No. 99-1240 

In the Supreme Court of the United States 

UNIVERSITY OF ALABAMA AT BIRMINGHAM, 
BOARD OF TRUSTEES, ET AL., PETITIONERS 

v. 

PATRICIA GARRETT, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

BILL LANN LEE 

Acting Assistant Attorney 

General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 

JESSICA DUNSAY SILVER 
SETH M. GALANTER 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether Titles I and II of the Americans with 
Disabilities Act of 1990, 42 U.S.C. 12111 to 12117, 12131 
to 12165 (1994 & Supp. III 1997), are proper exercises 
of Congress’s power under Section 5 of the Fourteenth 
Amendment. 

2. Whether petitioners are subject to suits under 
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 
794, either because petitioners waived their Eleventh 
Amendment immunity when they applied for and 
accepted federal financial assistance that Congress ex- 
pressly conditioned upon a waiver of Eleventh Amend- 
ment immunity, or because Congress has validly abro- 
gated petitioners’ immunity from suits under Section 5 
of the Fourteenth Amendment. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statement ........................................................................................ 1 

Argument ........................................................................................ 8 

Conclusion ....................................................................................... 18 

TABLE OF AUTHORITIES 

Cases: 

Alden v. Maine, 119 S. Ct. 2240 (1999) .............................. 

16 

Alsbrook v. City of Maumelle, 184 F.3d 999 (8th 

Cir. 1999), cert. granted in part, 120 S. Ct. 1003 (2000), 

cert. dismissed, No. 99-423, 2000 WL 230234 (Mar. 1, 

2000) ......................................................................................... 

8, 10 

Amos v. Maryland Dep’t of Pub. Safety & Correc- 
tional Servs., 178 F.3d 212 (4th Cir. 1999), vacated for 

reh’g en banc (Dec. 28, 1999), appeal dismissed due to 

settlement, 2000 WL 248707 (Mar. 6, 2000) ...................... 

9, 14 

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 

(1985) ........................................................................................ 15 

Bradley v. Arkansas Dep’t of Educ., 189 F.3d 745 

(8th Cir.), vacated in part for reh’g en banc, sub nom. 

Jim C. v. Arkansas Dep’t of Educ., 197 F.3d 958 

(1999) ........................................................................................ 

14, 17 

City of Boerne v. Flores, 521 U.S. 507 (1997) ................... 

9, 10 

Clark v. California, 123 F.3d 1267 (9th Cir. 1997), 

cert. denied, 524 U.S. 937 (1998) ................................... 

9, 14, 17 

College Sav. Bank v. Florida Prepaid Postsecondary 

Educ. Expense Bd., 119 S. Ct. 2219 (1999) ...................... 

16 

Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir), 

cert. denied, 119 S. Ct. 58 (1998) ......................................... 

9 

Crawford v. Indiana Dep’t of Corrections, 115 F.3d 

481 (7th Cir. 1997) .................................................................. 

10, 14 

Dare v. California, 191 F.3d 1167 (9th Cir. 1999), 

petition for cert. pending, No. 99-1417 .............................. 10 

(III) 

IV 

Cases—Continued: Page 

Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) ................ 

13 

DeBose v. Nebraska, 186 F.3d 1087 (8th Cir. 

1999), petition for cert. pending, No. 99-940 ..................... 

10, 12 

Erickson v. Board of Governors of State Colleges 

& Univs., No. 95 C 2541, 1998 WL 748277 (N.D. Ill. 

Sept. 30, 1998) , appeal pending, No. 98-3614 (7th Cir. 

argued Apr. 27, 1999) ............................................................ 

10 

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

4 

Florida Prepaid Postsecondary Educ. Expense 

Bd. v. College Sav. Bank, 119 S. Ct. 2199 

(1999) ........................................................................................ 10 

Jackan v. New York State Dep’t of Labor, No. 

98-9589, 2000 WL 241648 (2d Cir. Mar. 3, 2000) ............... 

11 

Kilcullen v. New York State Dep’t of Labor, 

No. 99-7208, 2000 WL 217465 (2d Cir. Feb. 24, 

2000) ......................................................................................... 11, 14 

Kimel v. Florida Bd. of Regents, 139 F.3d 1426 

(11th Cir. 1998), rev’d in part, 120 S. Ct. 631 (2000), 

cert. granted sub nom. Florida Dep’t of Corrections 

v. Dickson, 120 S. Ct. 976 (2000), cert. dismissed, 

No. 98-829, 2000 WL 215674 (Feb. 23, 2000) ............. 

7-8, 9, 11 

Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 

1999), cert. denied, No. 99-596, 2000 WL 198966 (Feb. 

22, 2000) ................................................................................... 

17 

Little Rock Sch. Dist. v. Mauney, 183 F.3d 816 

(8th Cir. 1999) ......................................................................... 

17 

Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999) ........... 

10 

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) ................ 

10 

Nihiser v. Ohio EPA, 979 F. Supp. 1168 (S.D. Ohio 

1997), appeal pending, No. 97-3933 .................................... 

10 

Olmstead v. L.C., 119 S. Ct. 2176 (1999) ............................ 

5, 13 

Petty v. Tennessee Mo. Bridge Comm’n, 359 U.S. 275 

(1959) ........................................................................................ 16 

Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) .......... 

17 

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ................. 

9 

South Dakota v. Dole, 483 U.S. 203 (1987) ........................ 16 

V 

Cases—Continued: Page 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 

(1998) ........................................................................................ 13 

Torres v. Puerto Rico Tourism Co., 175 F.3d 1 

(1st Cir. 1999) ......................................................................... 

9 

United States Dep’t of Transp. v. Paralyzed 

Veterans of Am., 477 U.S. 597 (1986) ................................ 

15 

Wisconsin Dep’t of Corrections v. Schacht, 

524 U.S. 381 (1998) ................................................................ 

12 

Constitution and statutes: 

U.S. Const.: 

Art. I, § 8, Cl. 3 (Commerce Clause) .................................. 

16 

Amend. XI .......................................................................... passim 

Amend. XIV (Equal Protection Clause) ........................... 

9, 14 

§ 5 ......................................................................................... 

8, 9 

Age Discrimination in Employment Act, 29 U.S.C. 

621 et seq. ................................................................................. 

7 

Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq. ............................................................................. 

1 

42 U.S.C. 12101: 

42 U.S.C. 12101(a) ....................................................... 

3 

42 U.S.C. 12101(b)(1) .................................................. 

1-2 

42 U.S.C. 12101(b)(4) .................................................. 

3 

Tit. I, 42 U.S.C. 12111-12117 ........................................... 

3 

42 U.S.C. 12111(2) ....................................................... 

4 

42 U.S.C. 12111(5)(A) ................................................. 

4 

42 U.S.C. 12111(7) ....................................................... 

4 

42 U.S.C. 12112(a) ....................................................... 

4 

42 U.S.C. 12117(a) ....................................................... 

4 

Tit. II, 42 U.S.C. 12131-12165 (1994 & Supp. III 

1997) ................................................................................. 4 

42 U.S.C. 12131(1)(A) ................................................. 

4 

42 U.S.C. 12131(1)(B) ................................................. 

4-5 

42 U.S.C. 12132 ........................................................... 

4 

42 U.S.C. 12133 ........................................................... 5 

VI 

Statutes—Continued: Page 

Tit. III, 42 U.S.C. 12181-12189 (1994 & Supp. III 

1997) ................................................................................. 4 

Tit. V, 42 U.S.C. 12201-12213: 

42 U.S.C. 12201(b) ...................................................... 

5 

42 U.S.C. 12202 ........................................................... 

6 

Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.: 

Tit. VI, 42 U.S.C. 2000d et seq. ....................................... 

15 

Tit. VII, 42 U.S.C. 2000e et seq. ...................................... 

4 

Education Amendments of 1972, Tit. IX, 20 U.S.C. 

1681 et seq. ............................................................................... 

15 

Family and Medical Leave Act of 1993, 29 U.S.C. 

2601 et seq. ............................................................................... 

6 

Individuals with Disabilities Education Act, 20 U.S.C. 

1403 ......................................................................................... 17 

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.: 

29 U.S.C. 794 (§ 504)............................................................... 

2, 5 

29 U.S.C. 794(a) ...................................................................... 

5 

29 U.S.C. 794(b) ..................................................................... 

5 

29 U.S.C. 794a(a)(2) ............................................................... 

5 

Rehabilitation Act Amendments of 1986, Pub. L. 

No. 99-506, Tit. X, § 1003, 100 Stat. 1845 .......................... 

15 

42 U.S.C. 2000d-7 .............................................................. 

15, 16 

42 U.S.C. 2000d-7(a)(1) ..................................................... 

6 

Rehabilitation Act Amendments of 1992, Pub. L. 

No. 102-569, § 101, 106 Stat. 4346 (codified at 

29 U.S.C. 701) ......................................................................... 

5 

28 U.S.C. 2403(a) ....................................................................... 
7 

42 U.S.C. 1981a(a)(3) ................................................................ 
18 

Miscellaneous: 

Timothy M. Cook, The Americans with Disabilities 

Act: The Move to Integration, 64 Temp. L. Rev. 
393 (1991) ................................................................................. 

2 
H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990): 

Pt. 2 .......................................................................................... 

2 

Pt. 3 .......................................................................................... 
2 

Pt. 4 .......................................................................................... 2 

VII 

Miscellaneous—Continued: Page 

National Council on Disability, On the Threshold of 

Independence (1988) ............................................................. 
2 

National Council on Disability, Towards Independence 
(1986) ........................................................................................ 2 

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ..................... 

2 

United States Civil Rights Commission, Accommodating 
the Spectrum of Individual Abilities (1983) ..................... 2 

In the Supreme Court of the United States 

No. 99-1240 

UNIVERSITY OF ALABAMA AT BIRMINGHAM, 
BOARD OF TRUSTEES, ET AL., PETITIONERS 

v. 

PATRICIA GARRETT, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1-48) is 
reported at 193 F.3d 1214. The opinion of the district 
court (Pet. App. 49-55) is reported at 989 F. Supp. 1409. 

JURISDICTION 

The court of appeals entered its judgment on October 
26, 1999. The petition for a writ of certiorari was filed 
on January 24, 2000. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

STATEMENT 

1. The Americans with Disabilities Act of 1990 
(Disabilities Act), 42 U.S.C. 12101 et seq., is a “compre- 
hensive national mandate for the elimination of dis- 
crimination against individuals with disabilities.” 42 

(1) 

2 

U.S.C. 12101(b)(1). Based on extensive study and fact- 
finding by Congress,1 and Congress’s lengthy experi- 
ence with the analogous nondiscrimination requirement 
in Section 504 of the Rehabilitation Act of 1973, 29 
U.S.C. 794, Congress found in the Disabilities Act that: 

(2) historically, society has tended to isolate and 
segregate individuals with disabilities, and, despite 
some improvements, such forms of discrimination 
against individuals with disabilities continue to be a 
serious and pervasive social problem; 

(3) discrimination against individuals with dis- 
abilities persists in such critical areas as employ- 
ment, housing, public accommodations, education, 
transportation, communication, recreation, institu- 
tionalization, health services, voting, and access to 
public services; 

* * * * * 

(5) individuals with disabilities continually en- 
counter various forms of discrimination, including 

1 Fourteen congressional hearings and 63 field hearings by a 
special congressional task force were held in the three years prior 
to passage of the Disabilities Act. See S. Rep. No. 116, 101st 
Cong., 1st Sess. 4-5, 8 (1989); H.R. Rep. No. 485, 101st Cong., 2d 
Sess. Pt. 2, at 24-28, 31 (1990); id. Pt. 3, at 24-25; id. Pt. 4, at 28-29; 
see also Timothy M. Cook, The Americans with Disabilities Act: 
The Move to Integration, 64 Temp. L. Rev. 393, 393 & nn.1-3 (1991) 
(listing the individual hearings). Congress also drew upon reports 
submitted to Congress by the Executive Branch. See S. Rep. No. 
116, supra, at 6 (citing United States Civil Rights Commission, 
Accommodating the Spectrum of Individual Abilities (1983); 
National Council on Disability, Toward Independence (1986); and 
National Council on Disability, On the Threshold of Independence 
(1988)); H.R. Rep. No. 485, supra, Pt. 2, at 28 (same). 

3 

outright intentional exclusion, the discriminatory 
effects of architectural, transportation, and com- 
munication barriers, overprotective rules and poli- 
cies, failure to make modifications to existing facili- 
ties and practices, exclusionary qualification stand- 
ards and criteria, segregation, and relegation to 
lesser services, programs, activities, benefits, jobs, 
or other opportunities; 

(6) census data, national polls, and other studies 
have documented that people with disabilities, as a 
group, occupy an inferior status in our society, and 
are severely disadvantaged socially, vocationally, 
economically, and educationally; [and] 

(7) individuals with disabilities are a discrete and 
insular minority who have been faced with restric- 
tions and limitations, subjected to a history of pur- 
poseful 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. 

42 U.S.C. 12101(a). Based on those findings, Congress 
“invoke[d] the sweep of congressional authority, includ- 
ing the power to enforce the fourteenth amendment 
and to regulate commerce, in order to address the 
major areas of discrimination faced day-to-day by 
people with disabilities.” 42 U.S.C. 12101(b)(4). 

The Disabilities Act targets three particular areas of 
discrimination against persons with disabilities. Title I, 
42 U.S.C. 12111-12117, addresses discrimination by em- 

4 

ployers; Title II, 42 U.S.C. 12131-12165 (1994 & Supp. 
III 1997), addresses discrimination by governmental 
entities; and Title III, 42 U.S.C. 12181-12189 (1994 & 
Supp. III 1997), addresses discrimination in public 
accommodations operated by private entities. 

This petition involves two suits brought under Titles 
I and II of the Disabilities Act and Section 504 of the 
Rehabilitation Act of 1973. Title I provides that “[n]o 
covered entity shall discriminate against a qualified 
individual with a disability because of the disability of 
such individual in regard to job application procedures, 
the hiring, advancement, or discharge of employees, 
employee compensation, job training, and other terms, 
conditions, and privileges of employment.” 42 U.S.C. 
12112(a). A “covered entity” is defined to include any 
“person engaged in an industry affecting commerce 
who has 15 or more employees,” 42 U.S.C. 12111(2) and 
(5)(A), and the term “person” incorporates the defini- 
tion from Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e et seq., which includes States. 42 U.S.C. 
12111(7); cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 449 & 

n.2 (1976). The prohibition on discrimination may be 
enforced through private suits against public entities. 
See 42 U.S.C. 12117(a) (incorporating the enforcement 
provisions of Title VII); cf. Fitzpatrick, 427 U.S. at 452. 
Title II of the Disabilities Act provides that “no 
qualified individual with a disability shall, by reason of 
such disability, be excluded from participation in or be 
denied the benefits of the services, programs, or activi- 
ties of a public entity, or be subjected to discrimination 
by any such entity.” 42 U.S.C. 12132. A “public entity” 
is expressly defined to include “any State or local 
government” and “any department, agency, special 
purpose district, or other instrumentality of a State or 
States or local government.” 42 U.S.C. 12131(1)(A) and 

5 

(B). The prohibition on discrimination may be enforced 
through private suits against public entities. See 42 
U.S.C. 12133; see also Olmstead v. L.C., 119 S. Ct. 2176, 
2182 (1999). 

Congress intended the Disabilities Act to supple- 
ment, not supplant, Section 504 of the Rehabilitation 
Act of 1973, 29 U.S.C. 794, which addresses discrimi- 
nation against persons with disabilities by programs or 
activities receiving federal financial assistance. See 42 
U.S.C. 12201(b) (nothing in the Disabilities Act “shall 
be construed to invalidate or limit the remedies, rights, 
and procedures of any Federal law * * * that provides 
greater or equal protection for the rights of individuals 
with disabilities”).2 Section 504 of the Rehabilitation 
Act of 1973 provides that “[n]o otherwise qualified 
individual with a disability in the United States * * * 
shall, solely by reason of her or his disability, be 
excluded from the participation in, be denied the bene- 
fits of, or be subjected to discrimination under any pro- 
gram or activity receiving Federal financial assistance 

* * * .” 29 U.S.C. 794(a). A “program or activity” is 
expressly defined to include “all of the operations” of “a 
department, agency, special purpose district, or other 
instrumentality of a State or local government.” 29 
U.S.C. 794(b). The prohibition on discrimination may 
be enforced through private suits against public 
entities. See 29 U.S.C. 794a(a)(2); cf. Olmstead, 119 S. 
Ct. at 2182 n.4. 

In both the Disabilities Act and the Rehabilitation 
Act, Congress expressly removed the States’ Eleventh 

2 Subsequently, Congress amended its findings underlying the 
Rehabilitation Act to conform, in large part, to those of the Dis- 
abilities Act. See Rehabilitation Act Amendments of 1992, Pub. L. 
No. 102-569, § 101, 106 Stat. 4346 (codified at 29 U.S.C. 701). 

6 

Amendment immunity from private suits in federal 
court. 42 U.S.C. 12202 (a “State shall not be immune 
under the eleventh amendment to the Constitution of 
the United States from an action in Federal or State 
court of competent jurisdiction for a violation of this 
chapter”); 42 U.S.C. 2000d-7(a)(1) (a “State shall not be 
immune under the Eleventh Amendment of the Consti- 
tution of the United States from suit in Federal court 
for a violation of section 504 of the Rehabilitation Act of 
1973”). 

2. Respondent Garrett has worked for petitioner 
University of Alabama since 1977. In August 1994, 
respondent was diagnosed with breast cancer and 
underwent a lumpectomy and continued radiation and 
chemotherapy treatment through January 1995. Re- 
spondent’s supervisor made negative comments regard- 
ing her illness and told her she would be permanently 
replaced unless she took leave. Partially in response to 
those actions, and on the advice of her doctor, re- 
spondent took four months leave under the Family and 
Medical Leave Act of 1993, 29 U.S.C. 2601 et seq. On 
her return in July 1995, it was initially agreed that 
respondent would continue in her previous position 
because she remained able to perform the essential 
functions of her work. Approximately one week later, 
however, petitioner demoted her to a position with a 
significantly lower salary. Pet. App. 9; Garrett Compl. 
¶¶ 8-11, 16. 

Respondent Ash has worked for petitioner Alabama 
Department of Youth Services since 1993. He has 
several impairments, including severe chronic asthma, 
that substantially limit his ability to breathe. He 
informed his supervisor of his disability and of his 
doctor’s recommendation that he not be exposed to car- 
bon monoxide or other noxious fumes, such as cigarette 

7 

smoke. However, petitioner refused to enforce its 
previously adopted non-smoking policy and required 
respondent to drive cars which leaked carbon monoxide 
fumes into the passenger compartment. After respon- 
dent filed a complaint with the Equal Employment 
Opportunity Commission (EEOC) concerning peti- 
tioner’s failure to accommodate his respiratory dis- 
ability, petitioner took adverse employment action 
against him. Ash Compl. ¶¶ 5-12. 

Respondents filed separate suits in the same district 
court, alleging that petitioners had violated Titles I and 
II of the Disabilities Act, Section 504 of the Rehabili- 
tation Act, and (for respondent Garrett) the Family and 
Medical Leave Act. Petitioners filed motions to dismiss 
on Eleventh Amendment grounds. The district court 
issued a single opinion dismissing both cases on the 
ground that none of the statutes validly abrogated 
petitioners’ Eleventh Amendment immunity. Pet. App. 
49-55. 

3. The United States intervened on appeal, pursuant 
to 28 U.S.C. 2403(a), to defend the constitutionality of 
Congress’s removal of Eleventh Amendment immunity. 
The court of appeals reversed in pertinent part. Pet. 
App. 1-49.3 The Eleventh Circuit had previously upheld 
the abrogation of immunity in the Disabilities Act, and 
invalidated the abrogation of immunity in the Age Dis- 
crimination in Employment Act, 29 U.S.C. 621 et seq., in 
Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th 

3 The panel affirmed the district court’s judgment that 
Congress did not validly abrogate the States’ Eleventh Amend- 
ment immunity in the Family and Medical Leave Act. Pet. App. 8- 

13. Judge Cook dissented from that aspect of the court’s holding. 
Id. at 13-48. Neither the United States nor respondents seek 
further review of that portion of the court of appeals’ judgment. 

8 

Cir. 1998), aff ’d with respect to the Age Discrimination 
in Employment Act, 120 S. Ct. 631 (2000), cert. granted 
with respect to the Disabilties Act sub nom. Florida 
Department of Corrections v. Dickson, 120 S. Ct. 976 
(2000), cert. dismissed, No. 98-829, 2000 WL 215674 
(Feb. 23, 2000). Following its prior ruling in Kimel, the 
court of appeals here upheld the Disabilities Act’s 
abrogation of Eleventh Amendment immunity. Pet. 
App. 6. The court also held that the analysis adopted 
in Kimel compelled it to uphold the abrogation of 
Eleventh Amendment immunity for Section 504, as 
“[t]he statutes serve the same purpose and were born 
of the same history of discrimination.” Id. at 7.4 

ARGUMENT 

1. This Court should grant the petition for a writ 
of certiorari limited to Question 1. On January 21, 2000, 
this Court granted a writ of certiorari in Florida 
Department of Corrections v. Dickson, No. 98-829, to 
address the validity of the abrogation of the States’ 
Eleventh Amendment immunity to suits under Title I 
of the Disabilities Act. On January 25, 2000, the Court 
granted a writ of certiorari in Alsbrook v. Arkansas, 
No. 99-423, to address the validity of the abrogation of 
the States’ Eleventh Amendment immunity to suits 
under Title II of the Disabilities Act. On February 23, 
2000, and March 1, 2000, the writs of certiorari in No. 
98-829 and No. 99-423, respectively, were dismissed in 
light of the parties’ settlement of the cases. 

4 Having upheld the Rehabilitation Act’s abrogation provision 
as a proper exercise of Congress’s power under Section 5 of the 
Fourteenth Amendment, the court did not address whether the 
State had waived its Eleventh Amendment immunity by accepting 
federal funds conditioned on such a waiver. 

9 

a. As reflected in this Court’s prior grants of writs 
of certiorari to address the immunity issue in both Title 
I and Title II earlier this year, the validity of the 
abrogation for both Titles of the Disabilities Act is ripe 
for review by this Court because there is an entrenched 
split in the circuits with respect to both Titles and 
because the constitutional question presented is of 
great importance. 

Following this Court’s decisions in Seminole Tribe v. 
Florida, 517 U.S. 44 (1996), and City of Boerne v. 
Flores, 521 U.S. 507 (1997), four courts of appeals held 
that the abrogation of Eleventh Amendment immunity 
contained in the Disabilities Act is a valid exercise of 
Congress’s power under Section 5 of the Fourteenth 
Amendment to “enforce” the Equal Protection Clause. 
See Amos v. Maryland Dep’t of Pub. Safety & Cor- 
rectional Servs., 178 F.3d 212 (4th Cir. 1999) (Title II), 
vacated for reh’g en banc (Dec. 28, 1999), appeal 
dismissed due to settlement, 2000 WL 248707 (Mar. 6, 
2000); Kimel v. Florida Bd. of Regents, 139 F.3d 1426 
(11th Cir. 1998) (Title I), rev’d in part, 120 S. Ct. 631 
(2000), cert. granted sub nom. Florida Dep’t of Corre- 
ctions v. Dickson, 120 S. Ct. 976 (2000), cert. dismissed, 
No. 98-829, 2000 WL 215674 (Feb. 23, 2000); Coolbaugh 

v. Louisiana, 136 F.3d 430 (5th Cir.) (Title II), cert. 
denied, 119 S. Ct. 58 (1998); Clark v. California, 123 
F.3d 1267 (9th Cir. 1997) (Title II), cert. denied, 524 
U.S. 937 (1998); see also Torres v. Puerto Rico Tourism 
Co., 175 F.3d 1, 6 n.7 (1st Cir. 1999) (in Title I case, 
court states “we have considered the issue of 
Congress’s authority sufficiently to conclude that, were 
we to confront the question head-on, we almost 
certainly would join the majority of courts upholding 

10 

the provision”).5 The en banc Eighth Circuit in- 
validated the Disabilities Act’s abrogation of Eleventh 
Amendment immunity in a case arising under Title II of 
that Act. See Alsbrook v. City of Maumelle, 184 F.3d 
999 (1999), cert. granted in part, 120 S. Ct. 1003 (2000), 
cert. dismissed, No. 99-423, 2000 WL 230234 (Mar. 1, 
2000), and subsequently extended its holding to Title I 
of the Act, see DeBose v. Nebraska, 186 F.3d 1087 
(1999), petition for cert. pending, No. 99-940. 

In addition to the Eleventh Circuit in this case, three 
other courts of appeals have considered or reconsidered 
the validity of the Disabilities Act’s abrogation after 
the Eighth Circuit’s decisions and this Court’s decision 
last term in Florida Prepaid Postsecondary Education 
Expense Board v. College Savings Bank, 119 S. Ct. 
2199 (1999), and all have rejected the Eighth Circuit’s 
holding and have upheld the Disabilities Act’s 
abrogation as valid Section 5 legislation. See Dare v. 
California, 191 F.3d 1167 (9th Cir. 1999) (Title II), 
petition for cert. pending, No. 99-1417; Martin v. 
Kansas, 190 F.3d 1120 (10th Cir. 1999) (Title I); Muller 

v. Costello, 187 F.3d 298 (2d Cir. 1999) (Title I). 

5 The Seventh Circuit upheld the Disabilities Act’s abrogation 
prior to this Court’s decision in Flores, supra. See Crawford v. 
Indiana Dep’t of Corrections, 115 F.3d 481, 487 (7th Cir. 1997) 
(Title II). The continuing vitality of Crawford has been challenged 
in a case arising under Title I, Erickson v. Board of Governors of 
State Colleges & Universities, No. 95 C 2541, 1998 WL 748277 
(N.D. Ill. Sept. 30, 1998), appeal pending, No. 98-3614 (7th Cir.) 
(oral argument heard April 27, 1999). The constitutionality of the 
Disabilities Act’s abrogation for both Titles I and II is also pending 
in a number of cases before the Sixth Circuit, for which a 
consolidated oral argument was heard on October 24, 1999. See, 

e.g., Nihiser v. Ohio EPA, 979 F. Supp. 1168 (S.D. Ohio 1997), 
appeal pending, No. 97-3933. 

11 

Furthermore, after this Court’s decision in Kimel v. 
Florida Board of Regents, 120 S. Ct. 631 (2000), the 
Second Circuit again upheld the constitutionality of the 
Disabilities Act’s abrogation in two cases arising under 
Title I of the Act. See Kilcullen v. New York State 
Dep’t of Labor, No. 99-7208, 2000 WL 217465 (2d Cir. 
Feb. 24, 2000); Jackan v. New York State Dep’t of 
Labor, No. 98-9589, 2000 WL 241648 (2d Cir. Mar. 3, 
2000). 

The question of Congress’s authority to abrogate the 
States’ Eleventh Amendment immunity for Titles I and 
II of the Disabilities Act has thus been extensively 
evaluated and considered by the courts of appeals. The 
conflict is firmly entrenched and incapable of resolution 
absent intervening action by this Court. As a conse- 
quence of the split in the circuits, moreover, the opera- 
tion of this important civil rights legislation has been 
significantly impaired in seven States. Unlike litigants 
in the six circuits where the Disabilities Act’s abroga- 
tion of Eleventh Amendment immunity has been sus- 
tained, persons with disabilities in the Eighth Circuit 
cannot fully enforce their federal rights under the 
Disabilities Act in federal court. 

b. The present case provides the most appropriate 
vehicle to address these issues, among the several 
petitions currently pending before the Court. The case 
was decided on a motion to dismiss. That clean record 
permits straightforward and comprehensive considera- 
tion of the constitutional questions presented, without 
simultaneously requiring consideration of the occasion- 
ally difficult statutory construction questions posed by 
the Act. The discrimination, reasonable accommoda- 
tion, and retaliation claims made by the petitioners, 
moreover, present a comprehensive overview of both 
the Act’s practical operation and the types of dis- 

12 

crimination persons with disabilities encounter in the 
government workplace. Finally, it contains claims 
under both Title I and Title II of the Act.6 

A petition for a writ of certiorari is also pending in 
Zimmerman v. Oregon Department of Justice, No. 99- 
243, which presents the question of the constitutionality 
of the abrogation for Title II of the Disabilities Act. As 
we previously stated in our Consolidated Supplemental 
Brief for the United States at 12, Florida Dep’t of 
Corrections v. Dickson, No. 98-829, et al. (filed Jan. 13, 
2000), Zimmerman is a problematic vehicle for a 
number of reasons. First, the Eleventh Amendment 
immunity question is a late arrival to the litigation. It 
was raised for the first time by the plaintiff—not the 
State—in his petition to this Court. It thus was not 
addressed by either the district court or the court of 
appeals. The State, moreover, adopted the assertion of 
immunity only after this Court called for a response to 
the petition. The abrogation question thus arises in an 
extraordinary posture where a State’s Eleventh 
Amendment immunity is presented in the litigation for 
the first time by a private party who does not believe 
immunity attaches, and the immunity issue is only 
belatedly adopted by the State. Cf. Wisconsin Dep’t of 
Corrections v. Schacht, 524 U.S. 381, 389 (1998) (“The 
Eleventh Amendment * * * does not automatically 
destroy original jurisdiction. * * * Unless the State 

6 For those reasons this case is a better vehicle than DeBose v. 
Nebraska, 186 F.3d 1087 (8th Cir. 1999), petition for cert. pending, 
No. 99-940. DeBose presents only a Title I claim. Moreover, 
DeBose arises from a lengthy jury trial, and the content, character, 
and strength of the evidence presented have never been 
summarized or reviewed by any of the lower court opinions. 
Therefore the Court may prefer to hold DeBose for a decision in 
Garrett. 

13 

raises the matter, a court can ignore it.”) (citations 
omitted); see also id. at 393-394 (Kennedy, J., 
concurring). 

Second, Zimmerman would require resolution of the 
additional question whether Title II applies to employ- 
ment decisions at all, a question on which the circuits 
are also divided. See Davoll v. Webb, 194 F.3d 1116, 
1130 (10th Cir. 1999) (collecting cases). The cases in- 
volved in this petition, by contrast, do not necessitate 
resolution of that question because Eleventh Amend- 
ment immunity was the sole basis for the district 
court’s ruling, it was the only issue pressed by respon- 
dents in the court of appeals, and it was the sole ground 
for the court of appeals’ decision. Thus, this Court 
could affirm or reverse the court of appeals’ judgment 
that the district court had jurisdiction over the Title II 
claim without deciding whether plaintiffs stated a claim. 
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 
89 (1998) (“the absence of a valid (as opposed to argu- 
able) cause of action does not implicate subject-matter 
jurisdiction”); cf. Olmstead, 119 S. Ct. at 2183 (interpre- 
ting regulation without addressing its underlying valid- 
ity or constitutionality). In contrast, the Court would 
be unable to avoid the issue in Zimmerman because the 
statutory construction issue was the basis for peti- 
tioner’s loss in the court of appeals and would have to 
be reversed in order for him to be entitled to further 
proceedings.7 

7 A petition is also pending in Brown v. North Carolina 
Division of Motor Vehicles, No. 99-424. As we explained in our 
Brief in Opposition in Brown (at 9-16), that case raises the quite 
narrow question of whether a particular Justice Department regu- 
lation as applied to an infrequently recurring factual scenario and 
premised on an unsettled construction of the regulation can be 
sustained under the Section 5 power. Indeed, a panel of the 

14 

2. No further review of the second question pre- 
sented is warranted. Petitioners correctly note (Pet. 9) 
that a split exists in the courts of appeals as to whether 
Congress, pursuant to the Fourteenth Amendment, 
validly abrogated the States’ Eleventh Amendment 
immunity for claims under Section 504 of the Re- 
habilitation Act. Compare Kilcullen v. New York State 
Dep’t of Labor, No. 99-7208, 2000 WL 217465, at *5 (2d 
Cir. Feb. 24, 2000) (upholding the abrogation for Sec- 
tion 504 as a valid exercise of the Fourteenth Amend- 
ment); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 
1997) (same), cert. denied, 524 U.S. 937 (1998); Craw- 
ford v. Indiana Dep’t of Corrections, 115 F.3d 481, 487 
(7th Cir. 1997) (same), with Bradley v. Arkansas Dep’t 
of Educ., 189 F.3d 745, 755-756 (8th Cir.) (holding that 
Section 2000d-7 is not a valid abrogation for Section 
504), vacated in other part for reh’g en banc sub. nom. 
Jim C. v. Arkansas Dep’t of Educ., 197 F.3d 958 (8th 
Cir. 1999). 

This Court need not resolve the question of whether 
Section 504 reflects a proper exercise of Congress’s 
Section 5 power to abrogate immunity because the 
removal of immunity must, in any event, be sustained 
as a congressionally required waiver imposed as a con- 
dition upon the receipt of federal financial assistance.8 

Fourth Circuit, in a now vacated opinion, subsequently upheld the 
Disabilities Act’s abrogation of immunity in another Title II case 
and limited Brown to its facts. See Amos, 178 F.3d at 221 n.8. 
Brown thus does not present an appropriate vehicle for con- 
sideration of the important constitutional issues raised by this 
petition. We are serving a copy of this brief on counsel in the 
DeBose, Zimmerman, and Brown cases. 

8 Petitioner University of Alabama admitted it was a recipient 
of federal financial assistance. Garrett Compl. ¶ 4; Garrett Ans. 
¶ 4. Petitioner Alabama Department of Youth Services has not 

15 

Section 504 was modeled on Title VI of the Civil Rights 
Act of 1964, 42 U.S.C. 2000d et seq., and Title IX of the 
Education Amendments of 1972, 20 U.S.C. 1681 et seq. 
“Under * * * Title VI, Title IX, and § 504, Congress 
enters into an arrangement in the nature of a contract 
with the recipients of the funds: the recipient’s accep- 
tance of the funds triggers coverage under the nondis- 
crimination provision.” United States Dep’t of Transp. 

v. Paralyzed Veterans of Am., 477 U.S. 597, 605 (1986). 
In response to this Court’s decision in Atascadero 
State Hosp. v. Scanlon, 473 U.S. 234, 245-246 (1985), 
holding that Section 504 was not clear enough to 
evidence Congress’s intent to authorize private dam- 
ages actions against state entities, Congress enacted 42 
U.S.C. 2000d-7 as part of the Rehabilitation Act 
Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003, 
100 Stat. 1845. Section 2000d-7 provides, in pertinent 
part: 

A state shall not be immune under the Eleventh 
Amendment of the Constitution of the United 
States from suit in Federal court for a violation of 
section 504 of the Rehabilitation Act of 1973 [29 
U.S.C. 794], title IX of the Education Amendments 
of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimi- 
nation Act of 1975 [42 U.S.C. 6101 et seq.], title VI 
of the Civil Rights Act of 1964 [42 U.S.C. 2000d 
et seq.], or the provisions of any other Federal 
statute prohibiting discrimination by recipients of 
Federal financial assistance. 

Before the court of appeals, respondents argued that 
Section 2000d-7 could be upheld on the ground that 

yet responded to the allegation that it was a recipient of federal 
financial assistance, Ash Compl. ¶ 4; Ash Ans. ¶ 4. 

16 

petitioners had waived their Eleventh Amendment 
immunity by accepting federal funds after the effective 
date of Section 2000d-7. See Gov’t C.A. Br. 37-38; 
Appellants Br. 20-21. That position is consistent with 
this Court’s recognition in Alden v. Maine, 119 S. Ct. 
2240 (1999), that “the Federal Government [does not] 
lack the authority or means to seek the States’ volun- 
tary consent to private suits.” 119 S. Ct. at 2267 (citing 
South Dakota v. Dole, 483 U.S. 203 (1987)). Similarly, 
in College Savings Bank v. Florida Prepaid Post- 
secondary Education Expense Board, 119 S. Ct. 2219 
(1999), this Court reaffirmed that Congress can con- 
dition the exercise of one of its Article I powers (the 
approval of interstate compacts) on the States’ agree- 
ment to waive their Eleventh Amendment immunity 
from suit. Id. at 2231 (reaffirming Petty v. Tennessee 
Mo. Bridge Comm’n, 359 U.S. 275 (1959)). The Court 
also indicated that Congress retained the authority 
under the Spending Clause to condition the receipt of 
federal funds on the States’ waiver of Eleventh 
Amendment immunity. 119 S. Ct. at 2231; see also id. 
at 2227 n.2. This Court explained that, unlike Con- 
gress’s power under the Commerce Clause to regulate 
“otherwise lawful activity,” Congress’s power to 
authorize interstate compacts and spend money was the 
grant of a “gift” on which Congress could place reason- 
able conditions that a State was free to accept or reject. 
Id. at 2231. 

While the court of appeals here did not address the 
Spending Clause argument, the Eleventh Circuit has 
subsequently held that Section 2000d-7’s “plain lan- 
guage manifests an unmistakable intent to condition 
federal funds on a state’s waiver of sovereign immu- 
nity” and that there is “no constitutional defect in- 
herent in the explicit state immunity waiver enacted 

17 

pursuant to the Spending Clause in Section 2000d-7.” 
Sandoval v. Hagan, 197 F.3d 484, 493, 494 (11th Cir. 
1999). This is in accord with almost every other court of 
appeals that has addressed the issue. See Litman v. 
George Mason Univ., 186 F.3d 544, 553 (4th Cir. 1999), 
cert. denied, No. 99-596, 2000 WL 198966 (Feb. 22, 
2000); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 
1997), cert. denied, 524 U.S. 937 (1998); see also Little 
Rock Sch. Dist. v. Mauney, 183 F.3d 816, 831-832 (8th 
Cir. 1999) (same, for similar language in Individuals 
with Disabilities Education Act, 20 U.S.C. 1403).9 On 
February 22, 2000, this Court denied a petition for a 
writ of certiorari presenting the question of Congress’s 
authority to effect the waiver in Section 2000d-7 under 
its Spending Clause power. George Mason Univ. v. 
Litman, No. 99-596, 2000 WL 198966 (Feb. 22, 2000). 
Because the removal of Eleventh Amendment immun- 
ity for Section 504 suits can be sustained on this 
alternative ground for which further review is not 
warranted, this Court should deny a writ of certiorari 
on the second question presented. 

10 

9 A panel of the Eighth Circuit reached the opposite conclusion 
in Bradley v. Arkansas Department of Education, 189 F.3d 745, 
vacated in pertinent part for reh’g en banc sub nom. Jim C. v. 
Arkansas Dep’t of Educ., 197 F.3d 958 (1999). The panel opinion 
was based on the mistaken premise that the State was required 
either to accept no federal money or to subject all of its programs 
in every department to Section 504; the opinion was also based on 
an unduly narrow understanding of Congress’s power under the 
Spending Clause. The Eighth Circuit granted the United States’ 
petition for rehearing en banc to address the Section 504 Spending 
Clause holding, and oral argument was heard on January 14, 2000. 

10 Respondents’ Disabilities Act claims have importance inde- 
pendent of their Rehabilitation Act claims for two reasons. First, 
the Disabilities Act governs petitioners’ conduct regardless of 
whether they are recipients of federal financial assistance. See n.8, 

18 

CONCLUSION 

As to the first question presented, regarding the 
validity of the abrogation of Eleventh Amendment im- 
munity for Titles I and II of the Disabilities Act, the 
petition for a writ of certiorari should be granted. As to 
the second question presented, regarding the validity of 
the removal of Eleventh Amendment immunity for 
Section 504 of the Rehabilitation Act, the petition for a 
writ of certiorari should be denied. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

BILL LANN LEE 

Acting Assistant Attorney 

General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 

JESSICA DUNSAY SILVER 
SETH M. GALANTER 

Attorneys 

MARCH 2000 

supra. Second, the standard for awarding damages under the Re- 
habilitation Act for failure to reasonably accommodate is unsettled, 
while Title I plainly authorizes compensatory damages for a failure 
to reasonably accommodate, unless the employer undertakes “good 
faith efforts” to accommodate, 42 U.S.C. 1981a(a)(3). Thus, 
regardless of the ultimate disposition of the Rehabilitation Act 
claims, the parties have a distinct interest in resolving the dispute 
over the applicability of the Disabilities Act to petitioners’ conduct.