on Architectural Barriers,

established by statute and charged with studying the extent to

which architectural barriers prevented access to public

buildings and to propose measures to eliminate existing

barriers and prevent new ones from being created, Vocational

Rehabilitation Act Amendments of 1965, Pub. L. No. 89-333,

79 Stat. 1282 (1965); 

(b) the White House Conference on Handicapped

Individuals, whose statutory mission was to convene a

national gathering “to develop recommendations and

stimulate a national assessment of problems, and solutions to

such problems, facing individuals with [disabilities],” with

equal protection as a key focus, Pub. L. No. 93-516, §§ 300-

306, at §§ 302, 301(4), 88 Stat. 1631 (1974), and which

culminated in a May 1977 gathering in Washington, DC of

approximately 3,700 individuals from every state and U.S.

territory, representing over 100,000 people who attended

local, state, and territorial conferences, that generated 815

formal recommendations addressing 287 issues;

 

INDEPENDENCE, App. at A-59 to A-60 (1986), citing Nancy Lee Jones,

Judicial Decisions Discussing “Program or Activity Receiving Federal

Funds” Under Section 504 of the Rehabilitation Act Before and After

Grove City College v. Bell, Congressional Research Service, The Library

of Congress (1985); Nancy Lee Jones, Overview of Major Issues Under

Section 504 of the Rehabilitation Act, Congressional Research Service,

The Library of Congress (1985); Nancy Lee Jones, Proposed Coverage of

Handicapped Persons By Title VII of the Civil Rights Act: An Analysis of

H.R. 370, Congressional Research Service, The Library of Congress

(1985).
8

(c) the U.S. Commission on Civil Rights, which was

given jurisdiction over disability discrimination in 1978, Pub.

L. No. 95-444, 92 Stat. 1067 (1978), and which, in 1983,

published ACCOMMODATING THE SPECTRUM OF INDIVIDUAL

ABILITIES (hereinafter ACCOMMODATING THE SPECTRUM), a

comprehensive report on discrimination on the basis of

disability which documented the types of discrimination

people with disabilities encounter and provided a summary of

case law and a conceptual framework for understanding and

addressing such discrimination, that has been cited by the

Court as authority regarding the nature of such discrimination,

Alexander v. Choate, 469 U.S. 287, 295-96, nn. 12 & 16

(1985);

(d) amicus, the National Council on Disability, which

Congress established in 1984 as an independent federal

agency charged with reviewing federal laws and programs

affecting people with disabilities and making

recommendations regarding ways to make such laws and

programs more effective, Pub. L. No. 98-221, tit. I, § 142, 98

Stat. 27 (1984), codified as amended at 29 U.S.C. § 781, and

which in two of its reports to the President and Congress first

proposed the concept of an ADA and then published the

original draft of the ADA that was later introduced in

Congress in 1988, NATIONAL COUNCIL ON THE HANDICAPPED,

TOWARD INDEPENDENCE 18-21 (1986) (hereinafter TOWARD

INDEPENDENCE); NATIONAL COUNCIL ON THE HANDICAPPED,

ON THE THRESHOLD OF INDEPENDENCE 27-39 (Andrea H.

Farbman ed., 1988) (hereinafter ON THE THRESHOLD OF

INDEPENDENCE); 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);

(e) the Advisory Commission on Intergovernmental

Relations, a bipartisan body (comprised of three U.S.

Senators, three members of the House of Representatives,

three officials from the U.S. Executive Branch, four
9

governors, four mayors, three members of State legislatures,

three elected county officials, and three private citizens), Pub.

L. No. 86-380, 73 Stat. 703 (1959), which in 1989 issued a

report titled DISABILITY RIGHTS MANDATES: FEDERAL AND

STATE COMPLIANCE WITH EMPLOYMENT PROTECTIONS AND

ARCHITECTURAL BARRIER REMOVAL that identified various

barriers to governmental compliance with disability rights

mandates, and was based in part on a survey of State officials

regarding their assessment of impediments to employment of

persons with disabilities in State government, id. at 2, 72-73;

(f) the General Accounting Office (GAO), which, in

response to a request by members of Congress, during

congressional consideration of the ADA in January 1990, for

information about the costs of workplace accommodations

and of avoiding or removing architectural, transportation, and

communication barriers, conducted a literature review of

published studies, queried a wide range of industry groups

and disability organizations, identified twelve reports that

provided such information, and summarized their findings,

U.S. General Accounting Office, Persons with Disabilities:

Reports on Costs of Accommodations, A Briefing Report to

Congressional Requesters, at 12, 11-25 (January 4, 1990); and

(g) the Task Force on the Rights and Empowerment of

Americans with Disabilities, appointed in May 1988 by the

Chairman of the House Subcommittee on Select Education to

gather information on the extent and nature of disability

discrimination, which conducted 63 public forums around the

country attended by over 7,000 persons, submitted eleven

interim reports to Congress, provided testimony at hearings

on the ADA in both the House and Senate,6

 issued a final

 

6 See S. Rep. No. 101-116, at 4, 6, 8-9, 16, 17 (1989); Americans with

Disabilities Act of 1989: Hearings on S. 933 Before the Senate Committee

on Labor and Human Resources and the Subcommittee on the

Handicapped, 101st Cong. at 18-20, 252-58 (1989); H.R. Rep. No. 101-

485, pt. 2, at 25, 26, 27-28 (1990); Americans with Disabilities Act of
10

report, From ADA to Empowerment; The Report of the Task

Force on the Rights and Empowerment of Americans with

Disabilities (1990) (hereinafter From ADA to Empowerment),

and concluded generally that Americans with disabilities face

“massive, society-wide discrimination and paternalism,” id. at

18, 19.

The statutory and other sources of authority of these

entities, a description of their missions, the titles of their

principal relevant reports, and a summary of their overall

pertinent results are presented in tabular form in the Appendix

to this brief. Together, they represent a powerful, twenty-five

year effort undertaken by Congress to commission sustained

investigation into the nature and scope of discrimination on

the basis of disability and to identify workable measures for

addressing it.

3. Other Resources Before Congress

In addition to legislatively generated information and

documents, amicus, in developing its ADA proposal, and

Congress, in its consideration of the legislation, had the

benefit of a variety of other informational resources. Among

these were three documents that Congress expressly relied on:

(1) Report of the Presidential Commission on the Human

Immunodefiency Virus Epidemic (1988) (discussed the

widespread prevalence and serious repercussions of baseless

discrimination encountered by those with HIV, and expressly

endorsed amicus’ ADA proposal, id. at 119-123); (2) Louis

Harris and Associates, The ICD Survey of Disabled

Americans: Bringing Disabled Americans into the

Mainstream, (1986) (presented results of first nation-wide,

telephone survey of Americans with Disabilities, including

 

1988: Hearing on H.R. 4498 Before the Subcommittee on Select Education

of the House Committee on Education and Labor, 100th Cong. at 1038-43,

1328-35 (1988); From ADA to Empowerment: The Report of the Task

Force on Rights and Empowerment of Americans with Disabilities, at 18

(1990).
11

wide array of statistical information about the incomes, job

status, and other characteristics, activities, and viewpoints of

people with disabilities; among findings were that

approximately two-thirds of individuals with disabilities of

working age were not working, and that two-thirds of those

not working want to work, id. at 47, 50-51); and (3) Louis

Harris and Associates, The ICD Survey II: Employing

Disabled Americans, (1987) (provided data from Harris

survey of employers’ policies, practices, and attitudes of

employers. The Harris agency reported that three-fourths of

managers of businesses affirmed that people with disabilities

“often encounter job discrimination from employers.” Id. at

12.

4. Overall Documentary Base for the ADA

ADA committee reports expressly cite seven documents

as providing support for congressional conclusions regarding

the nature and extent of discrimination on the basis of

disability: amicus’ TOWARD INDEPENDENCE (1986) and ON

THE THRESHOLD OF INDEPENDENCE (1988); the U.S.

Commission on Civil Rights report ACCOMMODATING THE

SPECTRUM (1983); the two Harris polls; the Report of the

Presidential Commission on the Human Immunodefiency

Virus Epidemic (1990); and From ADA to Empowerment, the

report of the Task Force on the Rights and Empowerment of

Americans with Disabilities. S. Rep. No. 101-116, at 6

(1989); H.R. Rep. No. 101-485, pt. 2, at 28 (1990). The cited

documents, however, themselves refer to and build upon the

whole body of information about discrimination on the basis

of disability and ways to address it developed and relied on in

Congress’ twenty-five years of study and documentation of

these issues.
12

B. In Enacting the ADA, Congress Addressed a

Documented Pattern of Discrimination by States

That Falls Within Its Power to Enforce the

Fourteenth Amendment.

1. Congress Addressed a Documented Pattern of

Discrimination by the States.

The petitioners contend that in enacting the ADA

Congress did not address a “predicate” of discriminatory

conduct by the States. Petitioners’ Br. at 30. Both the

statutory language and the documentation and legislative

record Congress had before it fly in the face of this

contention.

a. Congressional Findings

Petitioners’ brief argues, emphatically, that “[n]ot one

instance of such conduct is identified, whether in the findings

and purpose section of the law or in any other Title of the

Act.” Petitioners’ Br. at 31. The legal relevance of

petitioners’ assertion is dubious, as this Court has never stated

that the constitutional basis for a congressional enactment

must be explicitly spelled out in Findings, Purposes, or the

body of a statute.

Even if petitioners’ contention had legal significance,

however, it is manifestly not accurate. Congress not only

mentioned several forms of State discrimination in its

findings, but it went much further and found that

discrimination on the basis of disability is “pervasive” in

America. 42 U.S.C. § 12101(a)(2). The word “pervasive”

means “diffused throughout every part of,” WEBSTER’S NEW

COLLEGIATE DICTIONARY (7th Edition 1967) at 631, or

“extending throughout,” WEBSTER’S ENCYCLOPEDIC

UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE (1989)

at 1076. It makes no sense for petitioners to contend that

“pervasive” discrimination does not encompass the States.
13

Moreover, Congress left no doubt about the role of States

as major discriminators when it made a specific finding that

“discrimination against individuals with disabilities persists in

such critical 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).

Significantly, in finding that discrimination persists in the

area of “access to public services,” Congress laid a solid

“predicate” for its enactment of Title II of the ADA. Title II

is titled “Public Services” and applies to the “services,

programs, or activities of a public entity,” a term which is

defined to mean “any State or local government” or their

instrumentalities. 42 U.S.C. §§ 12132, 12131(1)(A) & (B).

Among the other areas of discrimination expressly identified

by the Congress in the finding, discrimination in voting and

institutionalization involve activities attributable exclusively

to State and local governments; education and transportation

are functions in which State and local governments play

predominant roles; and employment, communication,

recreation, and health services are all areas in which the States

are significantly involved and thus share with other

nongovernmental entities responsibility for the widespread

discrimination Congress identified.

b. Documentation of State Discrimination

In making a finding that discrimination on the basis of

disability was “pervasive,” Congress had solid support in the

documentation before it. See ON THE THRESHOLD OF

INDEPENDENCE at 27, § 2(a)(2) (“discrimination against

persons with disabilities continues to be a serious and

pervasive social problem”); TOWARD INDEPENDENCE, App. at

A-3 (“severity and pervasiveness of discrimination against

people with disabilities is well-documented)”;

ACCOMMODATING THE SPECTRUM at 159, Conclusion 1

(“discrimination against handicapped persons continues to be

a serious and pervasive social problem”); Task Force on the
14

Rights and Empowerment of Americans with Disabilities,

From ADA to Empowerment at 16 (“overwhelming evidence”

of “massive, society-wide discrimination . . .”); U.S.

COMMISSION ON CIVIL RIGHTS, CIVIL RIGHTS ISSUES OF

HANDICAPPED AMERICANS: PUBLIC POLICY IMPLICATIONS, 40

(1980) (Statement of Charles W. Hoehne, spokesperson for

the White House Conference) (White House Conference

reports make it “very plain that individuals with disabilities

have been and continue to be . . . subjected to massive

discrimination in this country”).

Also well-documented was the existence of widespread

discrimination in various categories of State activities. In

Accommodating the Spectrum, the Commission on Civil

Rights examined various categories of activities in some

detail and noted extensive and well-documented

discrimination in regard to public education systems,7

confinement in public residential institutions,8 involuntary

sterilizations pursuant to State laws,9 inaccessible public

transportation terminals and vehicles,10 and inaccessible

public buildings.11

In discussing the latter, the Commission effectively

refuted the petitioners’ arguments that Congress could not

have addressed a pattern of State discrimination on the basis

of disability since many States have laws prohibiting such

discrimination. Petitioners’ Br. at 31-33. The Commission

noted the sharp divergence between the sentiments expressed

in State legislation and the actual reality:

 

7 Id. at 27-29.

8 Id. at 32-35.

9 Id. at 36-37.

10 Id. at 39.

11 Id. at 38-39.
15

Despite . . . the fact that nearly every State has a statute

prohibiting architectural barriers, such barriers continue

to be a serious problem. The extent of inaccessibility

was illustrated by a 1980 study of State-owned buildings

housing services and programs available to the general

public. The study found 76 percent of the buildings

physically inaccessible by and unusable for serving

[persons with disabilities], even when taking into

account the option of moving programs and services to

other parts of the buildings or otherwise restructuring

them.12

See also WHITE HOUSE CONFERENCE ON HANDICAPPED

INDIVIDUALS, VOLUME THREE: IMPLEMENTATION PLAN 61

(1978) (“The entire conference record overwhelmingly

reflects that formal articulation of a right is one matter; the

general enjoyment of that right is quite another.”).13

The Commission on Civil Rights also listed, with

extensive footnotes identifying sources in case law and

professional literature, other practices involving the laws of

States and activities of State officials in which persons with

disabilities “are frequently denied other rights and

opportunities that [nondisabled] persons take for granted.”

Accommodating the Spectrum at 39-40. These included the

right to vote, to hold public office, to obtain a driver’s or a

 

12 ACCOMMODATING THE SPECTRUM at 38-39, citing Noakes

Associates Architects, Access Maryland: Handicapped Accessibility

Survey (prepared under State contract) (1980), p. 17.

13 Likewise, the congressional Task Force on the Rights and

Empowerment of Americans with Disabilities found that “[t]raditional

attitudes have resulted in widespread laxity in the implementation of

existing disability rights and services legislation.” From ADA to

Empowerment at 20.
16

hunting and fishing license, to marry and to enter into

contracts, and to retain custody of their children. Id. at 40.14

The Civil Rights Commission did not discuss public

employment separately due to its conclusion that employment

was one of the areas in which “pervasive” discrimination

“persists.” Id. at 159, Conclusion 1. The Advisory

Commission on Intergovernmental Relations (ACIR) report,

however, presented specific documentation on State

employment. En route to its findings that barriers to

government compliance with disability rights mandates

include “negative employer attitudes about persons with

disabilities, agency fear of the costs involved in

accommodating disabled persons, lack of information about

what works and what does not work, [and] unawareness of

cost-effective methods of meeting mandates,” ACIR,

DISABILITY RIGHTS MANDATES: FEDERAL AND STATE

COMPLIANCE WITH EMPLOYMENT PROTECTIONS AND

ARCHITECTURAL BARRIER REMOVAL at 2, Finding 5 (1989),

ACIR reported on a survey of State officials it had conducted.

The results of the survey indicated that 83% of the survey

respondents reported that negative attitudes toward and

misconceptions about people with disabilities had a moderate

or strong impact on State employment of persons with

disabilities, and 68% said that the lack of leadership support

 

14 Recognizing that a discussion of all facets of discrimination on the

basis of disability was “beyond the scope of” its report, id. at 40, the

Commission added an appendix in which it provided an outline of many

areas of discrimination. In addition to areas of State discrimination

already mentioned, the Appendix lists discriminatory competency and

guardianship laws, id., App. A, item V; denials of access to public

housing, id., App. A, item VII.1; discriminatory zoning obstacles, id.,

App. A, item VII.2; overly protective fire codes and other regulations, id.,

App. A, item VII.5; and inequities in the criminal justice system regarding

the apprehension, questioning, trial, and post-conviction treatment of

persons with disabilities, id., App. A, item VII.5. The Commission

cautioned that the areas of discrimination listed were “not exhaustive.” Id.

at 165.
17

and commitment to employment of persons with disabilities

was a strong or moderate impediment to such employment.

Id. at 72, Table 6-10.

 Likewise, the Task Force on Rights and Empowerment

of Americans with Disabilities report highlighted various

examples of discrimination reported to the Task Force,

including a city bus driver with mental illness who was

repeatedly harassed, ridiculed, and pressured to resign by his

supervisor because of his disability, From ADA to

Empowerment at 22; a young man employed as a laborer by a

State Conservation Corps subjected to workplace harassment

and public ridicule by his superior because of his mental

retardation, id. at 21; a career army/reserve/national guard

officer was terminated with no benefits from the Alabama

National Guard when it was learned that he had been

diagnosed with depression and anxiety some 25 years earlier,

id.

Accordingly, in the ADA, Congress found, based upon

extensive prior study and documented evidence, that

discrimination on the basis of disability is a “serious and

pervasive problem” in America, and that the States were

major perpetrators of such discrimination.

2. The Documented Pattern of Discriminatory

State Actions Warranted Legislative Action

Under Congress’s Section 5 Authority.

In calling for a comprehensive equal opportunity law in

1986, amicus termed discrimination on the basis of disability

“the antithesis of equal opportunity,” TOWARD

INDEPENDENCE, App. at A-3, and quoted President Reagan’s

declaration that “[o]ur Nation’s commitment to equal

protection of the laws will have little meaning if we deny such

protection to those who have not been blessed with the same

physical or mental gifts we too often take for granted.” Id. at

A-4, quoting R. Reagan, Memorandum to the Attorney

General, April 30, 1982.
18

In authorizing the White House Conference, Congress

had made “equality of opportunity, equal access to all aspects

of society, and equal rights guaranteed by the Constitution” a

major focus. Pub. L. No. 93-516,  302, 88 Stat. 1631 (1974).

The White House Conference reported back that “[a] review

of past and current treatment of [individuals with disabilities]

by all branches of government at all levels has, however,

revealed an apparent utter disregard or distortion of these

basic principles.” WHITE HOUSE CONFERENCE ON

HANDICAPPED INDIVIDUALS, SPECIAL CONCERNS: STATE

WHITE HOUSE CONFERENCE WORKBOOK, 59 (U.S. Dept. of

Health, Education, and Welfare, Office of Human

Development, undated).

In considering the ADA, Congress had before it a

considerable body of case law holding various forms of State

discrimination on the basis of disability to be violations of the

Fourteenth Amendment. In an extensive discussion of the

constitutional litigation addressing discrimination on the basis

of disability, the Commission on Civil Rights noted that

“[t]he most frequently used constitutional bases are the

guarantees of equal protection of the law and due process of

the law,” and devoted some four pages of its

ACCOMMODATING THE SPECTRUM report to discussing the

implications of the Fourteenth Amendment guarantees of

equal protection of the law and due process of law to

discrimination on the basis of disability. Id. at 62-66.

The Commission observed that both the equal protection

and due process clauses had been successfully used in

litigation to secure rights for people with disabilities. Id. at

62, 64. The report discussed Fourteenth Amendment cases in

which plaintiffs had been successful in: (1) winning the right

to equal public education opportunities; (2) challenging

commitment procedures and conditions of confinement in

mental institutions; (3) challenging State laws permitting

criminal defendants deemed mentally incompetent to be

confined indefinitely without trial; (4) challenging restrictions
19

in public employment opportunities; (5) establishing a right of

persons involuntary committed to mental retardation facilities

to reasonably safe conditions, freedom from unreasonable

bodily restraints, and minimally adequate training; (6)

challenging restrictions upon voting rights of persons with

mental retardation; (7) challenging legal restrictions based on

disability in occupancy of hotels and boarding houses; (8)

challenging statutes authorizing involuntary psychosurgery

and shock therapy; (9) challenging statutes authorizing

termination of parental rights; (10) challenging involuntary

sterilization procedures; and (11) challenging State

institutions’ decision-making procedures regarding lifeprolonging medical procedures. Id. at 63-66.

See also WHITE HOUSE CONFERENCE ON HANDICAPPED

INDIVIDUALS, SPECIAL CONCERNS: STATE WHITE HOUSE

CONFERENCE WORKBOOK, at 59 (presenting a similar list of

area in which people with disabilities had sued to vindicate

rights); U.S. COMMISSION ON CIVIL RIGHTS, CIVIL RIGHTS

ISSUES OF HANDICAPPED AMERICANS: PUBLIC POLICY

IMPLICATIONS at 39 (Statement of Charles W. Hoehne,

spokesperson for White House Conference) (“[a] growing

body of judicial decisions is establishing that constitutional

guarantees of equal protection and due process extend to

[individuals with disabilities]”).

The discussion of Fourteenth Amendment litigation

challenging discrimination on the basis of disability in

ACCOMMODATING THE SPECTRUM, while extensive, was not

exhaustive either at the Supreme Court level or otherwise.

And such court decisions continued in the period between the

issuance of ACCOMMODATING THE SPECTRUM in 1983 and the

passage of the ADA in 1990, the most significant of which,

for present purposes, was City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432 (1985), in which the Court held that a

zoning board’s denial of special exception to permit a group

home for persons with mental retardation in a residential

neighborhood was irrational and violated the Fourteenth
20

Amendment. The Cleburne ruling was discussed in amicus’s

analysis of its original proposal to Congress that an ADA

should be enacted. TOWARD INDEPENDENCE, App. at A-7.

The Cleburne decision makes it abundantly clear that some

types of discriminatory actions by governmental entities

violate equal protection because they are not “rational.”

Petitioners rely strongly on the fact that this Court ruled

in Cleburne that persons with mental retardation do not

constitute a suspect class. Petitioners’ Br. at 25-27. Amicus

believes that exclusions and deprivations visited upon people

because of their disabilities should be accorded some degree

of heightened scrutiny because such disadvantageous

treatment is often, as the Court observed in Cleburne, the

product of “negative attitudes,” “fear,” and “irrational

prejudice.” Cleburne, 473 U.S. at 448, 450. But, as Cleburne

demonstrates, State actions that discriminate on the basis of

disability can violate the Fourteenth Amendment without

heightened scrutiny.

The implication of Petitioners’ analysis is that Congress

has no role to play in addressing classifications that are not

subject to heightened scrutiny under the equal protection

clause. But in situations where, as with disability, “negative

attitudes” and “irrational prejudice” toward a class of citizens

have become the accepted practice and the standard way of

dealing with those citizens, and have become ingrained in the

policies, practices, and even the facilities of American

society, including particularly State governments and their

components, Congress is exercising a fundamentally

important role under the Fourteenth Amendment when it

identifies and prohibits such irrational actions.
21

II. In Considering and Passing the ADA, Congress

Negotiated and Crafted Modest, Congruent, and

Proportional Remedies for Irrational and Unfair

Discrimination on the Basis of Disability.

A. The ADA Prohibits Irrational and Unfair

Discrimination by the States.

The ADA was concerned with prohibiting “unnecessary”

and “unfair” unequal treatment of people with disabilities. 42

U.S.C. § 12101(a)(9). See also TOWARD INDEPENDENCE,

App. at A-3 (“Discrimination consists of the unnecessary and

unfair deprivation of an opportunity because of some

characteristic of a person. It is the antithesis of equal

opportunity.”); id. at 19 (“unfair or unnecessary exclusion or

disadvantage”).

Congress understood that, except in those limited

circumstances where disability actually prevents participation,

excluding individuals based on disability is intrinsically

irrational and unfair, and that lesser types of discrimination

prohibited by the ADA -- such as unjustified segregation;

relegation to lesser services, programs, activities, benefits,

jobs, or other opportunities; and overprotective rules and

policies -- are irrational because they penalize people for a

characteristic that they are unable to change and that does not

inherently prevent them from participating on an equal basis.

Thus one of the ADA findings was that “individuals with

disabilities . . . have been faced with restrictions and

limitations . . . based on characteristics that are beyond the

control of each individual and resulting from stereotypic

assumptions not truly indicative of the individual ability of

such individuals to participate . . .” 42 U.S.C. §

12101(a)(7).15

 

15 Discrimination by the States carries an extra element of irrationality,

because of the States’ fiscal and legal responsibilities. Denials of public

employment opportunities, or of employment-related services such as
22

In addition, exclusions and relegations to lesser status

and opportunities on the basis of disability usually occur

without the opportunity for the person being excluded or

disadvantaged to be heard to challenge the unequal treatment

as unfair and unnecessary. This, along with the “fundamental

unfairness” involved in many instances of State actions

disadvantaging people because of their disabilities, raises

substantial due process concerns.

Congress concluded that irrational denials of equality by

state actors violate the Equal Protection Clause of the

Fourteenth Amendment. And state and local government’s

arbitrary and summary deprivations of substantial rights and

opportunities without a chance to be heard in opposition

violate due process requirements of procedural protections

and “fundamental fairness.”

 

public transportation or job training programs, because of potential

workers’ disabilities, bring with them a statistically strong likelihood that

the State will end up paying income support for jobless people with

disabilities, as well as losing potential income tax revenue the individuals

would have paid if employed, and potential sales tax revenue from their

spending if they had been employed. Financial consequences were

frequent considerations during ADA deliberations. See, e.g., 42 U.S.C.

§ 12101(a)(9) (ADA finding that “the continuing existence of unfair and

unnecessary discrimination and prejudice . . . costs the United States

billions of dollars in unnecessary expenses resulting from dependency and

nonproductivity”; TOWARD INDEPENDENCE at vi (estimating annual

federal expenditures for disability at over $60 billion); FROM ADA TO

EMPOWERMENT at 27 (quoting President Bush’s estimate that “when you

add together federal, state, local, and private funds, it costs almost $200

billion annually to support Americans with disabilities -- in effect to keep

them dependent”).
23

B. Simply Proscribing Intentional Differential

Treatment Because of Disability Would Achieve a

Mere Facade of Formal Equality, Not Real Equality

in the Form of Meaningful Equal Opportunity.

One of the key lessons that Congress derived from its

twenty-five years of study and field-testing16 of disability

nondiscrimination laws was that a broadly-worded prohibition

of discrimination on the basis of disability -- a simple

requirement that “Thou shalt not discriminate” -- is not

sufficient to address such discrimination. Congress enacted

the ADA with an express purpose “to provide clear, strong,

consistent, and enforceable standards addressing

 

16 Key elements of the nondiscrimination requirement, such as

reasonable accommodation, auxiliary aids, and restrictions on disability

inquiries, were initially developed and field-tested in federal regulations

issued, with the benefit of formal public comment, under Sections 501,

503, and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 793, &

794a. Similarly, the Fair Housing Amendments Act of 1988, Pub. L. No.

100-430, 102 Stat.1619, broke new ground in establishing a statutory

“reasonable accommodation” requirement, 42 U.S.C. § 3604(f)(3)(B),

prohibiting discrimination against someone because he or she associates

with a person who has a disability, id. §§ 3604(f)(2)(B)-(C), and imposing

accessibility standards on the design and future construction of covered

facilities, id. § 3604(f)(3)(C) – all concepts that would play important

roles in the ADA.

Regarding the coverage of State and local governments, the Civil

Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988),

added a definition of “program or activity” to, inter alia, Section 504 of

the Rehabilitation Act of 1973. The amended definition expanded Section

504’s coverage of State and local government bodies by clarifying that all

of the operations of a department or agency that receives federal funds are

covered, regardless of how separate they may be from the federally

assisted project or activity; and that if a state or local department or

agency receives federal funds to be distributed to other departments or

agencies, both the entity that distributes the funds and the entities that

receive the funds are covered. 29 U.S.C. §§ 794(b)(1)(A)-(B). SEE S.

REP. NO. 64 100th Cong., 2d Sess. 16 (1988) (Labor and Human

Resources Committee), reprinted in 1988 U.S.C.C.A.N. 3, 18.
24

discrimination against individuals with disabilities,” 42

U.S.C. § 12101(b)(2).

In going beyond an ineffective, broad renunciation of

inequality on the basis of disability, Congress put into action

what it had learned about the nature and forms of disability

discrimination during its quarter century of study. Petitioners

urge, however, that the ADA’s “disparate-effect and

reasonable-accommodation requirements far exceed the

minimal strictures of rational-basis review.” Petitioners’ Br.

at 29.17 This contention reflects a superficial

misunderstanding of these ADA requirements and their role in

eliminating irrational and unfair discrimination. Both of the

cited provisions demand no more of States than rational and

fair conduct. It should be noted, however, that even if a

particular requirement of the statute did exceed the limits of

congressional authority to some degree, that would only

justify a judicial restriction or excision of the overextended

portion of the provision, particularly since the ADA contains

a severability provision. 42 U.S.C. § 12213. It would not

 

17 Petitioners also mention the ADA requirement on a State “to make

‘reasonable modifications’ in its public services to accommodate the

disabled unless they would ‘fundamentally alter’ the nature of the

program.” Petitioners’ Br. at 29. It may be helpful to clarify, however,

that the potentially more difficult or expensive types of undertakings --

physical and structural modifications and providing equipment, devices, or

assistive personnel -- are not required under this provision, but are covered

in the program accessibility section of the regulations as either facility

accessibility modifications, 28 C.F.R. §35.150, or as “auxiliary aids,” id.,

§ 35.160(b)(1). In both cases, the obligation is subject to a defense that

excuses covered entities from taking any action that causes “undue

financial and administrative burdens.” Id., §§ 35.150(a)(3), 35.164. The

“reasonable modifications” provision referred to by the Petitioners

addresses less difficult and less potentially costly modifications to

“policies, practices, and procedures” to permit a particular individual with

a disability to participate equally. Id. § 35.130(b)(7). Typically, these

involve relaxation of or an exception to some general rule or policy that

would otherwise operate to exclude a qualified individual from

participation.
25

invalidate congressional authority to regulate the extensive

remaining areas of States’ conduct that do fall within

Congress’s section 5 authority.

1. Identical Treatment Can Result in

Discrimination.

A meeting of a city council may be “equally open to all”

in one sense, but if it is held in an auditorium that can only be

entered by going up a flight of stairs it offers no chance of

equal participation for a person who uses a wheelchair. A

blind person who has rushed to a public hospital for a medical

emergency may have an “equal” opportunity to receive the

“informed consent” documents describing risks of treatment,

but the gesture will not have any real meaning if there is no

one who will read the documents to the patient or make them

available in an alternative format. Verbal instructions

regarding a State civil service test may be articulated

“equally” to all, but will be of no avail to a test-taker who is

deaf. These are simple examples of the fact that treating

everyone identically and ignoring the existence of disabilities

may appear to treat all persons the same, but would in fact

represent drastic denials of equality to some people because

of their disabilities. As the Civil Rights Commission has

noted, “[s]uch an approach [of identical treatment] would give

the form, but not the substance of equal opportunity.”

ACCOMMODATING THE SPECTRUM at 99.

In Alexander v. Choate, supra, the Court indicated that,

in the context of Section 504 in its application to state

activities, “meaningful access” was required, and that “to

assure meaningful access, reasonable accommodations in the

grantee’s program or benefit may have to be made.” 469 U.S.

at 301. ADA Committee reports indicate expressly that Title

II’s prohibition of discrimination on the basis of disability is

to be interpreted consistently with the decision in Alexander v.

Choate. S. Rep. No. 101-116, at 44 (1989); H.R. Rep. No.

101-485, pt. 2, at 84 (1990). For the ADA to provide real

equality, therefore, such requirements as reasonable
26

accommodation, barrier removal, and auxiliary aids had to be

essential components; identical treatment would not suffice.

2. Exclusion and Other Egregious Deprivations

on the Basis of Disability Often Occur in the

Absence of Hostile Animus.

The Court made an observation in Alexander v. Choate,

469 U.S. 287 (1985), in the context of Section 504 that is

equally true in the Fourteenth Amendment context of the

ADA: “much of the conduct that Congress sought to alter ...

would be difficult if not impossible to reach were the Act

construed to proscribe only conduct fueled by a

discriminatory intent.” Id. at 296-97. The Court cited

architectural and transportation barriers as examples of forms

of discrimination that needed to be eliminated whether or not

they were erected with an intent of excluding people with

disabilities. Id. at 297. Simply proscribing intentional

differential treatment on the basis of disability would leave in

place most of the barriers, practices, and policies that deprive

people of equal participation in State services, programs, and

job opportunities because of disability.

To a person who uses a wheelchair and is confronted by

a flight of stairs that makes it impossible to enter the State

employment application office, it makes no difference

whatever whether those stairs were designed and constructed

with a deliberate intent to keep people in wheelchairs out or

whether they were designed and constructed without any

thought at all about their effect on persons who use

wheelchairs. A law that sought to enforce equality by

declaring only the provably intentional barriers illegal would

miss the mark almost entirely, because it would be a rare case

in which the designers and constructors of State facilities

would generate documentation or demonstrable evidence that

they were openly hostile to people who use wheelchairs.

Other language of the Court in Alexander v. Choate

indicates that, while “well-cataloged instances of invidious
27

discrimination” against the disabled exist, id. at n.12,

discrimination on the basis of disability may be the result of

apathetic attitudes rather than affirmative animus,” id. at 296.

Nevertheless, treatment of people with disabilities is “one of

the country’s ‘shameful oversights’” and constitutes “glaring

neglect,” id., quoting 117 CONG. REC. 45974 (1971)

(statement of Rep. Vanik) and 118 CONG. REC. 526

(statement of Rep. Percy). Such inattention is not a neutral,

rational act; it is based upon prejudice, stereotypes, and

callous indifference -- an assumption that people with

disabilities will not participate.18

For State and local governments to ignore the existence

of people with disabilities in planning and structuring their

services and programs, and in designing and erecting their

facilities, goes well beyond inadvertence and simple

negligence and amounts to reckless indifference or a form of

intentionality -- a looking away and denying the existence of

persons with disabilities in the face of abundant evidence to

the contrary.19

People with disabilities are inevitably part of the

citizenry whom state and local governments are charged with

serving, many of which are taxpayers for such services. It is

totally foreseeable that some potential public workers will,

 

18 One of the Conclusions of the Commission on Civil Rights was that

“[a]lthough open hostility is now rare, prejudice against [people with

disabilities], manifested as discomfort, patronization, pity, stereotyping,

and stigmatization, remains common.” ACCOMMODATING THE SPECTRUM

at 159, Conclusion 2.

19 See, e.g., Task Force on the Rights and Empowerment of Americans

with Disabilities, From ADA to Empowerment, 19 (1990) (Task Force

finding that “[d]isability has become a predictable part of the normal life

cycle for a large and increasing proportion of human beings.”) In the

words of one federal statute, “disability is a normal part of the human

experience . . .” 29 U.S.C. § 701(a)(3), as amended by Pub. L. No. 102-

569, tit. I, §101, 106 Stat. 4346.
28

because of disabilities, need reasonable adjustments to

workplaces designed, with one-size-fits-all assumptions, for

those without disabilities. It is totally foreseeable that some

capable and qualified workers with respiratory and other

conditions will be needlessly excluded if a State agency

unnecessarily allows carbon monoxide fumes in its vehicles

and cigarette smoke in its work facilities, as is alleged by Mr.

Ash in this case.

Moreover, an effective law prohibiting unfair and

irrational discrimination must require the dismantling of

practices and structures excluding or disadvantaging persons

with disabilities that are “literally been built into the physical

environment,” TOWARD INDEPENDENCE, App. at A-3, or in the

accepted policies and practices of agencies that have a

tendency to endure, often outliving their original rationale, in

the tradition of “things have always been done that way.”

ACCOMMODATING THE SPECTRUM at 91. A prejudiced,

erroneous belief that deaf people cannot drive safely or that

blind people cannot be attorneys may be perpetuated in a

formal rule or an unwritten policy, and may guide the actions

of a State agency long after the originator of the rule or policy

has left the agency or died. Such entrenched mechanisms of

discrimination continue to operate without regard to whether

any current or prior intent to discriminate can be proven.

C. Congress Negotiated and Crafted Modest,

Congruent, and Proportional Requirements and

Coverage.

Congress understood that something beyond simply

treating everyone exactly the same and ignoring the existence

of disabilities was necessary to address disability

discrimination, particularly since “[s]ociety’s operations --

from its sidewalks to its schoolrooms and its jobs -- ordinarily

are designed for people whose abilities fall in the `normal’

range,” and “exclude or seriously disadvantage” people not

within the “normal” range. ACCOMMODATING THE SPECTRUM

at 161, Conclusion 4. This recognition led Congress to
29

include in the ADA key provisions, including the requirement

of reasonable accommodations, the requirement of barrier

removal, proscribing standards or methods administration that

have the effect of discrimination, the requirement of

providing auxiliary aids, and the prohibition of discriminatory

qualification standards and selection criteria, all of which had

been developed and “test-driven” under prior statutes and

regulations. In Congress’ view, a rational public entity would

take such reasonable steps to assure meaningful equal

participation of individuals with disabilities in all of its jobs,

programs, and activities. The reasonable accommodation

provision, for example, only requires States to make

reasonable modifications to “known” limitations and does not

require any action that would impose an “undue hardship.”

42 U.S.C. § 12112(b)(5)(A). For government entities which

provide various accommodations designed for employees and

constituencies without disabilities20 to refuse to make

reasonable modifications and take other reasonable steps to

permit the equal participation of citizens with disabilities is

irrational and manifestly unfair.

These provisions were carefully fine-tuned during

extensive congressional consideration and debates. For a

description of negotiations and compromises, see, e.g., 135

CONG. REC. S 10713 (Daily Ed. Sept. 7, 1989) (statement of

Sen. Harkin); 136 CONG. REC. S 9686 (Daily Ed. July 13,

1990) (statement of Sen. Harkin); 135 CONG. REC. S 10715

(Daily Ed. Sept. 7, 1989) (statement of Sen. Hatch).; 136

CONG. REC. H 2429 (Daily Ed. May 17, 1990) (statement of

Rep. Bartlett).

 

20 For a description of the numerous accommodations that businesses

and government facilities routinely provide for employees without

disabilities, see Robert L. Burgdorf Jr., “Substantially limited” Protection

from Disability Discrimination: The Special Treatment Model and

Misconstructions of the Definition of Disability, 42 VILL. L. REV. 409,

529-33 (1997).
30

Amicus believes that its original version of the ADA was

a moderate, equitable proposal. Yet Congress saw fit to

ameliorate many of the standards amicus had proposed and to

craft additional defenses and limitations. Far from making

ADA standards too severe and thus over-reaching its

constitutional authority, amicus is convinced that Congress

moved in the direction of crafting standards that are

unnecessarily lenient and limited.

Likewise, amicus considers that the protection of the

statute based on its definition of “disability,” 42 U.S.C. §

12102(2), as construed by this Court in Sutton v. United

Airlines, 119 S.Ct. 2139 (1999); Murphy v. United Parcel

Service, 119 S.Ct. 2133 (1999); and Albertsons, Inc. v.

Kirkingburg, 119 S.Ct. 2162 (1999), and by numerous lower

courts is not only not incongruously or disproportionately

overextensive, it is in fact overly restrictive. It is defendants,

not plaintiffs, who are predominantly successful in ADA

litigation. The ADA’s requirements and coverage certainly

are not incongruous or disproportionate in relation to the

serious pattern of State discrimination they address.

CONCLUSION

The ADA is sound legislation, based upon careful

congressional consideration and an extraordinarily extensive

documentary and informational record. Unlike what may

have been the situation in other cases the Court has heard in

recent years, in deciding to apply the ADA to the States,

Congress did its homework. To invalidate this effort would

be to frustrate the considered deliberate judgment of a nearly

unanimous Congress, to ignore the strong support of the

Executive Branch, and to frustrate the will of the strong

majority of American citizens who support the ADA.

Appropriate are the words of Representative Dellums, who,

on the day that the ADA was passing by an overwhelming

margin in the House of Representatives, declared:
31

It is at times like these, Mr. Speaker, when I

am proud to be a Member of this body. We must

remember that we are empowered with a special

responsibility by the 14th amendment to the

Constitution to ensure that every citizen, not just

those of particular ethnic groups, not just those who

arguably are “able-bodied,” not just those who own

property -- but every citizen shall enjoy the equal

protection of the laws.

Indeed, as the Supreme Court has noted:

It is fundamental that in no organ of

government, state or federal, does there repose a

more comprehensive remedial power than in the

Congress, expressly charged by the Constitution

with competence and authority to enforce equal

protection guarantees.

136 CONG. REC. H2639 (Daily Ed. May 22, 1990) (statement

of Rep. Dellums) (quoting Fullilove v. Klutznick, 448 U.S.

448, 483 (1980).

For the foregoing reasons, amicus respectfully urges the

Court to affirm the decision of the United States Court of Appeals

for the Eleventh Circuit.

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
A-1

Appendix

Congressionally Commissioned Studies of Discrimination

on the Basis of Disability

(1) National Commission on Architectural Barriers

 Agency: National Commission on Architectural Barriers

to Rehabilitation of the Handicapped.

Established: Vocational Rehabilitation Act Amendments of

1965, Pub. L. No. 89-333, 79 Stat. 1282 (1965).

 Mission: To conduct a three-year study of the extent to

which architectural barriers prevented access to

public buildings and to propose measures to

eliminate existing barriers and prevent new

ones from being created.

Relevant

Report:

Design for All Americans: Report of the National

Commission on Architectural Barriers to

Rehabilitation of the Handicapped (U.S. Department

of Health, Education, and Welfare, 1967).

Overall

Relevant

Results:

Described “unnecessary barriers: a stairway, a

too-narrow door, a too-high telephone” as

“unnecessary obstacles that prevent millions of

people with disabilities from functioning

adequately and being productive,” and included a

series of recommendations for eliminating and

avoiding the creation of architectural barriers. Id.

at 2. Follow-up Senate and House Committee

hearings in 1967 and 1968 21 ultimately produced

 

21 Hearings on Accessibility of Public Buildings to the Physically

Handicapped Before the Subcommittee on Public Buildings and Grounds

of the Senate Committee on Public Works, 90th Cong. (1967); Hearings

on Building Design for the Physically Disabled Before the Subcommittee

on Public Buildings on Grounds of the House Committee on Public Works,

90th Cong. (1968). See also S. Rep. No. 90-538 (1968), reprinted in 1968
A-2

the Architectural Barriers Act of 1968. Pub. L.

No. 90-480, § 1, 82 Stat. 718 (1968), codified

as amended at 42 U.S.C. §§ 4151-57.

(2) White House Conference

Agency: White House Conference on Handicapped

Individuals.

Established: White House Conference on Handicapped

Individuals Act, Pub. L. No. 93-516, §§ 300-

306, 88 Stat. 1631 (1974).

Mission: To convene a national gathering “to develop

recommendations and stimulate a national

assessment of problems, and solutions to such

problems, facing individuals with

[disabilities],” id., § 302, with equal protection

as a key focus, id., § 301(4).

Relevant

Reports:

(a) WHITE HOUSE CONFERENCE ON HANDICAPPED

INDIVIDUALS, SUMMARY FINAL REPORT (U.S.

Dept. of Health, Education, and Welfare, Office of

Human Development, undated [1978]);

(b) WHITE HOUSE CONFERENCE ON

HANDICAPPED INDIVIDUALS, VOLUME THREE:

IMPLEMENTATION PLAN 61 (1978); and

(c) WHITE HOUSE CONFERENCE ON

HANDICAPPED INDIVIDUALS, SPECIAL

CONCERNS: STATE WHITE HOUSE CONFERENCE

WORKBOOK, 59 (U.S. Dept. of Health,

Education, and Welfare, Office of Human

Development, undated [1977]).

Overall Convened national meeting of approximately

 

U.S.C.C.A.N., 3214; H.R. Rep. No. 90-1532 (1968); H.R. Conf. Rep. No.

90-1787 (1968).
A-3

Relevant

Results:

3,700 individuals from every state and U.S.

territory, representing over 100,000 people

who attended local, state, and territorial

conferences, in Washington, DC, in May 1977.

Final Report of the Conference to the President

and the Congress presented 815 formal

recommendations addressing 287 issues.

(3) Commission on Civil Rights

Agency: United States Commission on Civil Rights.

Established: Pub. L. No. 95-444, 92 Stat. 1067 (1978) (added

“discrimination on the basis of handicap” to the

Commission’s areas of jurisdiction).

Mission: To study and collect information concerning

legal developments constituting discrimination

because of, inter alia, “handicap;” serve as a

national clearinghouse of information on such

discrimination; and submit reports, findings,

and recommendations to the President and

Congress.

Relevant

Reports:

(a) ACCOMMODATING THE SPECTRUM OF

INDIVIDUAL ABILITIES (1983); and

(b) U.S. COMMISSION ON CIVIL RIGHTS, CIVIL

RIGHTS ISSUES OF HANDICAPPED AMERICANS:

PUBLIC POLICY IMPLICATIONS (1980) (record

of “consultation” receiving testimony of 30

“selected authorities, advocates, consumers,

and practitioners who are acknowledged

experts,” id. at 1).

Overall

Relevant

Results:

Surveyed the types of discrimination people

with disabilities encountered and provided both

a summary of case law and a conceptual

framework for understanding and addressing

discrimination on the basis of disability.
A-4

(4) National Council on Disability

Agency: National Council on Disability.

Established: Pub. L. No. 98-221, tit. I, § 142, 98 Stat. 27

(1984) (codified as amended at 29 U.S.C.

§ 781).

Mission: To review federal laws and programs affecting

people with disabilities and make recommendations regarding ways to make such laws

and programs more effective.

Relevant

Reports:

(a) TOWARD INDEPENDENCE (1986); and

(b) ON THE THRESHOLD OF INDEPENDENCE

(Andrea H. Farbman ed., 1988).

Overall

Relevant

Results:

Described need for and concept of proposed

new law to be called the Americans with

Disabilities Act; developed and published

original version of the ADA introduced in

Congress in 1988.

(5) Advisory Commission on Intergovernmental Relations

Agency: Advisory Commission on Intergovernmental

Relations.

Established: Pub. L. No. 86-380, 73 Stat. 703 (1959).

Mission: To study the relationship among local, state, and

federal governments in the American federal

system and to recommend improvements.

Relevant

Reports:

DISABILITY RIGHTS MANDATES: FEDERAL AND

STATE COMPLIANCE WITH EMPLOYMENT

PROTECTIONS AND ARCHITECTURAL BARRIER

REMOVAL (1989).

Overall

Relevant

Identified various barriers to governmental

compliance with disability rights mandates,
A-5

Results: and reported results of survey of State officials

regarding their assessment of impediments to

employment of persons with disabilities in

State government.

(6) GAO Accommodations Study

Agency: General Accounting Office (GAO).

Established: Request to GAO by members of Congress in

January 1990.

Mission: To provide information about the costs of

workplace accommodations and of avoiding or

removing architectural, transportation, and

communication barriers, to assist in

congressional consideration of the ADA.

Relevant

Report:

U.S. General Accounting Office, Persons with

Disabilities: Reports on Costs of

Accommodations, A Briefing Report to

Congressional Requesters (January 4, 1990).

Overall

Relevant

Results:

Conducted literature review of published

studies going back to 1975, queried wide range

of industry groups and disability organizations,

and identified twelve reports with relevant

information, of which all but one were either

conducted by or funded under contract by a

federal government agency.

(7) Task Force on Rights and Empowerment

Agency: Task Force on the Rights and Empowerment of

Americans with Disabilities.

Established: Appointed by the Chairman of the House

Subcommittee on Select Education in May

1988.

Mission: To gather information on the extent and nature
A-6

of disability discrimination.

Relevant

Reports:

(a) Eleven interim reports submitted to Congress

and testimony provided at hearings on the ADA in

both the House and Senate;22 and

(b) From ADA to Empowerment; The Report of

the Task Force on the Rights and

Empowerment of Americans with Disabilities

(1990).

Overall

Relevant

Results:

Conducted 63 public forums around the

country attended by over 7,000 persons with

disabilities, their families, advocates and

service providers; concluded generally that

Americans with disabilities face “massive,

society-wide discrimination and paternalism.”

Id. at 18, 19.

 

22 See. S. Rep. No. 101-116, at 4, 6, 8-9, 16, 17 (1989); Americans

with Disabilities Act of 1989; Hearings on S. 933 Before the Senate

Committee on Labor and Human Resources and the Subcommittee on the

Handicapped, 101st Cong. At 18-20, 252-58 (1989); H.R. Rep. No. 101-

485, pt. 2. At 25, 26, 27-28 (1990); 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.

At 1038-43, 1328-35 (1988): From ADA to Empowerment: The Report

of the Task Force on Rights and Empowerment of Americans with

Disabilities, at 18 (1990).