No. 99-1240 

In the Supreme Court of the United States 

THE BOARD OF TRUSTEES OF THE UNIVERSITY 
OF ALABAMA, ET AL., PETITIONERS 

v. 

PATRICIA GARRETT, ET AL. 

ON 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 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 

ELIZABETH SAVAGE 
JESSICA DUNSAY SILVER 
SETH M. GALANTER 

Attorneys 

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

QUESTION PRESENTED 

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. IV 1998), are proper exercises of Congress’s power 
under Section 5 of the Fourteenth Amendment. 

(I) 

TABLE OF CONTENTS 

Page 

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

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

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

1. Statutory framework ....................................................... 

1 

2. Factual and procedural background ............................. 
5 

Summary of argument .................................................................. 
6 

Argument: 

Because it combats an enduring legacy of uncon- 
stitutional discrimination and segregation, the 

Americans with Disabilities Act as applied to the 

States is a valid exercise of Congress’s authority 

under Section 5 of the Fourteenth Amendment .............. 

7 

A. Congress found, after exhaustive investigation, 

ample evidence of a long history and a continuing 

problem of unconstitutional treatment of persons 

with disabilities by States and their subdivisions .... 
8 

1. Congress exhaustively studied the problem ........ 
9 

2. Congress amassed voluminous evidence of 

historic and enduring discrimination by state 

and local governments against persons with 

disabilities and deprivation of their funda- 
mental rights ............................................................ 

12 

a. Historic discrimination ................................... 
12 

b. The enduring legacy of governmental 

discrimination ............................................... 15 

i. Employment ................................................ 18 

ii. Education ..................................................... 20 

iii. Voting and political access ........................ 

22 

iv. Public transportation ................................. 
25 

v. Law enforcement ....................................... 
26 

vi. Institutionalization ..................................... 27 

vii. Other public services ................................. 28 

(III) 

IV 

Page 

3. The existence of State laws against dis- 
ability discrimination does not negate 

Congress’s finding of widespread discrimi- 
nation by state governments and their 

subdivisions .............................................................. 31 

4. Disability discrimination does not fall beyond 

Congress’s Section 5 enforcement power 

simply because it is subject to rational- 
basis review by courts ............................................ 
35 

B. The Americans with Disabilities Act is reason- 
ably tailored to remedying and preventing 

unconstitutional discrimination against persons 

with disabilities ............................................................... 

40 

1. Discrimination on the basis of disability violates 

the Constitution more frequently than most 

classifications subject only to rational-basis 

review ........................................................................ 41 

2. The Disabilities Act reaches no further than 

Congress reasonably deemed necessary to 

remedy and prevent unconstitutional 

discrimination ........................................................... 42 

a. Disparate Impact ............................................... 

43 

b. Reasonable Accommodation ............................ 
44 

c. Burden of Justification ...................................... 
48 

3. The Disabilities Act’s coverage is as broad as 

necessary ................................................................... 49 

Conclusion ....................................................................................... 50 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 

(1999) ........................................................................................ 42 

V 

Cases—Continued: Page 

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

13 

Bevan v. New York State Teachers’ Retirement 

Sys., 345 N.Y.S.2d 921 (Sup. Ct. 1973) .............................. 

13 

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

15 

Brown v. Board of Educ., 347 U.S. 483 (1954) ................. 

20 

Buck v. Bell, 274 U.S. 200 (1927) ........................................ 

14 

Burris v. City of Phoenix, 875 P.2d 1340 (Ariz. Ct. 

App. 1993) ............................................................................... 

20 

Bush v. Lucas, 462 U.S. 367 (1983) ..................................... 

39 

Carney v. Carney, 598 P.2d 36 (Cal. 1979) ........................ 

30 

Chalk v. United States Dist. Ct. Cent. Dist. of Cal., 

840 F.2d 701 (9th Cir. 1988) ................................................. 

13 

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

8, 36, 39, 43, 48 

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

432 (1985) ............................................................................. 

passim 

City of Richmond v. J.A. Croson Co., 488 U.S. 469 

(1989) ........................................................................................ 

18, 39 

City of Rome v. United States, 446 U.S. 156 (1980) ........ 

44 

Clark v. Jeter, 486 U.S. 456 (1988) ...................................... 

36 

Connecticut Inst. for the Blind v. Connecticut 

Comm’n on Human Rights & Opps., 405 A.2d 

618 (Conn. 1978) ..................................................................... 

13 

Craig v. Boren, 429 U.S. 190 (1976) .................................... 

37 

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

4 

FCC v. Beach Comms., Inc., 508 U.S. 307 (1993) ............ 

38 

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

3, 37 

Florida Prepaid Postsecondary Educ. Expense Bd. 

v. College Sav. Bank, 527 U.S. 627 (1999) ............... 

12, 17, 40 

Frontiero v. Richardson, 411 U.S. 677 (1973) .................. 

37 

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

9, 39, 40, 43, 44 

Garrity v. Gallen, 522 F. Supp. 171 (D.N.H. 1981) .......... 

13 

Gaston County v. United States, 395 U.S. 285 

(1969) ........................................................................................ 45 

VI 

Cases—Continued: Page 

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ................ 

44 

Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977) ...... 

13 

Harper v. Virginia Bd. of Elections, 383 U.S. 663 

(1966) ........................................................................................ 22 

Harrelson v. Elmore County, 859 F. Supp. 1465 

(M.D. Ala. 1994) ..................................................................... 

27 

Heller v. Doe, 509 U.S. 312 (1993) ............................... 

38, 39, 41 

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

22, 39 

Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 

(2000) ..................................................................... 

7, 40, 41, 48, 50 

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) ................. 

13 

Lopez v. Monterey County, 525 U.S. 266 (1999) .............. 

40 

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

37 

Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 

1972) ......................................................................................... 13 

Murphy v. United Parcel Serv., 527 U.S. 516 

(1999) ........................................................................................ 42 

New York State Ass’n for Retarded Children, Inc. 

v. Carey, 466 F. Supp. 487 (E.D.N.Y. 1979) ................... 

13 

O’Connor v. Donaldson, 422 U.S. 563 (1975) .................... 

13 

Olmstead v. L.C., 527 U.S. 581 (1999) ............. 

5, 12, 17, 45, 47 

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

36, 39, 45 

Palmore v. Sidoti, 466 U.S. 429 (1984) ............................... 

17 

Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986) ............ 

27 

Pennsylvania Ass’n for Retarded Children v. 

Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971) .......... 

13 

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

41, 43, 48 

Pushkin v. Regents of the Univ. of Colo., 658 F.2d 

1372 (10th Cir. 1981) .............................................................. 

13 

Rice v. Cayetano, 120 S. Ct. 1044 (2000) ........................... 

43 

Romer v. Evans, 517 U.S. 620 (1996) ................................. 

8, 39 

Saenz v. Roe, 526 U.S. 489 (1999) ....................................... 

7 

School Bd. of Nassau County v. Arline, 480 U.S. 

273 (1987) ................................................................................. 

18, 20 

Smith v. Fletcher, 393 F. Supp. 1366 (S.D. Tex. 

1975), modified, 559 F.2d 1014 (5th Cir. 1977) ................. 13 

VII 

Cases—Continued: Page 

South Carolina v. Katzenbach, 383 U.S. 301 

(1966) ................................................................................ 

39, 44, 45 

Southeastern Comm. College v. Davis, 442 U.S. 397 

(1979) ........................................................................................ 42 

State ex rel. Beattie v. Board of Educ., 172 N.W. 

153 (Wis. 1919) ........................................................................ 

15 

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

(1998) ........................................................................................ 4 

Stump v. Sparkman, 435 U.S. 349 (1978) ......................... 

16 

Sutton v. United Air Lines, Inc., 527 U.S. 471 

(1999) ........................................................................................ 42 

Thornburg v. Gingles, 478 U.S. 30 (1986) .......................... 

44 

United States v. Carolene Prods. Co., 304 U.S. 144 

(1938) ........................................................................................ 38 

United States v. Morrison, 120 S. Ct. 1740 (2000) ........... 

38, 40 

United States v. Virginia, 518 U.S. 515 (1996) ................. 

17, 48 

Vance v. Bradley, 440 U.S. 93 (1979) ................................. 

38 

Virginia, Ex parte, 100 U.S. 339 (1880) ............................... 

7, 38 

Washington v. Davis, 426 U.S. 229 (1976) ......................... 

44 

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 

(1988) ........................................................................................ 44 

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) ........ 

41 

Youngberg v. Romeo, 457 U.S. 307 (1982) ......................... 

13 

Constitution, statutes and regulations: 

U.S. Const.: 

Amend. VIII ........................................................................... 

13 

Amend. XI .............................................................................. 

5, 6, 7 

Amend. XIV 

§ 1: 

Due Process Clause ................................................ 

13, 36 

Equal Protection Clause ........................................ 

passim 

§ 5 .......................................................................................... passim 

Act of June 10, 1948, ch. 434, 62 Stat. 351 ............................. 9 

VIII 

Statutes and regulations—Continued: 

Page 

Act of July 26, 1990, Pub. L. No. 101-336, Title V, § 509, 

104 Stat. 373 ............................................................................ 

4 

Air Carrier Access Act of 1986, 49 U.S.C. 41705 ................ 

9 

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

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

1 

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

1, 17 

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

1 

42 U.S.C. 12101(a)(5) ....................................................... 

2 

42 U.S.C. 12101(a)(6) ....................................................... 

2 

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

2 

42 U.S.C. 12101(a)(9) ....................................................... 

2 

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

1 

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

2 

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

3 

42 U.S.C. 12111-12117 ..................................................... 

2 

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

44 

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

3 

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

3, 44 

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

3 

42 U.S.C. 12111(8) ...................................................... 

3, 42, 44 

42 U.S.C. 12111(10) .......................................................... 

47 

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

3 

42 U.S.C. 12112(b)(1) ....................................................... 

3 

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

3, 47 

42 U.S.C. 12112(b)(6) ....................................................... 

44 

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

5 

42 U.S.C. 12131-12165 ..................................................... 

2 

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

4 

42 U.S.C. 12131(2) ................................................. 

4, 42, 44, 46 

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

3-4, 42 

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

5 

42 U.S.C. 12181-12189 (1994 & Supp. IV 1998) ........... 

2 

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

37 

42 U.S.C. 12202 ................................................................. 5 

IX 

Statutes and regulations—Continued: 

Page 

42 U.S.C. 12209 (1994 & Supp. IV 1998) ...................... 

4 

Architectual Barriers Act of 1968, 42 U.S.C. 4151 

et seq. ........................................................................................ 

9 

Civil Rights of Institutionalized Persons Act, Pub. L. 

No. 96-247, 94 Stat. 349, 42 U.S.C. 1997 et seq. ................. 

28 

Congressional Accountability Act of 1995, Pub. L. No. 

104-1, Title II, 109 Stat.: 

§ 201, 109 Stat. 7 ............................................................. 

4 

§ 201, 109 Stat. 13 ........................................................... 

4 

Developmental Disabilities Act of 1984, 42 U.S.C. 

et seq. ........................................................................................ 

28 

Developmental Disabilities Assistance and Bill of 

Rights Act, 42 U.S.C. 6000 et seq. ....................................... 

9 

Education of the Handicapped Act, Pub. L. No. 

91-230, Title VI, 84 Stat. 175 ............................................... 

9 

Fair Housing Act Amendments of 1988, 42 U.S.C. 

3604 ........................................................................................... 9 

Individuals with Disabilities Education Act, 20 

U.S.C. 1400 et seq. .................................................................. 

9 

Protection and Advocacy for Mentally Ill Individuals 

Act of 1986, 42 U.S.C. 10801 ................................................ 

9 

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

9 

§ 501, 29 U.S.C. 791 ............................................................... 

4, 42 

§ 501(g), 29 U.S.C. 791(g) ..................................................... 

4 

§ 504, 29 U.S.C. 794 ............................................................... 

4 

§ 504(a), 29 U.S.C. 794(a) (1994 & Supp. IV 1998) ........... 

4 

§ 504(a)(1), 29 U.S.C. 794(a)(1) (1994 & Supp. IV 1998) . 

4 

§ 505(a)(1), 29 U.S.C. 794a(a)(1) .......................................... 

4 

§ 505, 29 U.S.C. 795 ............................................................... 

4 

Rehabilitation Act Amendments of 1984, Pub. L. 

No. 98-221, Title I, § 141(a), 98 Stat. 26 ............................. 

9 

Rehabilitation Act Amendments of 1986, Pub. L. No. 

99-506, § 502(b), 100 Stat. 1807 ............................................ 

9 

Transportation Equity Act, Pub. L. No. 105-178, 

§ 1108(a)(3)(B), 112 Stat. 139 ............................................... 47 

X 

Statutes and regulations—Continued: 

Page 

Voting Accessibility for the Elderly and Handicapped 

Act, 42 U.S.C. 1973ee ............................................................ 

9 

2 U.S.C. 1311(a)(3) (Supp. IV 1998) ....................................... 

4 

2 U.S.C. 1331(b)(1) (Supp. IV 1998) ...................................... 

4 

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

6 

42 U.S.C. 1981(a)(2) ................................................................. 

4 

42 U.S.C. 5305(a)(5) ................................................................. 

47 

49 U.S.C. 5323(i) ....................................................................... 

47 

Ariz. Rev Stat. § 36-551(11)(b) (1986) ................................... 

33 

N.H. Rev. Stat. § 354-A:3(XIII) (1984) ................................. 

33 

28 C.F.R.: 

Section 35.130(b)(7) .............................................................. 

5, 47 

Section 35.140 ....................................................................... 

4 

Section 35.150(a)(1) .............................................................. 

4 

Section 35.150(a)(3) .............................................................. 

5, 47 

Section 35.151 ....................................................................... 

4 

Section 35.164 ....................................................................... 

5, 47 

Miscellaneous: 

Advisory Comm’n on Intergovernmental Relations, 

Disability Rights Mandates (1989) .................................... 

19, 34 

Americans with Disabilities Act: Hearing Before the 

House Comm. on Small Business, 101st Cong., 2d 

Sess. (1990) .............................................................................. 

11 

Americans with Disabilities Act: Hearing on H.R. 

2273 and S. 933 Before the Subcomm. on Transp. 

and Haz. Materials of the House Comm. on Energy 

and Commerce, 101st Cong., 1st Sess. (1990) ................. 

11 

Americans with Disabilities Act: Hearings on H.R. 

2273 Before the Subcomm. on Surface Transp. of 

the House Comm. on Pub. Works and Transp., 

101st Cong., 1st Sess. (1990) ................................................ 

11 

Americans with Disabilities Act of 1989: Hearings on 

H.R. 2273 Before the House Comm. of the Jud- 
iciary and the Subcomm. on Civil and Const. 

Rights, 101st Cong., 1st Sess. (1989) .................................. 11 

XI 

Miscellaneous—Continued: Page 

Americans with Disabilities Act of 1989: Hearing on 

H.R. 2273 Before the Subcomm. on Select Educ. of 

the House Comm. on Educ. and Labor, 101st Cong., 

1st Sess. (1989) ....................................................................... 

11 

Americans with Disabilities Act of 1989: Hearings on 

S. 933 Before the Senate Comm. on Labor and 

Human Resources and the Subcomm. on the Handi- 
capped, 101st Cong., 1st Sess. (1989) ............................ 

passim 

Americans with Disabilities Act of 1988: Joint Hearing 

on S. 2345 Before the Subcomm. on the Handicapped 

of the Senate Comm. on Labor and Human Res. and 

the Subcomm. on Select Education of the House 

Comm. on Educ. and Labor, 100th Cong., 2d Sess. 

(1989) ........................................................................................ 11 

Americans with Disabilities: Telecomm. Relay Servs., 

Hearing on Title V of H.R. 2273 Before the Subcomm. 

on Telecomm. and Finance of the House Comm. on 

Energy and Commerce, 101st Cong., 1st Sess. (1990) ... 

11 

M. Burgdorf & R. Burgdorf, A History of Unequal 
Treatment: The Qualifications of Handicapped 
Persons as a “Suspect Class” Under the Equal 
Protection Clause, 15 Santa Clara Lawyer 855 
(1975) ................................................................................ 
13, 15, 30 

Calif. Att’y Gen., Commission on Disability: Final 

Report (1989) ................................................ 
21, 22, 25, 27, 28, 35 

Civil Rights Comm’n, Accommodating the Spectrum 
of Individual Abilities (1983) .......................................... 
passim 

Civil Rights of Instit. Persons: Hearings on H.R. 10 

Before the Subcomm. on Courts, Civil Liberties, 
and the Admin. of Justice of the House Comm. on the 
Judiciary, 96th Cong., 1st Sess. (1979) .............................. 

28 
Civil Rights of Instit. Persons: Hearings on H.R. 2439 
and H.R. 5791 Before the Subcomm. on Courts, 
Civil Liberties, and the Admin. of Justice, of the 
House Comm. on the Judiciary, 95th Cong., 1st Sess. 
(1977)......................................................................................... 28 

XII 

Miscellaneous—Continued: Page 

Civil Rights of Instit. Persons: Hearings on S. 1393 
Before the Subcomm. on the Const. of the Senate 
Comm. on the Judiciary, 95th Cong., 1st Sess. (1977) ... 
28 

Civil Rights Restoration Act of 1987: Hearings Before 
the Senate Comm. on Labor & Human Res., 100th 
Cong., 1st Sess. (1987) .......................................................... 
19 

T. Cook, The Americans with Disabilities Act: The 

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

11, 15 

132 Cong. Rec. S5914-01 (daily ed. May 14, 1986) ............... 
28 

134 Cong. Rec. (daily ed. Apr. 28, 1988): 

p. E1311 ................................................................................... 

16 

p. S5116 ................................................................................... 
31, 32 

p. S5107 ................................................................................... 
32 

136 Cong. Rec.: 

p. H2480 (daily ed. May 17, 1990) ....................................... 

21 

p. H2627 (daily ed. May 22, 1990) ....................................... 
31 

p. H2633 (daily ed. May 22, 1990) ....................................... 
27, 31 

Department of Health & Human Servs., Visions of: 

Independence, Productivity, Integration for 
People with Developmental Disabilities (1990) ............... 

32 
Discrimination Against Cancer Victims and the 

Handicapped: Hearing Before the Subcomm. on 
Employment Opportunities of the House Comm. on 
Educ. & Labor, 100th Cong., 1st Sess. (1987) .................. 

35 
Education for All Handicapped Children, 1973-1974: 

Hearings Before the Subcomm. on the Handicapped 
of the Senate Comm. on Labor & Pub. Welfare, 
93d Cong., 1st Sess. (1973) ................................................... 

21 
Employment Discrim. Against Cancer Victims 
and the Handicapped: Hearing Before the Sub- 
comm. on Employment Opp. of the House Comm. 
on Educ. & Labor, 99th Cong., 1st Sess. (1985) .............. 
35 

Equal Access to Voting for Elderly and Disabled 

Persons: Hearings Before the Task Force on 
Elections of the House Comm. on House Admin., 
98th Cong., 1st Sess. (1984) ................................................. 

22, 23 
FEC, Polling Place Accessibility in the 1988 General 

Election (1989) ....................................................................... 23 

XIII 

Miscellaneous—Continued: Page 

Field Hearing on Americans with Diabilities Act: 

Hearing Before the Subcomm. on Select Educ. of 
the House Comm. on Educ. and Labor, 101st Cong., 
1st Sess. (1989) ....................................................................... 
11 

J. Flaccus, Handicap Discrimination Legislation: 

With Such Inadequate Coverage at the Federal Level, 
Can State Legislation Be of Any Help?, 40 Ark. L. 
Rev. 261 (1986) ....................................................................... 

32-33 
GAO, Briefing Report on Costs of Accommodations, 

Americans with Disabilities Act: Hearing Before the 
House Comm. on Small Business, 101st Cong., 2d 
Sess. (1990) .............................................................................. 

47 
Greenleigh Assoc., A Study to Develop a Model 
for Employment Services for the Handicapped 
(1969) ........................................................................................ 19 

Hearing on H.R. 2273, the Americans with Disabilities 

Act of 1989: Joint Hearing Before the Subcomm. on 
Employment Opportunities and Select Educ. of the 
House Comm. on Educ. and Labor, 101st Cong., 
1st Sess. (July 18 & Sept. 13, 1989) .................................... 
11 

B. Hoffman, Employment Discrimination Based on 

Cancer History, 1986 Temple L.Q. 1 (1986) ..................... 

33 

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

Pt. 2 .............................................. 
12, 18, 19, 24, 29, 30, 32, 47 

Pt. 3 ...................................................................................... 

27, 29 

Pt. 4 ...................................................................................... 
32 

Louis Harris & Associates: 

The ICD Survey II: Employing Disabled Americans 
(1987) ................................................................................... 12 

The ICD Survey of Disabled Americans: Bringing 

Disabled Americans into the Mainstream (1986) ...... 
12 

National Council on the Handicapped: 

On the Threshold of Independence (1988) ......................... 

10 

Toward Independence: An Assessment of Federal 
Laws and Programs Affecting Persons with 
Disabilities (1986) .................................................................. 10 

XIV 

Miscellaneous—Continued: Page 

Note, Mental Disability and the Right to Vote, 88 

Yale L.J. 1644 (1979) ............................................................. 
14 

Oversight Hearing on H.R. 4498, Americans with Dis- 
abilities Act of 1988: Hearing Before the Subcomm. 
on Select Educ. of the House Comm. on Educ. and 
Labor, 100th Cong., 2d Sess. (1989) .................................... 
11 

Presidential Commission on the Human Immuno- 
deficiency Virus Epidemic (1988) ...................................... 
12 

J. Shapiro, No Pity (1994) ....................................................... 
22, 30 

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

S. Rep. No. 415, 92d Cong., 1st Sess. (1971) ......................... 
33 

Staff of the House Comm. on Education and Labor, 
101st Cong., 2d Sess., Leg. Hist. of Pub. L. No. 101- 
336: The Americans with Disabilities Act (Comm. 
Print 1990): 

Vol. 2 ................................................................................ 
passim 

Vol. 3 ................................................................................ 
passim 

Task Force on the Rights and Empowerment of 

Americans with Disabilities, From ADA to 
Empowerment (1990) ....................................... 
11, 12, 18, 30, 47 

Tex. Rehab. Comm’n, Placement of the Handicapped 
in State Gov’t Service (1972) ................................................ 
19, 34 

26 Weekly Comp. Pres. Doc. 1165 (July 26, 1990) ............... 32 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-48a) is 
reported at 193 F.3d 1214. The opinion of the district court 
(Pet. App. 49a-55a) 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, and was granted, limited to Question 1, on 
April 17, 2000. This Court has jurisdiction pursuant to 28 
U.S.C. 1254(1). 

STATEMENT 

1. Statutory Framework: The Americans with Dis- 
abilities Act of 1990 (Disabilities Act), 42 U.S.C. 12101 et 
seq., established a “comprehensive national mandate for the 
elimination of discrimination against individuals with dis- 
abilities.” 42 U.S.C. 12101(b)(1). Congress found that “his- 
torically, society has tended to isolate and segregate indi- 
viduals with disabilities,” and that “such forms of discrimi- 
nation against individuals with disabilities continue to be a 
serious and pervasive social problem.” 42 U.S.C. 12101(a)(2). 
Discrimination against persons with disabilities “persists in 
such critical areas as employment, housing, public accom- 
modations, education, transportation, communication, rec- 
reation, institutionalization, health services, voting, and 
access to public services.” 42 U.S.C. 12101(a)(3). In addition, 
persons with disabilities 

continually encounter various forms of discrimination, 
including outright intentional exclusion, the discrimina- 
tory effects of architectural, transportation, and com- 
munication barriers, overprotective rules and policies, 
failure to make modifications to existing facilities and 
practices, exclusionary qualification standards and cri- 
teria, segregation, and relegation to lesser services, 

(1) 

2 

programs, activities, benefits, jobs, or other opportuni- 
ties. 

42 U.S.C. 12101(a)(5). 

Furthermore, “people with disabilities, as a group, occupy 
an inferior status in our society, and are severely dis- 
advantaged socially, vocationally, economically, and educa- 
tionally.” 42 U.S.C. 12101(a)(6). “[T]he continuing existence 
of unfair and unnecessary discrimination and prejudice,” 
Congress concluded, “denies people with disabilities the 
opportunity to compete on an equal basis and to pursue 
those opportunities for which our free society is justifiably 
famous.” 42 U.S.C. 12101(a)(9). In short, Congress found 
that persons with disabilities 

have been faced with restrictions and limitations, 
subjected to a history of purposeful unequal treatment, 
and relegated to a position of political powerlessness in 
our society, based on characteristics that are beyond the 
control of such individuals and resulting from stereotypic 
assumptions not truly indicative of the individual ability 
of such individuals to participate in, and contribute to, 
society. 

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

Based on those findings, Congress “invoke[d] the sweep of 
congressional authority, including the power to enforce the 
fourteenth amendment” as authority for its passage of the 
Disabilities Act. 42 U.S.C. 12101(b)(4). The Disabilities Act 
targets three particular areas of discrimination against per- 
sons with disabilities. Title I, 42 U.S.C. 12111-12117, ad- 
dresses discrimination by employers affecting interstate 
commerce; Title II, 42 U.S.C. 12131-12165, addresses dis- 
crimination by governmental entities in the operation of 
public services, programs, and activities, including trans- 
portation; and Title III, 42 U.S.C. 12181-12189 (1994 & Supp. 
IV 1998), addresses discrimination in public accommodations 
operated by private entities. The term “disability” is defined 

3 

as “a physical or mental impairment that substantially limits 
one or more of the major life activities of [an] individual”; “a 
record of such an impairment”; or “being regarded as having 
such an impairment.” 42 U.S.C. 12102(2). 

This case involves suits filed under Titles I and II. Title I 
provides that “[n]o covered entity shall discriminate against 
a qualified individual with a disability because of the dis- 
ability of such individual in regard to job application pro- 
cedures, 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 state and 
local governments, 42 U.S.C. 12111(2), (5)(A) and (7); see 
Fitzpatrick v. Bitzer, 427 U.S. 445, 449 & n.2 (1976). 
“Discriminate” is defined to include “limiting, segregating, or 
classifying a job applicant or employee in a way that ad- 
versely affects the opportunities or status of such applicant 
or employee because of [a] disability,” as well as the use of 
employment criteria that “screen out or tend to screen out” 
persons with disabilities, unless the criteria are “job-related 
for the position in question and [are] consistent with 
business necessity.” 42 U.S.C. 12112(b)(1) and (b)(6). In 
addition, unlawful discrimination includes the failure to 
“mak[e] reasonable accommodations to the known physical 
or mental limitations of an otherwise qualified individual 
with a disability,” unless the accommodation “would 
impose an undue hardship” on the employer. 42 U.S.C. 
12112(b)(5)(A). A “qualified individual with a disability” is a 
person who “can perform the essential functions of the job” 
with or without reasonable accommodation. 42 U.S.C. 
12111(8). 

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 activities of a public entity, or be 
subjected to discrimination by any such entity.” 42 U.S.C. 

4 

12132. A “public entity” is defined to include “any State 
or local government” and its components. 42 U.S.C. 
12131(1)(A) and (B).1 A “[q]ualified individual with a dis- 
ability” is a person “who, with or without reasonable 
modifications * * * meets the essential eligibility require- 
ments” for the governmental program or service, including 
employment. 42 U.S.C. 12131(2); 28 C.F.R. 35.140.2 Title II 
does not normally require a public entity to make its existing 
physical facilities accessible, although alterations of those 
facilities and any new facilities must be made accessible. 28 
C.F.R. 35.150(a)(1), 35.151. Department of Justice regula- 
tions provide that, except for new construction and altera- 

1 Congress extended the obligations of the Disabilities Act to itself 
and its instrumentalities in 1990. See Pub. L. No. 101-336, Title V, 
§ 509, 104 Stat. 373, superseded by Pub. L. No. 104-1, Title II, §§ 201, 210, 
109 Stat. 7, 13, currently codified at 2 U.S.C. 1311(a)(3), 1331(b)(1) (Supp. 
IV 1998); 42 U.S.C. 12209 (1994 & Supp. IV 1998). While the Disabilities 
Act does not apply to the executive branch of the federal government, 
virtually identical prohibitions are imposed by Sections 501, 504, and 505 
of the Rehabilitation Act, which, since 1978, has governed “any program 
or activity conducted by any Executive agency,” 29 U.S.C. 794(a) (1994 & 
Supp. IV 1998), and which subjects the federal government to Title I’s 
standards, 29 U.S.C. 791(g), and remedies, 29 U.S.C. 794a(a)(1); 42 U.S.C. 
1981a(a)(2). The principal distinction (see Pet. Br. 40) between the 
coverage of the States and the federal government is that, in the context 
of government programs other than employment, damages are available 
against the States under Title II of the Disabilities Act but are not 
available against the federal government. That is presumably because 
Congress believed it had greater direct authority over federal programs, 
through the use of its appropriations and oversight power, and thus less 
need of additional enforcement through private damages actions. 

2 Whether Title II covers the employment decisions of state and local 
governments is a question on which the circuits are divided. See Davoll v. 
Webb, 194 F.3d 1116, 1130 (10th Cir. 1999) (collecting cases). 

For purposes 

of the jurisdictional question currently before the Court, however, this 
Court may assume that the respondents have properly stated a claim 
under Title II. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 
(1998). 

5 

tions, public entities need not take any steps that would 
“result in a fundamental alteration in the nature of a service, 
program, or activity or in undue financial and administrative 
burdens.” 28 C.F.R. 35.150(a)(3); see also 28 C.F.R. 

35.130(b)(7), 35.164; Olmstead v. L.C., 527 U.S. 581, 606 n.16 
(1999). 

Both Title I and Title II may be enforced through private 
suits against public entities. 42 U.S.C. 12117(a), 12133. 
Congress expressly abrogated the States’ Eleventh Amend- 
ment immunity to private suits in federal court. 42 U.S.C. 
12202. 

2. Factual and Procedural Background: Respondent 
Patricia Garrett alleges that, after working for the Uni- 
versity of Alabama for 17 years, she was diagnosed with 
breast cancer. Garrett’s supervisor made negative com- 
ments regarding Garrett’s illness and “repeatedly threat- 
ened to transfer her to a less demanding job due to her 
condition.” J.A. 38; Pet. App. 9a. Upon returning from 
medical leave, Garrett was advised that she would continue 
in her position. J.A. 39. However, a week later, the 
University demoted her even though she was able to 
perform the essential functions of her job. Ibid; Pet. App. 9a. 
Respondent Ash alleges that he has worked for petitioner 
Alabama Department of Youth Services since 1993. He has 
diabetes and several respiratory impairments, including 
chronic asthma. Ash requested that the Department enforce 
its existing non-smoking policy and not require him to drive 
cars that leaked carbon monoxide fumes into the passenger 
compartment. The accommodations were denied, and, after 
respondent filed a complaint, petitioner took adverse em- 
ployment action against him. 

J.A. 7-10. 

Respondents filed separate suits in the same district 
court, alleging, as relevant here, that petitioners had vio- 
lated Titles I and II of the Disabilities Act. Petitioners filed 
motions to dismiss on Eleventh Amendment grounds, which 
the district court granted. Pet. App. 49a-55a. The United 

6 

States intervened on appeal, pursuant to 28 U.S.C. 2403(a), 
to defend the Disabilities Act’s abrogation of Eleventh 
Amendment immunity. Following circuit precedent, the 
court of appeals upheld the Disabilities Act’s abrogation of 
Eleventh Amendment immunity. Pet. App. 6a. 

SUMMARY OF ARGUMENT 

Application of the Americans with Disabilities Act to 
States and their subdivisions falls squarely within Con- 
gress’s comprehensive legislative power under Section 5 of 
the Fourteenth Amendment to prohibit, remedy, and pre- 
vent violations of the rights secured by that Amendment. 
After decades of legislative experience in the field, years of 
hearings and study, multitudinous submissions and testi- 
monials by citizens across the Nation, and thoroughgoing 
congressional review, Congress determined that persons 
with disabilities faced a virulent history of official govern- 
mental discrimination, isolation, and segregation. Indeed, 
this Court’s decisions have long acknowledged the pernicious 
history of mistreatment and discrimination suffered by 
persons with disabilities. Congress found, moreover, that, 
like race and gender discrimination, official segregation and 
discrimination against persons with disabilities have con- 
sequences that persist and have been perpetuated by state 
and local governmental decisionmaking, across the span of 
governmental operations. 

Congress formulated a statute that, much like federal laws 
combating racial and gender discrimination, is carefully de- 
signed to root out present instances of unconstitutional 
discrimination, to undo the effects of past discrimination, and 
to prevent future unconstitutional treatment by prohibiting 
discrimination and promoting integration where reasonable. 
At the same time, the Disabilities Act preserves the latitude 
and flexibility States legitimately require in the admini- 
stration of their programs and services. The Disabilities Act 
accomplishes those objectives by requiring States to afford 

7 

persons with disabilities genuinely equal access to em- 
ployment opportunities, services, and programs, while at the 
same time confining the statute’s protections to “qualified 
individual[s],” who by definition meet all of the States’ 
legitimate and essential eligibility requirements. The Act 
simply requires “reasonable” accommodations for individuals 
with disabilities that do not impose an undue burden and 
do not fundamentally alter the nature or character of the 
governmental program. The statute is thus carefully 
tailored to prohibit only state conduct that presents a sub- 
stantial risk of violating the Constitution or that unrea- 
sonably perpetuates the exclusionary effects of the prior 
irrational political, economic, and social segregation of 
persons with disabilities. 

ARGUMENT 

BECAUSE IT COMBATS AN ENDURING LEGACY 
OF UNCONSTITUTIONAL DISCRIMINATION AND 
SEGREGATION, THE AMERICANS WITH DIS- 
ABILITIES ACT AS APPLIED TO THE STATES IS 
A VALID EXERCISE OF CONGRESS’S AUTHORITY 
UNDER SECTION 5 OF THE FOURTEENTH 
AMENDMENT 

Section 5 of the Fourteenth Amendment is an affirmative 
grant of legislative power to Congress, see Kimel v. Florida 
Bd. of Regents, 120 S. Ct. 631, 644 (2000), and encompasses 
all legislation reasonably designed to enforce the Fourteenth 
Amendment’s guarantees, Ex parte Virginia, 100 U.S. 339, 
345-346 (1880). Section 5 thus “gives Congress broad power 
indeed,” Saenz v. Roe, 526 U.S. 489, 508 (1999), including the 
power to abrogate the States’ Eleventh Amendment im- 
munity, Kimel, 120 S. Ct. at 644. While, under Section 5, 
Congress may enact prophylactic and remedial legislation 
designed to enforce Fourteenth Amendment rights, there 
must be a “congruence and proportionality between the in- 
jury to be prevented or remedied and the means adopted to 

8 

that end.” City of Boerne v. Flores, 521 U.S. 507, 520 (1997). 
The Disabilities Act is appropriate Section 5 legislation 
because it is predicated on a pervasive history of uncon- 
stitutional conduct by the States, which continues to infect 
contemporary governmental decisionmaking, and because 
the legislation is reasonably designed to remedy and prevent 
those constitutional violations. 

A. Congress Found, After Exhaustive Investigation, 

Ample Evidence Of A Long History And A Continuing 

Problem Of Unconstitutional Treatment Of Persons 

With Disabilities By States And Their Subdivisions 

At the core of the Equal Protection Clause is the principle 
that, in legislating or administering government programs, a 
“State may not rely on a classification whose relationship to 
an asserted goal is so attenuated as to render the distinction 
arbitrary or irrational.” City of Cleburne v. Cleburne Living 
Ctr., 473 U.S. 432, 446 (1985). The Equal Protection Clause 
thus prohibits state action predicated on “mere negative 
attitudes” and “vague, undifferentiated fears,” id. at 448-449, 
“divorced from any factual context from which we could 
discern a relationship to legitimate state interests,” Romer 

v. Evans, 517 U.S. 620, 635 (1996). Petitioners draw from 
that standard the conclusion that the power of courts—and 
of Congress—to secure the constitutional rights of persons 
with disabilities is “virtually non-existent” (Pet. Br. 17); 
accordingly, petitioners characterize (id. at 30-39) the Dis- 
abilities Act as little more than the byproduct of an 
uninformed Congress overreaching to address a nonexistent 
problem of governmental discrimination against persons 
with disabilities, when “[t]he only real evidence” before 
Congress “was of States overprotecting the constitutional 
rights of the disabled” (id. at 38-39) (emphasis added). Noth- 
ing could be further from the truth. 

9 

1. Congress exhaustively studied the problem 

The Congress that enacted the Disabilities Act brought to 
that legislative process more than 40 years of experience 
studying the scope and nature of discrimination against per- 
sons with disabilities and testing incremental legislative 
steps to combat that discrimination.3 See Fullilove v. Klutz- 
nick, 448 U.S. 448, 503 (1980) (Powell, J., concurring) (“One 
appropriate source [of evidence for Congress] is the infor- 
mation and expertise that Congress acquires in the con- 
sideration and enactment of earlier legislation. After Con- 
gress has legislated repeatedly in an area of national 
concern, its Members gain experience that may reduce the 
need for fresh hearings or prolonged debate when Congress 
again considers action in that area.”). 

Building on that expertise, Congress commissioned two 
reports from the National Council on the Handicapped, an 
independent federal agency, to report on the adequacy of 
existing federal laws and programs addressing discri- 
mination against persons with disabilities.4 Those reports 
revealed that “the most pervasive and recurrent problem 
faced by disabled persons appeared to be unfair and unneces- 

3 See, e.g., Act of June 10, 1948, ch. 434, 62 Stat. 351 (prohibiting 
employment discrimination by the United States Civil Service against 
World War II veterans with disabilities); Architectural Barriers Act of 
1968, 42 U.S.C. 4151 et seq.; Rehabilitation Act of 1973, 29 U.S.C. 701 et 
seq.; Education of the Handicapped Act, Pub. L. No. 91-230, Title VI, 84 
Stat. 175 (reenacted in 1990 as the Individuals with Disabilities Education 
Act, 20 U.S.C. 1400 et seq.); Developmental Disabilities Assistance and Bill 
of Rights Act, 42 U.S.C. 6000 et seq.; Voting Accessibility for the Elderly 
and Handicapped Act, 42 U.S.C. 1973ee; Air Carrier Access Act of 1986, 
49 U.S.C. 41705; Protection and Advocacy for Mentally Ill Individuals Act 
of 1986, 42 U.S.C. 10801; Fair Housing Amendments of 1988, 42 U.S.C. 
3604. 

4 See Rehabilitation Act Amendments of 1984, Pub. L. No. 98-221, 
Title I, § 141(a), 98 Stat. 26; Rehabilitation Act Amendments of 1986, Pub. 
L. No. 99-506, § 502(b), 100 Stat. 1807. 

10 

sary discrimination.” Nat’l Council on the Handicapped, On 
the Threshold of Independence 2 (1988) (Threshold). Persons 
with disabilities reported discrimination in the workplace, 
“denials of educational opportunities, lack of access to public 
buildings and public bathrooms, [and] the absence of 
accessible transportation.” Id. at 20-21, 41. Extensive 
surveys also revealed an “alarming rate of poverty,”5 a 
dramatic educational gap,6 a “Great Divide” in employment,7 
and a life of social “isolat[ion]”8 for persons with disabilities. 
Id. at 14. The reports further found that “[c]omplexities, 
inconsistencies, and fragmentation in the various Federal 
laws and programs” had created a confused and ineffective 
“patchwork quilt of existing policies and programs,” Nat’l 
Council on the Handicapped, Toward Independence: An 
Assessment of Federal Laws and Programs Affecting 
Persons with Disabilities 7 (1986), and called for national 
legislation comprehensively prohibiting discrimination on 
the basis of disability, id. at 18-19; Threshold 19-21. 

Congress itself engaged in extensive study and fact- 
finding concerning the problem of discrimination against per- 
sons with disabilities, holding 13 hearings devoted speci- 

5 Twenty percent of persons with disabilities had family incomes 
below the poverty line (more than twice the percentage of the general 
population), and 15% of persons with disabilities had incomes of $15,000 or 
less. Threshold 13-14. 

6 Forty percent of persons with disabilities did not finish high school 
(triple the rate for the general population). Only 29% of persons with 
disabilities had some college education, compared with 48% for the general 
population. Threshold 14. 

7 Two-thirds of all working-age persons with disabilities were un- 
employed; only one in four worked full-time. Threshold 14. 

8 Two-thirds of persons with disabilities had not attended a movie or 
sporting event in the past year; three-fourths had not seen live theater or 
music performances; persons with disabilities were three times more 
likely not to eat in restaurants; and 13% of persons with disabilities never 
go to grocery stores. Threshold 16-17. 

11 

fically to the consideration of the Disabilities Act.9 In addi- 
tion, a congressionally designated Task Force held 63 public 
forums across the country, which were attended by more 
than 7,000 individuals. Task Force on the Rights and 
Empowerment of Americans with Disabilities, From ADA to 
Empowerment 18 (1990) (Task Force Report). The Task 
Force also presented to Congress evidence submitted by 

9 See Americans with Disabilities Act of 1989: Hearings on H.R. 2273 
Before the House Comm. on the Judiciary and the Subcomm. on Civil and 
Const. Rights, 101st Cong., 1st Sess. (1989); Americans with Disabilities 
Act: Hearing on H.R. 2273 and S. 933 Before the Subcomm. on Transp. 
and Haz. Materials of the House Comm. on Energy and Commerce, 101st 
Cong., 1st Sess. (1990); Americans with Disabilities Act: Hearings on 
H.R. 2273 Before the Subcomm. on Surface Transp. of the House Comm. 
on Pub. Works and Transp., 101st Cong., 1st Sess. (1990); Americans with 
Disabilities: Telecomm. Relay Servs., Hearing on Title V of H.R. 2273 
Before the Subcomm. on Telecomm. and Fin. of the House Comm. on 
Energy and Commerce, 101st Cong., 1st Sess. (1990); Americans with 
Disabilities Act of 1989: Hearing on H.R. 2273 Before the Subcomm. on 
Select Educ. of the House Comm. on Educ. and Labor, 101st Cong., 1st 
Sess. (1989); Field Hearing on Americans with Disabilities Act: Hearing 
Before the Subcomm. on Select Educ. of the House Comm. on Educ. and 
Labor, 101st Cong., 1st Sess. (1989); Hearing on H.R. 2273, The 
Americans with Disabilities Act of 1989: Joint Hearing Before the 
Subcomm. on Employment Opps. and Select Educ. of the House Comm. 
on Educ. and Labor, 101st Cong., 1st Sess. (July 18 & Sept. 13, 1989) (two 
hearings); Oversight Hearing on H.R. 4498, Americans with Disabilities 
Act of 1988: Hearing Before the Subcomm. on Select Educ. of the House 
Comm. on Educ. and Labor, 100th Cong., 2d Sess. (1989); Americans with 
Disabilities Act: Hearing Before the House Comm. on Small Bus., 101st 
Cong., 2d Sess. (1990); Americans with Disabilities Act of 1989: Hearings 
on S.933 Before the Senate Comm. on Labor and Human Res. and the 
Subcomm. on the Handicapped, 101st Cong., 1st Sess. (1989) (May 1989 
Hearings); Americans with Disabilities Act of 1988: Joint Hearing on S. 
2345 Before the Subcomm. on the Handicapped of the Senate Comm. on 
Labor and Human Res. and the Subcomm. on Select Educ. of the House 
Comm. on Educ. and Labor, 100th Cong., 2nd Sess. (1989); see also T. 
Cook, The Americans with Disabilities Act: The Move to Integration, 64 
Temp. L. Rev. 393, 393 & nn.1-3 (1991) (Move to Integration). 

12 

nearly 5,000 individuals documenting the problems with dis- 
crimination faced daily by persons with disabilities—often at 
the hands of state and local governments. See 2 Staff of the 
House Comm. on Educ. and Labor, 101st Cong., 2d Sess., 
Legis. Hist. of Pub. L. No. 101-336: The Americans with 
Disabilities Act, 100th Cong., 2d Sess. 1040 (Comm. Print 
1990) (Leg. Hist.); Task Force Report 16. Congress also con- 
sidered several reports and surveys. See S. Rep. No. 116, 
101st Cong., 1st Sess. 6 (1989); H.R. Rep. No. 485, 101st 
Cong., 2d Sess. Pt. 2, at 28 (1990); Task Force Report 16. 

10 

2. Congress amassed voluminous evidence of historic 

and enduring discrimination by state and local 

governments against persons with disabilities and 

deprivation of their fundamental rights 

a. Historic Discrimination: The “propriety of any § 5 
legislation ‘must be judged with reference to the historical 
experience . . . it reflects.’ ” Florida Prepaid Postsec. Educ. 
Expense Bd. v. College Sav. Bank, 527 U.S. 627, 640 (1999). 
While petitioners and their amici ignore it, Congress and this 
Court have long acknowledged the Nation’s “history of un- 
fair and often grotesque mistreatment” of persons with 
disabilities. Cleburne, 473 U.S. at 454 (Stevens, J., con- 
curring); see id. at 461 (Marshall, J., concurring in the 
judgment in part (hereinafter cited as (Marshall, J.))); see 
also Olmstead v. L.C., 527 U.S. 581, 608 (Kennedy, J., con- 
curring) (“[O]f course, persons with mental disabilities have 
been subject to historic mistreatment, indifference, and 

10 These included the two reports of the National Council on the 
Handicapped; the Civil Rights Commission’s Accommodating the Spec- 
trum of Individual Abilities (1983) (Spectrum); two polls conducted by 
Louis Harris & Associates: The ICD Survey Of Disabled Americans: 
Bringing Disabled Americans into the Mainstream (1986), and The ICD 
Survey II: Employing Disabled Americans (1987); a report by the 
Presidential Commission on the Human Immunodeficiency Virus Epi- 
demic (1988); and eleven interim reports submitted by the Task Force. 

13 

hostility.”); Alexander v. Choate, 469 U.S. 287, 295 n.12 
(1985) (“well-cataloged instances of invidious discrimination 
against the handicapped do exist”). 

11 

That “lengthy and tragic history,” Cleburne, 473 U.S. at 
461 (Marshall, J.), of discrimination, segregation, and denial 
of basic civil and constitutional rights for persons with 

11 Courts have found unconstitutional treatment of persons with dis- 
abilities in a wide variety of contexts, including violations of the Equal 
Protection Clause, the Due Process Clause, and the Eighth Amendment, 
as incorporated into Section 1 of the Fourteenth Amendment. See, e.g., 
Youngberg v. Romeo, 457 U.S. 307 (1982) (unconstitutional conditions of 
confinement); O’Connor v. Donaldson, 422 U.S. 563, 567-575 (1975) (im- 
permissible confinement); Chalk v. United States Dist. Ct. Cent. Dist. of 
Cal., 840 F.2d 701 (9th Cir. 1988) (certified teacher barred from teaching 
after diagnosis of AIDS); LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) 
(Powell, J.) (failure to provide paraplegic inmate with an accessible toilet 
is cruel and unusual punishment); Pushkin v. Regents of the Univ. of 
Colo., 658 F.2d 1372 (10th Cir. 1981) (doctor with multiple sclerosis denied 
residency out of concern about patients’ reactions); Gurmankin v. 
Costanzo, 556 F.2d 184 (3d Cir. 1977) (irrebuttable presumption that blind 
teacher cannot instruct sighted students); Garrity v. Gallen, 522 F. Supp. 
171, 214 (D.N.H. 1981) (“blanket discrimination against the handicapped 

* * * is unfortunately firmly rooted in the history of our country”); New 
York State Ass’n for Retarded Children, Inc. v. Carey, 466 F. Supp. 487 
(E.D.N.Y. 1979); Smith v. Fletcher, 393 F. Supp. 1366, 1368 (S.D. Tex. 
1975) (government assigned paraplegic, who had a Master’s degree in 
physiology, to menial clerical tasks based on “arbitrary and unfounded 
decision as to her physical capabilities”), aff ’d as modified, 559 F.2d 1014 
(5th Cir. 1977); Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972); 
Pennsylvania Ass’n for Retarded Children v. Pennsylvania, 334 F. Supp. 
1257 (E.D. Pa. 1971); Connecticut Inst. for the Blind v. Connecticut 
Comm’n on Human Rights & Opps., 405 A.2d 618, 621 (Conn. 1978) (blan- 
ket exclusion from state jobs of persons with visual impairments), modi- 
fied, 355 N.Y.S.2d 185 (App. Div. 1974); Bevan v. New York State Teach- 
ers’ Retirement Sys., 345 N.Y.S.2d 921 (Sup. Ct. 1973) (statute allowing 
forced retirement of teacher who became blind); Spectrum 62-66, 131-133, 
141 (citing additional cases); M. Burgdorf & R. Burgdorf, A History of 
Unequal Treatment: The Qualifications of Handicapped Persons as a 
“Suspect Class” Under the Equal Protection Clause, 15 Santa Clara Law- 
yer 855, 863 (1975) (Unequal Treatment) (citing additional cases). 

14 

disabilities assumed an especially pernicious form in the 
early 1900s, when the eugenics movement and Social Dar- 
winism labeled persons with mental and physical disabilities 
“a menace to society and civilization . . . responsible in a 
large degree for many, if not all, of our social problems.” 
Cleburne, 473 U.S. at 462 (Marshall, J.); see also Civil Rights 
Comm’n, Accommodating the Spectrum of Individual 
Abilities 19 (1983) (Spectrum). Persons with disabilities 
were portrayed as “sub-human creatures” and “waste 
products” responsible for poverty and crime. Spectrum 20. 
“A regime of state-mandated segregation and degradation 
soon emerged that in its virulence and bigotry rivaled, and 
indeed paralleled, the worst excesses of Jim Crow.” 
Cleburne, 473 U.S. at 462 (Marshall, J.). Every single State, 
by law, provided for the segregation of persons with mental 
disabilities and, frequently, epilepsy, and excluded them 
from public schools and other state services and privileges of 
citizenship. 

12 States also fueled the fear and isolation of per- 
sons with disabilities by requiring public officials and 
parents, sometimes at risk of criminal prosecution, to report 
the “feeble-minded” and segregate them into institutions. 
Spectrum 20, 33-34. 

13 

With the aim of halting reproduction and “nearly ex- 
tinguish[ing] their race,” Cleburne, 473 U.S. at 462 
(Marshall, J.), almost every State accompanied forced 
segregation with compulsory sterilization and prohibitions of 
marriage, see id. at 463. See also Buck v. Bell, 274 U.S. 200, 
207 (1927) (upholding compulsory sterilization law “in order 
to prevent our being swamped with incompetence”; “It is 

12 See People First Cert. Amicus Br., Alsbrook v. City of Maumelle, 
No. 99-423, App. A (Compendium of State Laws); see also Cleburne, 473 
U.S. at 463 (Marshall, J.) (state laws deemed persons with mental 
disorders “unfit for citizenship”); Note, Mental Disability and the Right to 
Vote, 88 Yale L.J. 1644 (1979). 

13 See Compendium of State Laws A5, A21-A22, A25, A28-A29, A40, 
A44, A46-A49, A50-A51, A56, A61-A63, A65-A66, A71, A74-A75. 

15 

better for all the world, if instead of waiting to execute de- 
generate offspring for crime, or to let them starve for their 
imbecility, society can prevent those who are manifestly 
unfit from continuing their kind. * * * Three generations of 
imbeciles are enough.”). 

14 

Children with mental disabilities were labeled “ineduc- 
able” and categorically excluded from public schools to 
“protect nonretarded children from them.” Cleburne, 473 
U.S. at 463 (Marshall, J.); see also Board of Educ. v. Rowley, 
458 U.S. 176, 191 (1982) (“many of these children were ex- 
cluded completely from any form of public education”). 
Numerous States also restricted the rights of physically 
disabled people to enter into contracts, Spectrum 40, while a 
number of large cities enacted “ugly laws,” which prohibited 
the physically disabled from appearing in public: 

No person who is diseased, maimed, mutilated or in any 
way deformed so as to be an unsightly or disgusting 
object or improper person to be allowed in or on the 
public ways or other public places in this city, shall there- 
in or thereon expose himself to public view, under a 
penalty of not less than one dollar nor more than fifty 
dollars for each offense. 

Unequal Treatment 863 (quoting Chicago ordinance). Such 
laws were enforced as recently as 1974. Id. at 864. 

15 

b. The Enduring Legacy of Governmental Discrimina- 
tion: “Prejudice, once let loose, is not easily cabined.” 
Cleburne, 473 U.S. at 464 (Marshall, J.). “[O]ut-dated stat- 
utes are still on the books, and irrational fears or ignorance, 
traceable to the prolonged social and cultural isolation” of 

14 See also 3 Leg. Hist. 2242 (James Ellis); Unequal Treatment 887- 888. 

15 See also State ex rel. Beattie v. Board of Educ., 172 N.W. 153, 153 
(Wis. 1919) (approving exclusion of a boy with cerebral palsy from public 
school because he “produces a depressing and nauseating effect upon the 
teachers and school children”) (noted at 2 Leg. Hist. 2243); see generally 
Move to Integration 399-407. 

16 

those with disabilities “continue to stymie recognition of 
the[ir] dignity and individuality.” Id. at 467 (emphasis 
added). 

16 Consequently, “our society is still infected by the 
ancient, now almost subconscious assumption that people 
with disabilities are less than fully human and therefore are 
not fully eligible for the opportunities, services, and support 
systems which are available to other people as a matter of 
right. The result is massive, society-wide discrimination.” S. 
Rep. No. 116, supra, at 8-9. 

17 

Moreover, as we detail below (pp. 18-30, infra), based on 
the testimony of hundreds of witnesses before Congress and 
at the Task Force’s forums, 

18 Congress found, as a matter of 

16 For example, as recently as 1983, 15 States continued to have 
compulsory sterilization laws on the books, four of which included persons 
with epilepsy. Spectrum 37; see also Stump v. Sparkman, 435 U.S. 349, 
351 (1978) (Indiana judge ordered the sterilization of a “somewhat 
retarded” 15 year old girl). As of 1979, “most States still categorically 
disqualified ‘idiots’ from voting, without regard to individual capacity and 
with discretion to exclude left in the hands of low-level election officials.” 
Cleburne, 473 U.S. at 464 (Marshall, J.). 

17 See also 3 Leg. Hist. 2020 (Att’y Gen. Thornburgh) (“But persons 
with disabilities are all too often not allowed to participate because of 
stereotypical notions held by others in society—notions that have, in large 
measure, been created by ignorance and maintained by fear.”); 2 Leg. Hist. 
1606 (Arlene Mayerson) (“Most people assume that disabled children are 
excluded from school or segregated from their non-disabled peers because 
they cannot learn or because they need special protection. Likewise, the 
absence of disabled co-workers is simply considered confirmation of the 
obvious fact that disabled people can’t work. These assumptions are 
deeply rooted in history.”); 134 Cong. Rec. E1311 (daily ed. Apr. 28, 1988) 
(Rep. Owens) (“The invisibility of disabled Americans was simply taken 
for granted. Disabled people were out of sight and out of mind.”). 

18 The Task Force submitted to Congress “several thousand 
documents” evidencing “massive discrimination and segregation in all 
aspects of life” and “the most extreme isolation, unemployment, poverty, 
psychological abuse and physical deprivation experienced by any segment 
of our society.” 2 Leg. Hist. 1324-1325. Those documents—mostly 
handwritten letters and commentary collected during the Task Force’s 
forums—were part of the official legislative history of the Disabilities Act. 

17 

present reality and historical fact, that discrimination per- 
vaded state and local governmental operations and that 
persons with disabilities have been and are subjected to 
“widespread and persisting deprivation of [their] consti- 
tutional rights.” Florida Prepaid, 527 U.S. at 645; see 
also 42 U.S.C. 12101(a)(2) and (a)(3). In particular, Congress 
reasonably discerned a substantial risk that persons with 
disabilities will be subjected to unconstitutional discrimi- 
nation by state and local governments in the form of (i) 
“arbitrary or irrational” distinctions and exclusions, Cle- 
burne, 473 U.S. at 446; (ii) governmental decisions grounded 
in “mere negative attitudes,” “vague, undifferentiated 
fears,” id. at 448-449, “animosity,” Romer, 517 U.S. at 634, 
paternalism, United States v. Virginia, 518 U.S. 515, 541-544 
(1996), and false or overly broad stereotypes about ability, 
Olmstead, 527 U.S. at 611 (Kennedy, J., concurring) (“[T]he 
line between animus and stereotype is often indistinct.”); and 
(iii) governmental effectuation of private biases, Palmore v. 
Sidoti, 466 U.S. 429, 433 (1984). 

In addition, the evidence before Congress established that 
States and their subdivisions structure governmental pro- 
grams and operations in a manner that has the effect of 
denying persons with disabilities the equal opportunity to 
obtain vital services and to exercise fundamental rights 
(such as the rights to vote, to petition government officials, 
to adequate custodial treatment, and to equal access to the 
courts and public education). Such conduct falls within 
Congress’s enforcement power for two reasons. First, there 
is a substantial risk that those decisions result from invidious 
intent and therefore violate the Constitution. 

Second, those 

See id. at 1336, 1389. Because the handwritten submissions were never 
formally indexed by Congress, we cite to them by State and Bates stamp 
number. Although the Task Force presented 5,000 such submissions to 
Congress—approximately 600 of which alleged discrimination by state 
actors—we are lodging with the Clerk of the Court only those testimonials 
that we cite; the balance will be provided to the Court upon request. 

18 

decisions impermissibly carry forward the effects of prior 
unconstitutional policies of segregation and isolation. City 
of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) 
(opinion of O’Connor, J.) (Congress’s Section 5 power 
“include[s] the power to define situations which Congress 
determines threaten principles of equality and to adopt 
prophylactic rules to deal with those situations”). 

(i) Employment: Substantial evidence of employment dis- 
crimination by state governments and their subdivisions was 
adduced. One witness “was told by the Essex Junction 
School System that they were not hiring me because I used a 
wheelchair. I suspected it in other situations, but in that one, 
they actually said this was the reason.” 2 Leg. Hist. 1076 
(John Nelson). A woman “‘crippled by arthritis’ was denied 
a job, not because she could not do the work but because 
‘college trustees [thought] ‘normal students shouldn’t see 
her.’ ” S. Rep. No. 116, supra, at 7; see also School Bd. of 
Nassau County v. Arline, 480 U.S. 273, 282-283 n.9 (1987). 
Another witness “applied for a job [at a public library] and 
was told they had already hired someone with a disability 
and they had met their quota.” Wis. 1759. 

19 

19 See also H. R. Rep. No. 485, supra, Pt. 2, at 29 (woman denied 
teaching credential because of her paralysis); 2 Leg. Hist. 1174-1175 (Susan 
Downie) (state facility asks person with disability during job interview 
“humiliating, unethical, and illegal questions about my disability * * * 
[such as] if my mother had taken drugs while she was pregnant with me” 
and then denied her the job); id. at 1169-1170 (Sara Bloor) (epileptic 
denied teaching position even though seizure free); id. at 1611 n.9 (Arlene 
Mayerson) (teaching license denied “on the grounds that being confined to 
a wheelchair as a result of polio, she was physically and medically unsuited 
for teaching”); id. at 1005 (Belinda Mason) (woman fired from school 
cafeteria management position when her son contracted AIDS); May 1989 
Hearings 404 (Nat’l Orgs. Responding to AIDS) (professor of veterinary 
medicine at state university in Kansas fired when it was learned that he 
had AIDS); Task Force Report 21 (employee with mental retardation 
forced to quit job due to harassment and ridicule by superior in the 
California Conservation Corps); Kan. 676 (Kansas Department of Trans- 

19 

Of particular relevance to the present case, “[t]estimony 
before the Committee indicated that there still exists wide- 
spread irrational prejudice against persons with cancer.” S. 
Rep. No. 116, supra, at 39-40; H.R. Rep. No. 485, supra, Pt. 
2, at 75. Indeed, a study before Congress revealed that 
“most corporations and governmental agencies in [Cali- 
fornia] discriminated in hiring against job applicants for an 

portation fired me “for the stated reason that I have epilepsy,” even 
though performance surpassed established expectations); S.D. 1472 (“[A]s 
a state employee, I daily see covert discrimination in hiring or not hiring 
people with disabilities.”); N.C. 1157, 1159 (department head at University 
of North Carolina told interviewee “[I]f I knew you were blind I wouldn’t 
have bothered bringing you in for an interview”); Ill. 550 (teacher told 
“point blank” that she was not hired to work with children because “the 
way my eyes were [the left eye doesn’t always move with the right], that 
the children would, ‘try to imitate me’ ”); Haw. 478 (school board did not 
want to interview an individual with a deformed hand to teach language 
because of feared reactions of parents); Mass. 836 (“For the job of 
persuading employers to hire disabled people, [state] Voc-Rehab had 
hired an able-bodied person over a disabled one.”); Advisory Comm’n on 
Intergovernmental Relations, Disability Rights Mandates (1989) (survey 
of state officials on the perceived impediments to employment of persons 
with disabilities in state governments); Tex. Rehab. Comm’n, Placement 
of the Handicapped in State Gov’t Serv. (1972) (Texas Report) (docu- 
menting reluctance of state employers to hire and promote persons with 
disabilities); Greenleigh Assoc., A Study to Develop a Model for 
Employment Servs. for the Handicapped 122 (1969) (in one State’s civil 
service system, “[f]or each ‘clerk-typist, Grade X,’ there is also a ‘clerk- 
typist, Grade X, visually handicapped,’ with a lower salary range”); Civil 
Rights Restoration Act of 1987: Hearings Before the Sen. Comm. on 
Labor & Human Res., 100th Cong., 1st Sess. 80 (1987) (Ted Kennedy, Jr.) 
(none of 23 California jurisdictions was willing to hire blind applicants; 
many excluded applicants with a history of cancer; one county will not hire 
an applicant for any job if he or she has lost a leg, regardless of the job- 
relatedness of the impairment; and another jurisdiction prohibits the 
hiring of an amputee for any job unless he or she makes use of a 
prosthesis, even though it may not be required for success on the job). 

20 

average period of five years after treatment for cancer.” 2 
Leg. Hist. 1619 (Arlene Mayerson). 

20 

(ii) Education: “[E]ducation is perhaps the most impor- 
tant function of state and local governments” because “it is 
doubtful that any child may reasonably be expected to 
succeed in life if he is denied the opportunity of an edu- 
cation.” Brown v. Board of Educ., 347 U.S. 483, 493 (1954). 
Accordingly, where the State undertakes to provide a public 
education, that right “must be made available to all on equal 
terms.” Ibid. But Congress learned that irrational pre- 
judices, fears, ignorance, and animus still operate to deny 
persons with disabilities an equal opportunity for public 
education. For example, a quadriplegic woman with cerebral 
palsy and a high intellect, who scored well in school, was 
branded “retarded” by educators, denied placement in a 
regular school setting, and placed with emotionally disturbed 
children, where she was told she was “not college material.” 
Vt. 1635. Other school districts also simply labeled as 
mentally retarded a blind child and a child with cerebral 
palsy. Neb. 1031; Alaska 38 (noting that child with cerebral 
palsy subsequently obtained a Masters Degree). “When I 
was 5,” another witness testified, “my mother proudly 
pushed my wheelchair to our local public school, where I was 

20 See also S. Rep. No. 116, supra, at 7 (“Discrimination also includes 
harms affecting individuals with a history of disability, and those regarded 
by others as having a disability as well as persons associated with such 
individuals.”); Arline, 480 U.S. at 284 & n.13; 2 Leg. Hist. 1551 (EEOC 
Comm’r Evan Kemp) (people who “had cancer 30 years ago * * * are 
discriminated [against] because of that cancer”); May 1989 Hearings 24 
(“Cancer survivors are discriminated against by the outside world in both 
the public and in the private sectors.”); Burris v. City of Phoenix, 875 P.2d 
1340, 1343 (Ariz. Ct. App. 1993) (applicant denied firefighter position even 
though he “was completely cured” of cancer). 

21 

promptly refused admission because the principal ruled that 
I was a fire hazard.” S. Rep. No. 116, supra, at 7. 

21 

State institutions of higher education suffered from the 
same stereotypes and prejudices. A person with epilepsy 
was asked to leave a state college because her seizures were 
“disrupt[ive]” and, officials said, created a risk of liability. 2 
Leg. Hist. 1162 (Barbara Waters). A doctor with multiple 
sclerosis was denied admission to a psychiatric residency 
program because the state admissions committee “feared the 
negative reactions of patients to his disability.” Id. at 1617 
(Arlene Mayerson). Another witness explained that, “when 
I was first injured, my college refused to readmit me” 

21 See also 136 Cong. Rec. H2480 (daily ed. May 17, 1990) (Rep. 
McDermott) (school board excluded Ryan White, who had AIDS, not 
because the board “thought Ryan would infect others” but because “some 
parents were afraid he would”); 2 Leg. Hist. 989 (Mary Ella Linden) (“I 
was considered too crippled to compete by both the school and my parents. 
In fact, the [segregated] school never even took the time to teach me to 
write! * * * The effects of the school’s failure to teach me are still 
evident today.”); Or. 1375 (child with cerebral palsy was “given cleaning 
jobs while other[] [non-disabled students] played sports”); Spectrum 28, 29 
(“a great many handicapped children” are “excluded from the public 
schools” or denied “recreational, athletic, and extracurricular activities 
provided for non-handicapped students”); see also Education for All 
Handicapped Children, 1973-1974: Hearings Before the Subcomm. on the 
Handicapped of the Senate Comm. on Labor & Pub. Welfare, 93d Cong., 
1st Sess. 384 (1973) (Peter Hickey) (student in Vermont was forced to 
attend classes with students two years behind him because he could not 
climb staircase to attend classes with his peers); id. at 793 (Christine 
Griffith) (first-grade student “was spanked every day” because her 
deafness prevented her from following instructions); id. at 400 (Mrs. 
Richard Walbridge) (student with spina bifida barred from the school 
library for two years “because her braces and crutches made too much 
noise”); Calif. Att’y Gen., Commission on Disability: Final Report 17 
(Dec. 1989) (Calif. Report) (“A bright child with cerebral palsy is assigned 
to a class with mentally retarded and other developmentally disabled 
children solely because of her physical disability.”); id. at 81 (in one town, 
all disabled children are grouped into a single classroom regardless of 
individual ability). 

22 

because “it would be ‘disgusting’ to my roommates to have to 
live with a woman with a disability.” Wash. 1733. 

22 

(iii) Voting and Political Access: Voting is the right that 
is “preservative of all rights,” Katzenbach v. Morgan, 384 
U.S. 641, 652 (1966), and the Equal Protection Clause guar- 
antees “the opportunity for equal participation by all voters” 
in elections, Harper v. Virginia Bd. of Elections, 383 U.S. 
663, 670 (1966). But “in the past years people with 
disabilities have been turned away from the polling places 
after they have been registered to vote because they did not 
look competent.” 2 Leg. Hist. 1220 (Nancy Husted-Jensen). 
When one witness turned in the registration card of a voter 
who has cerebral palsy and is blind, the “clerk of the board of 
canvassers looked aghast * * * and said to me, ‘Is that 
person competent? Look at that signature.” The clerk then 
arbitrarily invented a reason to reject the registration. Id. 
at 1219. Congress was also aware that a deaf voter was told 
that “you have to be able to use your voice” to vote. Equal 
Access to Voting for Elderly and Disabled Persons: Hear- 
ings Before the Task Force on Elections of the House Comm. 
on House Admin., 98th Cong., 1st Sess. 94 (1984) (Equal 
Access to Voting Hearings). “How can disabled people have 

22 See also 2 Leg. Hist. 1224 (Denise Karuth) (state university pro- 
fessor asked a blind student enrolled in his music class “‘What are you 
doing in this program if you can’t see’ ”; student was forced to drop class); 
id. at 1225 (state commission refuses to sponsor legally blind student for 
masters degree in rehabilitation counseling because “the State would not 
hire blind rehabilitation counselors, ‘[s]ince,’ and this is a quote: ‘they 
could not drive to see their clients’ ”); Wis. 1757 (a doctoral program would 
not accept a person with a disability because “it never worked out well”); 
S.D. 1476 (University of South Dakota dean and his successor were 
convinced that blind people could not teach in the public schools); Calif. 
Report 138; J. Shapiro, No Pity 45 (1994) (Dean of the University of 
California at Berkeley told a prospective student that “[w]e’ve tried 
cripples before and it didn’t work”). 

23 

clout with our elected officials when they are aware that 
many of us are prevented from voting?” Ark. 155. 

23 

The denial of access to political officials and vital govern- 
mental services also featured prominently in the testimony. 
For example, “[t]he courthouse door is still closed to Ameri- 

23 “A blind woman, a new resident of Alabama, went to vote and was 
refused instructions on the operation of the voting machine.” Ala. 16. 
Another voter with a disability was “told to go home once when I came to 
the poll and found the voting machines down a flight of stairs with no 
paper ballots available”; on another occasion that voter “had to shout my 
choice of candidates over the noise of a crowd to a precinct judge who 
pushed the levers of the machine for me, feeling all the while as if I had to 
offer an explanation for my decisions.” Equal Access to Voting Hearings 

45. The legislative record also documented that many persons with 
disabilities “cannot exercise one of your most basic rights as an American” 
because polling places were frequently inaccessible. S. Rep. No. 116, 
supra, at 12. As a consequence, persons with disabilities “were forced to 
vote by absentee ballot before key debates by the candidates were held.” 
Ibid.; see also May 1989 Hearings 76 (Ill. Att’y Gen. Hartigan) (similar). 
And even when persons with disabilities have voted absentee, they have 
been treated differently from other absentee voters. See 2 Leg. Hist. 1745 
(Nanette Bowling) (“[S]ome jurisdictions merely encouraged persons with 
disabilities to vote by absentee ballot * * * [which] deprives the disabled 
voter of an option available to other absentee voters, the right to change 
their vote by appearing personally at the polls on election day.”); Equal 
Access to Voting Hearings 17 & 461 (criticizing States’ imposition of 
special certification requirements on persons with disabilities for absentee 
voting); see generally 2 Leg. Hist. 1767 (Rick Edwards) (“The Twenty- 
sixth Amendment to the Constitution gives me the right to vote, yet until 
last year my polling place was inaccessible.”); Wis. 1756 (alleging that 
37%-40% of Milwaukee polling places are inaccessible to wheelchair users); 
Mont. 1024, 1027 (Cascade County’s polling place is completely 
inaccessible); Mich. 922 (alleging that 65% of Detroit voting precincts are 
inaccessible); N.D. 1185 (“In rural North Dakota many voting sites are 
inaccessible.”); Del. 307, Pa. 1436, Okla. 1280, Colo. 277 (all: polling places 
inaccessible); FEC, Polling Place Accessibility in the 1988 General 
Election 7 (1989) (21% of polling places inaccessible; 27% were inaccessible 
in 1986 elections). 

24 

cans with disabilities”—literally. 2 Leg. Hist. 936 (Sen. 
Harkin). 

I went to the courtroom one day and * * * I could not 
get into the building because there were about 500 steps 
to get in there. Then I called for the security guard to 
help me, who * * * told me there was an entrance at 
the back door for the handicapped people. * * * I went 
to the back door and there were three more stairs for me 
to get over to be able to ring a bell to announce my 
arrival so that somebody would come and open the door 
and maybe let me in. I was not able to do that. * * * 
This is the court system that is supposed to give me a 
fair hearing. It took me 2 hours to get in. * * * And 
when [the judge] finally saw me in the courtroom, he 
could not look at me because of my wheelchair. * * * 
The employees of the courtroom came back to me and 
told me, “You are not the norm. You are not the normal 
person we see every day. 

Id. at 1071 (Emeka Nwojke). Numerous other witnesses 
explained that access to the courts 

24 and other important 
government buildings and officials 

25 depended upon their 
willingness to crawl or be carried. 

24 See, e.g., Ala. 15 (“A man, called to testify in court, had to get out of 
his wheelchair and physically pull himself up three flights of stairs to 
reach the courtroom.”); W. Va. 1745 (witness in court case had to be 
carried up two flights of stairs because sheriff would not let him use the 
elevator); Consol. Gov’t C.A. Br. at 3, Lane v. Tennessee, No. 98-6730 (6th 
Cir.) (Lane arrested for two misdemeanors and ordered to report for 
hearing at inaccessible courthouse; the first day he crawled up the stairs 
to the courtroom; the second day he was arrested for failure to appear 
when he refused to crawl or be carried up the stairs; hearing later held 
with defendant forced to remain outside while counsel shuttled between 
him and the courtroom). 

25 See, e.g., H.R. Rep. No. 485, supra, Pt. 2, at 40 (town hall and public 
schools inaccessible); 2 Leg. Hist. 1331 (Justin Dart) (“We have clients 
whose children have been taken away from them and told to get parent 

25 

(iv) Public Transportation: Individuals also reported dis- 
criminatory treatment on public transportation. 

Some of the drivers are very rude and get mad if I want 
to take the bus. Can you believe that? I work and part 
of my taxes pay for public buses and then they get mad 
just because I am using a wheelchair. * * * Maybe 
another person using a wheelchair is trying to go to work 

information, but have no place to go because the services are not 
accessible. What chance do they ever have to get their children back?”); 
Spectrum 39 (76% of state-owned buildings offering services and 
programs for the general public are inaccessible and unusable for persons 
with disabilities); May 1989 Hearings 488, 491 (Ill. Att’y Gen. Hartigan) 
(“I have had innumerable complaints regarding lack of access to public 
services—people unable to meet with their elected representatives 
because their district office buildings were not accessible or unable to 
attend public meetings because they are held in an inaccessible building”; 
“individuals who are deaf or hearing impaired call[] our office for 
assistance because the arm of government they need to reach is not 
accessible to them”); id. at 76 (“[Y]ou cannot attend town council meetings 
on the second story of a building that does not have an elevator.”); id. at 
663 (Dr. Mary Lynn Fletcher) (to attend town meetings, “I (or anyone 
with a severe mobility impairment) must crawl up three flights of circular 
stairs to the ‘Court Room.’ In this room all public business is conducted by 
the county government whether on taxes, zoning, schools or any type of 
public business.”); Alaska 73 (“We have major problems in Seward, 
regarding accessibility to City and State buildings for the handicapped 
and disabled.”; City Manager responded that “[H]e runs this town * * * 
and no one is going to tell him what to do.”); Ind. 626 (“Raney, who has 
been in a wheelchair for 12 years, tried three times last year to testify 
before state legislative committees. And three times, he was thwarted by 
a narrow set of Statehouse stairs, the only route to the small hearing 
room.”); Ind. 651 (person with disabilities could not attend government 
meetings or court proceedings because entrances and locations were 
inaccessible); Wis. 1758 (lack of access to City Hall); Wyo. 1786 (individual 
unable to get a marriage license because the county courthouse was not 
wheelchair accessible); Calif. Report 70 (“People with disabilities are often 
unable to gain access to public meetings of governmental and quasi- 
governmental agencies to exercise their legal right to comment on issues 
that impact their lives.”). 

26 

or school and they should not have to crawl up the stairs 
and get dirty. * * * It is hard for people to feel good 
about themselves if they have to crawl up the stairs of a 
bus, or if the driver passes by without stopping. * * * I 
learned in school that black people had problems with 
buses, too. 

2 Leg. Hist. 993 (Jade Calegory). 

26 A “key” Connecticut 
transportation official responded to requests for accessibility 
by asking “Why can’t all the handicapped people live in one 
place and work in one place? It would make it easier for us.” 
Id. at 1085 (Edith Harris). 

27 

(v) Law Enforcement: Persons with disabilities have also 
been victimized in their dealings with law enforcement. 
When police in Kentucky learned that a man they arrested 
had AIDS, “[i]nstead of putting the man in jail, the officers 
locked him inside his car to spend the night.” 2 Leg. Hist. 
1005 (Belinda Mason). Police refused to accept a rape com- 
plaint from a blind woman because she could not make a 
visual identification, ignoring the possibility of alternative 
means of identifying the perpetrator. N.M. 1081. A person 
in a wheelchair was given a ticket and six-months of 
probation for obstructing traffic on the street, even though 
the person could not use the sidewalk because it lacked curb 
cuts. Va. 1684. Task Force Chairman Justin Dart testified, 
moreover, that persons with hearing impairments “have 
been arrested and held in jail over night without ever know- 

26 See also 2 Leg. Hist. 1257 (Speed Davis) (similar); Mass. 831 (“Blacks 
wanted to ride in the front of the bus. Disabled people just want[] on.”). 

27 See also 2 Leg. Hist. 1097 (Bill Dorfer) (“And many of these buses 
quite often bypass men and women in wheelchairs or with crutches, 
walkers, because they do not want to take the time, quite frankly, to stop 
and to assist these people on the buses”); id. at 1190 (Cindy Miller) (“It is a 
20-minute bus ride [to work], but I have to leave an hour and a half early 
because the bus lifts are not maintained. * * * But sometimes, like this 
morning, the bus with the lift just does not stop for me.”); Wash. 1716 
(person with service dog not allowed to board bus). 

27 

ing their rights nor what they are being held for.” 2 Leg. 
Hist. 1331. 

28 The discrimination continues in correctional 
institutions. “I have witnessed their jailers rational[ize] 
taking away their wheelchairs as a form of punishment as if 
that is different than punishing prisoners by breaking their 
legs.” 2 Leg. Hist. 1190 (Cindy Miller). 

29 

(vi) Institutionalization: Unconstitutional denials of ap- 
propriate treatment and unreasonable institutionalization of 
persons in state mental hospitals were also catalogued. See 
2 Leg. Hist. 1203 (Lelia Batten) (state law ineffective; state 
hospitals are “notorious for using medication for controlling 
the behavior of clients and not for treatment alone. Seclu- 
sion rooms and restraints are used to punish clients.”); id. at 

28 See also 2 Leg. Hist. 1115 (Paul Zapun) (sheriff threatens persons 
with disabilities who stop in town due to car trouble); id. at 1196 (Cindy 
Miller) (police “do not provide crime prevention, apprehension or 
prosecution because they see it as fate that Americans with disabilities 
will be victims”); id. at 1197 (police officer taunted witness by putting a 
gun to her head and pulling the trigger on an empty barrel, “because he 
thought it would be ‘funny’ since I have quadraparesis and couldn’t flee or 
fight”); Tex. 1541 (police refused to take an assault complaint from a 
person with a disability); Calif. Report 101-104 (additional examples). In 
addition, persons with disabilities, such as epilepsy, are “frequently 
inappropriately arrested and jailed” and “deprived of medications while in 
jail.” H.R. Rep. No. 485, supra, Pt. 3, at 50; see also 136 Cong. Rec. H2633 
(daily ed. May 22, 1990) (Rep. Levine); Wyo. 1777; Idaho 517. 

29 See also Spectrum 168 (noting discrimination in treatment and re- 
habilitation programs available to inmates with disabilities and 
inaccessible jail cells and toilet facilities); Parrish v. Johnson, 800 F.2d 
600, 603, 605 (6th Cir. 1986) (prison guard repeatedly assaulted paraplegic 
inmates with knife, forced them to sit in own feces, and taunted them with 
remarks like “crippled bastard” and “[you] should be dead”); Harrelson v. 
Elmore County, 859 F. Supp. 1465, 1466 (M.D. Ala. 1994) (paraplegic 
prisoner denied use of a wheelchair and forced to crawl around his cell); 
Calif. Report 103 (“[A] parole agent sent a man who uses a wheelchair 
back to prison since he did not show up for his appointments even though 
he explained that he could not make the appointments because he was 
unable to get accessible transportation.”). 

28 

1262-1263 (Eleanor C. Blake) (detailing the “minimal, custo- 
dial, neglectful, abusive” care received at state mental hos- 
pital, and willful indifference resulting in rape); Spectrum 34- 

35. 

30 

(vii) Other Public Services: The scope of the testimony 
offered to Congress regarding unconstitutional treatment 
swept so broadly, touching virtually every aspect of indi- 
viduals’ encounters with their government, as to defy iso- 

30 See also Calif. Report 114. Congress also brought to bear the knowl- 
edge it had acquired of this problem in enacting the Civil Rights of 
Institutionalized Persons Act of 1980, Pub. L. No. 96-247, 94 Stat. 349, 
codified at 42 U.S.C. 1997 et seq., and the Developmental Disabilities Act 
of 1984, 42 U.S.C. 6000 et seq. See, e.g., 132 Cong. Rec. S5914-01 (daily ed. 
May 14, 1986) (Sen. Kerry) (findings of investigation of state-run mental 
health facilities “were appalling. The extent of neglect and abuse 
uncovered in their facilities was beyond belief.”); Civil Rights of Instit. 
Persons: Hearings on S. 1393 Before the Subcomm. on the Const. of the 
Sen. Comm. on the Judiciary, 95th Cong., 1st Sess. 127 (1977) (Michael D. 
McGuire, M.D.) (“it became quite clear * * * that the personnel regarded 
patients as animals, * * * and that group kicking and beatings were part 
of the program”); id. at 191-192 (Dr. Philip Roos) (characterizing 
institutions for persons with mental retardation throughout the nation as 
“dehumanizing,” “unsanitary and hazardous conditions,” “replete with 
conditions which foster regression and deterioration,” “characterized by 
self-containment and isolation, confinement, separation from the main- 
stream of society”); Civil Rights for Instit. Persons: Hearings on H.R. 
2439 and H.R. 5791 Before the Subcomm. on Courts, Civil Liberties, and 
the Admin. of Justice of the House Comm. on the Judiciary, 95th Cong., 
1st Sess. 239 (1977) (Stanley C. Van Ness) (describing “pattern and 
practice of physical assaults and mental abuse of patients, and of 
unhealthy, unsanitary, and anti-therapeutic living conditions” in New 
Jersey state institutions); Civil Rights of Instit. Persons: Hearings on 
H.R. 10 Before the Subcomm. on Courts, Civil Liberties, and the Admin. 
of Justice of the House Comm. on the Judiciary, 96th Cong., 1st Sess. 34 
(1979) (Paul Friedman) (“[A] number of the residents were literally kept 
in cages. A number of those residents who had been able to walk and who 
were continent when they were committed had lost the ability to walk, 
had become incontinent, and had regressed because of these shockingly 
inhumane conditions of confinement.”). 

29 

lating the problem into select categories of state action. 
Services and programs as varied as zoning 

31; the operation of 
zoos, 

32 public libraries, 

33 public swimming pools and park 
programs 

34; and child custody proceedings 

35 exposed the dis- 

31 Congress knew that Cleburne was not an isolated incident. See 2 
Leg. Hist. 1230 (Larry Urban); see also People First Cert. Amicus Br., 
supra, at 20 n.94; Wyo. 1781 (zoning board declined to authorize group 
home because of “local residents’ unfounded fears that the residents would 
be a danger to the children in a nearby school”); Nev. 1050 (Las Vegas has 
passed an ordinance that disallows the mentally ill from living in 
residential areas); N.J. 1068 (group home for those with head injuries 
barred because public perceived such persons as “totally incompetent, 
sexual deviants, and that they needed ‘room to roam’ ”; “Officially, the 
application was turned down due to lack of parking spaces, even though it 
was early established that the residents would not have automobiles.”). 

32 A zoo keeper refused to admit children with Down Syndrome 
“because he feared they would upset the chimpanzees.” S. Rep. No. 116, 
supra, at 7; H. R. Rep. No. 485, supra, Pt. 2, at 30. 

33 See 2 Leg. Hist. 1100 (Shelley Teed-Wargo) (town library refused to 
let person with mental retardation check out a video “because he lives in a 
group home,” unless he was accompanied by a staff person or had a 
written permission slip); Pa. 1391 (public library will not issue library 
cards to residents of group homes without the countersignature of a staff 
member—this rule applies to “those having physical as well as mental 
disabilities”). 

34 A paraplegic Vietnam veteran was forbidden to use a public pool in 
New York; the park commissioner explained that “[i]t’s not my fault you 
went to Vietnam and got crippled.” 3 Leg. Hist. 1872 (Peter Addesso); see 
also id. at 1995 (Rev. Scott Allen) (woman with AIDS and her children 
denied entry to a public swimming pool); May 1989 Hearings 76 (Ill. Att’y 
Gen. Hartigan) (visually impaired children with guide dogs “cannot 
participate in park district programs when the park has a ‘no dogs’ rule”). 

35 See H.R. Rep. No. 485, supra, Pt. 3, at 25 (“These discriminatory 
polices and practices affect people with disabilities in every aspect of their 
lives * * * [including] securing custody of their children.”); id., Pt. 2, at 41 
(“[B]eing paralyzed has meant far more than being unable to walk—it has 
meant being excluded from public schools * * * and being deemed an 
‘unfit parent’” in custody proceedings.); 2 Leg. Hist. 1611 n.10 (Arlene 
Mayerson) (“Historically, child-custody suits almost always have ended 

30 

criminatory attitudes of officials. 

36 

with custody being awarded to the non-disabled parent.”); Mass. 829 
(government refuses to authorize couple’s adoption solely because woman 
had muscular dystrophy); Spectrum 40; No Pity, supra, at 26 (woman with 
cerebral palsy denied custody of her two sons; children placed in foster 
care instead); Carney v. Carney, 598 P.2d 36, 42 (Cal. 1979) (lower court 
“stereotype[d] William as a person deemed forever unable to be a good 
parent simply because he is physically handicapped”). 

36 See also H.R. Rep. No. 485, supra, Pt. 2, at 46 (“How many well 
educated and highly capable people with disabilities must sit down at 
home every day, not because of their lack of ability, but because of the 
attitudes of employers, service providers, and government officials?”); 2 
Leg. Hist. 1061 (Eric Griffin) (“I come to you as one of those * * * who 
was denied a public education until age 18, one who has been put through 
the back door, and kept out of the front door and segregated even if you 
could get in.”); id. at 1078 (Ellen Telker) (“State and local municipalities do 
not make many materials available to a person who is unable to read 
print.”); id. at 1116 (Virginia Domini) (persons with disabilities “must fight 
to function in a society where busdrivers start moving before I have my 
balance or State human resources [sic] yell ‘I can’t understand you,’ to 
justify leaving a man without food or access to food over the weekend.”); 
id. at 1017 (Judith Heumann) (“Some of these people are in very high 
places. In fact, one of our categories of great opposition is local admini- 
strators, local elected officials.”); 3 Leg. Hist. 2241 (James Ellis) (“Because 
of their disability, people with mental retardation have been denied the 
right to marry, the right to have children, the right to vote, the right to 
attend public school, and the right to live in their own community, with 
their own families and friends.”); 2 Leg. Hist. 1768 (Rick Edwards) (“Why 
are the new drinking fountains in our State House erected out of reach of 
persons in wheelchairs? And why were curb cuts at the Indianapolis 
Airport filled in with concrete?); Task Force Report 21 (six wheelchair 
users arrested for failing to leave restaurant after manager complained 
that “they took up too much space”); see generally Spectrum App. A 
(identifying 20 broad categories of state-provided or supported services 
and programs in which discrimination against persons with disabilities 
arises); Unequal Treatment, supra. 

31 

3 . 

The existence of state laws against disability dis- 
crimination does not negate Congress’s finding of 

widespread discrimination by state governments and 

their subdivisions 

Entirely ignoring the real-life experiences with disability 
discrimination that hundreds of witnesses related at the con- 
gressional hearings and Task Force forums, petitioners tell 
this Court that the only “real evidence” (Pet. Br. 38) of state 
action it should consider is the fact that States have enacted 
laws against disability discrimination, and that Congress was 
aware of that. Petitioners’ argument is entirely mistaken. 

First, substantial information and testimony before Con- 
gress demonstrated that state laws were “inadequate to 
address the pervasive problems of discrimination that people 
with disabilities are facing.” S. Rep. No. 116, supra, at 18; 
see also ibid. (section of report entitled “CURRENT 
FEDERAL AND STATE LAWS ARE INADEQUATE”); 
H.R. Rep. No. 485, supra, Pt. 2, at 47 (same). The 50 State 
Governors’ Committees “report[ed] that existing state laws 
do not adequately counter * * * discrimination.” Ibid. 

37 

The Illinois Attorney General testified that “[p]eople with 
disabilities should not have to win these rights on a State-by- 
State basis” and that “[i]t is long past time * * * [for] a 
national policy that puts persons with disabilities on equal 
footing with other Americans.” May 1989 Hearings 77. 
And, although Ohio now tells this Court that application of 
the Disabilities Act to the States is unnecessary, that is not 
what Ohio’s Governor told Congress at the time. May 1989 

37 See also 136 Cong. Rec. H2627 (May 22, 1990) (Rep. Wolpe), id. at 
H2633 (Rep. Levine); 134 Cong. Rec. S5116 (Apr. 28, 1988) (Sen. Simon); 2 
Leg. Hist. 963 (Sandra Parrino); id. at 967 (Adm. James Watkins) (“Too 
many States, for whatever reason, still perpetuate confusion. It is time for 
Federal action.”); id. at 1642-1643 (Arlene Mayerson) (noting variations 
and gaps in coverage of state statutes); 3 Leg. Hist. 2245 (Robert 
Burgdorf). 

32 

Hearings 778 (“[S]tate and local governments must also be 
held to the same standards” of ensuring “that there is no 
discrimination against people with disabilities in any pro- 
gram under their jurisdiction.”). 

38 

Second, petitioners’ appendix of state laws (Br. App. A) 
neither establishes the effectiveness of those laws nor dis- 
proves the existence of official discrimination. As an initial 
matter, petitioners grossly exaggerate the coverage of those 
laws. See generally Nat’l Ass’n of Protection & Advocacy 
Servs. Amicus Br.; J. Flaccus, Handicap Discrimination 
Legislation: With Such Inadequate Coverage at the Federal 
Level, Can State Legislation Be of Any Help?, 40 Ark. L. 

38 Other state officials echoed those sentiments. See Dep’t of Health & 
Human Servs., Visions of: Independence, Productivity, Integration for 
People with Developmental Disabilities 29 (1990) (19 States strongly 
recommended passage of the Disabilities Act); 2 Leg. Hist. 1050 (Elmer 
Bartels, Mass. Rehab. Comm’n); id. at 1455-1456 (Nikki Van Hightower, 
Treas., Harris Co., Tex.); id. at 1473-1474 (Robert Lanier, Chair, Metro. 
Transit Auth. of Harris Co., Tex.); id. at 1506 (Texas State Sen. Chet 
Brooks) (“We cannot effectively piece these protections together state by 
state, person by person.”); id. at 1508. 

Congress likewise recognized that the prior piecemeal approach of 
federal legislation had not succeeded and, in fact, had created “a 
patchwork quilt in need of repair * * * [with] holes in the fabric, serious 
gaps in coverage that leave persons with disabilities without adequate 
civil rights protections.” S. Rep. No. 116, supra, at 19 (quoting Att’y Gen. 
Thornburgh). Similarly, the Illinois Attorney General testified that the 
Rehabilitation Act’s scheme of prohibiting discrimination by entities 
receiving federal funds “[u]nfortunately * * * translates [into] total 
confusion for the disabled community and the inability to expect 
consistent treatment.” May 1989 Hearings 77-78; see also 26 Weekly 
Comp. Pres. Doc. 1165 (July 26, 1990) (President Bush’s signing statement 
observes that “[e]xisting laws and regulations * * * have left broad 
areas of American life untouched or inadequately addressed”); H.R. Rep. 
No. 485, supra, Pt. 4, at 24; 134 Cong. Rec. S5116 (daily ed. Apr. 28, 1988) 
(Sen. Simon); id. at S5107 (Sen. Weicker); 2 Leg. Hist. 1272 (Rep. Owens); 
3 Leg. Hist. 2015 (Att’y Gen. Thornburgh); id. at 2244-2245 (Robert 
Burgdorf). 

33 

Rev. 261 (1986) (detailing gaps in coverage of state laws). 
Prior to 1990, nearly half of the States did not protect per- 
sons with mental illness and/or mental disabilities. See 
Flaccus, supra, at 278-280. New Hampshire excluded dis- 
abilities caused by illness, N.H. Rev. Stat. Ann. § 354- 
A:3(XIII) (1984), while Arizona excluded disabilities which 
were first manifested after the age of 18, Ariz. Rev. Stat. 
§ 36-551(11)(b) (1986). Flaccus, supra, at 285. Of particular 
relevance here, few States protected against discrimination 
based on either a perceived disability or a history of illness 
such as cancer. See B. Hoffman, Employment Discrimina- 
tion Based on Cancer History, 1986 Temple L.Q. 1 (1986). 
Many States failed to provide for private rights of action and 
compensatory damages, effectively leaving victims of dis- 
crimination without enforceable remedies. Id. at App. B; 
Flaccus, supra, at 300-310, 317-321. 

Furthermore, petitioners’ surmise about the effectiveness 
of those laws cannot supplant the first-hand testimony of 
witness after witness about the instances of discrimination 
they faced and the ineffectiveness of state laws. Just as 
state laws against race discrimination have neither eradi- 
cated the problem nor undermined the basis for subjecting 
state employers to federal prohibitions, 

39 Congress was 
equally justified in concluding that state laws against dis- 
ability discrimination had generally been ineffective in 
combating the lingering effects of prior official discri- 
mination and exclusionary laws and policies. Indeed, while 
the Disabilities Act was before Congress, the Advisory 
Commission on Intergovernmental Relations (ACIR) 

40 sur- 
veyed state compliance with prohibitions on employment 

39 See, e.g., S. Rep. No. 415, 92d Cong., 1st Sess. 19 (1971) (37 States 
had equal employment laws at the time Title VII was extended to the 
States). 

40 The Commission’s membership included six Members of Congress 
and 11 representatives from state and local governments. 

34 

discrimination and reported that 35% of responding state 
and local governments had no employees with disabilities, 
and half had only “one or two.” ACIR, Disability Rights 
Mandates 64 (1989). Further, 82% of state and local govern- 
ment employers harbored moderate to strong negative 
attitudes and misconceptions about hiring persons with 
disabilities, based on stereotypes, prejudice, and “feelings of 
discomfort in associating with disabled individuals.” Id. at 
72-73. That, unfortunately, “is the pervasive backdrop 
against which regulatory mandates are carried out.” Id. at 

96. 

41 

Third, petitioners fail in their effort to show that Congress 
considered state disability discrimination laws to be effec- 
tive. While petitioners correctly note (Br. 32) that the 
Senate Report stated that “[v]irtually all States prohibit 
unfair discrimination among persons of the same class and 
equal expectation of life,” that statement referred not to 
state anti-discrimination laws, but rather to state regulation 
of unfair insurance practices. See S. Rep. No. 116, supra, at 

84. Similarly, while it is true that Attorney General Thorn- 
burgh noted that federal action should take account of 
existing state laws (Pet. Br. 32), that statement referred to 
state laws prohibiting only private-sector discrimination. 
Likewise, the National Coalition of Cancer Survivorship did 
note that every State had laws regulating disability dis- 

41 See also Ala. 17 (every day at her job, the Director of Alabama’s 
Disabled Persons Protection Commission “ha[d] to drive home to use the 
bathroom or call my husband to drive in and help me because the newly 
renovated State House” lacked accessible bathrooms); Calif. Report 22-23 
(noting “gaps” and “contradictions” in state law); Texas Report 9 (noting 
that commitment of high-level policymakers to non-discrimination not 
alone sufficient because “it comes down to the choice made by an 
immediate supervisor * * * [and] [i]f this person does not share the 
philosophy that hiring the handicapped is good business it is all over for 
that person. Then what we are doing actually is, we are giving lip service 
to it but it is not going to happen.”). 

35 

crimination (Pet. Br. 33), but went on to explain that “[t]he 
scope of these [state] laws, however, varies widely,” and 
provided a lengthy and detailed critique (complete with 
chart) of the limitations of state laws such as Alabama’s. 
May 1989 Hearings 386-394. Indeed, as noted earlier, many 
witnesses testified, without contradiction, that “state laws 
have not provided substantial protection to people with 
disabilities.” 3 Leg. Hist. 2245 (James Ellis) (cited at Pet. Br. 
34, 37). 

42 

4. Disability discrimination does not fall beyond 

Congress’s Section 5 enforcement power simply be- 
cause it is subject to rational-basis review by courts 

Petitioners contend (Br. 44-48) that, notwithstanding the 
voluminous evidence of discrimination before it, Congress’s 
hands are tied because disability discrimination is subject to 
rational-basis review by the courts. In petitioners’ view, 
Section 5 permits Congress only to prohibit disability discri- 
mination that would be declared unconstitutional by a court, 

42 Petitioners’ repeated reliance (Br. 4, 33) on Rep. Moakley’s comment 
that state laws are “out in front” of federal law ignores that Rep. Moakley 
had earlier decried the weaknesses of state laws. Employment Discrim. 
Against Cancer Victims and the Handicapped: Hearing Before the Sub- 
comm. on Employment Opp. of the House Comm. on Educ. & Labor, 99th 
Cong., 1st Sess. 62 (1985) (Rep. Moakley) (“[O]ne-fourth of the states have 
no protection for the handicapped. Additionally, even those states with 
laws differ greatly in their regulations.”) (attaching ten-state survey 
showing gaps in coverage of laws like Alabama’s). Placed in context, then, 
the quotation petitioners rely so heavily upon is more fairly read as a 
complaint about the deficiencies and gaps in federal law, rather than an 
assertion of the sufficiency of state law. Compare also Pet. Br. 31 (quoting 
Barbara Hoffman), with Discrimination Against Cancer Victims and the 
Handicapped: Hearing Before the Subcomm. on Employment Opportu- 
nities of the House Comm. on Educ. & Labor, 100th Cong., 1st Sess. 86 
(1987) (Barbara Hoffman) (“most [state] laws do not clearly protect cancer 
survivors” from discrimination; for those few that do, the “State agency 
which enforces that law still will not strike down the civil service regula- 
tions which blatantly are violative of the act”). 

36 

and not to identify or prevent Fourteenth Amendment vio- 
lations that might elude judicial review, because “the use of 
prophylactic authority under Section 5 in the context of 
rights that warrant rational-basis review” (Pet. Br. 44-45) is 
impermissible. Of course, to the extent that the Disabilities 
Act enforces the Due Process Clause of the Fourteenth 
Amendment by remedying and preventing governmental 
conduct that burdens the fundamental rights of persons with 
disabilities—such as the right to vote, to access the courts, to 
petition officials for the redress of grievances, to be accorded 
due process by law enforcement officials, and to humane 
conditions of confinement—petitioners’ argument is mis- 
placed. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988) 
(“the most exacting scrutiny” applies to infringements of 
fundamental rights). And even where rational-basis review 
applies, petitioners’ theory finds no basis in the Consti- 
tution’s text, this Court’s precedents, or logic. 

First, petitioners’ proposed restriction appears nowhere 
in the text of Section 5, which gives Congress the power to 
enforce the entire Fourteenth Amendment. See Flores, 521 
U.S. at 519. Nor could it be grounded in the history of 
Section 5, because the tiers of judicial scrutiny were 
unknown to the Framers of the Fourteenth Amendment and, 
in fact, did not appear until a century later. 

Second, petitioners’ attempt to exclude select categories 
of discrimination from Congress’s enforcement power cannot 
be reconciled with this Court’s precedents. In Cleburne, this 
Court held that disability discrimination should receive 
rational-basis review by the courts, not because persons with 
disabilities lack the traditional indicia of a suspect class— 
they in fact possess many of those criteria—but because 
heightened scrutiny would unduly limit legislative solutions. 
“How this large and diversified group is to be treated under 
the law is a difficult and often a technical matter, very much 
a task for legislators guided by qualified professionals.” 473 
U.S. at 442-443. While the Court in Cleburne acknowledged 

37 

the important role of state legislators in that process, id. at 
442, it also recognized the appropriateness of congressional 
legislation, see id. at 439 (rational-basis scrutiny applies only 
“absent controlling congressional direction”); id. at 443-444. 
Thus, the judiciary’s application of rational-basis scrutiny is 
premised upon the enhanced—not diminished—capacity of 
Congress to address the problem. 

43 

Indeed, if petitioners were correct, this Court likely would 
have mentioned that categorical limitation in either Kimel, 
supra, or Oregon v. Mitchell, 400 U.S. 112 (1970). In each of 
those cases, the Court invalidated Section 5 legislation 
concerning age discrimination—subject only to rational-basis 
review—without hinting at, let alone endorsing, petitioners’ 
constitutional fault line. Moreover, petitioners’ theory is 
directly contradicted by this Court’s ruling in Fitzpatrick v. 
Bitzer, 427 U.S. 445 (1976), sustaining under Section 5 the 
extension of Title VII’s ban on gender discrimination to the 
States at a time when a majority of the Court had not yet 
concluded that gender discrimination warrants heightened 
scrutiny. 

44 In fact, any classification that is subject to 
judicial review for arbitrariness under the Equal Protection 
Clause must also be subject to congressional legislation 
under Section 5, because “[i]t is not * * * the judicial 

43 The Disabilities Act does not affect or impair the ability of the States 
to “provide[] greater or equal protection for the rights of individuals with 
disabilities.” 42 U.S.C. 12201(b). 

44 Not until the Term after Fitzpatrick did the Court hold that gender 
discrimination warrants heightened scrutiny. Craig v. Boren, 429 U.S. 
190, 197-199 (1976). A year after the 1972 amendments, a plurality of this 
Court had expressed its view that gender distinctions merit enhanced 
scrutiny, Frontiero v. Richardson, 411 U.S. 677, 682-688 (1973) (opinion of 
Brennan, J.), but the constitutionality of Title VII’s abrogation did not 
turn upon that fact. Fitzpatrick did not cite Frontiero or discuss the 
applicable equal protection standard. See also Maher v. Gagne, 448 U.S. 
122, 132 (1980) (Section 5 power validly abrogated Eleventh Amendment 
immunity for attorney’s fees even where constitutional claims at issue 
were subject to rational-basis review). 

38 

power” but “the power of Congress which has been en- 
larged” by Section 5. 

Ex parte Virginia, 100 U.S. at 345. 

45 

Third, the reasons for restricting courts to rational-basis 
review do not disqualify Congress from providing appro- 
priate enforcement measures. Rational-basis scrutiny “is a 
paradigm of judicial restraint,” FCC v. Beach Communi- 
cations, Inc., 508 U.S. 307, 315 (1993) (emphasis added), 
designed to cabin the exercise of judicial power to invalidate 
duly-enacted state and federal legislation. It reflects the 
notion that stringent judicial review should largely be re- 
served for the protection of those groups with limited access 
to the political process. 

46 Thus, generally when courts 
entertain equal protection challenges, they must be ex- 
ceedingly deferential to the underlying legislative judgments 
and factfinding, requiring those challenging the laws to show 
that “the legislative facts on which the classification is ap- 
parently based could not reasonably be conceived to be true 
by the governmental decisionmaker.” Vance v. Bradley, 440 
U.S. 93, 111 (1979); see also Heller v. Doe, 509 U.S. 312, 320- 
321 (1993). 

By contrast, because congressional enforcement does not 
share either the anti-democratic character of judicial review 
or the limited capacity of courts to collect and review rele- 
vant information, Congress has “wide latitude” and a mark- 
edly different role from the courts when performing its 

45 Petitioners’ concern that sustaining the Disabilities Act as an 
exercise of the Section 5 power will open the floodgates to federal 
legislation is misplaced. This Court has devised a test for evaluating the 
propriety of Section 5 legislation that has proven perfectly capable of 
policing congressional overreaching. See United States v. Morrison, 120 
S. Ct. 1740 (2000); Kimel, supra; Flores, supra. 

46 See Cleburne, 473 U.S. at 441 (“courts have been very reluctant, as 
they should be in our federal system and with our respect for the 
separation of powers, to closely scrutinize legislative choices”); see also 
United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 

39 

“duty to make its own informed judgment on the meaning 
and force of the Constitution,” Flores, 521 U.S. at 520, 535. 

The creation of national rules for the governance of our 
society simply does not entail the same concept of 
recordmaking that is appropriate to a judicial or 
administrative proceeding. Congress has no responsi- 
bility to confine its vision to the facts and evidence 
adduced by particular parties. Instead, its special attri- 
bute as a legislative body lies in its broader mission to 
investigate and consider all facts and opinions that may 
be relevant to the resolution of an issue. 

Fullilove, 448 U.S. at 502-503 (Powell, J., concurring). 

47 

Accordingly, Congress’s enforcement power under Sec- 
tion 5 extends to the full spectrum of conduct that violates 
the Equal Protection Clause, and not merely to the class of 
governmental actions that this Court stands ready to invali- 
date under heightened scrutiny. 

48 Rather, by drawing on a 

47 See also Heller, 509 U.S. at 320 (“[A] legislative choice is not subject 
to courtroom factfinding and may be based on rational speculation 
unsupported by evidence or empirical data.”); Bush v. Lucas, 462 U.S. 367, 
389 (1983) (Congress “may inform itself through factfinding procedures 
such as hearings that are not available to the courts.”); South Carolina v. 
Katzenbach, 383 U.S. 301, 330 (1966) (“In identifying past evils, Congress 
obviously may avail itself of information from any probative source.”). 

48 To hold otherwise would “depreciate both congressional resource- 
fulness and congressional responsibility for implementing the [Four- 
teenth] Amendment” and would, contrary to this Court’s rulings, consign 
Congress “to the insignificant role of abrogating only those state laws that 
the judicial branch was prepared to adjudge unconstitutional, or of merely 
informing the judgment of the judiciary by particularizing the ‘majestic 
generalities’ of § 1 of the Amendment.” Morgan, 384 U.S. at 648-649; see 
also Croson, 488 U.S. at 519 (Kennedy, J., concurring in part & concurring 
in the judgment) (“[I]t diminishes the constitutional responsibilities of the 
political branches to say they must wait to act until ordered to do so by a 
court.”); Oregon, 400 U.S. at 296 (opinion of Stewart, J.) (Congress can find 
invidious discrimination in state action “even though a court in an individ- 
ual lawsuit might not have reached that factual conclusion”). 

40 

broad base of knowledge and experience, Congress is able to 
apply this Court’s definition of equal protection to a set of 
legislatively determined facts and ascertain, in a way that 
courts cannot, whether and how often governmental action 
entails the “indiscriminate imposition of inequalities,” 
Romer, 517 U.S. at 633, or is the likely outgrowth of prior 
governmental discrimination and exclusion, and the “nega- 
tive attitudes” and “vague, undifferentiated fears,” Cle- 
burne, 473 U.S. at 448-449, that official segregation spawned. 

B. The Americans With Disabilities Act Is Reasonably 

Tailored To Remedying And Preventing Unconsti- 
tutional Discrimination Against Persons With Dis- 
abilities 

When enacting Section 5 legislation, Congress “must 
tailor its legislative scheme to remedying or preventing” the 
unconstitutional conduct it has identified. Florida Prepaid, 
527 U.S. at 639. Congress, however, may “paint with a much 
broader brush than may this Court, which must confine itself 
to the judicial function of deciding individual cases and 
controversies upon individual records.” Fullilove, 448 U.S. 
at 501-502 n.3. Accordingly, “Congress’ § 5 power is not 
confined to the enactment of legislation that merely parrots 
the precise wording of the Fourteenth Amendment.” Kimel, 
120 S. Ct. at 644. Rather, “[l]egislation which deters or re- 
medies constitutional violations can fall within the sweep of 
Congress’ enforcement power even if in the process it 
prohibits conduct which is not itself unconstitutional.” Lopez 

v. Monterey County, 525 U.S. 266, 282 (1999); see also 
United States v. Morrison, 120 S. Ct. 1740, 1755 (2000). The 
operative question thus is not whether the Disabilities Act 
“prohibit[s] a somewhat broader swath of conduct,” Kimel, 
120 S. Ct. at 644, than would the courts, but whether the 
Disabilities Act sweeps more broadly than Congress could 
reasonably have deemed necessary to combat the historic 

41 

and enduring legacy of discrimination, segregation, and 
isolation faced by persons with disabilities. It does not. 

1. Discrimination on the basis of disability violates the 

Constitution more frequently than most classi- 
fications subject only to rational-basis review 

Petitioners assert (Br. 40-44) that the Disabilities Act is 
not proper enforcement legislation because, like the age dis- 
crimination statute at issue in Kimel, it prohibits significant 
amounts of conduct that the Constitution does not. They are 
mistaken, because the gap between what the Constitution 
and this legislation proscribes is far narrower than it was in 
Kimel. While both age and disability discrimination are 
subject to rational-basis judicial review, courts have far 
more readily found a rational basis for age discrimination, 
see Kimel, 120 S. Ct. at 646-647, than for disability dis- 
crimination, see Section A.2, supra. The reason for that 
difference is, as Cleburne and Romer demonstrate, that the 
determination whether governmental conduct lacks a 
rational basis for purposes of the Equal Protection Clause is 
a contextual one, sensitive to the historical and social 
environment in which governmental decisionmaking arises. 
Heller, 509 U.S. at 321 (basis for governmental action “must 
find some footing in the realities of the subject addressed by 
the legislation”); see also Plyler v. Doe, 457 U.S. 202, 223 
(1982). Because persons with disabilities, unlike older per- 
sons (Kimel, supra) or opticians (Williamson v. Lee Optical, 
348 U.S. 483 (1955)), have been “subjected to a ‘history of 
purposeful unequal treatment,’ ” Kimel, 120 S. Ct. at 645, 
disability discrimination is more likely in fact to result from 
false stereotypes and unconstitutional animus. 

49 “Because 

49 For example, while government generally may use age as a proxy 
for employment decisionmaking regardless of the nexus to actual ability, 
Kimel, 120 S. Ct. at 646, a governmental policy of refusing to hire all 
persons with disabilities or requiring the retirement of all wheelchair 

42 

prejudice spawns prejudice, and stereotypes produce limita- 
tions that confirm the stereotype on which they are based, a 
history of unequal treatment requires sensitivity to the 
prospect that its vestiges endure.” Cleburne, 473 U.S. at 473 

n.24 (Marshall, J.). 

2. The Disabilities Act reaches no further than Congress 

reasonably deemed necessary to remedy and prevent 

unconstitutional discrimination 

The Disabilities Act targets discrimination that is 
unreasonable. The States retain their discretion to exclude 
persons from employment programs, services, or benefits for 
any lawful reason unconnected with their disability or for no 
reason at all. 

50 The Disabilities Act also permits discri- 
mination if a person cannot “perform the essential functions 
of the employment position,” 42 U.S.C. 12111(8), or “meet[] 
the essential eligibility requirements” of the governmental 
program or service, 42 U.S.C. 12131(2). But once an indi- 
vidual proves that she can perform all but the non-essential 
tasks of a job or can meet all but the non-essential eligibility 
requirements of a program or service, the government’s 
interest in excluding that individual solely “by reason of such 
disability,” 42 U.S.C. 12132, is both minimal and, in light of 
history, constitutionally circumscribed. At the same time, 
permitting the States to retain and enforce their essential 
eligibility requirements protects their legitimate interests in 
selecting and structuring governmental activities. 

51 The 

users even where the disability bears no relation to job functions, would 
likely meet a different constitutional fate. 

50 The types of disabilities covered by the Act, moreover, are generally 
confined to those substantially limiting conditions that have given rise to 
discriminatory treatment in the past. See Sutton v. United Air Lines, 
Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Serv., 527 U.S. 516 
(1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 

51 Cf. Southeastern Community College v. Davis, 442 U.S. 397, 406- 
407, 409-410 (1979) (under Section 504 of the Rehabilitation Act, State 

43 

Disabilities Act thus carefully balances a State’s legitimate 
operational interests against the right of a person with a 
disability to be judged “by his or her own merit and essential 
qualities.” Rice v. Cayetano, 120 S. Ct. 1044, 1057 (2000). 

52 

The statute thus requires more than the Constitution only 
to the extent that some disability discrimination may be 
rational for constitutional purposes, but unreasonable under 
the standards of the Disabilities Act. That margin of statu- 
tory protection does not redefine the constitutional right at 
issue (see Pet. Br. 39). Instead, like Title VII on which the 
Disabilities Act was modeled, the enhanced statutory pro- 
tection is necessary to enforce this Court’s constitutional 
standard by reaching unconstitutional conduct that would 
otherwise escape detection in court, remedying the con- 
tinuing effects of prior unconstitutional discrimination, and 
deterring future constitutional violations. “While the line 
between measures that remedy or prevent unconstitutional 
actions and measures that make a substantive change in the 
governing law is not easy to discern,” Flores, 521 U.S. at 519, 
the Disabilities Act is on the remedial and prophylactic side 
of that line. 

a. Disparate Impact: Petitioners thrice object (Pet. Br. 
42-43 ¶¶ 4, 7, 9) that the Disabilities Act prohibits practices 
that have an unjustified disparate impact on persons with 
disabilities. However, prohibiting or requiring modifications 
of rules, policies, and practices that have a discriminatory 
impact is a traditional and appropriate exercise of the 
Section 5 power to combat a history of invidious discrimina- 
tion. 

53 By proscribing governmental practices with a dis- 

need not abandon essential requirements of its nursing program or 
fundamentally alter the nature of the program). 

52 See also Plyler, 457 U.S. at 221-222 (“[O]ne of the goals of the Equal 
Protection Clause [is] the abolition of governmental barriers presenting 
unreasonable obstacles to advancement on the basis of individual merit.”). 

53 See Fullilove, 448 U.S. at 477 (opinion of Burger, C.J.) (“[C]on- 
gressional authority [under Section 5] extends beyond the prohibition of 

44 

criminatory impact, 42 U.S.C. 12112(b)(6), the Disabilities 
Act eliminates “built-in headwinds” for persons with dis- 
abilities, Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), 
and fleshes out “subconscious stereotypes and prejudices,” 
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 
(1988). At the same time, the Act protects the States’ use 
of rules and practices that are necessary and reasonably 
related to the job or program, 42 U.S.C. 12112(b)(6). 

b. Reasonable Accommodation: As petitioners note (Br. 
43 ¶¶ 5, 6), the Disabilities Act requires “reasonable accom- 
modation” in employment, 42 U.S.C. 12111(8), 12111(b) 
(5)(A), and “reasonable modifications” in public services, 42 
U.S.C. 12131(2). Those requirements, however, are precisely 
tailored to the unique features of disability discrimination in 
two ways. 

First, given the history of segregation and isolation and 
the resulting entrenched stereotypes, fear, prejudices, and 
ignorance about persons with disabilities, Congress rea- 
sonably determined that a simple ban on future discrim- 
ination would be insufficient to purge the stain of past 
discrimination. Therefore, the Disabilities Act affirmatively 
promotes the integration of individuals with disabilities— 
both in order to remedy past unconstitutional conduct and to 
prevent future discrimination. Congress could reasonably 

purposeful discrimination to encompass state action that has discrimina- 
tory impact perpetuating the effects of past discrimination.”); id. at 502 
(Powell, J., concurring) (“It is beyond question * * * that Congress has 
the authority to identify unlawful discriminatory practices, to prohibit 
those practices, and to prescribe remedies to eradicate their continuing 
effects.”); City of Rome v. United States, 446 U.S. 156, 176-177 (1980) 
(under its Civil War Amendment powers, Congress may prohibit conduct 
that is constitutional if it perpetuates the effects of past discrimination); 
South Carolina v. Katzenbach, 383 U.S. at 325-333; see also Thornburg v. 
Gingles, 478 U.S. 30, 35 (1986) (discriminatory effects test for voting); cf. 
Washington v. Davis, 426 U.S. 229, 242 (1976) (“an invidious discrimi- 
natory purpose may often be inferred from * * * the fact, if it is true, 
that the law bears more heavily on one race than another”). 

45 

conclude that the demonstrated failure of state and local 
governments to undertake reasonable efforts to accom- 
modate and integrate persons with disabilities within their 
programs, services, and operations would freeze in place the 
effects of their prior exclusion and isolation of individuals 
with disabilities, creating a self-perpetuating spiral of 
segregation, stigma, ill treatment, neglect, and degradation. 
Congress also correctly concluded that, by reducing stereo- 
types and misconceptions, integration reduces the likelihood 
that constitutional violations will recur. Cf. Olmstead, 527 
U.S. at 600 (segregation “perpetuates unwarranted assump- 
tions that persons so isolated are incapable or unworthy of 
participating in community life”). 

Second, to the extent that the accommodation require- 
ment necessitates alterations in some governmental policies 
and practices, it is an appropriate enforcement mechanism 
for many of the same reasons that a prohibition on disparate 
impact is. Like practices with a disparate impact and lit- 
eracy tests for voting, 

54 governmental refusals to make even 
reasonable accommodations for persons with disabilities 
often perpetuate the consequences of prior unconstitutional 
discrimination, and thus fall within Congress’s Section 5 
power. 

55 

Moreover, failure to accommodate the needs of qualified 
persons with disabilities may often result directly from 

54 See Oregon v. Mitchell, 400 U.S. 112 (upholding nationwide ban on 
literacy tests even though they are not unconstitutional per se); Gaston 
County v. United States, 395 U.S. 285, 293, 296-297 (1969) (Congress can 
proscribe constitutional action, such as literacy tests, to combat ripple 
effects of earlier discrimination in other governmental activities); South 
Carolina v. Katzenbach, 383 U.S. at 333-334. 

55 Of course, the obligation to accommodate is less intrusive than the 
traditional disparate impact remedy because the government is not re- 
quired to abandon the practice in toto, but may simply modify it to 
accommodate those otherwise qualified individuals with disabilities who 
are excluded by the practice’s effect. 

46 

hidden unconstitutional animus and false stereotypes. As 
petitioners’ amicus recognizes (Crim. Justice Legal Found. 
Br. 7), employers regularly adjust the schedules and work 
functions of employees to accommodate family needs, civic 
and charitable activities, union demands, and personal 
emergencies. The Disabilities Act simply makes certain that 
the refusal to accommodate an employee with a disability is 
genuinely based on unreasonable cost or actual inability to 
accommodate, rather than on discomfort with or false 
stereotypes about the disability or unfounded concern about 
the costs of accommodation. Likewise, building and program 
designs generally are structured to accommodate the target 
population. The Disabilities Act simply ensures that persons 
previously invisible to designers are now considered part of 
government’s service constituency. “Just as it is unthinkable 
to design a building with a bathroom only for use by men, it 
ought to be just as unacceptable to design a building that can 
only be used by able-bodied persons. It is exclusive designs, 
and not any inevitable consequence of a disability that 
results in the isolation and segregation of persons with 
disabilities in our society.” 3 Leg. Hist. 1987 n.4 (Laura 
Cooper). 

56 

Third, Congress tailored the accommodation requirement 
to the unconstitutional governmental conduct it seeks to 
repair and prevent. The statute requires accommodations 
and modifications only where “reasonable,” 42 U.S.C. 
12112(b)(5)(A), 12131(2). Governments need not make ac- 
commodations or modifications that “impose an undue 
hardship” or require “fundamental alterations in the nature 
of a service, program, or activity,” in light of their nature or 

56 Likewise, child-size and adult-size water fountains routinely appear 
in buildings; requiring accessible fountains just expands that routine 
design process. 2 Leg. Hist. 993-994 (Jade Calegory) (“Black people had to 
use separate drinking fountains and those of us using wheelchairs cannot 
even reach some drinking fountains. We get thirsty, too.”). 

47 

cost, agency resources, and the operational practices and 
structure of the position. 42 U.S.C. 12111(10), 
12112(b)(5)(A); 28 C.F.R. 35.130(b)(7), 35.150(a)(3), 35.164; 
Olmstead, 527 U.S. at 606 n.16. 

Further, based on the consistent testimony of witnesses 
and expert studies, Congress determined that the vast 
majority of accommodations entail little or no cost. For 
example, over 50% of accommodations in employment 
settings cost nothing; another 30% cost less than $500. 

57 One 
local government official stressed that “[t]his bill will not 
impose great hardships on our county governments” because 
“the majority of accommodations for employees with 
disabilities are less than $50” and “[t]he cost of making new 
or renovated structures accessible is less than 1 percent of 
the total cost of construction.” 2 Leg. Hist. 1443 (Nikki Van 
Hightower, Treasurer, Harris Co., Tex.). 

58 Indeed, peti- 
tioners do not allege that enforcing an existing no-smoking 
policy for Ash or permitting Garrett to retain a job that she 
was fully capable of performing would entail unreasonable 
cost. And any costs are further diminished when measured 

57 GAO, Briefing Report on Costs of Accommodations, Americans with 
Disabilities Act: Hearing Before the House Comm. on Small Business, 
101st Cong., 2d Sess. 190 (1990); 2 Leg. Hist. 1638. 

58 See, e.g., S. Rep. No. 116, supra, at 10-12, 89, 92; H.R. Rep. No. 485, 
supra, Pt. 2, at 34; 2 Leg. Hist. 1552 (EEOC Comm’r Evan Kemp); id. at 
1077 (John Nelson); id. at 1388-1389 (Justin Dart); id. at 1456-1457; id. at 
1560 (Jay Rochlin); 3 Leg. Hist. 2190-2191 (Robert Burgdorf); Task Force 
Report 27; Spectrum 2, 30, 70. The federal government, moreover, 
provides substantial funding to cover many of those costs. The 
Department of Transportation will pay 90% of the costs of purchasing 
accessible busses and transit systems, 49 U.S.C. 5323(i), and will pay 100% 
of the cost of curb cuts and ramps designed, as part of a federal-aid 
project, to make public sidewalks accessible. Transp. Equity Act, Pub. L. 
No. 105-178, § 1108(a)(3)(B), 112 Stat. 139. Congress has also authorized 
grants for the removal of architectural barriers, 42 U.S.C. 5305(a)(5), and, 
in the last two fiscal years, has provided States $10.1 billion to assist in the 
education of students with disabilities. 

48 

against the financial and human costs of denying persons 
with disabilities an education or consigning them to un- 
employment or low-paying jobs and excluding them from 
needed government services or the equal exercise of 
fundamental rights, thereby rendering them a permanent 
underclass. Plyler, 457 U.S. at 223-224, 227. 

In short, “[a] proper remedy for an unconstitutional 
exclusion * * * aims to eliminate so far as possible the dis- 
criminatory effects of the past and to bar like discrimination 
in the future.” Virginia, 518 U.S. at 547. Section 5 thus 
empowers Congress to do more than simply prohibit the 
creation of new barriers to equality; it can require States to 
tear down the walls they erected during decades of discrimi- 
nation and exclusion. See id. at 550 n.19 (Equal Protection 
Clause itself can require modification of facilities and 
program to ensure equal access). The remedy for segrega- 
tion is integration, not inertia. 

c. Burden of Justification: Petitioners point to features 
of the Disabilities Act (Br. 42-43 ¶¶ 1, 2, 3, 8), which impose 
on States a burden of justifying disability discrimination 
under the statute that is greater than what a court would 
require under Section 1 of the Fourteenth Amendment. 
They claim that, as a result, the Disabilities Act, like the Age 
Discrimination in Employment Act at issue in Kimel, un- 
justifiably “replaces one level of judicial scrutiny with 
another” (id. at 44) and is for that reason alone beyond 
Congress’s enforcement authority under Section 5 of the 
Fourteenth Amendment. But in this respect the Disabilities 
Act is quite unlike the statutes at issue in Kimel and Flores, 
which, upon a minimal showing by a plaintiff, subjected 
constitutional state action to a level of rigid and probing 
review that this Court characterized as tantamount to strict 
scrutiny. See Kimel, 120 S. Ct. at 648; Flores, 521 U.S. at 
534. The Disabilities Act requires a more substantial show- 
ing by the plaintiff and offers the defendant a less stringent 
standard of justification, thus preserving the States’ capacity 

49 

to draw reasoned—and thus presumptively constitutional— 
distinctions based on disability or the genuine difficulty of 
accommodation. Nor is an elevated burden of justification 
necessarily an impermissible effort to redefine constitutional 
rights, as in Flores; it can be, as it is here and under Title 
VII, an appropriate means of rooting out hidden animus, and 
remedying and preventing discrimination that is unconsti- 
tutional under judicially defined standards. 

3. The Disabilities Act’s coverage is as broad as 

necessary 

Finally, petitioners object (Br. 40-41) to the Disabilities 
Act’s broad coverage. The operative question, however, is 
not whether Section 5 legislation is broad, but whether it is 
broader than necessary. The Disabilities Act is not. The 
history of unconstitutional treatment and the risk of future 
discrimination found by Congress pertained to all aspects of 
governmental operations. Only a comprehensive effort to 
integrate persons with disabilities would end the cycle of 
isolation, segregation, and second-class citizenship, and deter 
further discrimination. Integration in education alone, for 
example, would not suffice if there were not going to be jobs 
for those who received the education. Integration in employ- 
ment would not suffice if persons with disabilities lacked 
transportation. Ending unnecessary institutionalization is of 
little gain if neither government services nor the social 
activities of public life (libraries, museums, parks, and 
recreation services) are accessible to bring persons with 
disabilities into the life of the community. And none of those 
efforts would suffice if persons with disabilities continued to 
lack equivalent access to government officials, courthouses, 
and polling places. In short, Congress chose a comprehen- 
sive remedy because it confronted an all-encompassing, 
inter-connected problem; to do less would be as ineffectual as 
“throwing an 11-foot rope to a drowning man 20 feet offshore 
and then proclaiming you are going more than halfway,” 

50 

S. Rep. No. 116, supra, at 13. “Difficult and intractable pro- 
blems often require powerful remedies, and we have never 
held that § 5 precludes Congress from enacting reasonably 
prophylactic legislation.” Kimel, 120 S. Ct. at 648. That 
describes the Disabilities Act to its very core. 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

BILL LANN LEE 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 

ELIZABETH SAVAGE 
JESSICA DUNSAY SILVER 
SETH M. GALANTER 

Attorneys 

AUGUST 2000 

APPENDIX 

CONSTITUTION OF THE UNITED STATES 

AMENDMENT XI 

The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by Citizens of 
another State, or by Citizens or Subjects of any Foreign 
State. 

AMENDMENT XIV 

SECTION 1. 

All persons born or naturalized in the 

United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein 
they reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny to 
any person within its jurisdiction the equal protection of the 
laws. 

* * * * * 

SECTION 5. 

The Congress shall have power to enforce, 

by appropriate legislation, the provisions of this article. 

(1a) 

2a 

THE AMERICANS WITH DISABILITIES ACT OF 1990 

§ 12101. 

Findings and purpose 

(a) Findings 

The Congress finds that— 

(1) some 43,000,000 Americans have one or more 
physical or mental disabilities, and this number is increasing 
as the population as a whole is growing older; 

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

(3) 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; 

(4) unlike individuals who have experienced discrimina- 
tion on the basis of race, color, sex, national origin, religion, 
or age, individuals who have experienced discrimination on 
the basis of disability have often had no legal recourse to 
redress such discrimination; 

(5) individuals with disabilities continually encounter 
various forms of discrimination, including outright inten- 
tional exclusion, the discriminatory effects of architectural, 
transportation, and communication barriers, overprotective 
rules and policies, failure to make modifications to existing 
facilities and practices, exclusionary qualification standards 

3a 

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 disadvan- 
taged socially, vocationally, economically, and educationally; 

(7) individuals with disabilities are a discrete and 
insular minority who have been faced with restrictions and 
limitations, subjected to a history of purposeful unequal 
treatment, and relegated to a position of political power- 
lessness 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; 

(8) the Nation’s proper goals regarding individuals with 
disabilities are to assure equality of opportunity, full partici- 
pation, independent living, and economic self-sufficiency for 
such individuals; and 

(9) the continuing existence of unfair and unnecessary 
discrimination and prejudice denies people with disabilities 
the opportunity to compete on an equal basis and to pursue 
those opportunities for which our free society is justifiably 
famous, and costs the United States billions of dollars in 
unnecessary expenses resulting from dependency and 
nonproductivity. 

4a 

(b) Purpose 

It is the purpose of this chapter— 

(1) to provide a clear and comprehensive national 
mandate for the elimination of discrimination against indi- 
viduals with disabilities; 

(2) to provide clear, strong, consistent, enforceable 
standards addressing discrimination against individuals with 
disabilities; 

(3) to ensure that the Federal Government plays a 
central role in enforcing the standards established in this 
chapter on behalf of individuals with disabilities; and 

(4) to invoke the sweep of congressional authority, 
including the power to enforce the fourteenth amendment 
and to regulate commerce, in order to address the major 
areas of discrimination faced day-to-day by people with 
disabilities. 

5a 

Title I of The Americans With Disabilities Act 

§ 12102. Definitions 

As used in this chapter: 

(1) Auxiliary aids and services 

The term “auxiliary aids and services” includes— 

(A) qualified interpreters or other effective meth- 
ods of making aurally delivered materials available to 
individuals with hearing impairments; 

(B) qualified readers, taped texts, or other effective 
methods of making visually delivered materials available 
to individuals with visual impairments; 

(C) acquisition or modification of equipment or 
devices; and 

(D) other similar services and actions. 

(2) Disability 

The term “disability” means, with respect to an indivi- 
dual— 

(A) a physical or mental impairment that sub- 
stantially limits one or more of the major life activities of 
such individual; 

(B) a record of such an impairment; or 

(C) being regarded as having such an impairment. 

6a 

(3) State 

The term “State” means each of the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, 
Guam, American Samoa, the Virgin Islands, the Trust 
Territory of the Pacific Islands, and the Commonwealth of 
the Northern Mariana Islands. 

§ 12111. Definitions 

As used in this subchapter: 

(1) Commission 

The term “Commission” means the Equal Employment 
Opportunity Commission established by section 2000e-4 of 
this title. 

(2) Covered entity 

The term “covered entity” means an employer, em- 
ployment agency, labor organization, or joint labor- 
management committee. 

(3) Direct threat 

The term “direct threat” means a significant risk to the 
health or safety of others that cannot be eliminated by 
reasonable accommodation. 

(4) Employee 

The term “employee” means an individual employed by an 
employer. With respect to employment in a foreign country, 
such term includes an individual who is a citizen of the 
United States. 

7a 

(5) Employer 

(A) In general 

The term “employer” means a person engaged in an 
industry affecting commerce who has 15 or more 
employees for each working day in each of 20 or more 
calendar weeks in the current or preceding calendar 
year, and any agent of such person, except that, for two 
years following the effective date of this subchapter, an 
employer means a person engaged in an industry 
affecting commerce who has 25 or more employees for 
each working day in each of 20 or more calendar weeks 
in the current or preceding year, and any agent of such 
person. 

(B) Exceptions 

The term “employer” does not include- 
(i) the United States, a corporation wholly 
owned by the government of the United States, or an 
Indian tribe; or 

(ii) a bona fide private membership club (other 
than a labor organization) that is exempt from taxation 
under section 501(c) of title 26. 

(6) Illegal use of drugs 

(A) In general 

The term “illegal use of drugs” means the use of 
drugs, the possession or distribution of which is unlaw- 
ful under the Controlled Substances Act [21 U.S.C. 801 
et seq.]. Such term does not include the use of a drug 
taken under supervision by a licensed health care 

8a 

professional, or other uses authorized by the Con- 
trolled Substances Act or other provisions of Federal 
law. 

(B) Drugs 

The term “drug” means a controlled substance, as 
defined in schedules I through V of section 202 of the 
Controlled Substances Act [21 U.S.C. 812]. 

(7) Person, etc. 

The terms “person”, “labor organization”, “em- 
ployment agency”, “commerce”, and “industry af- 
fecting commerce”, shall have the same meaning given 
such terms in section 2000e of this title. 

(8) Qualified individual with a disability 

The term “qualified individual with a disability” 
means an individual with a disability who, with or with- 
out reasonable accommodation, can perform the essen- 
tial functions of the employment position that such 
individual holds or desires. For the purposes of this 
subchapter, consideration shall be given to the em- 
ployer’s judgment as to what functions of a job are es- 
sential, and if an employer has prepared a written de- 
scription before advertising or interviewing applicants 
for the job, this description shall be considered 
evidence of the essential functions of the job. 

(9) Reasonable accommodation 

The term “reasonable accommodation” may in- 
clude— 

9a 

(A) making existing facilities used by employees 
readily accessible to and usable by individuals with 
disabilities; and 

(B) job restructuring, part-time or modified work 
schedules, reassignment to a vacant position, acquisi- 
tion or modification of equipment or devices, appro- 
priate adjustment or modifications of examinations, 
training materials or policies, the provision of qualified 
readers or interpreters, and other similar accommoda- 
tions for individuals with disabilities. 

(10) Undue hardship 

(A) In general 

The term “undue hardship” means an action 
requiring significant difficulty or expense, when 
considered in light of the factors set forth in subpara- 
graph (B). 

(B) Factors to be considered 

In determining whether an accommodation 
would impose an undue hardship on a covered entity, 
factors to be considered include— 

(i) the nature and cost of the accommodation 
needed under this chapter; 

(ii) the overall financial resources of the 
facility or facilities involved in the provision of the 
reasonable accommodation; the number of persons 
employed at such facility; the effect on expenses and 
resources, or the impact otherwise of such accommo- 
dation upon the operation of the facility; 

10a 

(iii) the overall financial resources of the 
covered entity; the overall size of the business of a cov- 
ered entity with respect to the number of its employees; 
the number, type, and location of its facilities; and 

(iv) the type of operation or operations of the 
covered entity, including the composition, structure, and 
functions of the workforce of such entity; the geographic 
separateness, administrative, or fiscal relationship of 
the facility or facilities in question to the covered entity. 

§ 12112. Discrimination 

(a) General rule 

No covered entity shall discriminate against a 
qualified individual with a disability because of the dis- 
ability 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. 

(b) Construction 

As used in subsection (a) of this section, the term 
“discriminate” includes— 

(1) limiting, segregating, or classifying a job appli- 
cant or employee in a way that adversely affects the 
opportunities or status of such applicant or employee be- 
cause of the disability of such applicant or employee; 

(2) participating in a contractual or other arrange- 
ment or relationship that has the effect of subjecting a 
covered entity’s qualified applicant or employee with a 
disability to the discrimination prohibited by this sub- 
chapter (such relationship includes a relationship with an 

11a 

employment or referral agency, labor union, an organi- 
zation providing fringe benefits to an employee of the 
covered entity, or an organization providing training and 
apprenticeship programs); 

(3) utilizing standards, criteria, or methods of 
administration— 

(A) that have the effect of discrimination 
on the basis of disability; or 

(B) that perpetuate the discrimination of 
others who are subject to common administrative 
control; 

(4) excluding or otherwise denying equal jobs or 
benefits to a qualified individual because of the known 
disability of an individual with whom the qualified indi- 
vidual is known to have a relationship or association; 

(5)(A) not making reasonable accommodations to 
the known physical or mental limitations of an otherwise 
qualified individual with a disability who is an applicant or 
employee, unless such covered entity can demonstrate 
that the accommodation would impose an undue hardship 
on the operation of the business of such covered entity; or 

(B) denying employment opportunities to a 
job applicant or employee who is an otherwise qualified 
individual with a disability, if such denial is based on the 
need of such covered entity to make reasonable ac- 
commodation to the physical or mental impairments of the 
employee or applicant; 

(6) using qualification standards, employment 
tests or other selection criteria that screen out or tend to 
screen out an individual with a disability or a class of 

12a 

individuals with disabilities unless the standard, test or 
other selection criteria, as used by the covered entity, is 
shown to be job-related for the position in question and is 
consistent with business necessity; and 

(7) failing to select and administer tests con- 
cerning employment in the most effective manner to 
ensure that, when such test is administered to a job 
applicant or employee who has a disability that impairs 
sensory, manual, or speaking skills, such test results 
accurately reflect the skills, aptitude, or whatever other 
factor of such applicant or employee that such test 
purports to measure, rather than reflecting the impaired 
sensory, manual, or speaking skills of such employee or 
applicant (except where such skills are the factors that 
the test purports to measure). 

(c) Covered entities in foreign countries 

(1) In general 

It shall not be unlawful under this section for a covered 
entity to take any action that constitutes discrimination 
under this section with respect to an employee in a work- 
place in a foreign country if compliance with this section 
would cause such covered entity to violate the law of the 
foreign country in which such workplace is located. 

(2) Control of corporation 

(A) Presumption 

If an employer controls a corporation whose place of 
incorporation is a foreign country, any practice that consti- 
tutes discrimination under this section and is engaged in 
by such corporation shall be presumed to be engaged in by 
such employer. 

13a 

(B) Exception 

This section shall not apply with respect to the foreign 
operations of an employer that is a foreign person not 
controlled by an American employer. 

(C) Determination 

For purposes of this paragraph, the determination of 
whether an employer controls a corporation shall be based 
on— 

(i) the interrelation of operations; 

(ii) the common management; 

(iii) the centralized control of labor relations; and 

(iv) the common ownership or financial control, of 
the employer and the corporation. 

(d) Medical examinations and inquiries 

(1) In general 

The prohibition against discrimination as referred to in 
subsection (a) of this section shall include medical 
examinations and inquiries. 

14a 

(2) Preemployment 

(A) Prohibited examination or inquiry 

Except as provided in paragraph (3), a covered entity 
shall not conduct a medical examination or make inquiries of 
a job applicant as to whether such applicant is an individual 
with a disability or as to the nature or severity of such 
disability. 

(B) Acceptable inquiry 

A covered entity may make preemployment inquiries 
into the ability of an applicant to perform job-related func- 
tions. 

(3) Employment entrance examination 

A covered entity may require a medical examination 
after an offer of employment has been made to a job appli- 
cant and prior to the commencement of the employment 
duties of such applicant, and may condition an offer of 
employment on the results of such examination, if— 

(A) all entering employees are subjected to such an 
examination regardless of disability; 

(B) information obtained regarding the medical condition 
or history of the applicant is collected and maintained on 
separate forms and in separate medical files and is treated as 
a confidential medical record, except that— 

(i) supervisors and managers may be informed 
regarding necessary restrictions on the work or duties of 
the employee and necessary accommodations; 

15a 

(ii) first aid and safety personnel may be in- 
formed, when appropriate, if the disability might require 
emergency treatment; and 

(iii) government officials investigating com- 
pliance with this chapter shall be provided relevant 
information on request; and 

(C) the results of such examination are used only in 
accordance with this subchapter. 

(4) Examination and inquiry 

(A) Prohibited examinations and inquiries 

A covered entity shall not require a medical ex- 
amination and shall not make inquiries of an employee as 
to whether such employee is an individual with a disabil- 
ity or as to the nature or severity of the disability, unless 
such examination or inquiry is shown to be job-related 
and consistent with business necessity. 

(B) Acceptable examinations and inquiries 

A covered entity may conduct voluntary medical 
examinations, including voluntary medical histories, 
which are part of an employee health program available 
to employees at that work site. A covered entity may 
make inquiries into the ability of an employee to perform 
job-related functions. 

(C) Requirement 

Information obtained under subparagraph (B) re- 
garding the medical condition or history of any employee 
are subject to the requirements of subparagraphs (B) 
and (C) of paragraph (3). 

16a 

§ 12113. Defenses 

(a) In general 

It may be a defense to a charge of discrimination under 
this chapter that an alleged application of qualification 
standards, tests, or selection criteria that screen out or tend 
to screen out or otherwise deny a job or benefit to an 
individual with a disability has been shown to be job-related 
and consistent with business necessity, and such perform- 
ance cannot be accomplished by reasonable accommodation, 
as required under this subchapter. 

(b) Qualification standards 

The term “qualification standards” may include a re- 
quirement that an individual shall not pose a direct threat to 
the health or safety of other individuals in the workplace. 

(c) Religious entities 

(1) In general 

This subchapter shall not prohibit a religious corpora- 
tion, association, educational institution, or society from 
giving preference in employment to individuals of a par- 
ticular religion to perform work connected with the carry- 
ing on by such corporation, association, educational insti- 
tution, or society of its activities. 

(2) Religious tenets requirement 

Under this subchapter, a religious organization 
may require that all applicants and employees conform to 
the religious tenets of such organization. 

17a 

(d) List of infectious and communicable diseases 

(1) In general 

The Secretary of Health and Human Services, not 
later than 6 months after July 26, 1990, shall— 

(A) review all infectious and communicable dis- 
eases which may be transmitted through handling 
the food supply; 

(B) publish a list of infectious and communica- 
ble diseases which are transmitted through han- 
dling the food supply; 

(C) publish the methods by which such dis- 
eases are transmitted; and 

(D) widely disseminate such information re- 
garding the list of diseases and their modes of 
transmissability1 to the general public. 

Such list shall be updated annually. 

(2) Applications 

In any case in which an individual has an infectious 
or communicable disease that is transmitted to others 
through the handling of food, that is included on the list 
developed by the Secretary of Health and Human Ser- 
vices under paragraph (1), and which cannot be eliminated 
by reasonable accommodation, a covered entity may 
refuse to assign or continue to assign such individual to a 
job involving food handling. 

1 So in original. Probably should be “transmissibility”. 

18a 

(3) Construction 

Nothing in this chapter shall be construed to 
preempt, modify, or amend any State, county, or local law, 
ordinance, or regulation applicable to food handling which 
is designed to protect the public health from individuals 
who pose a significant risk to the health or safety of others, 
which cannot be eliminated by reasonable accommodation, 
pursuant to the list of infectious or communicable diseases 
and the modes of transmissability1 published by the 
Secretary of Health and Human Services. 

§ 12114. 

Illegal use of drugs and alcohol 

(a) Qualified individual with a disability 

For purposes of this subchapter, the term “quali- 
fied individual with a disability” shall not include any 
employee or applicant who is currently engaging in the 
illegal use of drugs, when the covered entity acts on the 
basis of such use. 

(b) Rules of construction 

Nothing in subsection (a) of this section shall be 
construed to exclude as a qualified individual with a dis- 
ability an individual who— 

(1) has successfully completed a supervised 
drug rehabilitation program and is no longer 
engaging in the illegal use of drugs, or has other- 
wise been rehabilitated successfully and is no 
longer engaging in such use; 

1 So in original. Probably should be “transmissibility”. 

19a 

(2) is participating in a supervised reha- 
bilitation program and is no longer engaging in 
such use; or 

(3) is erroneously regarded as engaging in 
such use, but is not engaging in such use; 

except that it shall not be a violation of this 
chapter for a covered entity to adopt or adminis- 
ter reasonable policies or procedures, including 
but not limited to drug testing, designed to 
ensure that an individual described in paragraph 
(1) or (2) is no longer engaging in the illegal use of 
drugs. 

(c) Authority of covered entity 

A covered entity— 

(1) may prohibit the illegal use of drugs and the use 
of alcohol at the workplace by all employees; 

(2) may require that employees shall not be under 
the influence of alcohol or be engaging in the illegal use of 
drugs at the workplace; 

(3) may require that employees behave in con- 
formance with the requirements established under the 
Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.); 

(4) may hold an employee who engages in the illegal 
use of drugs or who is an alcoholic to the same qualifica- 
tion standards for employment or job performance and 
behavior that such entity holds other employees, even if 
any unsatisfactory performance or behavior is related to 
the drug use or alcoholism of such employee; and 

20a 

(5) may, with respect to Federal regulations re- 
garding alcohol and the illegal use of drugs, require that— 

(A) employees comply with the standards esta- 
blished in such regulations of the Department of Defense, 
if the employees of the covered entity are employed in an 
industry subject to such regulations, including complying 
with regulations (if any) that apply to employment in 
sensitive positions in such an industry, in the case of 
employees of the covered entity who are employed in such 
positions (as defined in the regulations of the Department 
of Defense); 

(B) employees comply with the standards esta- 
blished in such regulations of the Nuclear Regulatory 
Commission, if the employees of the covered entity are 
employed in an industry subject to such regulations, 
including complying with regulations (if any) that apply to 
employment in sensitive positions in such an industry, in 
the case of employees of the covered entity who are 
employed in such positions (as defined in the regulations 
of the Nuclear Regulatory Commission); and 

(C) employees comply with the standards esta- 
blished in such regulations of the Department of Trans- 
portation, if the employees of the covered entity are 
employed in a transportation industry subject to such 
regulations, including complying with such regulations (if 
any) that apply to employment in sensitive positions in 
such an industry, in the case of employees of the covered 
entity who are employed in such positions (as defined in 
the regulations of the Department of Transportation). 

21a 

(d) Drug testing 

(1) In general 

For purposes of this subchapter, a test to determine the 
illegal use of drugs shall not be considered a medical 
examination. 

(2) Construction 

Nothing in this subchapter shall be construed to 
encourage, prohibit, or authorize the conducting of drug 
testing for the illegal use of drugs by job applicants or 
employees or making employment decisions based on such 
test results. 

(e) Transportation employees 

Nothing in this subchapter shall be construed to 
encourage, prohibit, restrict, or authorize the otherwise 
lawful exercise by entities subject to the jurisdiction of 
the Department of Transportation of authority to— 

(1) test employees of such entities in, and 
applicants for, positions involving safety-sensitive 
duties for the illegal use of drugs and for on-duty im- 
pairment by alcohol; and 

(2) remove such persons who test positive for 
illegal use of drugs and on- duty impairment by 
alcohol pursuant to paragraph (1) from safety- 
sensitive duties in implementing subsection (c) of 
this section. 

§ 12115. 

Posting notices 

Every employer, employment agency, labor or- 
ganization, or joint labor- management committee covered 

22a 

under this subchapter shall post notices in an accessible 
format to applicants, employees, and members describing 
the applicable provisions of this chapter, in the manner 
prescribed by section 2000e-10 of this title. 

§ 12116. Regulations 

Not later than 1 year after July 26, 1990, the Com- 
mission shall issue regulations in an accessible format to 
carry out this subchapter in accordance with subchapter II 
of chapter 5 of title 5. 

§ 12117. Enforcement 

(a) Powers, remedies, and procedures 

The powers, remedies, and procedures set forth in 
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of 
this title shall be the powers, remedies, and procedures 
this subchapter provides to the Commission, to the Attor- 
ney General, or to any person alleging discrimination on 
the basis of disability in violation of any provision of this 
chapter, or regulations promulgated under section 12116 of 
this title, concerning employment. 

(b) Coordination 

The agencies with enforcement authority for actions 
which allege employment discrimination under this 
subchapter and under the Rehabilitation Act of 1973 [29 
U.S.C. § 701 et seq.] shall develop procedures to ensure 
that administrative complaints filed under this subchapter 
and under the Rehabilitation Act of 1973 are dealt with in a 
manner that avoids duplication of effort and prevents 
imposition of inconsistent or conflicting standards for the 
same requirements under this subchapter and the 
Rehabilitation Act of 1973. The Commission, the Attorney 

23a 

General, and the Office of Federal Contract Compliance 
Programs shall establish such coordinating mechanisms 
(similar to provisions contained in the joint regulations 
promulgated by the Commission and the Attorney General 
at part 42 of title 28 and part 1691 of title 29, Code of 
Federal Regulations, and the Memorandum of Under- 
standing between the Commission and the Office of 
Federal Contract Compliance Programs dated January 16, 
1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations 
implementing this subchapter and Rehabilitation Act of 
1973 not later than 18 months after July 26, 1990. 

24a 

Title II, Part A, of The Americans With Disabilities Act 

§ 12131. Definitions 

As used in this subchapter: 

(1) Public entity 

The term “public entity” means— 

(A) any State or local government; 

(B) any department, agency, special purpose dis- 
trict, or other instrumentality of a State or States or 
local government; and 

(C) the National Railroad Passenger Corporation, 
and any commuter authority (as defined in section 
2410(4) of title 49). 

(2) Qualified individual with a disability 

The term “qualified individual with a disability” means an 
individual with a disability who, with or without reasonable 
modifications to rules, policies, or practices, the removal of 
architectural, communication, or transportation barriers, or 
the provision of auxiliary aids and services, meets the 
essential eligibility requirements for the receipt of services 
or the participation in programs or activities provided by a 
public entity. 

§ 12132. Discrimination 

Subject to the provisions of this subchapter, no qualified 
individual with a disability shall, by reason of such disability, 
be excluded from participation in or be denied the benefits of 

25a 

the services, programs, or activities of a public entity, or be 
subjected to discrimination by any such entity. 

§ 12133. Enforcement 

The remedies, procedures, and rights set forth in section 
794a of title 29 shall be the remedies, procedures, and rights 
this subchapter provides to any person alleging 
discrimination on the basis of disability in violation of section 
12132 of this title. 

§ 12134. Regulations 

(a) In general 

Not later than 1 year after July 26, 1990, the Attorney 
General shall promulgate regulations in an accessible format 
that implement this part. Such regulations shall not include 
any matter within the scope of the authority of the Secretary 
of Transportation under section 12143, 12149, or 12164 of this 
title. 

(b) Relationship to other regulations 

Except for “program accessibility, existing facilities”, and 
“communications”, regulations under subsection (a) of this 
section shall be consistent with this chapter and with the 
coordination regulations under part 41 of title 28, Code of 
Federal Regulations (as promulgated by the Department of 
Health, Education, and Welfare on January 13, 1978), ap- 
plicable to recipients of Federal financial assistance under 
section 794 of title 29. With respect to “program accessibil- 
ity, existing facilities”, and “communications”, such regu- 
lations shall be consistent with regulations and analysis as in 
part 39 of title 28 of the Code of Federal Regulations, ap- 
plicable to federally conducted activities under such section 
794 of title 29. 

26a 

(c) Standards 

Regulations under subsection (a) of this section shall 
include standards applicable to facilities and vehicles covered 
by this part, other than facilities, stations, rail passenger 
cars, and vehicles covered by part B of this subchapter. 
Such standards shall be consistent with the minimum 
guidelines and requirements issued by the Architectural and 
Transportation Barriers Compliance Board in accordance 
with section 12204(a) of this title. 

27a 

Title IV of The Americans With Disabilities Act 

§ 12201. Construction 

(a) In general 

Except as otherwise provided in this chapter, nothing in 
this chapter shall be construed to apply a lesser standard 
than the standards applied under title V of the Rehabilita- 
tion Act of 1973 (29 U.S.C. 790 et seq.) or the regulations 
issued by Federal agencies pursuant to such title. 

(b) Relationship to other laws 

Nothing in this chapter shall be construed to invalidate or 
limit the remedies, rights, and procedures of any Federal law 
or law of any State or political subdivision of any State or 
jurisdiction that provides greater or equal protection for the 
rights of individuals with disabilities than are afforded by 
this chapter. Nothing in this chapter shall be construed to 
preclude the prohibition of, or the imposition of restrictions 
on, smoking in places of employment covered by subchapter 
I of this chapter, in transportation covered by subchapter II 
or III of this chapter, or in places of public accommodation 
covered by subchapter III of this chapter. 

(c) Insurance 

Subchapters I through III of this chapter and title IV of 
this Act shall not be construed to prohibit or restrict— 

(1) an insurer, hospital or medical service company, 
health maintenance organization, or any agent, or entity that 
administers benefit plans, or similar organizations from 
underwriting risks, classifying risks, or administering such 
risks that are based on or not inconsistent with State law; or 

28a 

(2) a person or organization covered by this chapter from 
establishing, sponsoring, observing or administering the 
terms of a bona fide benefit plan that are based on 
underwriting risks, classifying risks, or administering such 
risks that are based on or not inconsistent with State law; or 

(3) a person or organization covered by this chapter from 
establishing, sponsoring, observing or administering the 
terms of a bona fide benefit plan that is not subject to State 
laws that regulate insurance. 

Paragraphs (1), (2), and (3) shall not be used as a 
subterfuge to evade the purposes of subchapter 2 I and III of 
this chapter. 

(d) Accommodations and services 

Nothing in this chapter shall be construed to require an 
individual with a disability to accept an accommodation, aid, 
service, opportunity, or benefit which such individual 
chooses not to accept. 

§ 12202. 

State immunity 

A State shall not be immune under the eleventh 
amendment to the Constitution of the United States from an 
action in3 Federal or State court of competent jurisdiction 
for a violation of this chapter. In any action against a State 
for a violation of the requirements of this chapter, remedies 
(including remedies both at law and in equity) are available 
for such a violation to the same extent as such remedies are 
available for such a violation in an action against any public 
or private entity other than a State. 

2 So in original. Probably should be “subchapters”. 

3 So in original. Probably should be “in a”. 

29a 

§ 12203. 

Prohibition against retaliation and coercion 

(a) Retaliation 

No person shall discriminate against any individual 
because such individual has opposed any act or practice 
made unlawful by this chapter or because such individual 
made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under 
this chapter. 

(b) Interference, coercion, or intimidation 

It shall be unlawful to coerce, intimidate, threaten, or 
interfere with any individual in the exercise or enjoyment of, 
or on account of his or her having exercised or enjoyed, or on 
account of his or her having aided or encouraged any other 
individual in the exercise or enjoyment of, any right 

granted or protected by this chapter. 

(c) Remedies and procedures 

The remedies and procedures available under sections 
12117, 12133, and 12188 of this title shall be available to 
aggrieved persons for violations of subsections (a) and (b) of 
this section, with respect to subchapter I, subchapter II and 
subchapter III of this chapter, respectively. 

§ 12204. Regulations by Architectural and 

Transportation Barriers Compliance Board 

(a) Issuance of guidelines 

Not later than 9 months after July 26, 1990, the Architec- 
tural and Transportation Barriers Compliance Board shall 
issue minimum guidelines that shall supplement the existing 
Minimum Guidelines and Requirements for Accessible 

30a 

Design for purposes of subchapters II and III of this 
chapter. 

(b) Contents of guidelines 

The supplemental guidelines issued under subsection (a) 
of this section shall establish additional requirements, con- 
sistent with this chapter, to ensure that buildings, facilities, 
rail passenger cars, and vehicles are accessible, in terms of 
architecture and design, transportation, and communication, 
to individuals with disabilities. 

(c) Qualified historic properties 

(1) In general 

The supplemental guidelines issued under subsection (a) 
of this section shall include procedures and requirements for 
alterations that will threaten or destroy the historic 
significance of qualified historic buildings and facilities as 
defined in 4.1.7(1)(a) of the Uniform Federal Accessibility 
Standards. 

(2) Sites eligible for listing in National Register 

With respect to alterations of buildings or facilities that 
are eligible for listing in the National Register of Historic 
Places under the National Historic Preservation Act (16 
U.S.C. 470 et seq.), the guidelines described in paragraph (1) 
shall, at a minimum, maintain the procedures and require- 
ments established in 4.1.7(1) and (2) of the Uniform Federal 
Accessibility Standards. 

31a 

(3) Other sites 

With respect to alterations of buildings or facilities desig- 
nated as historic under State or local law, the guidelines 
described in paragraph (1) shall establish procedures equiva- 
lent to those established by 4.1.7(1)(b) and (c) of the Uniform 
Federal Accessibility Standards, and shall require, at a 
minimum, compliance with the requirements established in 

4.1.7(2) of such standards. 

§ 12205. 

Attorney’s fees 

In any action or administrative proceeding commenced 
pursuant to this chapter, the court or agency, in its discre- 
tion, may allow the prevailing party, other than the United 
States, a reasonable attorney’s fee, including litigation 
expenses, and costs, and the United States shall be liable for 
the foregoing the same as a private individual. 

* * * * * 

§ 12208. Transvestites 

For the purposes of this chapter, the term “disabled” or 
“disability” shall not apply to an individual solely because 
that individual is a transvestite. 

32a 

§ 12209. 

Instrumentalities of the Congress 

The General Accounting Office, the Government Printing 
Office, and the Library of Congress shall be covered as 
follows: 

(1) In general 

The rights and protections under this chapter shall, 
subject to paragraph (2), apply with respect to the conduct of 
each instrumentality of the Congress. 

(2) Establishment of remedies and procedures by 

instrumentalities 

The chief official of each instrumentality of the Congress 
shall establish remedies and procedures to be utilized with 
respect to the rights and protections provided pursuant to 
paragraph (1). 

(3) Report to Congress 

The chief official of each instrumentality of the Congress 
shall, after establishing remedies and procedures for 
purposes of paragraph (2), submit to the Congress a report 
describing the remedies and procedures. 

(4) Definition of instrumentality 

For purposes of this section, the term “instrumentality of 
the Congress” means the following:,1 the General Accounting 
Office, the Government Printing Office, and the Library of 
Congress,.2 

1 So in original. 

2 So in original. 

33a 

(5) Enforcement of employment rights 

The remedies and procedures set forth in section 2000e-16 
of this title shall be available to any employee of an 
instrumentality of the Congress who alleges a violation of 
the rights and protections under sections 12112 through 
12114 of this title that are made applicable by this section, 
except that the authorities of the Equal Employment 
Opportunity Commission shall be exercised by the chief 
official of the instrumentality of the Congress. 

(6) Enforcement of rights to public services and 
accommodations 

The remedies and procedures set forth in section 2000e-16 
of this title shall be available to any qualified person with a 
disability who is a visitor, guest, or patron of an instru- 
mentality of Congress and who alleges a violation of the 
rights and protections under sections 12131 through 12150 or 
section 12182 or 12183 of this title that are made applicable 
by this section, except that the authorities of the Equal 
Employment Opportunity Commission shall be exercised by 
the chief official of the instrumentality of the Congress. 

(7) Construction 

Nothing in this section shall alter the enforcement 
procedures for individuals with disabilities provided in the 
General Accounting Office Personnel Act of 1980 and regula- 
tions promulgated pursuant to that Act. 

34a 

§ 12210. 

Illegal use of drugs 

(a) In general 

For purposes of this chapter, the term “individual with a 
disability” does not include an individual who is currently 
engaging in the illegal use of drugs, when the covered entity 
acts on the basis of such use. 

(b) Rules of construction 

Nothing in subsection (a) of this section shall be construed 
to exclude as an individual with a disability an individual 
who— 

(1) has successfully completed a supervised drug 
rehabilitation program and is no longer engaging in the 
illegal use of drugs, or has otherwise been rehabilitated 
successfully and is no longer engaging in such use; 

(2) is participating in a supervised rehabilitation 
program and is no longer engaging in such use; or 

(3) is erroneously regarded as engaging in such use, 
but is not engaging in such use; 

except that it shall not be a violation of this chapter for a 
covered entity to adopt or administer reasonable policies or 
procedures, including but not limited to drug testing, 
designed to ensure that an individual described in paragraph 
(1) or (2) is no longer engaging in the illegal use of drugs; 
however, nothing in this section shall be construed to 
encourage, prohibit, restrict, or authorize the conducting of 
testing for the illegal use of drugs. 

35a 

(c) Health and other services 

Notwithstanding subsection (a) of this section and section 
12211(b)(3) of this title, an individual shall not be denied 
health services, or services provided in connection with drug 
rehabilitation, on the basis of the current illegal use of drugs 
if the individual is otherwise entitled to such services. 

(d) “Illegal use of drugs” defined 

(1) In general 

The term “illegal use of drugs” means the use of 
drugs, the possession or distribution of which is unlaw- 
ful under the Controlled Substances Act [21 U.S.C. 801 
et seq.]. Such term does not include the use of a drug 
taken under supervision by a licensed health care 
professional, or other uses authorized by the Con- 
trolled Substances Act [21 U.S.C. 801 et seq.] or other 
provisions of Federal law. 

(2) Drugs 

The term “drug” means a controlled substance, as 
defined in schedules I through V of section 202 of the 
Controlled Substances Act [21 U.S.C. 812]. 

§ 12211. Definitions 

(a) Homosexuality and bisexuality 

For purposes of the definition of “disability” in section 
12102(2) of this title, homosexuality and bisexuality are not 
impairments and as such are not disabilities under this 
chapter. 

36a 

(b) Certain conditions 

Under this chapter, the term “disability” shall not 
include– 

(1) transvestism, transsexualism, pedophilia, exhi- 
bitionism, voyeurism, gender identity disorders not re- 
sulting from physical impairments, or other sexual 
behavior disorders; 

(2) compulsive gambling, kleptomania, or pyro- 
mania; or 

(3) psychoactive substance use disorders resulting 
from current illegal use of drugs. 

§ 12212. 

Alternative means of dispute resolution 

Where appropriate and to the extent authorized by law, 
the use of alternative means of dispute resolution, including 
settlement negotiations, conciliation, facilitation, mediation, 
factfinding, minitrials, and arbitration, is encouraged to 
resolve disputes arising under this chapter. 

§ 12213. Severability 

Should any provision in this chapter be found to be uncon- 
stitutional by a court of law, such provision shall be severed 
from the remainder of this chapter and such action shall not 
affect the enforceability of the remaining provisions of this 
chapter.