DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATCH JOAN A. MAGAGNA SHARON N. PERLEY (D.C. Bar #446165) Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0663 MICHAEL J. YAMAGUCHI United States Attorney Northern District of California MARY BETH UITTI Civil Chief United States Attorney's Office Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102 (415) 436-7200 Attorneys for United States as Amicus Curiae UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) JOAN ARMSTRONG, et al., ) No. C-94-2307 CW ) Plaintiffs, ) UNITED STATES' ) AMICUS CURIAE MEMORANDUM ) OF LAW IN SUPPORT OF v. ) PLAINTIFFS' OPPOSITION TO ) DEFENDANTS' MOTION FOR PETE WILSON, et al., ) SUMMARY JUDGMENT ) Defendants. ) Date: July 19, 1996 ) Time: 10:30 a.m. ) Place: Courtroom 2 ) TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. The ADA And The Rehabilitation Act Apply To State Correctional Facilities . . . . . . . . . . . .2 A. Ninth Circuit Case Law Holds That The Rehabilitation Act Applies to State Prisons and Suggests That The ADA Applies As Well . . . . . . . . . . . . .3 B. The Plain Language Of The Statutes And Deference To The Department Of Justice Regulations Further Support The Conclusion That The Rehabilitation Act And The ADA Apply To State Prisons . . . . . . . . . . . . . . 8 1. The plain language of the statutes demonstrates that the Rehabilitation Act and Title II apply to state correctional facilities . . . . . . .9 2. Deference to Department of Justice regulations requires the conclusion that the Rehabilitation Act and Title II apply to state correctional facilities . . . . . . . . . . . . . 9 II. Defendants Are Not Immune From Suit Under The Eleventh Amendment . . . . . . . . . . . . 14 A. Congress Acted Within Its Constitutional Powers In Abrogating The State's Eleventh Amendment Immunity Under Both Section 504 And Title II . . . . .16 B. Ex Parte Young Allows Plaintiffs To Seek Prospective Injunctive Relief . . . .22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 i (ILLEGIBLE) AUTHORITIES Cases Atascadero State Hosp ILLEGIBLE 473 U.S. 234 (19 . . . . . . . . . . . . . . . . . . . . passim Austin v. Pennsylvani ILLEGIBLE Corrections, 876 F. Supp. 143a. 1995) . . . . . . . . . . . . . . . . . . 4 Baker v. McNeil Islan ILLEGIBLE Ctr., 859 F.2d 124 (9 ILLEGIBLE) . . . . . . . . . . . . . . . . . 6 Bechtel v. East Penn ILLEGIBLE of Lehigh County, No. Civ. A. 93-48 WL 3396 (E.D. Pa. Jan. 4, . . . . . . . . . . . . . . . . . . . 12, 14 Beehler v. Jeffes, 664 931 (M.D. Pa. 1986) . . . . . . . . . . . . . . . . . . . . . . .6 Bonner v. Lewis, 857 F9th Cir. 1988) . . . . . . . . . . . . . .passim Bradford v. Iron City (ILLEGIBLE No. 82-303-C(4), ILLEGIBLE (E.D. Mo. June 13, . . . . . . . . . . . . . . . . . . . . .21 Bullock v. Gomez, No. 9B (RMCx), slip op. (C.D. Cal1996) . . . . . . . . . . . . . . . . passim Canterino v. Wilson, 54 174 (W.D. Ky. 1982), a F.2d 862 (6th Cir. 1989), c ILLEGIBLE 493 U.S. 991 (1989 . . . . . . . . . . . . . . . . . . . . . 6 Casey v. Lewis, 834 F. ILLEGIBLE (D. Ariz. 1993) . . . . . . . . . . 4 Chatoff v. City of New ILLEGIBLE No. 92 Civ. 0604 (ILLEGIBLE WL 202441 (S.D.N.Y. June 30, . . . . . . . . . . . . . . . . . . . . 14 Chevron U.S.A., Inc. v. ILLEGIBLE Defense Council, In S. 837 (1984) . . . . . . . . . . . . . 12 City of Cleburne v. Cleb ILLEGIBLE Ctr., 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . 19 City of Richmond v. J.A. 488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . . . 21 Clarkson v. Coughlin, 898 1019 (S.D.N.Y. 1995) . . . . . . . . . . . . . . . . . . . . passim Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994) . . . . . . . . . . . . . . . . . . . .10, 12 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) . . . . . . . . . .5 Cruz v. Collazo, 450 F. Supp. 235 (D.P.R. 1979) . . . . . . . . . . .6 Donnell v. Illinois Bd. of Educ., 829 F. Supp. 1016 (N.D. Ill. 1993) . . . . . . . . . . . . . . . . . . . 4, 6, 8 Edelman v. Jordan, 415 U.S. 651 (1995) . . . . . . . . . . . . .22, 23 E.E.O.C. v. County of Calumet, 686 F.2d 1249 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . 18 E.E.O.C. v. Wyoming, 460 U.S. 226 (1983) . . . . . . . . . . . . . .21 Ex Parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . passim Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994) . . . . . . . . . . . . . 12, 14 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . . . . 15-18 Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992) . . . . . . . . . . . . . . . . . . .22, 24 Garcia v. San Antonio Metro. Transit. Auth., 469 U.S. 528 (1985) . . . . . . . . . . . . . . . . . . . . .5 Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . . . . 3 Green v. Johnson, 513 F. Supp. 965 (D. Mass. 1981) . . . . . . . . . 6 Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . . . . . .22, 23 Guardians Ass'n v. Civil Serv. Comm'n of the City of New York, 463 U.S. 582 (1983) . . . . . . . . . 22 Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . 4 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) . . . . . . . . . . . . . . . . . . . . 21 Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert. denied sub nom. Pennsylvania Sec'y of Pub. Welfare v. Idell S., U.S. , 116 S. Ct. 64 (1995) . . . . . . . . . . .12 iii Innovative Health Systems, Inc. v. City of White Plains, No. 95 CV 9642 (BDP), slip op. (S.D.N.Y. 1996) . . . . . . . . . . . . . . 9, 12, 14 Jackson v. Hayakawa, 682 F.2d 1344 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . 22 Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 Jones v. Illinois Dep't of Rehabilitative Servs., 504 F. Supp. 1244 (N.D. Ill. 1981) . . . . . . . . . . . . .21 Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . . . 20, 21 Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert. denied sub nom. Hoskins v. Kinney, U.S. , 114 S. Ct. 1545 (1994) . . . . . . . . . . . . . . . 12 Klinger v. Nebraska Dep't of Correctional Servs., 824 F. Supp. 1374 (D. Neb. 1993), rev'd on other grounds, 31 F.3d 727 (8th Cir. 1994), cert. denied, ___U.S.___ , 115 S. Ct. 1177 (1995) . . . . . . . . . . . . .6 Lane v. Pena, U.S. , S. Ct. , No. 95-365, 1996 WL 335334 (June 20, 1996) . . . . . . . . .16 Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 714 F.2d 946 (9th Cir. 1993), cert. denied sub nom. California State Dep't of Educ. v. Los Angeles Branch NAACP, 467 U.S. 1209 (1984) . . . . . . . . . . . . . . . . . . . .22 Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995) . . . . . . . . . 4 Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994) . . . . . . . . . . . . . 4 Lyng v. Payne, 476 U.S. 926 (1986) . . . . . . . . . . . . . . . . .12 Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993) . . . . . . . . . . . . . . . . . . . . . .19 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . . .21 Milliken v. Bradley, 433 U.S. 267 (1977) . . . . . . . . . . . . . .23 Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996) . . . .4, 10, 11 Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) . . . . 4, 7, 12 iv Outlaw v. City of Dothan, No. CV-92-A-1219-S, 1993 WL 735802 (M.D. Ala. Apr. 27, 1993) . . . . . . . .passim Papasan v. Alain, 478 U.S. 265 (1986) . . . . . . . . . . . 14, 22, 23 Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . . .14 Pennsylvania v. Union Gas, 491 U.S. 1 (1989) . . . . . . . . . . . .15 Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276 (W.D. Wis. 1993) . . . . . . . . . . .12, 14 Rewolinski v. Morgan, 896 F. Supp. 879 (E.D. Wis. 1995) . . . . . . . . . . . . . . . . . . . . . . 4 River Forest Sch. Dist. No. 90 v. Illinois State Bd. of Educ., No. 95 C 5353, 1996 WL 89055 (N.D. Ill. Feb. 28, 1996) . . . . . . . . . . 21 Rivera Flores v. Puerto Rico Telephone Co., 776 F. Supp. 61 (D.P.R. 1991) . . . . . . . . . . . . . . . 21 Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642 (8th Cir. 1994) . . . 24 Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25 (2d Cir. 1991), cert. denied, 502 U.S. 1094 (1992) . . . . . . . . . . . . .19 Seminole Tribe of Fla. v. Florida, U.S. , 116 S. Ct. 1114 (1996) . . . . . . . . . . . . . . . . .passim Simmons v. Indiana, 904 F. Supp. 877 (N.D. Ind. 1995) . . . . . . . .4 Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W. Va. 1976) . . . . . . . . . . . . . . . . . . . . . 4 Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341 (D.S.C. 1995), rev'd in part on other grounds, F.3d, No. 95-1828, 95-1827, 1996 WL 278235 (4th Cir. May 28, 1996) . . . . . . . . . . . . . . . . . . 19 Thomas Jefferson Univ. v. Shalala, U.S., 114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . .11 Timmons v. New York State Dep't of Correctional Servs., 887 F. Supp. 576 (S.D.N.Y. 1995) . . . . . . . . . . . . . . 4 Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, U.S., 116 S. Ct. 772 (1996) . . . . . . . . .3-5 vTugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) . . . . . . . . . 12 United States v. Morton, 467 U.S. 822 (1983) . . . . . . . . . . . .12 United States v. Yonkers Bd. of Educ., 893 F.2d 498 (2d Cir. 1990) . . . . . . . . . . . . . . . . 19 W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) . . . . . . . . . . . . .24 Welch v. Texas Dep't of Highways and Pub. Transp., 483 U.S. 468 (1987) . . . . . . . . . . . . . . . . . . . . 21 Women Prisoners of the Dist. of Columbia Dep't of Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994), vacated in part on other grounds, 899 F. Supp. 659 (D.D.C. 1995) . . . . . . 6 Constitutional Provisions U.S. Const. art. I, S8, cl. 1 . . . . . . . . . . . . . . . . . 17, 21 U.S. Const. art. I, S8, cl. 3 . . . . . . . . . . . . . . . . . 15, 18 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . .passim U.S. Const. amend. XI . . . . . . . . .. . . . . . . . . . . . .passim Statutes United States Code, Title 29, S 794 . . . . . . . . . . . . . . passim United States Code, Title 42 S 12101(a)(7) . . . . . . . . . . . . . . . . . . . . . . . 20 S 12101(b)(1) . . . . . . . . . . . . . . . . . . . . . . . .2 S 12101(b)(4) . . . . . . . . . . . . . . . . . . . . . . . 18 SS 12131-34 . . . . . . . . . . . . . . . . . . . . . . passim S 12131(1) . . . . . . . . . . . . . . . . . . . . . . . . . 9 S 12131(2) . . . . . . . . . . . . . . . . . . . . . . . . .11 S 12132 . . . . . . . . . . . . . . . . . . . . . . . . .3, 10 S 12134 . . . . . . . . . . . . . . . . . . . . . . . . . . 11 S 12202 . . . . . . . . . . . . . . . . . . . . . . . . . . 16 S 2000d-7 . . . . . . . . . . . . . . . . . . . . . . . passim U.S. Code of Federal Regulations, Title 28 S 35.190 (b)(6) . . . . . . . . . . . . . . . . . . . . . . 13 part 36, Appendix A . . . . . . . . . . . . . . . . . . . . 14 part 42 (G) Appendix B subpart (c) (2) . . . . . . . . . . .13 S 42.522(b) . . . . . . . . . . . . . . . . . . . . . . . . 14 vi S 42.540(h) . . . . . . . . . . . . . . . . . . . . . . .12-13 S 42.540(j) . . . . . . . . . . . . . . . . . . . . . . . . 13 U.S. Code of Federal Regulations, Title 41, subpart 101-19.6, Appendix A . . . . . . . . . . . . . . . .14 Miscellaneous 45 Fed. Reg. 37620 (1980) . . . . . . . . . . . . . . . . . . . . . 13 59 Fed. Reg. 31808 (1994) . . . . . . . . . . . . . . . . . . . . . 14 59 Fed. Reg. 31676 (1994) . . . . . . . . . . . . . . . . . . . . . 14 131 Cong. Rec. 22,344 (1985) . . . . . . . . . . . . . . . . . . . .17 131 Cong. Rec. 22,346 (1985) . . . . . . . . . . . . . . . . . . . .17 132 Cong. Rec. 28,622-28,623 (1986) . . . . . . . . . . . . . . . . 17 132 Cong. Rec. 28,624 (1986) . . . . . . . . . . . . . . . . . .17, 20 H.R. Conf. Rep. No. 955, 99th Cong., 2d Sess. 78-79 (1986) . . . . .17 Pub. L. No. 99-506, tit. X, S 1003, 100 Stat. 1845 (1986) . . . . . 16 S. 1579, 99th Cong., 1st Sess. (1985) . . . . . . . . . . . . . 17, 18 S. Rep. No. 388, 99th Cong., 2d Sess. 27 (1986) . . . . . . . . . . 17 Title II Technical Assistance Manual at II-6.0000, II-6.3300(6) . . . . . . . . . . . . . . . . . . . . . . . .14 vii 1 INTRODUCTION 2 This class action was filed against various California state 3 officials by a certified plaintiff class comprising present and 4 future state inmates and parolees with mobility, sight, hearing, 5 learning, or kidney disabilities. Plaintiffs allege that 6 Defendants have violated Title II of the Americans with 7 Disabilities Act ("Title II" or "the ADA"), 42 U.S.C. SS 12131- 8 34, and Section 504 of the Rehabilitation Act of 1973 ("Section 9 504" or "the Rehabilitation Act"), 29 U.S.C. S 794, by building 10 and/or renovating prison facilities that do not comply with 11 federal accessibility standards, by excluding Plaintiffs from a 12 wide range of correctional programs on the basis of Plaintiffs' 13 disabilities, by failing to make reasonable accommodations to 14 Plaintiffs in the programs and activities that Defendants provide 15 to prison inmates, and by failing to provide appropriate 16 auxiliary aids and services to Plaintiffs where necessary for 17 effective communication. 18 Defendants have moved for summary judgment, arguing that the 19 protections of the ADA and Rehabilitation Act do not extend to 20 inmates in state correctional facilities, and that Defendants are 21 immune from liability pursuant to the Eleventh Amendment. Both 22 arguments should be rejected. As we demonstrate below, Title II 23 of the ADA and Section 504 do apply to prisons, because the 24 statutes apply to all public entities and all recipients of 25 federal financial assistance, respectively. In addition, 26 Defendants are not immune from suit because Congress has 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 1 -1 abrogated the State's Eleventh Amendment immunity and, in any 2 event, Defendants are state officials who can be sued in their 3 official capacity for declaratory and injunctive relief under the 4 doctrine of Ex Parte Young, 209 U.S. 123 (1908). 5 6 ARGUMENT 7 I THE ADA AND THE REHABILITATION ACT APPLY TO STATE CORRECTIONAL FACILITIES 8 The Americans with Disabilities Act, 42 U.S.C. S 12101 et 9 seq., is Congress' most extensive piece of civil rights 10 legislation since the Civil Rights Act of 1964. Its purpose is 11 to provide "a clear and comprehensive national mandate for the 12 elimination of discrimination against individuals with 13 disabilities." 42 U.S.C. S 12101(b)(1). The ADA's coverage is 14 accordingly broad -- prohibiting discrimination on the basis of 15 disability in employment, state and local government programs and 16 services, transportation systems, telecommunications, commercial 17 facilities, and the provision of goods and services offered to 18 the public by private businesses. This action involves Title II 19 of the ADA, which prohibits disability discrimination by state 20 and local governments. 21 The ADA extends the protections of Section 504 of the 22 Rehabilitation Act of 1973, 29 U.S.C. S 794, the first federal 23 statute to provide broad prohibitions against discrimination on 24 the basis of disability. Plaintiffs also allege violations of 25 Section 504, which prohibits discrimination in programs and 26 activities receiving federal financial assistance (including 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 - 2 -1 federally assisted programs and activities of state and local 2 governments). 3 The substantive provisions of Title II of the ADA and 4 Section 504 are strikingly similar. Section 504 provides in 5 pertinent part: 6 No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his 7 or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to 8 discrimination under any program or activity receiving Federal financial assistance . . . . 9 29 U.S.C. S 794(a). 10 Title II provides: 11 [N]o qualified individual with a disability shall, by 12 reason of such disability, be excluded from participation in or be denied the benefits of the 13 services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 14 42 U.S.C. S 12132. 15 A. Ninth Circuit Case Law Holds That The Rehabilitation 16 Act Applies to State Prisons And Suggests That The ADA Applies As Well 17 The Ninth Circuit has held that Section 504 applies to state 18 correctional facilities. Bonner v. Lewis, 857 F.2d 559, 562 (9th 19 Cir. 1988).1 Bonner also supports the conclusion that Title II 20 21____________________ 1 This conclusion was recently reaffirmed in Gates v. 22 Rowland, 39 F.3d 1439, 1446-47 (9th Cir. 1994). Defendants assert that Gates suggests that the Ninth Circuit is "beginning 23 to rethink its decision in Bonner that state prisons are subject to the Rehabilitation Act." Def's Mem. at 14 (quoting Torcasio 24 v. Murray, 57 F.3d 1340, 1349 n.7 (4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996)). This suggestion is without merit. In 25 Gates, the Court articulated the standard of review for determining how the Rehabilitation Act is to be applied in a 26 prison setting, not whether the statute should be applied at all. Gates, 39 F. 3d at 1446-47. 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 3 -1 of the ADA applies to state prisons. See Bullock v. Gomez, No. 2 95-6634 LGB (RMCx), slip op. at 5 (C.D. Cal. May 6, 1996) 3 (attached hereto as Exhibit 1) ("Under the current law in the 4 Ninth Circuit this court is led to conclude that the ADA applies 5 to state correctional facilities.") (citing Bonner).2 6 Bullock explicitly rejected the same argument Defendants 7 make here, that dicta in a recent Fourth Circuit decision is a 8 basis to conclude, contrary to Bonner, that state prisons are not 9 covered by Title II and Section 504. Defendants improperly rely 10 on Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. 11 denied, 116 S. Ct. 772 (1996), a qualified immunity case in which 12 the Fourth Circuit held that the defendants were entitled to 13 immunity because, "it was not then clearly established that 14 either [the ADA or the Rehabilitation Act] applied to state 15 ------------------- 16 2 Numerous courts have applied the Rehabilitation Act and/or Title II of the ADA in the correctional facility context. 17 See, e.g., Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994) (Rehabilitation Act); Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 18 1991) (Rehabilitation Act); Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996) (Title II); Austin v. Pennsylvania Dep't of 19 Corrections, 876 F. Supp. 1437 (E.D. Pa. 1995) (Title II and Rehabilitation Act); Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 20 1995) (Title II); Rewolinski v. Morgan, 896 F. Supp. 879 (E.D. Wis. 1995) (Title II); Simmons v. Indiana, 904 F. Supp. 877 (N.D. 21 Ind. 1995) (Title II); Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995) (Rehabilitation Act and Title II); Timmons v. New 22 York State Dep't of Correctional Servs., 887 F. Supp. 576 (S.D.N.Y. 1995) (Rehabilitation Act); Outlaw v. City of Dothan, 23 No. CV-92-A-1219-S, 1993 WL 735802 (M.D. Ala. Apr. 27, 1993) (Title II and Rehabilitation Act); Noland v. Wheatley, 835 F. 24 Supp. 476 (N.D. Ind. 1993) (Title II); Donnell v. Illinois Bd. of Educ., 829 F. Supp. 1016 (N.D. Ill. 1993) (Rehabilitation Act); 25 Casey v. Lewis, 834 F. Supp. 1569 (D. Ariz. 1993) (Rehabilitation Act); Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W. Va. 1976) 26 (Rehabilitation Act). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 4 -1 prisons." Id. at 1352. Torcasio queried, without holding, 2 whether these statutes apply to state correctional facilities at 3 all. However, Bonner, not Torcasio, is the law of this Circuit. 4 See Bullock, slip op. at 3. Moreover, while determining that the 5 defendants in Torcasio were entitled to qualified immunity, the 6 Fourth Circuit acknowledged that federal guidelines provide 7 evidence tht it is now established that the ADA applies to state 8 prisons. Torcasio, 57 F.3d at 1351; see also Bullock at 3.3 9 Defendants, relying on Torcasio, assert that prison 10 management is an "integral state function" into which federal 11 courts should not interfere. Def.'s Mem. at 3-4. This argument 12 misstates the law. While federal courts have acknowledged that 13 deference is due to the decisions of state officials, the courts 14 cannot abdicate their duties to enforce important civil rights 15 protections. Indeed, in a recent decision under Title II of the 16 ADA, the Ninth Circuit reversed a district court that had refused 17 to examine the lawfulness of a state legislative action. Crowder 18 v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). The Court of Appeals 19 directed that the lower courts must apply federal law: 20 We are mindful of the general principle that courts will not second-guess the public health and safety decisions 21 of state legislatures acting within their traditional police powers. However, when Congress has passed 22 antidiscrimination laws such as the ADA . . . , it is incumbent upon the courts to insure that the mandate of 23 federal law is achieved. 24 Id. at 1485 (citation omitted). See also Garcia v. San Antonio 25 ____________________ 3 This Court should therefore reject the analysis of other 26 courts that have found the ADA inapplicable to prisons (see cases cited in Def.'s Mem. at 8). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 5 - 1 Metro. Transit Auth., 469 U.S. 528, 546-47 (1985) (states are not 2 immune from federal regulation of their "integral state 3 functions").4 4 Defendants argue that applying the ADA and Section 504 in 5 the prison context will lead to absurd results.5 But the only 6 issue here is whether Title II and Section 504 apply to state 7 correctional institutions, not how the nondiscrimination 8 requirements should be applied to particular sets of facts. 9 Neither the ADA nor Section 504 requires a fundamental alteration 10 in the way prisons operate -- indeed, the unique features of any 11 state program, including prisons, must be taken into account in 12 determining what the statutes require in a particular situation.6 13 ___________________ 4 Not surprisingly, the Ninth Circuit and other federal 14 courts have applied various federal anti-discrimination statutes to correctional facilities. See Jeldness v. Pearce, 30 F.3d 1220 15 (9th Cir. 1994) (Title IX of the 1964 Civil Rights Act); Baker v. McNeil Island Corrections Ctr., 859 F.2d 124 (9th Cir. 1988) 16 (racial discrimination) (Title VII of the 1964 Civil Rights Act). 17 See also Women Prisoners of the Dist. of Columbia Dep't of Corrections v. District of Columbia, 877 F. Supp. 634, 672 18 (D.D.C. 1994) (Title IX), vacated in part on other grounds, 899 F. Supp. 659 (D.D.C. 1995); Klinger v. Nebraska Dep't of 19 Correctional Servs., 824 F. Supp. 1374, 1431 (D. Neb. 1993) (same), rev'd on other grounds, 31 F.3d 727 (8th Cir. 1994), 20 cert. denied, 115 S.Ct. 1177 (1995); Donnell v. Illinois Bd. of Educ., 829 F. Supp. 1016 (N.D. Ill. 1993) (Individuals with 21 Disabilities Education Act); Canterino v. Wilson, 546 F. Supp. 174, 209 (W.D. Ky. 1982) (Title IX), aff'd, 875 F.2d 862 (6th 22 Cir. 1989), cert. denied, 493 U.S. 991 (1989); Green v. Johnson, 513 F. Supp. 965, 976 (D. Mass. 1981) (Individuals with 23 Disabilities Education Act); Cruz v. Collazo, 450 F. Supp. 235 (D. P.R. 1979)(same); Beehler v. Jeffes, 664 F. Supp. 931, 940 24 (M.D. Pa. 1986) (Title IX). 25 5 See Def.'s Mem. at 10. 26 6 Cf. Jeldness v. Pearce, 30 F.3d 1220, 1225 (9th Cir. 1994) (upholding application of Title IX of the Civil Rights Act of 1964 27 to state prisons but acknowledging that "Title IX's requirements 28 U.S. Amicus Curiae Memorandum No. C-94-2307 CW - 6 -1 Put simply, neither statute calls for an abrogation of common 2 sense. 3 Nor do the statutes mandate that prisons create particular 4 programs or activities for prisoners or provide "special 5 treatment" for inmates with disabilities. They simply require 6 the state to provide as equal an opportunity as that provided to 7 inmates without disabilities to participate in, and benefit from, 8 the programs, activities, and services of the state prison system 9 -- whatever they happen to be. Thus, in the end, Defendants' 10 attempt to trivialize state inmates' right to non-discrimination 11 must fail. 12 As the facts in this case and others demonstrate, the ADA 13 and Section 504 protect the important civil rights of prison 14 inmates. For example, without the protections of the ADA and 15 Section 504, an inmate could be misdiagnosed and forced to take 16 psychotropic medications for no other reason than that, because 17 of his physical disability, he was unable to communicate with his 18 physician. See, e.g., Bonner, 857 F.2d at 564; Clarkson v. 19 Coughlin, 898 F. Supp. 1019, 1041 (S.D.N.Y. 1995). An inmate 20 could be denied the benefit of his wife's visit for no other 21 reason than that he has a disability. See, e.g., Bullock, slip 22 op. at 1. An inmate could be denied the benefit of bathing for 23 no other reason than that he has a disability. Outlaw v. City of 24 Dothan, No. CV-92-A-1219-S, 1993 WL at 735802 *1-*2 (M.D. Ala. 25 Apr. 27, 1993); Noland v. Wheatley, 835 F. Supp. 476, 480-81 26 __________________ must be analyzed in the context of the prison environment"). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 7 -1 (N.D. Ind. 1993). And without the ADA or Section 504, inmates 2 could be denied the benefits of the educational, vocational, 3 and/or rehabilitative programs that prisons offer -- and often 4 use as the basis for early release or parole -- for no other 5 reason than that the inmates have disabilities. Clarkson, 898 F. 6 Supp. at 1030-31; Donnell v. Illinois Bd. of Educ., 829 F. Supp. 7 1016, 1018 (N.D. Ill. 1993). 8 B. The Plain Language Of The Statutes And Deference To The Department Of Justice Regulations Further Support The 9 Conclusion That The Rehabilitation Act And The ADA Apply To State Prisons 10 Defendants suggest that neither the Rehabilitation Act nor 11 the ADA should be applied to state correctional facilities, 12 "absent unmistakable congressional intent to do so." Def.'s Mem. 13 at 6. There is no support for this broad and conclusory 14 statement. Indeed, the Ninth Circuit has found to the contrary. 15 See Jeldness v. Pearce, 30 F.3d 1220, 1225 (9th Cir. 1994) 16 (expressly considering and rejecting the argument that federal 17 civil rights statutes should not apply to state correctional 18 facilities absent clear expression of congressional intent). The 19 plain language of Title II and Section 504 demonstrates that the 20 statutes apply to state prisons. See infra. Furthermore, to the 21 extent there is any question concerning the question of coverage, 22 Department of Justice regulations -- most of which Defendants 23 ignore7 -- answer the question in the affirmative. 24 25 ____________________ 7 See Def.'s Mem. at 12 (suggesting that "there is nothing 26 in the ADA or the federal regulations to indicate that the ADA is applicable to prison programs"). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 8 -1 1. The plain language of the statutes demonstrates that the Rehabilitation Act and Title II apply to 2 state correctional facilities 3 Section 504 prohibits disability-based discrimination by 4 "any program or activity receiving federal financial assistance." 5 29 U.S.C. S 794(a) (emphasis added). Title II prohibits 6 disability-based discrimination by any "public entity," i.e., 7 "any State or local government" and "any department, agency, 8 special purpose district, or other instrumentality of State or 9 States or local government." 42 U.S.C. S 12131 (1) (A) & (B) 10 (emphasis added). State correctional facilities clearly fall 11 within both definitions: they receive federal financial 12 assistance,8 and Departments of Corrections are "departments" of 13 the state. See Outlaw, 1993 WL 735802 *3 ("under common usage 14 and understanding of the terms [service, program, or activity,] 15 the jail and all of its facilities, including the shower, 16 constitute a service, program or activity of the City . . . to 17 which the ADA applies"). See also Innovative Health Systems, 18 Inc. v. City of White Plains, No. 95-CV-9642 (BDP), slip op. at 19 11 (S.D.N.Y. June 12, 1996) (attached hereto as Exhibit 2) 20 (holding that Title II applies to the "normal function[s] or 21 operation[s] of a governmental entity," including local zoning 22 activities). In Innovative Health Systems, the court recited the 23 broad language of Title II and found 24 no suggestion in the statute that zoning or any other type of public action is to be excluded from this broad mandate. 25 _____________________ 26 8 See Statement of Stipulated Facts at 1 (California Department of Corrections receives federal financial assistance). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 9 -1 Moreover, the last phrase of Title II's prohibition is even more expansive, stating simply that no individual with a 2 disability may be 'subjected to discrimination' by a public entity. 3 Id., slip op. at 12 (emphasis added). 4 Defendants argue that because they have the discretion to 5 determine what services, programs and/or activities they provide 6 to prison inmates, such activities do not fall within Title II's 7 mandate. See Def.'s Mem. at 9. Government activities, however, 8 typically involve the exercise of such discretion. As Niece v. 9 Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996), a case applying 10 Title II in the prison context, explained: 11 [Defendant's] argument . . . misses the point. The ADA 12 does not require a government entity to provide any particular service. Rather, the ADA requires that, if 13 the entity does in fact provide a service . . . "it must use methods or criteria that do not have the 14 purpose or effect of impairing its objectives with respect to individuals with disabilities." 15 Id. at 1217 (quoting Concerned Parents to Save Dreher Park Ctr. 16 v. City of West Palm Beach, 846 F. Supp. 986, 991 (S.D. Fla. 17 1994). 18 Defendant's tortured textual reading of the ADA is equally 19 without merit. The heading for Title II -- Public Services -- 20 refers not to those services available to all members of the 21 general public (see Def.'s Mem. at 8), but rather, to those 22 services provided by public entities. See 42 U.S.C. S 12132. 23 Similarly, Defendants' argument notwithstanding, prison inmates 24 are clearly "qualified" for the programs Defendants offer. A 25 "qualified individual with a disability" is 26 an individual with a disability who, with or without 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 10 -1 reasonable modifications to rules, policies, or practices, the removal of architectural, communication, 2 or transportation barriers, or the provision of auxiliary aids and services, meets the essential 3 eligibility requirements for the receipt of services or the participation in programs or activities provided by 4 a public entity. 5 42 U.S.C. S 12131(2). Plaintiffs fall within this definition. 6 See, e.g., Bonner, 857 F.2d at 562 ("As a prison inmate, Bonner 7 is qualified (sometimes required) to participate in activities 8 such as disciplinary proceedings, Honor Dorm Review Committee 9 hearings, counseling, rehabilitation, medical services, and other 10 prison activities."); Clarkson, 898 F. Supp. at 1035-36 11 (prisoners are "qualified individuals" under both Section 504 and 12 Title II); Outlaw, 1993 WL 735802 at *3 (prison inmate is 13 "qualified individual with a disability" within the meaning of 14 Title II). Cf. Niece, 922 F. Supp. at 1217-18 (deaf individual 15 who was denied effective means by which to communicate with her 16 fiance, a prison inmate, is otherwise qualified). 17 2. Deference to Department of Justice regulations requires the conclusion that the Rehabilitation 18 Act and Title II apply to state correctional facilities 19 The implementing regulations for Section 504 and Title II 20 make it even clearer that state correctional institutions are 21 covered by these statutes. Congress explicitly delegated to the 22 Department of Justice the authority to promulgate regulations 23 under both Section 504 and Title II. 29 U.S.C. S 794(a); 42 24 U.S.C. S 12134. Accordingly, the Department's regulations and 25 its interpretation thereof are entitled substantial deference. 26 Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994); 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 11 -1 Martin v. Occupational Safety & Health Review Comm'n., 499 U.S. 2 144, 150 (1991), citing Lyng v. Payne, 476 U.S. 926, 939 (1986); 3 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 4 467 U.S. 837, 844 (1984) (where Congress expressly delegates 5 authority to an agency to issue legislative regulations, the 6 regulations "are given controlling weight unless they are 7 arbitrary, capricious, or manifestly contrary to the statute"); 8 United States v. Morton, 467 U.S. 822, 834 (1983). Indeed, "[a]s 9 the author of the [ADA] regulation, the Department of Justice is 10 also the principal arbiter as to its meaning." Fiedler v. 11 American Multi-Cinema, Inc., 871 F. Supp. 35, 38 (D.D.C. 1994), 12 citing Thomas Jefferson Univ., 114 S. Ct. at 2386.9 13 As explained above, Section 504 provides that no otherwise 14 qualified individual with a disability shall, solely becouse of 15 his or her disability, be denied the "benefits" of any "program" 16 receiving federal financial assistance. 29 U.S.C. S 794. DOJ 17 regulations expressly define the term "program" to include the 18 "operations of a department of corrections," 28 C.F.R. 19 ___________________ 20 9 See also Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d Cir. 1995) (relying extensively on DOJ Title II regulations and 21 its interpretation thereof), cert. denied sub nom. Pennsylvania Sec'y of Pub. Welfare v. Idell S., 116 S. Ct. 64 (1995); Kinney 22 v. Yerusalim, 9 F.3d 1067, 1071-1073 (3d Cir. 1993) (same), cert. denied sub nom. Hoskins v. Kinney, 114 S. ct. 1545 (1994); 23 Innovative Health Systems, slip op. at 13-14, nn. 3 & 4 (same); Bullock, slip op. at 6-7 (same); Concerned Parents, 846 F. Supp. 24 at 989 n.9 (same); Tugg v. Towey, 864 F. Supp. 1201, 1205 n.6 (S.D. Fla. 1994) (same); Bechtel v. East Penn School Dist. of 25 Lehigh County, No. Civ. A. 93-4898, 1994 WL 3396, *2-*3 (E.D. Pa. 1994) (same); Petersen v. University of Wis. Bd. of Regents, 818 26 F. Supp. 1276, 1279 (W.D. Wis. 1993) (same); Noland, 835 F. Supp. at 483 (N.D. Ind. 1993) (same). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 12 -1 S 42.540(h), and define the term "benefit" to include 2 "disposition," "sentencing," and "confinement," 28 C.F.R. 3 S 42.540(j). Similarly, DOJ regulations promulgated under the 4 ADA specifically list "correctional institutions" as one of the 5 "programs, services, [or] regulatory activities relating to law 6 enforcement, public safety, and the administration of justice" 7 that are subject to the requirements of Title II. 28 C.F.R. S 8 35.190(b)(6). See Bullock, slip op. at 6-7 9 The Department's interpretative analysis accompanying both 10 regulations further demonstrates that the ADA and Section 504 11 apply to state prison facilities. The preamble to the Section 12 504 regulations requires that 13 [f]acilities available to all inmates or detainees, such as classrooms, infirmary, laundry, dining areas, 14 recreation areas, work areas, and chapels, must be readily accessible to any handicapped person who is 15 confined to that facility. Beyond insuring the physical accessibility of facilities, detention and 16 correctional agencies must insure that their programs and activities are accessible to handicapped persons. 17 . . In making housing and program assignments, such [correctional] officials must be mindful of the 18 vulnerability of some handicapped inmates to physical and other abuse by other inmates. The existence of a 19 handicap alone should not, however, be the basis for segregation of such inmates in institutions or any part 20 thereof where other arrangements can be made to satisfy safety, security, and other needs of the handicapped 21 inmate. 22 28 C.F.R. part 42 (G) Appendix B subpart (c) (2); 45 Fed. Reg. 23 37620, 37630 (June 3, 1980) (emphasis added). 24 Finally, the DOJ Title II Technical Assistance Manual 25 specifically lists "jails and prisons" as types of facilities 26 that, if constructed or altered after the effective date of the U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 13 -1 ADA (January 26, 1992), must be designed and constructed so that 2 they are readily addessible to and usable by individuals with 3 disabilities. Title II Technical Assistance Manual at II-6.0000, 4 II-6.3300(6). DOJ Technical Assistance Manuals are also entitled 5 deference. See Innovative Health Systems, slip op. at 13-14 n.4; 6 Fiedler, 871 F. Supp. at 37 n.4; Bechtel, 1994 WL 3396, *2-*3; 7 Petersen, 818 F. Supp. at 1279; Chatoff v. City of New York, No. 8 92 Civ. 0604 (RWS), 1992 WL 202441 *2 (S.D.N.Y. June 30, 1992).10 9 II DEFENDANTS ARE NOT IMMUNE FROM SUIT UNDER THE ELEVENTH 10 AMENDMENT 11 The Eleventh Amendment generally bars citizen suits against 12 a state and its agencies and instrumentalities. Seminole Tribe 13 of Fla. v. Florida, 116 S. Ct. 1114, 1124-25; 1127-28 (1996); 14 Papasan v. Alain, 478 U.S. 265, 276 (1986); Pennhurst State Sch. 15 and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Eleventh 16 __________________ 17 10 The design standards applicable to facilities covered by Section 504 and Title II also include specific provisions 18 relating to jails, prisons, and "other detention or correctional facilities." The Section 504 regulations adopt the Uniform 19 Federal Accessibility Standards, which apply to all federal agencies and all entities receiving federal financial assistance. 20 See 28 C.F.R. S 42.522(b);41 C.F.R. subpart 101-19.6 Appendix A. UFAS was promulgated in 1984. It was specifically 21 incorporated into the DOJ Section 504 regulations, which apply to the construction of and/or alterations to prisons by DOJ-funded 22 entities, in 1988. See 28 C.F.R. S 42.522(b) (as amended, February 4, 1988). Under Title II, covered entities building new 23 facilities can choose to follow UFAS or the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG), 28 C.F.R. part 24 36, Appendix A, in meeting their obligations under the ADA. Proposed amendments to the Title II regulations include 25 guidelines specific to "detention and correctional facilities." See 59 Fed. Reg. 31808, 31816 (June 20, 1994) (proposed 26 amendments to DOJ Title II regulation) (adopting interim final rule of the Architectural and Transportation Barriers Compliance 27 Board, at 59 Fed Reg. 31676, 31770 (June 20, 1994). 28 U.S. Amicus Curiae Memorandum No. C-94-2307 CW - 14 -1 Amendment immunity can be waived by the state, however, or 2 Congress may expressly abrogate it. Atascadero State Hosp. v. 3 Scanlon, 473 U.S. 234, 241-42 (1985). 4 Citing to the Supreme Court's recent decision in Seminole, 5 Defendants argue that Congress did not have the authority to 6 abrogate Eleventh Amendment immunity for Section 504 or the ADA, 7 and that they therefore are immune from liability. In Seminole, 8 the Court held that the Indian Commerce Clause of the 9 Constitution, Art. I, S 8, cl. 3, does not afford Congress the 10 authority to abrogate Eleventh Amendment immunity. In reaching 11 this conclusion, the Court also reversed Pennsylvania v. Union 12 Gas, 491 U.S. 1 (1989), which held that Congress enjoyed such 13 power under the Commerce Clause. Seminole recognized, however, 14 that Congress does have such power pursuant to Section 5 of the 15 Fourteenth Amendment." We demonstrate below that Congress 16 properly exercised this authority in abrogating state immunity 17 under the ADA and Section 504. 18 Moreover, Seminole left undisturbed the doctrine of Ex Parte 19 Young, 209 U.S. 123 (1908), which allows individuals to seek 20 injunctive and declaratory relief in a federal suit against state 21 officials without compromising a state's Eleventh Amendment 22 immunity. Seminole, 116 S. Ct. at 1131 n.14 & n.16. The instant 23 action falls within the doctrine of Ex Parte Young. 24 ___________________ 25 11 See Seminole 116 S. Ct. at 1125 (reaffirming Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), where the Court held that 26 Congress may abrogate Eleventh Amendment immunity pursuant to the Fourteenth Amendment). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 15 -1 A. Congress Acted Within Its Constitutional Powers In Abrogating The State's Eleventh Amendment Immunity 2 Under Both Section 504 and Title II 3 In Seminole, the Supreme Court articulated a two-part test 4 to determine whether Congress has properly abrogated the States' 5 Eleventh Amendment immunity: 6 [F]irst, whether Congress has unequivocally expressed its intent to abrogate immunity; and second, whether 7 Congress has acted pursuant to a valid exercise of power. 8 116 S. Ct. at 1123 (citations, quotations, and brackets omitted). 9 Section 504 and Title II both satisfy the "unequivocal 10 expression" requirement. See 42 U.S.C. S 2000d-7 (" A State 11 shall not be immune under the Eleventh Amendment . . . from suit 12 in Federal Court for a violation of section 504 of the 13 Rehabilitation Act of 1973 . . . ."); 42 U.S.C. S 12202 ("A State 14 shall not be immune under the eleventh amendment . . . from an 15 action in Federal or State court of competent jurisdiction for a 16 violation of this chapter."). See also Lane v. Pena, No. 95-365, 17 __S. Ct.__, 1996 WL 335334 *5-*6 (June 20, 1996) (S 2000d-7 is 18 unequivocal waiver of States' Eleventh Amendment immunity). 19 Congress abrogated state immunity under Section 504 in 1986, 20 when it enacted 42 U.S.C. S 2000d-7.12 Congress enacted the 21 statute in response to the Supreme Court's decision a year 22 earlier in Atascadero State Hosp. v. Scanlon, 473 U.S. 234 23 (1985), which held that Section 504 did not "specifically" 24 ____________________ 25 12 Section 2000d-7, although placed in the statute books with Title VI of the 1964 Civil Rights Act, was enacted as part 26 of the Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Tit. X, S 1003, 100 Stat. 1845 (1986). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 16 -1 "subject the States to federal jurisdiction" and thus did not 2 abrogate the Eleventh Amendment. Id. at 246. The legislative 3 history is clear that in enacting S 2000d-7, Congress relied upon 4 its Section 5 powers.13 See, e.g., S. Rep. No. 388, 99th Cong. 5 2d Sess. 27 (1986); 131 Cong. Rec. 22,346 (1985); 132 Cong. Rec. 6 28,624 (1986);14 see Fitzpatrick, 427 U.S. at 453 n.9 (relying 7 _____________________ 13 Congress also enacted S 2000d-7 pursuant to its Spending 8 Clause powers. See nn. 14 & 16, infra. 9 14 The bill that became Section 2000d-7 was originally introduced by Senator Cranston on August 1, 1985 as the Civil 10 Rights Remedies Equalization Act. S. 1579, 99th Cong, 1st Sess. (1985). See 131 Cong. Rec. 22,344 (Aug. 1, 1985). He explained 11 that the bill was intended to respond to Atascadero by making it clear that Congress intended to subject states to suit under 12 various civil rights provisions, including Section 504. He concluded his remarks by discussing the source of authority for 13 such a law. 14 Finally, I would note my understanding that, as has been clearly established in Supreme Court cases, including the 15 Atascadero case, over the past 21 years, the Congress has the authority to waive the States' 11th amendment immunity 16 under the following provisions of the Constitution: the commerce clause, the spending clause, and section 5 of the 17 14th amendment. In my view, this legislation is clearly authorized by at least the latter two provisions. 18 Id. at 22,346. 19 The bill was reported out of the Senate Committee on Labor 20 and Human Resources as part of the Rehabilitation Act Amendments of 1986. The Report noted that Atascadero had held that Congress 21 could "limit the [Eleventh] amendment when legislating pursuant to Section 5 of the Fourteenth Amendment and clearly implied that 22 an exception could be provided under the Spending Clause." S. Rep. No. 388, 99th Cong., 2d Sess. 27 (1986). 23 The bill passed the Senate and was sent to conference to be 24 reconciled with a House bill that did not contain a similar provision. The conference adopted the Senate provision. See 25 H.R. Conf. Rep. No. 955, 99th Cong., 2d Sess. 78-79 (1986). On returning from conference, Senator Cranston reiterated that the 26 purpose of the provision was to reverse the decision in Atascadero. 132 Cong. Rec. 28,622-28,623 (Oct. 3, 1986). He 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 17 -1 on legislative history to determine that "Congress exercised its 2 power under S 5 of the Fourteenth Amendment"). 3 That Congress relied on its Section 5 powers in abrogating 4 state immunity under Title II of the ADA is even clearer. In 5 enacting the statute, Congress specifically invoked its "power to 6 enforce the fourteenth amendment." 42 U.S.C. S 12101(b) (4).15 7 Finally, there can be little dispute that Congress' 8 abrogation of state immunity in disability discrimination cases 9 is a proper exercise of its Section 5 powers. The Supreme Court 10 has held that persons with disabilities are entitled to 11 protection from discrimination under the Fourteenth Amendment. 12 ___________________ 13 also submitted for the record a letter from the Department of Justice supporting the provision and explaining that: 14 Atascadero provides the blueprint for Congressional action 15 to waive the eleventh amendment's ban to suit in Federal court under the fourteenth amendment and the spending power. 16 The proposed amendment . . . fulfills the requirements that the Supreme Court laid out in Atascadero. Thus, to the 17 extent that the proposed amendment is grounded on congressional powers under section five of the fourteenth 18 amendment, S. 1579 makes Congress' intention "unmistakably clear in the language of the statute" to subject States to 19 the jurisdiction of Federal courts. 105 S. Ct. at 3147. See Fitzpatrick versus Bitzer, 427 U.S. 445 (1976). To the 20 extent that the proposed amendment is grounded on congressional spending powers, S. 1579 makes it clear to 21 states that their receipt of Federal funds constitutes a waiver of their eleventh amendment immunity. 22 Id. at 28,624. 23 15 In enacting the ADA, Congress also invoked its powers 24 under the Commerce Clause, because the Act reaches the conduct of private entities as well as public entities. See 42 U.S.C. S 25 12101(b) (4). The Fourteenth Amendment, rather than the Commerce Clause, is the traditional constitutional authority for 26 legislation proscribing state conduct. See EEOC v. County of Calumet, 686 F.2d 1249, 1253 (7th Cir. 1982). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 18 -1 City of Cleburne v. Cleburne Living Ctr. 473 U.S. 432, 446-47 2 (1985). Moreover, the very premise of the Court's decision in 3 Atascadero was that Congress had the authority under Section 5 to 4 abrogate the states' immunity in cases brought pursuant to 5 Section 504, but had failed to express its intent to do so 6 unequivocally. Atascadero, 473 U.S. at 244 n.4. 7 The only case to consider specifically whether Congress had 8 the constitutional authority to abrogate Eleventh Amendment 9 immunity under the both Section 504 and the ADA thus has found 10 that the Fourteenth Amendment affords such authority. Martin v. 11 Voinovich, 840 F. Supp. 1175, 1186-87 (S.D. Ohio 1993). Cf. 12 United States v. Yonkers Bd. of Educ., 893 F.2d 498, 503 (2d Cir. 13 1990) (Title VI action) (S 2000d-7 is valid exercise of Congress' 14 Section 5 authority); Santiago v. New York State Dep't of 15 Correctional Servs., 945 F.2d 25, 31 (2d Cir. 1991) ("Acting 16 under S 5, Congress has repeatedly enacted legislation that has 17 clearly stated Congress' intention to abrogate states' immunity 18 from damage actions in a variety of contexts, [including 42 19 U.S.C. S 2000d-7]."), cert. denied, 502 U.S. 1094 (1992); Stanley 20 v. Darlington County Sch. Dist., 879 F. Supp. 1341, 1363-1364 21 (D.S.C. 1995) (Title VI action) (upholding abrogation under S 22 2000d-7), rev'd in part on other grounds, __ F.3d__, 1996 WL 23 278235 (4th Cir. May 28, 1996).16 24 ___________________ 25 16 Moreover, at least with respect to Plaintiffs' Section 504 claims, the State has waived its immunity by accepting 26 federal financial assistance. As noted above, states may waive their Eleventh Amendment immunity. Seminole, 116 S. Ct. at 1128. 27 In Atascadero, the Court stated that if a statute "manifest[ed] a U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 19 -1 Moreover, both the ADA and Section 504 are, themselves, as 2 required by Section 5, "appropriate legislation" to enforce the 3 Equal Protection Clause. Katzenbach v. Morgan, 384 U.S. 641, 4 649-50 (1966). First, both Title II and Section 504 prohibit 5 discrimination on the basis of disability by government actors. 6 And, as Congress has found, individuals with disabilities 7 comprise: 8 a discrete and insular minority who have been faced with restrictions and limitations, subjected to a 9 history of purposeful unequal treatment, and relegated to a position of political powerlessness in our 10 society, based on characteristics that are beyond the control of such individuals and resulting from 11 stereotypic assumptions . . . 12 42 U.S.C. S 12101(a)(7). As such, both statutes may be regarded 13 as enactments to enforce the protections of the Fourteenth 14 Amendment. Morgan, 384 U.S. at 651. Second, the substantive 15 provisions of both statutes are "plainly adapted to that end 16 [i.e., enforcing the Equal Protection Clause]," see id. -- they 17 are designed to ensure that persons with disabilities, including 18 prison inmates, are protected from discriminatory state conduct 19 _____________________ 20 clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional 21 immunity," the federal courts would have jurisdiction because the states would have waived their Eleventh Amendment immunity by 22 accepting funds. 473 U.S. at 247. It was in response to Atascadero that Congress enacted 42 U.S.C. S 2000d-7, making 23 clear that Congress intended the States to be sued in federal court under Section 504 if they accepted federal funds. See 132 24 Cong. Rec. 28,624 (Oct. 3, 1986) ("To the extent that the proposed amendment is grounded on congressional spending powers, 25 S. 1579 makes it clear to states that their receipt of Federal funds constitutes a waiver of their eleventh amendment 26 immunity."). Thus, states accepting federal funds after 1986 know that as part of their "contract" with the federal 27 government, they are consenting to suit in federal court. 28 U.S. Amicus Curiae Memorandum No. C-94-2307 CW - 20 -1 and are provided an opportunity to benefit from the programs, 2 services, and activities provided by covered entities equal to 3 that provided to non-disabled individuals. Lastly, the statutes 4 "are consistent with 'the letter and spirit of the 5 constitution.'" Id. (quoting McCulloch v. Maryland, 17 U.S. (4 6 Wheat.) 316, 421 (1819)); see id. at 648-49 (Section 5 authorizes 7 Congress not only to provide remedies for violations of the 8 Fourteenth Amendment, but also to amplify its substantive 9 protections).17 Both Title II and Section 504 are thus valid 10 exercises of Congress' Section 5 powers. Id. at 651.18 11 ____________________ 17 Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 12 490 (1989) (O'Connor, J., concurring and dissenting) (Congress' power to enforce the Fourteenth Amendment includes "the power to 13 define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those 14 situations"). 15 18 Citing case law under Title VI and Title IX, Defendants argue that Section 504 is not legislation enacted pursuant to the 16 Fourteenth Amendment, but rather, to the Spending Clause. Def.'s Mem. at 18. Congress, however, may enact legislation pursuant to 17 more than one source of constitutional authority. See, e.g., EEOC v. Wyoming, 460 U.S. 226, 243 (1983) (upholding Age 18 Discrimination in Employment Act as an exercise of the Commerce Clause power without deciding whether it could also be upheld as 19 an exercise of the Fourteenth Amendment); see also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 280 (1964) 20 (Douglas, J., concurring) ("In determining the reach of an exertion of legislative power, it is customary to read various 21 granted powers together."). Here, Congress enacted Section 504 pursuant to both the Fourteenth Amendment and the Spending 22 Clause. See e.g., Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 471 n.2 (1987) ("The Rehabilitation Act 23 was passed pursuant to S 5 of the Fourteenth Amendment."); Atascadero, 473 U.S. at 244-245 n.2 (same); River Forest Sch. 24 Dist. No. 90 v. Illinois State Bd. of Educ., 1996 WL 89055, *6 (N.D. Ill. Feb. 28, 1996) (same); Rivera Flores v. Puerto Rico 25 Telephone Co., 776 F. Supp. 61, 66 (D.P.R. 1991) (Spending Clause); Bradford v. Iron City C-4 School District, 1984 WL 1443, 26 *7 (E.D. Mo. June 13, 1984) (Spending Clause and Fourteenth Amendment); Jones v. Illinois Department of Rehabilitative 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 21 -1 B. Ex Parte Young Allows Plaintiffs To Seek Prospective Injunctive Relief 2 "[T]he Eleventh Amendment does not bar actions against state 3 officers in their official capacities if the plaintiffs seek only 4 a declaratory judgment or injunctive relief.'" Los Angeles 5 Branch NAACP v. Los Angeles Unified Sch. Dist., 714 F.2d 946, 952 6 (9th Cir. 1993) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1350 7 (9th Cir. 1982)), cert. denied sub nom., California State Dep't 8 of Educ. v. Los Angeles Branch NAACP, 467 U.S. 1209 (1984). See 9 also Papasan, 478 U.S. at 277-78; Green v. Mansour, 474 U.S. 64, 10 68 (1985). Actions against state officers in their official 11 capacity for damages, however, are barred. See Edelman v. 12 Jordan, 415 U.S. 651, 665-670 (1995). 13 The distinction between allowable actions for prospective 14 relief versus disallowed actions for retroactive monetary relief 15 has its basis in Ex Parte Young, 209 U.S. 123 (1908). In Young, 16 a federal court had enjoined the Minnesota Attorney General from 17 enforcing an unconstitutional state law. The Supreme Court 18 upheld the injunction, on the grounds that when a state official 19 acts unconstitutionally, he acts ultra vires and is "stripped of 20 his official or representative character," and thus of any 21 immunity the state might have been able to provide. Id. at 160. 22 Under the Young doctrine, a federal court may enjoin state 23 ____________________ Services, 504 F. Supp. 1244, 1257 (N.D. Ill. 1981) (Fourteenth 24 Amendment). Cf. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75 n.8 (reserving judgment on "which power Congress utilized 25 in enacting Title IX"); Guardians Ass'n v. Civil Service Comm'n 26 of the City of New York, 463 U.S. 582, 596 (1983) (Title VI) (Spending Clause). U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 22 -1 officials to conform their future conduct to the requirements of 2 federal law. See Papasan, 478 U.S. at 277-78. 3 As noted above, suits against state officers for money 4 damages are barred, under the theory that the judgment would in 5 reality be one against the state. Edelman, 415 U.S. at 665-70. 6 Suits for equitable relief, however, even if they will have an 7 impact on state treasuries, are still viable. Id. at 667. See 8 Milliken v. Bradley, 433 U.S. 267, 289 (1977) (Ex Parte Young 9 "permits federal courts to enjoin state officials to conform 10 their conduct to requirements of federal law, notwithstanding a 11 direct and subsequential impact on the state treasury.") As the 12 Court has explained, "[r]emedies designed to end a continuing 13 violation of federal law are necessary to vindicate the federal 14 interest in assuring the supremacy of that law." Green, 474 U.S. 15 at 68 (citations omitted). 16 The instant action falls squarely within the doctrine of Ex 17 Parte Young. Plaintiffs have sued state officers in their 18 official capacities, rather than the state itself. They have 19 sought only declaratory and injunctive relief in order to remedy 20 an ongoing violation of federal law. While the requested relief 21 may have a subsequent impact on the state treasury, any such 22 impact would be ancillary to bringing an end to a violation of 23 federal law. See Papasan, 478 U.S. at 278. 24 Seminole does not disturb the principles of Ex Parte Young. 25 Seminole, 116 S. Ct. at 1131 n.14 & n.16. The Court in Seminole 26 indicated, however, that a suit against state officials is not 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 23 -1 permissible under an Ex Parte Young theory where a statute 2 provides for specific limited remedies against the state itself, 3 which the Court found to be the case under the Indian Gaming 4 Regulatory Act. Id. at 1132-33.19 By contrast, Section 504 and 5 Title II afford private litigants the full remedial powers of the 6 federal courts. See Franklin v. Gwinnett County Pub. Sch., 503 7 U.S. 60, 71-73 (1992) (Title IX of the 1964 Civil Rights Act -- 8 which, like Section 504 and Title II of the ADA, affords a 9 private litigant the remedies available under Title VI of the 10 1964 Civil Rights Act - - provides a private litigant the full 11 panoply of remedies).20 12 13 4 ___________________ 15 19 As the Court explained, the remedial scheme provided by Congress in IGRA is quite limited: 16 For example, where the court finds that the state has 17 failed to negotiate, the only remedy prescribed is an order directing the State and the Indian tribe to 18 conclude a compact within 60 days. And if the parties disregard the court's order and fail to conclude a 19 compact within the 60-day period, the only sanction is that each party then must submit a proposed compact to 20 a mediator who selects the one which best embodies the terms of the Act. Finally, if the State fails to 21 accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify 22 the Secretary of the Interior who then must prescribe regulations governing Class II gaming on the tribal 23 lands at issue. 24 Seminole, 116 S. Ct. 1132-33 (emphasis added). 25 20 See, e.g., W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995) (applying Franklin to Section 504 action); Rodgers v. 26 Magnet Cove Public Schools, 34 F.3d 642, 645 (8th Cir. 1994) (same). 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 24 -1 2 CONCLUSION 3 For the reasons set forth above, Defendants' Motion for 4 Summary Judgment should be denied. 5 6 Respectfully submitted, 7 8 MICHAEL J. YAMAGUCHI DEVAL L. PATRICK United States Attorney Assistant Attorney General 9 Northern District of California Civil Rights Division 10 11 12 MARY BETH UITTI JOHN L. WODATCH Civil Chief JOAN A. MAGAGNA 13 United States Attorney's Office SHARON N. PERLEY Northern District of California Attorneys 14 450 Golden Gate Ave. Disability Rights Section San Francisco, CA 94102 Civil Rights Division 15 (415) 436-7200 U.S. Department of Justice P.O. Box 66738 16 Washington, D.C. 20035-6738 (202) 307-0663 17 18 19 20 21 22 23 24 25 26 27 U.S. Amicus Curiae Memorandum 28 No. C-94-2307 CW - 25 -1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JOHN ARMSTRONG, et al., No. C 94-2307 CW 9 Plaintiffs, ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY 10 JUDGMENT v. 11 PETE WILSON, et al., 12 Defendants. 13 14 15 Plaintiffs, a certified class consisting of all present and 16 future California state prison inmates and parolees with 17 mobility1, sight, hearing, learning or kidney disabilities, have 18 moved for injunctive relief under Title II of the Americans with 19 Disabilities Act ("ADA"), 42 U.S.C. SS 12131 - 34, and Section. 20 504 of the Rehabilitation Act of 1973 ("the Rehabilitation Act" 21 or "Section 504"), 29 U.S.C. S 794. Defendants, various 22 California state officials being sued in their official 23 capacities, have moved for summary judgment pursuant to the 24 Stipulation and Order for Procedures to Determine Liability and 25 26 Remedy entered on July 9, 1996 (the "Stipulation"). The United 27 States Department of Justice ("DOJ") has submitted an amicus 28 ________________ 1 Prisoners with mobility impairments who are housed at the Correctional Medical Facility at Vacaville are excluded from the class.1 brief in support of Plaintiffs' opposition. The matter was heard 2 on July 19, 1996. Having considered all of the papers filed by 3 the parties and oral argument on the motion, the Court denies the 4 motion. 5 FACTS 6 Defendants move to strike Plaintiffs' separate statement of 7 undisputed facts. The Court grants the motion on the grounds 8 that the parties have stipulated that this summary judgment 9 motion is to be decided solely on the facts included in the 10 parties' joint statement of Stipulated Facts. 11 12 The following is a brief summary of the facts as provided in 13 the Statement of Stipulated Facts. The California Department of 14 Corrections ("CDC") operates over 31 prisons housing in excess of 15 130,000 inmates. Some of these facilities receive federal 16 financial assistance. The CDC has conducted surveys to identify 17 certain inmates with disabilities. These surveys have found 18 that: (1) 345 inmates use wheelchairs due to permanent 19 disabilities; (2) 650 inmates have permanent lower extremity 20 21 impairments which may require the use of an assistive device such 22 as a walker, cane or prosthesis; (3) 141 inmates are deaf or have 23 hearing impairments such that, even with a hearing aid, they are 24 not able to hear effectively or to hear emergency warnings; (4) 25 219 inmates are blind or have vision that cannot be corrected to 26 20/100 with corrective lenses. HIV-positive inmates are placed 27 in various units in facilities throughout the system. Inmates 28 with mental health problems are clustered and frequently separated from other inmate populations. 21 The CDC initiated a self-evaluation in 1995 pursuant to the 2 requirements of the ADA, but has not completed it. In April, 3 1995, the CDC established and implemented a new administrative 4 grievance procedure which inmates and parolees with disabilities 5 may use to submit grievances or requests for accommodations on 6 matters related to their disabilities. There remain significant 7 problems in implementing this procedure. 8 The CDC's written policies and procedures for emergencies do 9 not specifically address the evacuation of prisoners with 10 disabilities. Some CDC facilities do not have visual alarms or 11 strobe lights to warn prisoners with hearing impairments of 12 emergencies. When emergency situations arise in prison areas 13 other than living units, some inmates with disabilities may not 14 be aware of, or be able to respond to, emergency warnings of 15 impending danger. 16 Most inmates who participate in educational classes, 17 vocational training, or have work assignments, including those 18 with disabilities, earn 1/2 time sentence credits to reduce their 19 time in custody. Health care providers classify inmates as 20 "totally medically disabled," "medically unassigned," or "light 21 restricted duty." A "totally medically disabled" classification 22 allows the inmate to earn 1/2 time sentence credits without being 23 required to participate in a program, while a "medically unassigned" classification allows the inmate to earn 1/3 time 24 sentence credits. A "light restricted duty" classification 25 allows the inmate to participate in programs in accordance with a 26 specified restriction due to a physical or mental condition. 27 28 3 1 Some inmates with severe disabilities have been inappropriately 2 classified as medically unassigned rather than totally medically 3 disabled and only earn 1/3 instead of 1/2 time credits against 4 their sentences. Inmates designated as "light restricted duty" 5 may be assigned to jobs that are inappropriate for their 6 limitations. The range of vocational programs available to 7 inmates with disabilities is more limited than that available to 8 other inmates. 9 10 LEGAL STANDARD 11 Summary judgment is properly granted when no genuine and 12 disputed issues of material fact remain, and when, viewing the 13 evidence most favorably to the non-moving party, the movant is 14 clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 15 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 16 Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288- 17 89 (9th Cir. 1987). For the purposes of this motion, the parties 18 have stipulated that there are no material facts in dispute. The 19 Court, therefore, must decide whether the moving party is 20 entitled to summary judgment as a matter of law. 21 22 DISCUSSION 23 Defendants argue that the protections of the ADA and the 24 Rehabilitation Act do not extend to inmates or parolees of state 25 correctional facilities and that Defendants are immune from 26 ILLEGIBLE Amendment of the United States 27 Constitution. While the Ninth Circuit has held that the 28 Rehabilitation Act applies to state prisons, it has not yet considered whether the ADA is applicable to state correctional 41 facilities.2 Nor has the Ninth Circuit ruled on whether state 2 prison officials have immunity under the Eleventh Amendment for 3 violations of the ADA and the Rehabilitation Act. These, then, 4 are issues of first impression in this Circuit. 5 I. 6 APPLICABILITY OF THE ADA AND THE REHABILITATION ACT TO 7 STATE CORRECTIONAL FACILITIES 8 The Court will not address Defendants' argument that 9 prisoners and parolees are adequately protected under the First, 10 Eighth, and Fourteenth Amendments of the United States 11 Constitution and, therefore, the protections provided under the 12 Rehabilitation Act and the ADA are unnecessary. One need only 13 look to the undisputed stipulated facts of this case to find that 14 this argument is erroneous. Furthermore, it is not the proper 15 role of the judiciary to preempt Congress' decision that there is 16 a need for such legislation. 17 A. Ninth Circuit Case Law 18 19 1. Rehabilitation Act 20 Although the Ninth Circuit has held, in Bonner v. Lewis, 857 21 F.2d 559, 562 (9th Cir. 1988), that the Rehabilitation Act 22 applies to state prison facilities, Defendants argue that this 23 Court should arrive at a different result. Defendants argue 24 25 ________________________ 26 2 Only one district court in the Ninth Circuit has squarely addressed the issue of whether the ADA applies 27 to prisons. Bullock v. Gomez, 929 F.Supp. 1299 (C.D. Cal. 1996) held that the ADA does apply to prisons. In 28 Fowler v. Gomez, 1995 WL 779128, *2 (N.D. Cal. 1995), a qualified immunity case, a judge of this Court found that there was no authority to "clearly establish" that the ADA applied to state prisons at the time of the alleged incident in question. 51 that, since Bonner was decided, the Supreme Court has clarified 2 the proper analysis to be used by a district court to determine 3 the applicability of federal statutes to state prisons. 4 Defendants contend that utilization of this analysis will lead to 5 the conclusion that neither the Rehabilitation Act nor the ADA 6 are applicable to state prisons. The Court does not agree. 7 Section 504 of the Rehabilitation Act of 1973 states, in 8 pertinent part: 9 10 No otherwise qualified individual with a disability in the United States, . . . shall, solely by reason of her 11 or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to 12 discrimination under any program or activity receiving Federal financial assistance. . . 13 29 U.S.C. S 794. 14 15 In Bonner, the Ninth Circuit based its holding primarily on 16 the plain language of the Act, which states that it "applies to 17 any program or activity receiving Federal financial 18 assistance", and on the Justice Department's implementing 19 regulations which require compliance by correctional facilities 20 under 28 C.F.R. S 2.503(f). Bonner, 857 F.2d at 562. The court 21 noted that "[t]he Supreme Court has repeatedly emphasized that 22 federal regulations are 'an important source of guidance on the 23 meaning of S 504.'" Id.(citing School Board of Nassau County v. 24 Arline, 480 U.S. 273 (1987)(parenthetical emitted) and 25 26 Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 & nn.14-16 27 (1984)). 28 The Ninth Circuit rejected the defendants' argument that, because the purpose of the Rehabilitation Act is to foster vocational rehabilitation and independent living, it is not 6United States District Court For the Northern District of California 1 applicable to prison inmates who "are hardly in need of help to 2 live independently within their prisons." Id. Instead, the 3 court viewed the goals of independent living and vocational 4 rehabilitation as mirroring the goals of prison officials who 5 "attempt to rehabilitate prisoners and prepare them to lead 6 productive lives once their sentences are complete." Id. 7 In Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), the Ninth 8 9 Circuit elaborated on its holding in Bonner. First, the court, 10 citing Bonner, reaffirmed that "the Act is applicable to prisons 11 receiving federal financial assistance." Gates, 39 F.3d at 1446. 12 The court noted, however, that the Rehabilitation Act was 13 intended for use within the general population, and was not 14 specifically tailored to deal with the prison environment. Id. 15 The court reasoned that, "just as constitutional rights of 16 prisoners must be considered in light of the reasonable 17 requirements of effective prison administration, so must 18 statutory rights applicable to the nation's general population be 19 considered in the light of effective prison administration." Id. 20 21 The court held that the standard explicated by the Supreme Court 22 in Turner v. Safley, 482 U.S. 78 (1987) for reviewing 23 constitutional rights in a prison setting should also be used 24 when reviewing the rights provided by the Rehabilitation Act in a 25 prison setting. Id. at 1447. In Turner, the Supreme Court 26 articulated the rule that, "'when a prison regulation impinges on 27 inmates' constitutional rights, the regulation is valid if it is 28 reasonably related to legitimate penological interests'". Id. (quoting Turner, 482 U.S. at 89). 7United States District Court For the Northern District of California 1 Other courts, and Defendants, have interpreted Gates to mean 2 that the Ninth Circuit is retreating from its holding in Bonner. 3 See e.g. Torcasio v. Murray, 57 F.3d 1340, 1349 n.7 (4th Cir. 4 1995), cert. denied by Torcasio v. Angelone, 116 S. Ct. 772 5 (1996) and Little v. Lycoming County, 912 F.Supp. 309, 819 6 (M.D.Pa. 1996). The Court disagrees. Gates is a reaffirmation 7 and clarification of Bonner, not a retreat from it. 8 9 Defendants argue that subsequent to Bonner, the Supreme 10 Court, in Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991), 11 clarified the proper analysis for determining whether a federal 12 enactment is applicable to state prisons. They contend that, in 13 Gregory, the Court stated a new rule that requires that Congress 14 make its intention unmistakably clear in the language of the 15 statute if it intends to alter the usual constitutional balance 16 between the States and the federal government in traditionally 17 sensitive areas. Defendants conclude that, had the Ninth Circuit 18 applied this "new" plain statement rule in Bonner, it would have 19 held differently. 20 21 The Court disagrees. The plain statement rule was not 22 originally articulated in Gregory. Although Gregory recites this 23 rule, it cites prior cases as authority. One of the cases cited 24 in Gregory is United States v. Bass, 404 U.S. 336, 349 (1971) in 25 which the Court stated that, "[i]n traditionally sensitive areas, 26 such as legislation affecting the federal balance, the 27 requirement of clear statement assures that the legislature has 28 in fact faced, and intended to bring into issue the critical matters involved in the judicial decision." Gregory, 501 U.S. at 8United States District Court For the Northern District of California 1 461 (citing Bass, 404 U.S. at 349). Gregory also cites Rice v. 2 Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) for the 3 proposition that, "Congress should make its intention clear and 4 manifest' if it intends to pre-empt the historic powers of the 5 States." Gregory, 501 U.S. at 461. Even Seminole Tribe of 6 Florida v. Florida, 116 S. Ct. 1114, 1185 (1996), the case 7 Defendants use to support their proposition that Gregory adopted 8 a new rule, cites Bass as well as Gregory. It is clear that the 9 10 "new" rule Defendants proffer has been part of our jurisprudence 11 for many decades. It is patently unreasonable to assume that the 12 Ninth Circuit did not take this rule into consideration in 13 deciding Bonner. Although not explicitly stating that it was 14 applying the plain statement rule, in Bonner the Ninth Circuit 15 did look for Congressional intent to apply the Rehabilitation Act 16 to state prisons and found such intent in the plain language of 17 the statute and the DOJ's implementing regulations. Bonner, 857 18 F.2d at 562. 19 20 Defendants point to two post-Gregory Ninth Circuit cases to 21 illustrate that, had the Ninth Circuit used the plain statement 22 rule in Bonner, it would not have held the Act applicable to 23 state prisons. In Hale v. Arizona, 993 F.2d 1387, 1393, 1395 24 (9th Cir. 1993) (en banc), cert. denied, 510 U.S. 946 (1993), the 25 Ninth Circuit declined to extend the protections of the Federal 26 Labor Standards Act to inmates required by state law to work at 27 hard labor, but determined that the Act may be applicable to 28 inmates in other employment situations. In Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994), the Ninth Circuit held that Title 9United States District Court For the Northern District of California 1 IX, which prohibits discrimination on the basis of sex by any 2 educational program receiving federal funding, applies to state 3 prisons. Id. at 1225. In Hale and Jeldness the Ninth Circuit 4 focused on a list of statutorily exempt programs which did not 5 include prisons and determined that noninclusion in an exempt 6 list creates a strong implication of inclusion. Hale, 993 F.2d 7 at 1392; Jeldness, 30 F.3d at 1225. 8 Defendants contend that the analyses in Hale and Jeldness 9 10 rejected the basis for the Ninth Circuit's conclusion in Bonner, 11 because, in Bonner, the court merely based its holding on the 12 expansive language of the Rehabilitation Act. However, the 13 Bonner court also based its holding upon the DOJ's implementing 14 regulations that specifically bring state prisons within the 15 ambit of the Act. Bonner, 857 F.2d at 362. 16 Congress delegated to the head of each agency the authority 17 to promulgate regulations under the Rehabilitation Act. 29 18 U.S.C. S 794(a). The DOJ regulations define the term "program" 19 as including the "operations of a department of corrections," and 20 21 the term "benefit" as including "sentencing, confinement, or 22 other prescription of conduct." 28 C.F.R. SS 42.540(h) and (j). 23 In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 24 Inc., 467 U.S. 837, 843-44 (1984) the Court held that, where 25 Congress has left a gap for the agency to fill, the agency's 26 regulations "are given controlling weight unless they are 27 arbitrary, capricious, or manifestly contrary to the statute." 28 This Court can find nothing that is arbitrary or capricious in the DOJ's regulations. The broad language of the statute which 10 1 Defendants contend that utilization of the plain statement 2 rule will lead to the conclusion that the ADA does not apply to 3 state prisons. The Court does not agree. ILLEGIBLE 4 The Ninth Circuit has indicated that the ADA is to be 5 judicially interpreted in the same manner as the Rehabilitation 6 Act. Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th 7 Cir. 1995), cert. denied, 116 S. Ct. 711 (1996). This 8 determination is based on the substantially identical language in 9 10 the two Acts and the legislative history of the ADA which 11 indicates that Congress intended judicial interpretation of the 12 Rehabilitation Act to be incorporated by reference into 13 interpretation of the ADA. Id. 14 Pursuant to Collings, the Court must apply the Ninth 15 Circuit's reasoning in Bonner to decide whether the ADA applies 16 to state correctional facilities and programs. As noted above, 17 the broad language of the Rehabilitation Act is repeated in the 18 ADA. The ADA expands the reach of the anti-discrimination 19 provisions of the Rehabilitation Act from "any public facility 20 21 that receives Federal funding" to "any public entity." As it did 22 in the Rehabilitation Act, Congress has specifically delegated 23 authority to the DOJ to promulgate regulations implementing the 24 ADA. 42 U.S.C. S 12134(a). The DOJ's regulations provide that 25 "all programs, services, and regulatory activities relating to 26 law enforcement, public safety, and the administration of 27 justice, including courts and correctional institutions" are 28 governed by the ADA. 28 C.F.R. S 35.190(b) (6). The Court finds that the expansive language of the ADA, together with the DOJ's 13 1 regulations which it promulgated pursuant to a specific 2 Congressional delegation of authority, lead to the conclusion 3 that the ADA is applicable to state correctional institutions. 4 Following the Ninth Circuit's instruction in Gates, the Court 5 also concludes that, like the Rehabilitation Act, the ADA must be 6 applied in a prison environment with consideration of legitimate 7 penological interests. See Gates, 39 F.3d at 1447. 8 B. Case Law in Other Circuits 9 10 Defendants argue that this Court should be persuaded by 11 cases in other circuits in which, Defendants contend, the courts 12 have held the Rehabilitation Act or the ADA are inapplicable to 13 prisons. 14 Three circuits have directly addressed this issue.3 As 15 discussed above, the Third Circuit has held that the 16 Rehabilitation Act and the ADA apply to state and local 17 correctional institutions. The Tenth Circuit has held that the 18 Rehabilitation Act and the ADA are inapplicable to state prison 19 employment programs. In Williams v. Meese, 926 F.2d 994 (10th 20 21 Cir. 1991), the court held that the Rehabilitation Act is not 22 applicable to federal prison employment and vocational programs 23 ______________ 24 3 As noted by Defendants, the Seventh Circuit, in a 25 recent opinion by Judge Posner, stated that, "It is very far from clear that prisoners should be considered 'qualified 26 individuals' within the meaning of the [ADA]. Could Congress really have intended disabled prisoners to be 27 mainstreamed into an already highly restricted prison society? . . . [T]here are formidable practical objections 28 to burdening prisons with having to comply with the onerous requirements of the [ADA], . . ." Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996). This statement was dicta, however. The court proceeded to analyze the plaintiff's claim under the ADA. Id. at 249. 141 because the "Federal Bureau of Prisons does not fit the 2 definition of 'programs or activities' governed by [the 3 Rehabilitation Act]." Williams, 926 F.2d at 997. Relying upon 4 Williams, and without any further explanation, the Tenth Circuit 5 held in White v. Colorado, 82 F.3d 364 (10th Cir. 1996), that the 6 ADA does not apply to state prison employment situations. White, 7 82 F.3d at 367. 8 The Fourth Circuit, in Torcasio v. Murray, did not actually 9 10 hold that the Rehabilitation Act and the ADA do not apply to 11 state prisons, but strongly intimated that they do not. 12 Torcasio, a qualified immunity case, held that it was not clearly 13 established, at the time of the alleged discrimination, that 14 either the Rehabilitation Act or the ADA applied to state 15 prisons. Torcasio v. Murray, 57 F.3d 1340, 1352 (4th Cir. 1995), 16 cert. denied, 116 S. Ct. 771 (1996). The violations were alleged 17 to have occurred in April, 1993 through the spring, 1994. The 18 Torcasio court took the Ninth Circuit's 1988 Bonner decision into 19 consideration in its discussion. In analyzing the DOJ 20 21 regulations, however, the Torcasio court failed to locate the 22 specific sections which provide that the Rehabilitation Act 23 applies to correctional institutions. Id. at 1351. The court 24 looked at 28 C.F.R. S 42.503(f), the only section specifically 25 cited in Bonner, and dismissed it as too general to establish 26 that the DOJ intended the Rehabilitation Act to apply to prisons. 27 The court did not mention the sections, in the definitional parts 28 of the regulations, that indicate that the Rehabilitation Act applies to state prisons. See 28 C.F.R. SS 42.540 (h) and (j). 151 The court similarly did not mention 28 C.F.R. S 35.190(b)(6), the 2 regulation that specifies that the ADA applies to state prisons. 3 The court intimated that, had the plaintiff been able to show 4 that the regulations specifically applied to state prisons, it 5 might have held differently. Id. 6 As discussed above, Torcasio also erroneously concluded that 7 in Gates the Ninth Circuit retreated from its holding in Bonner. 8 Torcasio, 57 F.3d. at 1346, 1349 n.7. Also, as noted by 9 10 Plaintiffs, the questions raised in Torcasio as to whether prison 11 programs qualify as "programs" under the Rehabilitation Act and 12 the ADA, were answered in the affirmative by the Ninth Circuit in 13 Bonner. Bonner, 857 F.2d at 562("the [Rehabilitation] Act's 14 goals of independent living and vocational rehabilitation should 15 in fact mirror the goals of prison officials as they attempt to 16 rehabilitate prisoners and prepare them to lead productive 17 lives. . . .") 18 II. 19 IMMUNITY UNDER THE ELEVENTH AMENDMENT 20 21 Defendants argue that the Eleventh Amendment provides them 22 with immunity from liability under the Rehabilitation Act and the 23 ADA. Defendants acknowledged, during oral argument, that their 24 reasoning would lead to the conclusion that the Rehabilitation 25 Act and the ADA are not applicable to any state agency. 26 In Seminole Tribe v. Florida, 116 S. Ct. 1114, 1123 (1996), 27 the Supreme Court reiterated the principle that, pursuant to the 28 Eleventh Amendment, States may not be sued in federal court unless Congress, acting pursuant to a valid exercise of its 161 power, unequivocally expresses its intent to abrogate the States' 2 immunity. Id.(citing Green v. Mansour, 474 U.S. 64, 68 (1985)). 3 Defendants concede that Congress clearly expressed its intent in 4 the Rehabilitation Act and the ADA to abrogate the States' 5 immunity. The issue to be resolved is whether, in abrogating the 6 States' immunity, Congress acted pursuant to a valid exercise of 7 its power. 8 In Seminole Tribe, the Court explained that Congressional 9 10 authority to abrogate States' immunity had been previously found 11 under two provisions of the Constitution. Id. at 1125. In 12 Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56 (1976), the Court had 13 held that S 5 of the Fourteenth Amendment allowed Congress to 14 abrogate States' immunity from suit and, in Pennsylvania v. Union 15 Gas Co., 491 U.S. 1, 19-20 (1989), the Court had held that the 16 Interstate Commerce Clause granted Congress the power to abrogate 17 immunity. Id. In Seminole Tribe the Court overruled Union Gas 18 so that Congress now has authority to abrogate the states' 19 immunity pursuant only to the Fourteenth Amendment. Id. at 1131. 20 21 Defendants argue that Congress lacks authority to abrogate 22 their immunity under the Rehabilitation Act or the ADA because 23 neither was validly enacted pursuant to the Fourteenth Amendment. 24 Plaintiffs disagree, and also argue that Defendants, because they 25 are state officials, are not immune from suit for injunctive 26 relief under the doctrine of Ex parte Young, 309 U.S. 123 (1908). 27 A. The ADA Was Enacted Pursuant to the Fourteenth Amendment 28 The ADA specifically states that its purpose is "to invoke the sweep of congressional authority, including the power to 171 enforce the fourteenth amendment and to regulate commerce, in 2 order to address the major areas of discrimination faced day to 3 day by people with disabilities." 42 U.S.C. S 12101(b) (4). In 4 spite of this explicit statement by Congress, Defendants argue 5 that simply because Congress has stated that the legislation was 6 enacted pursuant to its Fourteenth Amendment authority does not 7 make it so. 8 9 The Equal Protection Clause of the Fourteenth Amendment 10 provides that "[n]o State shall . . . deny to any person within 11 its jurisdiction the equal protection of the laws." Section 5 of 12 the Amendment states that "[t]he Congress shall have power to 13 enforce, by appropriate legislation, the provisions of this 14 article." As explained by the Supreme Court,". . . S 5 is a 15 positive grant of legislative power authorizing Congress to 16 exercise its discretion in determining whether and what 17 legislation is needed to secure the guarantees of the Fourteenth 18 Amendment." Katzenbach v. Morgan, 3ILLEGIBLE4 U.S. 641, 648 (1966). 19 Section 5 is intended to provide to Congress the same broad 20 21 powers expressed in the Necessary and Proper Clause, art. I, S ILLEGIBLE, 22 cl. ILLEGIBLE Id. at 6ILLEGIBLE0. The standard to be used in determining 23 whether legislation is appropriate under the Necessary and Proper 24 Clause was formulated in McCulloch v. Maryland, 17 U.S. (4 25 Wheat.) 316, 421 (1819): 26 Let the end be legitimate, let it be within the scope 27 of the constitution, and all means which are appropriate, which are plainly adapted to that end, 28 which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Id. 181 Using the McCulloch test, to determine if legislation 2 enacted pursuant to the Fourteenth Amendment is appropriate, a 3 court must determine whether the legislation: (1) is plainly 4 adapted to the end of enforcing the Equal Protection Clause, and 5 (2) is not prohibited by, but is consistent with the "letter and 6 spirit of the constitution." Morgan, 384 U.S. at 651. 7 Defendants cite Pierce v. King for the proposition that the 8 ADA is not adapted to enforcing the Fourteenth Amendment. Pierce 9 10 v. King, 918 F.Supp 932, 940 (E.D.N.C. 1996). The argument in 11 Pierce begins with the assumption that "[t]he Fourteenth 12 Amendment has traditionally been understood as protecting 13 individuals from state action that would infringe upon individual 14 liberties." Id. The argument continues with the contention 15 that the ADA is unlike traditional anti-discrimination laws 16 because the ADA creates entitlements whereas the traditional laws 17 seek to produce and environment in which individuals are treated 18 in a neutral manner. Id. Defendants contend that mandates for 19 prisons to conduct self-evaluations, complete transition plans, 20 establish grievance procedures, and provide notice of the ADA to 21 22 inmates are administrative burdens that are unconnected with the 23 Fourteenth Amendment's prohibition against discrimination. They 24 say that obligations to identify inmates with learning 25 disabilities and to provide special programs for them distort 26 notions of equal treatment. Similarly, they contend that the 27 requirement of certain structural accessibility features goes far 28 beyond anything that could be based on the Fourteenth Amendment. The court disagrees with Defendants' theory. Some of the 191 findings made by Congress in enacting the ADA are that: 2 (1) discrimination against disabled individuals in the form of 3 isolation and segregation is a serious and pervasive social 4 problem; (2) disabled individuals are a discrete and insular 5 minority who have been subjected to a history of unequal 6 treatment and relegated to a position of political powerlessness 7 based upon false stereotypical assumptions; and, (3) the Nation's 8 goals are to assure equality, full participation, independent 9 living and economic self-sufficiency to individuals with 10 11 disabilities. 42 U.S.C. S 12101(a). Congress indicated in the 12 ADA that it intended to invoke its full authority under the 13 Fourteenth Amendment to address nationwide discrimination against 14 the disabled. 42 U.S.C. S 12101(b)(4). 15 Rectifying discrimination often has taken the form of the 16 prohibition of action that is discriminatory. Perhaps, as 17 Defendants argue, this is the traditional manner in which 18 legislation under the Fourteenth Amendment has been framed. 19 However, eliminating discrimination may require affirmative 20 21 relief. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 22 490 (1989) (O'Conner, J., concurring and dissenting) ("The power to 23 'enforce' [the Fourteenth Amendment] may at times also include 24 the power to define situations which Congress determines threaten 25 principles of equality and to adopt prophylactic rules to deal 26 with these situations.") 27 The goal of the ADA, to eliminate discrimination against an 28 identifiable group of individuals, is a proper invocation of the Equal Protection Clause. See City of Cleburne v. Cleburne Living 201 Ctr., 473 U.S. 432, 446-ILLEGIBLE (1985) (holding that persons with 2 disabilities are entitled to protection under the Fourteenth 3 Amendment). The practical effect of the ADA will be to eliminate 4 barriers against entry into physical structures, into ongoing 5 programs and services, and into the mainstream of society itself 6 for many individuals with disabilities. While this may require 7 affirmative measures on the part of correctional institutions to 8 insure inclusion of those who are now excluded from the 9 10 mainstream of prison life, the requirement of such measures does 11 not exceed the authority granted to Congress under S 5 of the 12 Fourteenth Amendment. The ADA, therefore, meets the first prong 13 of the McCulloch test. 14 Defendants have not argued that the ADA is inconsistent with 15 the letter and spirit of the constitution. The Court, therfore, 16 finds that the ADA meets the second prong of the McCulloch test. 17 That Congress has invoked the Commerce Clause as well as the 18 Fourteenth Amendment as authority for the ADA does not alter the 19 conclusion that, under the McCulloch standard, the ADA is 21 legitimate legislation, pursuant to the Fourteenth Amendment, 22 focused on deterring discrimination on the part of the states. 23 See EEOC v. County of Calumet, ILLEGIBLE F.2d 1249, 1253 (7th Cir. 24 1982) (noting that Congress, in enacting modern civil rights 25 legislation, reaches private discrimination indirectly through 26 the Commerce Clause and reaches state discrimination directly 27 through the Fourteenth Amendment). The Court holds that the ADA 28 was legitimately enacted pursuant to Congress' authority under the Fourteenth Amendment. 211 B. The Rehabilitation Act was Enacted Pursuant to the Spending Clause and the Fourteenth Amendment 2 Unlike the ADA, the Rehabilitation Act is silent as to the 3 constitutional authority under which it was enacted. Defendants 4 5 contend that a close reading of the statute, together with an 6 analogy to similar statutes, leads to the conclusion that the 7 Rehabilitation Act is authorized by Congress' spending power, and 8 not by the Fourteenth Amendment. That the Rehabilitation Act 9 applies only to those entities that receive federal funds is the 10 primary basis for Defendants' contention. 11 Defendants point to Title VI, 42 U.S.C. S 2000d et seq., and 12 Title IX, 20 U.S.C. S 1681 et seq., of the Civil Rights Act of 13 1964 as support for their argument. Title VI prohibits 14 discrimination on the basis of race, color, or national origin by 15 16 any program or activity receiving federal financial assistance. 17 42 U.S.C. S 2000d. Based upon the legislative history, the 18 Supreme Court determined that Congress intended to enact Title VI 19 pursuant to its spending power. Guardians Ass'n v. Civil Serv. 20 Comm'n v. Comm'n of New York, 463 U.S. 582, 598-99 (1983). Title 21 IX prohibits discrimination on the basis of sex by any 22 educational program or activities receiving federal financial 23 assistance. 20 U.S.C. S 1681(a). The Supreme Court has reserved 24 the question of whether Title IX was enacted under the Spending 25 Clause or under the Fourteenth Amendment. Franklin v. Gwinnett 26 27 County Pub. Schs., 503 U.S. 60, 75 n.8 (1992). The Fifth 28 Circuit, in Rowinsky v. Bryan Indep. Sch. Dist., for a variety of reasons, adopted the view that Title IX was enacted under the Spending Clause. Rowinsky v. Bryan Indep. Sch. Dist., ILLEGIBLE F.3d 221 1006, 1012 n. 14 (5th Cir. 1996), petition for cert. filed, 65 2 U.S.L.W. 3033 (U.S. Jul.1, 1996) (No. 96-4). First, Title IX was 3 modeled after Title VI and uses identical language. That the 4 Supreme Court in Guardians Ass'n held that Title VI was enacted 5 pursuant to the Spending Clause strongly suggests that Title IX 6 also was enacted under the Spending Clause. Id. Second, Title 7 IX regulates purely private educational institutions. The 8 receipt of federal funds does not transform a private school into 9 a state actor for purposes of the Fourteenth Amendment. Id. 10 11 Third, the funding incentives provided in Title IX indicate that 12 Congress did not intend to impose absolute obligations on the 13 States. Id. Defendants' argument that the Rehabilitation Act, 14 like Titles VI and IX, is enacted under the Spending Clause 15 because it, too, applies only to those entities that receive 16 federal funding is well-taken. However, the contentions of 17 Plaintiffs and amicus that the Rehabilitation Act was enacted 18 under the Fourteenth Amendment are also persuasive. Furthermore, 19 because the language and purpose of the Rehabilitation Act are 20 virtually identical to that of the ADA, and because this Court 21 22 has found that the ADA was validly enacted pursuant to the 23 Fourteenth Amendment, it follows that the Rehabilitation Act, 24 also, was enacted under the Fourteenth Amendment. 25 Plaintiffs point out that two Supreme Court cases indicate 26 that the Rehabilitation Act was passed under the Fourteenth 27 Amendment. In Atascadero State Hosp. v. Scanlon, the Supreme 28 Court stated, "Petitioners conceded . . . that the Rehabilitation Act was passed pursuant to S 5 of the Fourteenth Amendment. 231 Thus, we first analyze S 504 in light of Congress' power under 2 the Fourteenth Amendment to subject unconsenting States to 3 federal court jurisdiction." Scanlon, 473 U.S. 234, 244 n.4 4 (1985). Because the issue of Congressional authority was not in 5 dispute in Scanlon, that case is not determinative of the issue. 6 The Supreme Court noted in Welch v. Texas Dept. of Highways and 7 Pub. Transp. that "[t]he question in Scanlon was whether S 504 of 9 the Rehabilitation Act of 1973, 29 U.S.C. S 794, makes state 10 agencies subject to suits for retroactive monetary relief in 11 federal court. The Rehabilitation Act was passed pursuant to S 5 12 of the Fourteenth Amendment. Congress therefore had the power to 13 subject unconsenting states to suit in federal court." Welch, 14 483 U.S. 468, 472 n.2 (1987) (citing Scanlon). Welch provides 15 further evidence that the Supreme Court considers that Congress 16 enacted the Rehabilitation Act pursuant to the Fourteenth 17 Amendment. But, this statement is dicta. 18 In Dep't of Educ., State of Haw. v. Katherine D., the 19 20 district court held that the Rehabilitation Act was enacted 21 pursuant to Congress' power under the Fourteenth Amendment. 22 Katherine D., 531 F.Supp. 517, 530 (D.C. Haw. 1982), aff'd in 23 part, rev'd in part on other grounds, 727 F.2d 809 (9th Cir. 24 1983), cert. denied, 471 U.S. 1117 (1985). The court based its 25 holding on its analysis of legislative history and Congress' 26 intent, as specifically explicated in the Act, to effectuate 27 equal opportunity for disabled citizens. Id. The court 28 concluded that this legislative goal is "precisely the specific legislative intent to effectuate the equal protection rights 241 guaranteed by the Fourteenth Amendment which [the Supreme Court] 2 recognized." Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 3 (1976) and Hutto v. Finney, 437 U.S. 678 (1978)). 4 Congress may enact legislation pursuant to more than one of 5 its constitutional powers. See EEOC v. County of Calumet, 686 6 F.2d at 1253. The Court finds that Congress utilized its 7 authority under the Spending Clause and under S 5 of the 8 Fourteenth Amendment of the Constitution in enacting the 10 Rehabilitation Act. Because the Court finds that Congressional 11 authority for the ADA and the Rehabilitation Act arises in the 12 Fourteenth Amendment, the Eleventh Amendment does not immunize 13 Defendants from suit. 14 c. Doctrine of Ex parte Young 15 Even if Defendants were immune under the Eleventh Amendment, 16 their immunity would be subject to the exception of Ex parte 17 Young, 209 U.S. 123, 155-56 (1908). Ex parte Young created an 18 exception to the principle that States may not be sued in federal 19 20 court unless they consent, or unless Congress, pursuant to a 21 valid exercise of power, unambiguously expresses its intent to 22 abrogate the States' immunity. Green v. Mansour, 474 U.S. 64, 63 23 (1985). Ex parte Young held that the Eleventh Amendment does not 24 preclude federal courts from granting prospective injunctive 25 relief to prevent individual state officials from violating 26 federal law. Young, 209 U.S. at 155-56; Green, 474 U.S. at 68. 27 Citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 28 682, 687 (1949) superseded in part by 5 U.S.C. S 702, Defendants argue that Young is inapplicable because Plaintiffs' claims are 251 essentially directed against the State, not against the 2 individuals named in the suit. In Larson, the Court explained 3 that a suit nominally addressed to a government employee, but 4 which actually requires relief against the government, is barred 5 because the court, in the absence of consent, has no jurisdiction 6 over a suit against the government. Larson, 337 U.S. at 638. 7 However, there are exceptions to this rule. Id. at 689. One 8 9 exception is a case in which the statute conferring power on the 10 government employee is unconstitutional, because the conduct 11 against which relief is sought is beyond the employee's powers 12 and is, therefore, not the conduct of the government. Id. at 13 690. This exception is based on the same reasoning as that 14 relied upon in Young. "The theory of Young was that an 15 unconstitutional statute is void, and therefore does not impart 16 to [the official] and immunity from responsibility to the supreme 17 authority of the United States'". Green, 474 U.S. at 68 (citing 18 Young, 209 U.S. at 159-60). By the same token, Young also held 19 20 that officials do not have immunity for a continuing violation of 21 federal law. Id. 22 That courts have applied the Young doctrine in cases in 23 which inmates sue state prison officials for violations of 24 federal law is further evidence that Larson does not apply to the 25 case at bar. See e.g. Thompson v. Enomoto, 915 F.2d 1383, 1390 26 (9th Cir. 1990), cert. denied by Rowland v. Thompson, 502 U.S. 27 1071 (1992) (holding that state officials not immune, under Young, 28 from suits alleging constitutional violations); Duran v. Carruthers, 885 F.2d 1485, 1489 (10th Cir. 1989), cert. denied, 26 1 493 U.S. 1056 (1990) (under Young, prison officials not immune 2 from suit alleging violations of federal constitution and federal 3 statutes). Here, Plaintiffs seek prospective injunctive relief 4 only against state officials acting in their official capacity. 5 Under these circumstances, Larson does not apply. 6 Defendants also argue that, because the ADA and the 7 Rehabilitation Act have detailed enforcement schemes limiting 8 remedies against the State, they come under the exception to Ex 9 10 parte Young applied by the Supreme Court in Seminole Tribe. In 11 Seminole Tribe, the Court stated that ". . . where Congress has 12 prescribed a detailed scheme for the enforcement against a State 13 of a statutorily created right, a court should hesitate before 14 casting aside those limitations and permitting an action against 15 a state officer based upon Ex parte Young." Seminole Tribe, 116 16 S. Ct. at 1132. 17 The Indian Gaming Regulatory Act (the "IGRA") was the 18 subject of the Court's inquiry in Seminole Tribe. Id. at 1119. 19 The Court found that the IGRA provides for specific limited 20 21 remedies against the State. Id. The Court reasoned that the 22 limited statutory remedies would be superfluous if a state 23 official could be exposed to the full remedial powers of a 24 federal court in an action brought under Ex parte Young. Id. at 25 1133. The Court also reasoned that Congress' creation of the 26 limited remedial scheme is a strong indication that it had no 27 wish to expose States to liability under Ex parte Young. Id. 28 Defendants argue that, like the IGRA, the Rehabilitation Act and the ADA have limited remedial schemes, but Defendants do not 271 specify what they are. To the contrary, the Ninth Circuit has 2 held that "the full panoply of remedies, including equitable 3 relief and monetary damages" are available under the 4 Rehabilitation Act. Smith v. Barton, 914 F.2d 1330, 1338 (9th 5 Cir. 1990), cert. denied, 501 U.S. 1217 (1991); see also Franklin 6 v. Gwinnett County Pub. Schs., 503 U.S. at 72-73 (stating that the 7 Rehabilitation Act provides a private litigant the full panoply 8 9 of remedies). The ADA specifically incorporates the "remedies, 10 procedures, and rights" of the Rehabilitation Act. 42 U.S.C. S 11 12133. Under Ex parte Young, Defendants are not immune from this 12 lawsuit. 13 CONCLUSION 14 For the foregoing reasons, Defendants' motion for summary 15 judgment is DENIED. 16 17 IT IS SO ORDERED. 18 19 20 Dated: SEP 20 1996 CLAUDIA WILKEN CLAUDIA WILKEN 21 UNITED STATES DISTRICT JUDGE 22 Copies mailed to counsel 23 as noted on the following page 24 25 26 27 28 28---F.Supp.---- Page 1 (Cite as: 1996 WL 580847 (N.D.Cal.)) John ARMSTRONG, et al., Plaintiffs, v. Pete WILSON, et al., Defendants. No. C 94-2307 CW. United States District Court, N.D. California. Sept. 20, 1996. Donald Specter, San Quentin George D. Prince, CA State Atty General, San Francisco. Michael W. Bien Rosen Bien & Asaro, San Francisco. Warren E. George McCutchen Doyle Brown & Enersen, San Francisco. WILKEN *1 Plaintiffs, a certified class consisting of all present and future California state prison inmates and parolees with mobility [FN1], sight, hearing, learning or kidney disabilities, have moved for injunctive relief under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12131--34, and Section 504 of the Rehabilitation Act of 1973 ("the Rehabilitation Act" or "Section 504"), 29 U.S.C. S 794. Defendants, various California state officials being sued in their official capacities, have moved for summary judgment pursuant to the Stipulation and Order for Procedures to Determine Liability and Remedy entered on July 9, 1996 (the "Stipulation"). The United States Department of Justice ("DOJ") has submitted an amicus brief in support of Plaintiffs' opposition. The matter was heard on July 19, 1996. Having considered all of the papers filed by the parties and oral argument on the motion, the Court denies the motion. FACTS Defendants move to strike Plaintiffs' separate statement of undisputed facts. The Court grants the motion on the grounds that the parties have stipulated that this summary judgment motion is to be decided solely on the facts included in the parties' joint Statement of Stipulated Facts. The following is a brief summary of the facts as provided in the Statement of Stipulated Facts. The California Department of Corrections ("CDC") operates over 31 prisons housing in excess of 130,000 inmates. Some of these facilities receive federal financial assistance. The CDC has conducted surveys to identify certain inmates with disabilities. These surveys have found that: (1) 345 inmates use wheelchairs due to permanent disabilities; (2) 650 inmates have permanent lower extremity impairments which may require the use of an assistive device such as a walker, cane or prosthesis; (3) 141 inmates are deaf or have hearing impairments such that, even with a hearing aid, they are not able to hear effectively or to hear emergency warnings; (4) 219 inmates are blind or have vision that cannot be corrected to 20/100 with corrective lenses. HIV-positive inmates are placed in various units in facilities throughout the system. Inmates with mental health problems are clustered and frequently separated from other inmate populations. The CDC initiated a self-evaluation in 1995 pursuant to the requirements of the ADA, but has not completed it. In April, 1995, the CDC established and implemented a new administrative grievance procedure which inmates and parolees with disabilities may use to submit grievances or requests for accommodations on matters related to their disabilities. There remain significant problems in implementing this procedure. The CDC's written policies and procedures for emergencies do not specifically address the evacuation of prisoners with disabilities. Some CDC facilities do not have visual alarms or strobe lights to warn prisoners with hearing impairments of emergencies. When emergency situations arise in prison areas other than living units, some inmates with disabilities may not be aware of, or be able to respond to, emergency warnings of impending danger. Copr. West 1996 No claim to orig. U.S. govt. works 1 WESTLAW --F.Supp.--- Page 2 (Cite as: 1996 WL 580847, *2(N.D.Cal.)) *2 Most inmates who participate in educational classes, vocational training, or have work assignments, including those with disabilities, earn 1/2 time sentence credits to reduce their time in custody. Health care providers classify inmates as "totally medically disabled," "medically unassigned," or "light restricted duty." A "totally medically disabled" classification allows the inmate to earn 1/2 time sentence credits without being required to participate in a program, while a "medically unassigned" classification allows the inmate to earn 1/3 time sentence credits. A "light restricted duty" classification allows the inmate to participate in programs in accordance with a specified restriction due to a physical or mental condition. Some inmates with severe disabilities have been inappropriately classified as medically unassigned rather than totally medically disabled and only earn 1/3 instead of 1/2 time credits against their sentences. Inmates designated as "light restricted duty" may be assigned to jobs that are inappropriate for their limitations. The range of vocational programs available to inmates with disabilities is more limited than that available to other inmates. LEGAL STANDARD Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir.1987). For the purposes of this motion, the parties have stipulated that there are no material facts in dispute. The Court, therefore, must decide whether the moving party is entitled to summary judgment as a matter of law. DISCUSSION Defendants argue that the protections of the ADA and the Rehabilitation Act do not extend to inmates or parolees of state correctional facilities and that Defendants are immune from liability under the Eleventh Amendment of the United States Constitution. While the Ninth Circuit has held that the Rehabilitation Act applies to state prisons, it has not yet considered whether the ADA is applicable to state correctional facilities. [FN2] Nor has the Ninth Circuit ruled on whether state prison officials have immunity under the Eleventh Amendment for violations of the ADA and the Rehabilitation Act. These, then, are issues of first impression in this Circuit. I. APPLICABILITY OF THE ADA AND THE REHABILITATION ACT TO STATE CORRECTIONAL FACILITIES The Court will not address Defendants' argument that prisoners and parolees are adequately protected under the First, Eighth, and Fourteenth Amendments of the United States Constitution and, therefore, the protections provided under the Rehabilitation Act and the ADA are unnecessary. One need only look to the undisputed stipulated facts of this case to find that this argument is erroneous. Furthermore, it is not the proper role of the judiciary to preempt Congress' decision that there is a need for such legislation. A. Ninth Circuit Case Law 1. Rehabilitation Act *3 Although the Ninth Circuit has held, in Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988), that the Rehabilitation Act applies to state prison facilities, Defendants argue that this Court should arrive at a different result. Defendants argue that, since Bonner was decided, the Supreme Court has clarified the proper analysis to be used by a district court to determine the applicability of federal statutes to state prisons. Defendants contend that utilization of this analysis will lead to the conclusion that neither the Rehabilitation Act nor the ADA are applicable to state prisons. The Court does not agree. Section 504 of the Rehabilitation Act of 1973 Copr. West 1996 No claim to orig. U.S. govt. works 2 WESTLAW ---F.Supp.--- Page 3 (Cite as: 1996 WL 580847, *3 (N.D.Cal.)) states, in pertinent part: No otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. S 794. In Bonner, the Ninth Circuit based its holding primarily on the plain language of the Act, which states that it "applies to 'any program or activity receiving Federal financial assistance'", and on the Justice Department's implementing regulations which require compliance by correctional facilities under 28 C.F.R. S 42.503(f). Bonner, 857 F.2d at 562. The court noted that "[t]he Supreme Court has repeatedly emphasized that federal regulations are 'an important source of guidance on the meaning of S 504.'" Id. (citing School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (parenthetical omitted) and Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 & nn. 14-16 (1984)). The Ninth Circuit rejected the defendants' argument that, because the purpose of the Rehabilitation Act is to foster vocational rehabilitation and independent living, it is not applicable to prison inmates who "are hardly in need of help to live independently within their prisons.", Id. Instead, the court viewed the goals of independent living and Vocational rehabilitation as mirroring the goals of prison officials who "attempt to rehabilitate prisoners and prepare them to lead productive lives once their sentences are complete." Id. In Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994), the Ninth Circuit elaborated on its holding in Bonner. First, the court, citing Bonner, reaffirmed that "the Act is applicable to prisons receiving federal financial assistance.", Gates, 39 F.3d at 1446. The court noted, however, that the Rehabilitation Act was intended for use within the general population, and was not specifically tailored to deal with the prison environment. Id. The court reasoned that, "just as constitutional rights of prisoners must be considered in light of the reasonable requirements of effective prison administration, so must statutory rights applicable to the nation's general population be considered in the light of effective prison administration.", Id. The court held that the standard explicated by the Supreme Court in Turner v. Safley, 482 U.S. 78 (1987) for reviewing constitutional rights in a prison setting should also be used when reviewing the rights provided by the Rehabilitation Act in a prison setting. Id. at 1447. In Turner, the Supreme Court articulated the rule that, "-when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests" '. Id. (quoting Turner, 482 U.S. at 89). *4 Other courts, and Defendants, have interpreted Gates to mean that the Ninth Circuit is retreating from its holding in Bonner. See e.g. Torcasio v. Murray, 57 F.3d 1340, 1349 n. 7 (4th Cir.1995), cert. denied by Torcasio V. Angelone, 116 S.Ct. 772 (1996) and Little v. Lycoming County, 912 F.Supp. 809, 819 (M.D.Pa.1996). The Court disagrees. Gates is a reaffirmation and clarification of Bonner, not a retreat from it. Defendants argue that subsequent to Bonner, the Supreme Court, in Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991), clarified the proper analysis for determining whether a federal enactment is applicable to state prisons. They contend that, in Gregory, the Court stated a new rule that requires that Congress make its intention unmistakably clear in the language of the statute if it intends to alter the usual constitutional balance between the States and the federal government in traditionally sensitive areas. Defendants conclude that, had the Ninth Circuit applied this "new" plain statement rule in Bonner, it would have held differently. The Court disagrees. The plain statement rule was not originally articulated in Gregory. Although Gregory recites this rule, it cites prior cases as authority. One of the cases cited Copr. West 1996 No claim to orig. U.S. govt. works 3 WESTLAW ---F.Supp.--- Page 4 (Cite as: 1996 WL 580847, *4 (N.D.Cal.)) in Gregory is United States v. Bass, 404 U.S. 336, 349 (1971) in which the Court stated that, "[i]n traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue the critical matters involved in the judicial decision." Gregory, 501 U.S. at 461(citing Bass, 404 U.S. at 349). Gregory also cites Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) for the proposition that, "Congress should make its intention "clear and manifest' if it intends to pre-empt the historic powers of the States." Gregory, 501 U.S. at 461. Even Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1185 (1996), the case Defendants use to support their proposition that Gregory adopted a new rule, cites Bass as well as Gregory. It is clear that the "new" rule Defendants proffer has been part of our jurisprudence for many decades. It is patently unreasonable to assume that the Ninth Circuit did not take this rule into consideration in deciding Bonner. Although not explicitly stating that it was applying the plain statement rule, in Bonner the Ninth Circuit did look for Congressional intent to apply the Rehabilitation Act to state prisons and found such intent in the plain language of the statute and the DOJ's implementing regulations. Bonner, 857 F.2d at 562. Defendants point to two post-Gregory Ninth Circuit cases to illustrate that, had the Ninth Circuit used the plain statement rule in Bonner, it would not have held the Act applicable to state prisons. In Hale v. Arizona, 993 F.2d 1387, 1393, 1395 (9th Cir.1993)(en banc), cert. denied, 510 U.S. 946 (1993), the Ninth Circuit declined to extend the protections of the Federal Labor Standards Act to inmates required by state law to work at hard labor, but determined that the Act may be applicable to inmates in other employment situations. In Jeldness v. Pearce, 30 F.3d 1220 (9th Cir.1994), the Ninth Circuit held that Title IX, which prohibits discrimination on the basis of sex by any educational program receiving federal funding, applies to state prisons. Id. at 1225. In Hale and Jeldness the Ninth Circuit focused on a list of statutorily exempt programs which did not include prisons and determined that noninclusion in an exempt list creates a strong implication of inclusion. Hale, 993 F.2d at 1392; Jeldness, 30 F.3d at 1225. *5 Defendants contend that the analyses in Hale and Jeldness rejected the basis for the Ninth Circuit's conclusion in Bonner, because, in Banner, the court merely based its holding on the expansive language of the Rehabilitation Act. However, the Bonner court also based its holding upon the DOJ's implementing regulations that specifically bring state prisons within the ambit of the Act. Banner, 857 F.2d at 362. Congress delegated to the head of each agency the authority to promulgate regulations under the Rehabilitation Act. 29 U.S.C. S 794(a). The DOJ regulations define the term "program" as including the "operations of a department of corrections," and the term "benefit" as including "sentencing, confinement, or other prescription of conduct." 28 C.F.R. SS 42.540(h) and (j). In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) the Court held that, where Congress has left a gap for the agency to fill, the agency's regulations "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." This Court can find nothing that is arbitrary or capricious in the DOJ's regulations. The broad language of the statute which indicates it reaches "any program or activity receiving Federal financial assistance" imparts to federal agencies, which includes the DOJ, the task of defining the term, "any program". The inclusion of state departments of corrections is a permissible construction of the term, "any program", and, under Chevron, this construction must be given deference. The Court also finds persuasive the Third Circuit's reasoning in Inmates of the Allegheny County Jail v. Wecht, 1996 WL 474106, *10 (3rd Cir.) regarding the applicability of the plain statement rule to Copr. West 1996 No claim to orig. U.S. govt. works 4 WESTLAW ---F.Supp.--- Page 5 (Cite as: 1996 WL 580847, *5 (N.D.Cal.)) decide whether the Rehabilitation Act and the ADA applies to correctional facilities. In Inmates, the Third Circuit found that the language of the Rehabilitation Act and of the ADA clearly indicates that they cover all aspects of state and local governance. Id. at *6(citing, as to the Rehabilitation Act, 29 U.S.C. S 794(a) which states that the Act applies to "any program or activity receiving Federal financial assistance" and 29 U.S.C. S 794(b)(1)(A) which defines "program or activity" to be "all of the operations of a department, agency, special purpose district, or other instrumentality of a State or local government" and as to the ADA, 42 U.S.C. S 12132 which states that it applies to all public entities and 42 U.S.C. S 12131(1) which defines a "public entity" as "any State or local government [and] any department, agency, special purpose district, or other instrumentality of a State or States or local government.") Based on the clear language of the statutes the court held that both the Rehabilitation Act and the ADA apply to state and local correctional facilities. Id. The court determined that the plain statement rule was inapplicable to its analysis since this rule was not "intended by the Supreme Court to provide a canon of statutory interpretation which can be of help in interpreting statutes whose over-all design indisputably contemplates both that the policies and practices of state as well as local governments are required to conform to norms established by Congress..." Id. at *9. *6 The Court rejects Defendants' argument that Bonner may apply in Arizona, the state in which the case originated, but not in California. Defendants' rationale is that in Arizona the goal of incarceration is rehabilitation, while in California the goal of incarceration is punishment. Plaintiffs cite many statutes in the California Penal Code and Regulations that indicate that, while the goal of incarceration itself may be punishment, the goal of many prison programs and activities is rehabilitation and reintegration of convicted felons into society. The Court concludes that the Ninth Circuit's analysis in Bonner is as correct today as it was in 1988 when the Ninth Circuit reached its decision. The Court holds that the Rehabilitation Act applies to prisons. 2. The ADA In language almost identical to the Rehabilitation Act, the ADA provides, in relevant part: [N]o 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 public entity. 42 U.S.C. S 12132. Defendants contend that utilization of the plain statement rule will lead to the conclusion that the ADA does not apply to state prisons. The Court does not agree. The Ninth Circuit has indicated that the ADA is to be judicially interpreted in the same manner as the Rehabilitation Act. Collings v. Longview Fibre Co., 63 F.3d 828, 832 n. 3 (9th Cir. 1995), cert. denied, 116 S. Ct. 711 (1996). This determination is based on the substantially identical language in the two Acts and the legislative history of the ADA which indicates that Congress intended judicial interpretation of the Rehabilitation Act to be incorporated by reference into interpretation of the ADA. Id. Pursuant to Collings, the Court must apply the Ninth Circuit's reasoning in Bonner to decide whether the ADA applies to state correctional facilities and programs. As noted above, the broad language of the Rehabilitation Act is repeated in the ADA. The ADA expands the reach of the anti- discrimination provisions of the Rehabilitation Act from "any public facility that receives Federal funding" to "any public entity." As it did in the Rehabilitation Act, Congress has specifically delegated authority to the DOJ to promulgate regulations implementing the ADA. 42 U.S.C. S 12134(a). The DOJ's regulations provide that "all programs, services, and regulatory activities relating to law enforcement, public safety, and the Copr. West 1996 No claim to orig. U.S. govt. works 5 WESTLAW ---F.Supp.--- Page 6 (Cite as: 1996 WL 580847, *6 (N.D.Cal.)) administration of justice, including courts and correctional institutions" are governed by the ADA. 28 C.F.R. S 35.190(b)(6). The Court finds that the expansive language of the ADA, together with the DOJ's regulations which it promulgated pursuant to a specific Congressional delegation of authority, lead to the conclusion that the ADA is applicable to state correctional institutions. Following the Ninth Circuit's instruction in Gates, the Court also concludes that, like the Rehabilitation Act, the ADA must be applied in a prison environment with consideration of legitimate penological interests. See Gates, 39 F.3d at 1447. B. Case Law in Other Circuits *7 Defendants argue that this Court should be persuaded by cases in other circuits in which, Defendants contend, the courts have held the Rehabilitation Act or the ADA are inapplicable to prisons. Three circuits have directly addressed this issue. [FN3] As discussed above, the Third Circuit has held that the Rehabilitation Act and the ADA apply to state and local correctional institutions. The Tenth Circuit has held that the Rehabilitation Act and the ADA are inapplicable to state prison employment programs. In Williams v. Meese, 926 F.2d 994 (10th Cir.1991), the court held that the Rehabilitation Act is not applicable to federal prison employment and vocational programs because the "Federal Bureau of Prisons does not fit the definition of 'programs or activities' governed by [the Rehabilitation Act]." Williams, 926 F.2d at 997. Relying upon Williams, and without any further explanation, the Tenth Circuit held in White v. Colorado, 82 F.3d 364 (10th Cir.1996), that the ADA does not apply to state prison employment situations. White, 82 F.3d at 367. The Fourth Circuit, in Torcasio v. Murray, did not actually hold that the Rehabilitation Act and the ADA do not apply to state prisons, but strongly intimated that they do not. Torcasio, a qualified immunity case, held that it was not clearly established, at the time of the alleged discrimination, that either the Rehabilitation Act or the ADA applied to state prisons. Torcasio v. Murray, 57 F.3d 1340, 1352 (4th Cir.1995), cert. denied, 116 S.Ct. 771 (1996). The violations were alleged to have occurred in April, 1993 through the spring, 1994. The Torcasio court took the Ninth Circuit's 1988 Bonner decision into consideration in its discussion. In analyzing the DOJ regulations, however, the Torcasio court failed to locate the specific sections which provide that the Rehabilitation Act applies to correctional institutions. Id. at 1351. The court looked at 28 C.F.R. S 42.503(f), the only section specifically cited in Bonner, and dismissed it as too general to establish that the DOJ intended the Rehabilitation Act to apply to prisons. The court did not mention the sections, in the definitional parts of the regulations, that indicate that the Rehabilitation Act applies to state prisons. See 28 C.F.R. SS 42.540(h) and (j). The court similarly did not mention 28 C.F.R. S 35.190(b)(6), the regulation that specifies that the ADA applies to state prisons. The court intimated that, had the plaintiff been able to show that the regulations specifically applied to state prisons, it might have held differently. Id. As discussed above, Torcasio also erroneously concluded that in Gates the Ninth Circuit retreated from its holding in Bonner. Torcasio, 57 F.3d. at 1346, 1349 n. 7. Also, as noted by Plaintiffs, the questions raised in Torcasio as to whether prison programs qualify as "programs" under the Rehabilitation Act and the ADA, were answered in the affirmative by the Ninth Circuit in Bonner. Bonner, 857 F.2d at 562("the [Rehabilitation] Act's goals of independent living and vocational rehabilitation should in fact mirror the goals of prison officials as they attempt to rehabilitate prisoners and prepare them to lead productive lives...") II. IMMUNITY UNDER THE ELEVENTH AMENDMENT *8 Defendants argue that the Eleventh Copr. West 1996 No claim to orig. U.S. govt. works 6 WESTLAW ---F.Supp.--- Page 7 (Cite as: 1996 WL 580847, *8 (N.D.Cal.)) Amendment provides them with immunity from liability under the Rehabilitation Act and the ADA. Defendants acknowledged, during oral argument, that their reasoning would lead to the conclusion that the Rehabilitation Act and the ADA are not applicable to any state agency. In Seminole Tribe v. Florida, 116 S.Ct. 1114, 1123 (1996), the Supreme Court reiterated the principle that, pursuant to the Eleventh Amendment, States may not be sued in federal court unless Congress, acting pursuant to a valid exercise of its power, unequivocally expresses its intent to abrogate the States' immunity. Id. (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). Defendants concede that Congress clearly expressed its intent in the Rehabilitation Act and the ADA to abrogate the States' immunity. The issue to be resolved is whether, in abrogating the States' immunity, Congress acted pursuant to a valid exercise of its power. In Seminole Tribe, the Court explained that Congressional authority to abrogate States' immunity had been previously found under two provisions of the Constitution. Id. at 1125. In Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56 (1976), the Court had held that S 5 of the Fourteenth Amendment allowed Congress to abrogate States' immunity from suit and, in Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20 (1989), the Court had held that the Interstate Commerce Clause granted Congress the power to abrogate immunity. Id. In Seminole Tribe the Court overruled Union Gas so that Congress now has authority to abrogate the States' immunity pursuant only to the Fourteenth Amendment. Id. at 1131. Defendants argue that Congress lacks authority to abrogate their immunity under the Rehabilitation Act or the ADA because neither was validly enacted pursuant to the Fourteenth Amendment. Plaintiffs disagree, and also argue that Defendants, because they are state officials, are not immune from suit for injunctive relief under the doctrine of Ex parte Young, 209 U.S. 123 (1908). A. The ADA Was Enacted Pursuant to the Fourteenth Amendment The ADA specifically states that its purpose is "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. 42 U.S.C. S i2101(b)(4). In spite of this explicit statement by Congress, Defendants argue that simply because Congress has stated that the legislation was enacted pursuant to its Fourteenth Amendment authority does not make it so. The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." Section 5 of the Amendment states that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." As explained by the Supreme Court, "... S 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." Katzenbach v. Morgan, 384 U.S. 641, 648 (1966). Section 5 is intended to provide to Congress the same broad powers expressed in the Necessary and Proper Clause, art. I, S 8, cl. 18. Id. at 650. The standard to be used in determining whether legislation is appropriate under the Necessary and Proper Clause was formulated in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819): *9 Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Id. Using the McCulloch test, to determine if legislation enacted pursuant to the Fourteenth Amendment is appropriate, a court must determine whether the legislation: (1) is plainly adapted to the end of enforcing the Equal Protection Clause, and (2) is not prohibited by, but is consistent with the Copr. West 1996 No claim to orig. U.S. govt. works 7 WESTLAW ---F.Supp.--- Page 8 (Cite as: 1996 WL 580847, *9 (N.D.Cal.)) "letter and spirit of the constitution." Morgan, 384 U.S. at 651. Defendants cite Pierce v. King for the proposition that the ADA is not adapted to enforcing the Fourteenth Amendment. Pierce v. King, 918 F.Supp 932, 940 (E.D.N.C.1996). The argument in Pierce begins with the assumption that "[t]he Fourteenth Amendment has traditionally been understood as protecting individuals from state action that would infringe upon individual liberties." Id. The argument continues with the contention that the ADA is unlike traditional anti-discrimination laws because the ADA creates entitlements whereas the traditional laws seek to produce an environment in which individuals are treated in a neutral manner. Id. Defendants contend that mandates for prisons to conduct self-evaluations, complete transition plans, establish grievance procedures, and provide notice of the ADA to inmates are administrative burdens that are unconnected with the Fourteenth Amendment's prohibition against discrimination. They say that obligations to identify inmates with learning disabilities and to provide special programs for them distort notions of equal treatment. Similarly, they contend that the requirement of certain structural accessibility features goes far beyond anything that could be based on the Fourteenth Amendment. The Court disagrees with Defendants' theory. Some of the findings made by Congress in enacting the ADA are that: (1) discrimination against disabled individuals in the form of isolation and segregation is a serious and pervasive social problem; (2) disabled individuals are a discrete and insular minority who have been subjected to a history of unequal treatment and relegated to a position of political powerlessness based upon false stereotypical assumptions; and, (3) the Nation's goals are to assure equality, full participation, independent living and economic self-sufficiency to individuals with disabilities. 42 U.S.C. S 12101(a). Congress indicated in the ADA that it intended to invoke its full authority under the Fourteenth Amendment to address nationwide discrimination against the disabled. 42 U.S.C. S 12101(b)(4). Rectifying discrimination often has taken the form of the prohibition of action that is discriminatory. Perhaps, as Defendants argue, this is the traditional manner in which legislation under the Fourteenth Amendment has been framed. However, eliminating discrimination may require affirmative relief. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989)(O'Conner, J., concurring and dissenting) ("The power to 'enforce' [the Fourteenth Amendment] may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations.") *10 The goal of the ADA, to eliminate discrimination against an identifiable group of individuals, is a proper invocation of the Equal Protection Clause. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985)(holding that persons with disabilities are entitled to protection under the Fourteenth Amendment). The practical effect of the ADA will be to eliminate barriers against entry into physical structures, into ongoing programs and services, and into the mainstream of society itself for many individuals with disabilities. While this may require affirmative measures on the part of correctional institutions to insure inclusion of those who are now excluded from the mainstream of prison life, the requirement of such measures does not exceed the authority granted to Congress under S 5 of the Fourteenth Amendment. The ADA, therefore, meets the first prong of the McCulloch test. Defendants have not argued that the ADA is inconsistent with the letter and spirit of the constitution. The Court, therefore, finds that the ADA meets the second prong of the McCulloch test. That Congress has invoked the Commerce Clause as well as the Fourteenth Amendment as authority for the ADA does not alter the conclusion that, under the McCulloch standard, the ADA is legitimate legislation, pursuant to the Fourteenth Amendment, focused on deterring Copr. West 1996 No claim to orig. U.S. govt. works 8 WESTLAW ---F.Supp.--- Page 9 (Cite as: 1996 WL 580847, *10(N.D.Cal.)) discrimination on the part of the states. See EEOC v. County of Columet, 686 F.2d 1249, 1253 (7th Cir.1982) (noting that Congress, in enacting modern civil rights legislation, reaches private discrimination indirectly through the Commerce Clause and reaches state discrimination directly through the Fourteenth Amendment). The Court holds that the ADA was legitimately enacted pursuant to Congress' authority under the Fourteenth Amendment. B. The Rehabilitation Act was Enacted Pursuant to the Spending Clause and the Fourteenth Amendment Unlike the ADA, the Rehabilitation Act is silent as to the constitutional authority under which it was enacted. Defendants contend that a close reading of the statute, together with an analogy to similar statutes, leads to the conclusion that the Rehabilitation Act is authorized by Congress' spending power, and not by the Fourteenth Amendment. That the Rehabilitation Act applies only to those entities that receive federal funds is the primary basis for Defendants' contention. Defendants point to Title VI, 42 U.S.C. S 2000d et seq., and Title IX, 20 U.S.C. S 1681 et seq., of the Civil Rights Act of 1964 as support for their argument. Title VI prohibits discrimination on the basis of race, color, or national origin by any program or activity receiving federal financial assistance. 42 U.S.C. S 2000d. Based upon the legislative history, the Supreme Court determined that Congress intended to enact Title VI pursuant to its spending power. Guardians Ass'n v. Civil Serv. Comm'n V. Comm'n of New York, 463 U.S. 582, 598-99 (1983). Title IX prohibits discrimination on the basis of sex by any educational program or activities receiving federal financial assistance. 20 U.S.C. S 1681(a). The Supreme Court has reserved the question of whether Title IX was enacted under the Spending Clause or under the Fourteenth Amendment. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 n. 8 (1992). The Fifth Circuti, in Rowinsky v. Bryan Indep. Sch. Dist., for a variety of reasons, adopted the view that Title IX was enacted under the Spending Clause. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 n. 14 (5th Cir.1996), Petition for cert. filed, 65 U.S.L.W. 3033 (U.S.Jul.1, 1996)(No. 96-4). First, Title IX was modeled after Title VI and uses identical language.' That the Supreme Court in Guardians Ass'n held that Title VI was enacted pursuant to the Spending Clause strongly suggests that Title IX also was enacted under the Spending Clause. Id. Second, Title IX regulates purely private educational institutions. The receipt of federal funds does not transform a private school into a state actor for purposes of the Fourteenth Amendment. Id. Third, the funding incentives provided in Title IX indicate that Congress did not intend to impose absolute obligations on the States. Id. Defendants' argument that the Rehabilitation Act, like Titles VI and IX, is enacted under the Spending Clause because it, too, applies only to those entities that receive federal funding is well-taken. However, the contentions of Plaintiffs and amicus that the Rehabilitation Act was enacted under the Fourteenth Amendment are also persuasive. Furthermore, because the language and purpose of the Rehabilitation Act are virtually identical to that of the ADA, and because this Court has found that the ADA was validly enacted pursuant to the Fourteenth Amendment, it follows that the Rehabilitation Act, also, was enacted under the Fourteenth Amendment. *11 Plaintiffs point out that two Supreme Court cases indicate that the Rehabilitation Act was passed under the Fourteenth Amendment. In Atascadero State Hosp. v. Scanlon, the Supreme Court stated, "Petitioners conceded ... that the Rehabilitation Act was passed pursuant to S 5 of the Fourteenth Amemdment. Thus, we first analyze S 504 in light of Congress' power under the Fourteenth Amendment to subject unconsenting States to federal court jurisdiction." Scanlon, 473 U.S. 234, 244 n. 4 (1985). Because the issue of Congressional authority was not in dispute in Scanlon, that case is not determinative of the issue. The Supreme Court noted in Welch v. Texas Dept. of Highways and Pub. Transp, that "[t]he Copr. West 1996 No claim to orig. U.S. govt. works 9 WESTLAW --- F.Supp. --- Page 10 (Cite as: 1996 WL 580847, *11 (N.D.Cal.)) question in Scanlon was whether S 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794, makes state agencies subject to suits for retroactive monetary relief in federal court. The Rehabilitation Act was passed pursuant to S 5 of the Fourteenth Amendment. Congress therefore had the power to subject unconsenting States to suit in federal court." Welch, 483 U.S. 468, 472 n. 2 (1987)(citing Scanlon ). Welch provides further evidence that the Supreme Court considers that Congress enacted the Rehabilitation Act pursuant to the Fourteenth Amendment. But, this statement is dicta. In Dep't of Educ., State of Haw. v. Katherine D., the district court held that the Rehabilitation Act was enacted pursuant to Congress' power under the Fourteenth Amendment. Katherine D., 531 F.Supp. 517, 530 (D.C.Haw.1982), aff'd in Part, rev'd in part on other grounds, 727 F.2d 809 (9th Cir.1983), cert. denied, 471 U.S. 1117 (1985). The court based its holding on its analysis of legislative history and Congress' intent, as specifically explicated in the Act, to effectuate equal opportunity for disabled citizens. Id. The court concluded that this legislative goal is "precisely the specific legislative intent to effectuate the equal protection rights guaranteed by the Fourteenth Amendment which [the Supreme Court] recognized." Id,(citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) and Hutto v. Finney, 437 U.S. 678 (1978)). Congress may enact legislation pursuant to more than one of its constitutional powers. See EEOC v. County of Columet, 686 F.2d at 1253. The Court finds that Congress utilized its authority under the Spending Clause and under S 5 of the Fourteenth Amendment of the Constitution in enacting the Rehabilitation Act. Because the Court finds that Congressional authority for the ADA and the Rehabilitation Act arises in the Fourteenth Amendment, the Eleventh Amendment does not immunize Defendants from suit. C. Doctrine of Ex parte Young Even if Defendants were immune under the Eleventh Amendment, their immunity would be subject to the exception of Ex parte Young, 209 U.S. 123, 155-56 (1908). Ex parte Young created an exception to the principle that States may not be sued in federal court unless they consent, or unless Congress, pursuant to a valid exercise of power, unambiguously expresses its intent to abrogate the States' immunity. Green v. Mansour, 474 U.S. 64, 68 (1985). Ex parte Young held that the Eleventh Amendment does not preclude federal courts from granting prospective injunctive relief to prevent individual state officials from violating federal law. Young, 209 U.S. at 155-56; Green, 474 U.S. at 68. *12 Citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687 (1949) superseded in part by 5 U.S.C. S 702, Defendants argue that Young is inapplicable because Plaintiffs' claims are essentially directed against the State, not against the individuals named in the suit. In Larson, the Court explained that a suit nominally addressed to a government employee, but which actually requires relief against the government, is barred because the court, in the absence of consent, has no jurisdiction over a suit against the government. Larson, 337 U.S. at 688. However, there are exceptions to this rule. Id, at 689. One exception is a case in which the statue conferring power on the government employee is unconstitutional, because the conduct against which relief is sought is beyond the employee's powers and is, therefore, not the conduct of the government. Id. at 690. This exception is based on the same reasoning as that relied upon in Young. "The theory of Young was that an unconstitutional statute is void, and therefore does not 'impart to [the official] any immunity from responsibility to the supreme authority of the United States"'. Green, 474 U.S. at 68(citing Young, 209 U.S. at 159-60). By the same token, Young also held that officials do not have immunity for a continuing violation of federal law. Id. That courts have applied the Young doctrine in cases in which inmates sue state prison officials for violations of federal law is further Copr. West 1996 No claim to orig. U.S. govt. works 10 WESTLAW --- F.Supp. ---- Page 11 (Cite as: 1996 WL 580847, *12(N.D.Cal.)) evidence that Larson does not apply to the case at bar. See e.g. Thompson v. Enomoto, 915 F.2d 1383, 1390 (9th Cir.1990), cert. denied by Rowland v. Thompson, 502 U.S. 1071 (1992) (holding that state officials not immune, under Young, from suits alleging constitutional violations); Duran v. Carruthers, 885 F.2d 1485, 1489 (10th Cir.1989), cert. denied, 493 U.S. 1056 (1990)(under Young, prison officials not immune from suit alleging violations of federal constitution and federal statutes). Here, Plaintiffs seek prospective injunctive relief only against state officials acting in their official capacity. Under these circumstances, Larson does not apply. Defendants also argue that, because the ADA and the Rehabilitation Act have detailed enforcement schemes limiting remedies against the State, they come under the exception to Ex parte Young applied by the Supreme Court in Seminole Tribe. In Seminole Tribe, the Court stated that " ... where Congress has prescribed a detailed scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young." Seminole Tribe, 116 S.Ct. at 1132. The Indian Gaming Regulatory Act (the "IGRA") was the subject of the Court's inquiry in Seminole Tribe. Id. at 1119. The Court found that the IGRA provides for specific limited remedies against the State. Id. The Court reasoned that the limited statutory remedies would be superfluous if a state official could be exposed to the full remedial powers of a federal court in an action brought under Ex parte Young. Id. at 1133. The Court also reasoned that Congress' creation of the limited remedial scheme is a strong indication that it had no wish to expose States to liability under Ex parte Young. Id. *13 Defendants argue that, like the IGRA, the Rehabilitation Act and the ADA have limited remedial schemes, but Defendants do not specify what they are. To the contrary, the Ninth Circuit has held that "the full panoply of remedies, including equitable relief and monetary damages" are available undee the--Rehabilitation Act. Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990), cert. denied, 501 U.S. 1217 (1991); see also Franklin v. Gwinnett County Pub. Schs., 503 U.S. at 72- 73(stating that the Rehabilitation Act provides a private litigant the full panoply of remedies). The ADA specifically incorporates the "remedies, procedures, and rights" of the Rehabilitation Act. 42 U.S.C. S 12133. Under Ex parte Young, Defendants are not immune from this lawsuit. CONCLUSION For the foregoing reasons, Defendants' motion for summary judgment is DENIED IT IS SO ORDERED. FN1. Prisoners with mobility impairments who are housed at the Correctional Medical Facility at Vacaville are excluded from the class. FN2. Only one district court in the Ninth Circuit has squarely addressed the issue of whether the ADA applies to prisons. Bullock v. Gomez, 929 F.Supp. 1299 (C.D.Cal.1996) held that the ADA does apply to prisons. In Fowler v. Gomez, 1995 WL 779128, *2 (N.D.Cal.1995), a qulaified immunity case, a judge of this Court found that there was no authority to "clearly establish" that the ADA applied to state prisons at the time of the alleged incident in question. FN3. As noted by Defendants, the Seventh Circuit, in a recent opinion by Judge Posner, stated that, "It is very far form clear that prisoners should be considered 'qualified individuals' within the meaning of the [ADA]. Could Congress really have intended disabled prisoners to be mainstreamed into an already highly restricted prison society? ...[T]here are formidable practical objections to burdening prisons with having to comply with the onerous requirements of the [ADA], ..." Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir.1996). This statement was dicta, however. The court proceeded to analyze the plaintiff's claim under the ADA. Id. at 249. END OF DOCUMENT Copr.West 1996 No claim to orig. U.S. govt. works 11 WESTLAW No. 96-16870 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN ARMSTRONG, et al., Plaintiffs-Appellees v. PETE WILSON, et al., Defendants-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BRIEF FOR THE UNITED STATES AS INTERVENOR AND AMICUS CURIAE ISABELLE KATZ PINZLER Acting Assistant Attorney General JESSICA DUNSAY SILVER SETH M. GALANTER Attorney Department of Justice P. O. Box 66078 Washington, D.C. 20035-6078 (202) 307-9994 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION . . . . . . . . .2 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT: I. DEFENDANTS ARE NOT ENTITLED TO ELEVENTH AMENDMENT IMMUNITY UNDER THE DOCTRINE OF EX PARTE YOUNG . . . . . . . . . . . . . . . . . . . . .9 II. THE ABROGATION OF ELEVENTH AMENDMENT IMMUNITY CONTAINED IN THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF CONGRESS' POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT . . . . . . . . .12 A. The ADA Is An Enactment To Enforce The Equal Protection Clause . . . . . . . . . .14 B. The ADA Is Plainly Adapted To Enforcing The Equal Protection Clause . . . . . . . . . .20 1. Congress has broad power to enforce the Equal Protection Clause. . . . . . 22 2. Congress found that persons with disabilities required accommodations to obtain equally meaningful access to programs and facilities . . . . . . 24 3. Congress' determination that it was necessary for States to modify their programs and facilities in order to provide equally meaningful access is consistent with the principles of equality contained in the Equal Protection Clause . . . . . . . . . . .26 4. The specific provisions of the ADA challenged by the defendants are plainly adapted to providing equally meaningful access to persons with disabilities . . . . . . .29 - i -TABLE OF CONTENTS (cont'd): PAGE C. The ADA Is Consistent With The Letter And Spirit Of The Constitution . . . . . . . . 32 III. 42 U.S.C. 2000d-7 VALIDLY REMOVES ELEVENTH AMENDMENT IMMUNITY FOR CLAIMS UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973 . . . . . . . . .34 A. The Abrogation Of Eleventh Amendment Immunity Contained In 42 U.S.C. 2000d-7 Is A Valid Exercise Of Congress' Power Under Section 5 Of The Fourteenth Amendment . . . . . . . . . . . . . . . . . . .35 B. The State Waived Its Eleventh Amendment Immunity To Section 504 Suits By Accepting Federal Funds After The Enactment Of Section 2000d-7. . . . . . . . . . . . . . . . 40 IV. TITLE II OF THE ADA AND SECTION 504 APPLY TO STATE PRISONS . . . . . . . . . . . . . . . . . . . . .42 A. The Plain Language Of Both Statutes Applies To State Entities That Operate Prisons . . . . 43 B. Administrative Interpretations Of Section 504 And Title II Of The ADA Confirm Their Application To State Prisons . . . . . . . . . 50 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE ATTACHMENT A TABLE OF AUTHORITIES CASES: Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . 24, 25, 26 Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977) . . . . . . . . . .18-19 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . . . . . . . . passim Bell v. New Jersey, 461 U.S. 773 (1983) . . . . . . . . . . . . . . . .42 - ii -CASES (continued): PAGE Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980) . . . . . . . . . 23, 29 Board of Educ. v. Rowley, 458 U.S. 176 (1982) . . . . . . . . . . . . .19 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . .6, 9, 43, 45 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . .14, 15, 25 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . . . . . .26-27, 29 City of Rome v. United States, 446 U.S. 156 (1980) . . . . . . . . . . . . . . . . . . . . . . . . .22, 33-34 Counsel v. Dow, 849 F.2d 731 (2d Cir.), cert. denied, 488 U.S. 955 (1988) . . . . . . . . . . . . . . . . . .20 Crawford v. Pittman, 708 F.2d 1028 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . .20 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . .passim David D. v. Dartmouth Sch. Comm., 775 F.2d 411 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986) . . . . . .20 De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978), cert. denied, 441 U.S. 965 (1979) . . . . . . . . . . . . . . .25 Department of Educ. v. Katherine D., 531 F. Supp. 517 (D. Haw. 1982), rev'd in part on other grounds, 727 F.2d 809 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985) . . . . . . . . . . . . . . . . . . . . . 36 Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . . . . .1 Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) . . . . . . . . . . 50 Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . .passim EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) . . . . . . . . . . . . . . . . . . . .54, 55 EEOC v. County of Calumet, 686 F.2d 1249 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . .18 - iii - CASES (continued): PAGE EEOC v. Wyoming, 460 U.S. 226 (1983) . . . . . . . . . . . . . . . 19, 36 Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . . . . . . 11, 40 Ex parte Virginia, 100 U.S. (10 Otto) 339 (1879) . . . . . . . . . . . . . . . . . . . . . . . . passim Ex parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . . .passim Ferguson v. City of Phoenix, 931 F. Supp. 688 (D. Ariz. 1996) . . . . . . . . . . . . . . . . . . . . . .53 Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994) . . . . . . . . . . . . . . . . .53 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . 13, 21, 32, 38 Florida Dep't of Health & Rehabilitative Servs. v. Florida Nursing Home Ass'n, 450 U.S. 147 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Fullilove v. Klutznick, 448 U.S. 448 (1980) . . . . . . . . . .22, 29, 37 Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . . . passim Grano v. Department of Dev., 637 F.2d 1073 (6th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . .23 Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . . . . . . . 10, 11 Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . 48, 49 Griffin v. Illinois, 351 U.S. 12 (1956) . . . . . . . . . . . . . . . .27 Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . . . . . . . . .45 Hodgson v. University of Texas Med. Branch, No. G-95-612, 1997 WL 50173 (S.D. Tex. Feb. 6, 1997) . . . . . . . . . . . . 19 Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996), appeal pending, No. 96-5388 (11th Cir.) . . . . . . . . 39 Inmates of Allegheny County Jail v. Wecht, No. 95-3402, 1996 WL 474106 (3d Cir. Aug. 22, 1996), vacated for reh'g en banc, 93 F.3d 1146 (1996), dismissed as moot (Dec. 4, 1996) . . . . . . . . . . . . . 46, 49 Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) . . . . . . . 32, 45, 49 - iv -CASES (continued): PAGE Jenness v. Fortson, 403 U.S. 431 (1971) . . . . . . . . . . . . . . . .23 Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . . . . .passim Keller v. United States, 213 U.S. 138 (1909) . . . . . . . . . . . . . 38 Kimel v. Florida Bd. of Regents, 1996 U.S. Dist. Lexis 7995 (N.D. Fla. May 17, 1996), appeal pending, No. 96-2788 (11th Cir.) . . . . . . . . . . . .19 Lane v. Pena, 116 S. Ct. 2092 (1996) . . . . . . . . . . . . . . . 34, 41 Lau v. Nichols, 483 F.2d 791 (9th Cir. 1973), rev'd, 414 U.S. 563 (1974) . . . . . . . . . . . . . . . . . . 25 Lau v. Nichols, 414 U.S. 563 (1974) . . . . . . . . . . . . . . 25, 27-28 Lewis v. Casey, 116 S. Ct. 2174 (1996) . . . . . . . . . . . . . . . . 28 Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) . . . . . . . . . . . 11 M.L.B. v. S.L.J., 117 S. Ct. 555 (1996) . . . . . . . . . . . . . . . .27 MacPherson v. University of Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996), appeal pending, No. 96-6947 (11th Cir.) . . . . . . . . . . . .19 Maher v. Gagne, 448 U.S. 122 (1980) . . . . . . . . . . . . . . . .17, 18 Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993) . . . . . . . . . . . . . . . . . . . . . . . 39 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . . . .15 Mayer v. University of Minn., 940 F. Supp. 1474 (D. Minn. 1996) . . . . . . . . . . . . . . . . . . . . . .16, 39 Missouri v. Jenkins, 115 S. Ct. 2038 (1995) . . . . . . . . . . . . 30-31 Mitten v. Muscogee County Sch. Dist., 877 F.2d 932 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990) . . . . . . . . . . . . . . . . . . . . . 20 Mockaitis v. Harcleroad, No. 96-35901, 1997 WL 27111 (9th Cir. Jan. 27, 1997) . . . . . . . . . . . . 28 Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420 (9th Cir. 1996) . . . . . . . 10-11 - v -CASES (continued): PAGE Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996) . . . . . . . . .39 Oregon v. Mitchell, 400 U.S. 112 (1970) . . . . . . . . . . . . . . . .17 Oregon Pub. Utility Comm'n v. ICC, 979 F.2d.778 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . .48 Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994) . . . . . . . . . . . . 46 Papasan v. Allain, 478 U.S. 265 (1986) . . . . . . . . . . . . . . . . 10 Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959) . . . . . . . . . . . . . . . . . . . . . .40 Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . .8 Quern v. Jordan, 440 U.S. 332 (1979) . . . . . . . . . . . . . . . . . 11 Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694 (1st Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . .18 Ross v. Moffitt, 417 U.S. 600 (1974) . . . . . . . . . . . . . . . . . 27 Sandin v. Conner, 115 S. Ct. 2293 (1995) . . . . . . . . . . . . . . . 34 Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25 (2d Cir. 1991), cert. denied, 502 U.S. 1094 (1992) . . . . . . . . . . . . 19, 39 Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3370 (U.S. Oct. 29, 1996) (No. 96-710) . . . . . . . . . . . . . . .37 Scanlon v. Atascadero State Hosp., 735 F.2d 359 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . .35 Schmidt v. Oakland Unified Sch. Dist., 662 F.2d 550 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . .22 Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . passim Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990), cert. denied, 501 U.S. 1217 (1991) . . . . . . . . . . . . . . 24 South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . . . . . . . . . . . . . . . . . . . . 22, 28, 33 South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . .42 - vi -CASES (continued): PAGE Southeastern Community College v. Davis, 442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . . . . . .47 Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341 (D.S.C. 1995), rev'd in part on other grounds, 84 F.3d 707 (4th Cir. 1996) . . . . . . . . . . . . . . . . . .39 Stinson v. United States, 508 U.S. 36 (1993) . . . . . . . . . . . . . 51 Students of Cal. Sch. for the Blind v. Honig, 736 F.2d 538 (9th Cir. 1984), vacated, 471 U.S. 148 (1985) . . . . . 36 Teichgraeber v. Memorial Union Corp., 946 F. Supp. 900 (D. Kan. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 19 Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . .50-51 Timmer v. Michigan Dep't of Commerce, 104 F.3d 833 (6th Cir. 1997) . . . . . . . . . . . . . 14, 37, 38 Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996) . . . . . . . . . . . .passim Tyler v. City of Manhattan, 857 F. Supp. 800 (D. Kan. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 30 United States v. Butler, 297 U.S. 1 (1936) . . . . . . . . . . . . .37-38 United States v. California Mobile Home Park Management Co., 29 F.3d 1413 (9th Cir. 1994) . . . . . . . . . 24 United States v. Culbert, 435 U.S. 371 (1978) . . . . . . . . . . . . .48 United States v. Gainey, 380 U.S. 63 (1965) . . . . . . . . . . . . 28-29 United States v. Harris, 106 U.S. (16 Otto) 629 (1883) . . . . . . . . . . . . . . . . . . . . . . . . . . 38 United States v. Horton, 601 F.2d 319 (7th Cir.), cert. denied, 444 U.S. 937 (1979) . . . . . . . . . . . . . . .23 United States v. Marengo County Comm'n, 731 F.2d 1546 (11th Cir.), cert. denied, 469 U.S. 976 (1984) . . . . . . . . . . . . . . . . . . . . . .23 United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) . . . . . . . . . .37 - vii -CASES (continued): PAGE United States v. Yonkers Bd. of Educ., 893 F.2d 498 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 39 United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) . . . . . . . . . . . . . . . . . . . . . .15 United Steelworkers of America v. Weber, 443 U.S. 193 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987) . . . . . . . . . . . . . . . . . . . . . .36 Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996) . . . . . . . . .14 Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948) . . . . . . . . . . .36 CONSTITUTION, STATUTES AND REGULATIONS: United States Constitution: Art. I, S 8, Cl. 1, Spending Clause . . . . . . . . . . . .passim Art. I, S 8, Cl. 3, Commerce Clause . . . . . . . . . .14, 19, 38 Art. VI, Supremacy Clause . . . . . . . . . . . . . . . . . . .11 Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . passim Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . passim Section 1, Due Process Clause . . . . . . . . . . . . . . . . .18 Section 1, Equal Protection Clause . . . . . . . . . . . . passim Section 5 . . . . . . . . . . . . . . . . . . . . . . . . .passim Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. . . . . . . . . . . . . . . . . . . . . .18 Americans with Disabilities Act (ADA) . . . . . . . . . . . . . . .passim 42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . . . . .21 42 U.S.C. 12101(a) (5) . . . . . . . . . . . . . . . . . . 21, 24 42 U.S.C. 12101(a) (7) . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. 12101(b) (4) . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. 12102(2) (A) . . . . . . . . . . . . . . . . . . . . 25 Title II . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12131(1) (B) . . . . . . . . . . . . . . . . . . . . 44 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . . . 25, 46 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . . . .44 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12134(a) . . . . . . . . . . . . . . . . . . .2, 50, 54 42 U.S.C. 12134(b) . . . . . . . . . . . . . . . . 29, 30, 44, 54 - viii -CONSTITUTION, STATUTES AND REGULATIONS: PAGE Title IV: 42 U.S.C. 12201(a) . . . . . . . . . . . . . . . . . . . . . . 45 42 U.S.C. 12202 . . . . . . . . . . . . . . . . . . . . . . . .12 42 U.S.C. 12206(c) (3) . . . . . . . . . . . . . . . . . . .2, 53 42 U.S.C. 12212 . . . . . . . . . . . . . . . . . . . . . . . .30 Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . . . . . . . .13 Civil Rights Remedies Equalization Act, 42 U.S.C. 2000d-7 . . . . . . . . . . . . . . . . . . . . .passim Education Amendments of 1972, Title IX, 20 U.S.C. 1681(a) . . . . . . .45 Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq. . . . . . . . . . . . . . . . . . . . . 19 Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . . . . .passim 29 U.S.C. 794(a) . . . . . . . . . . . . . . . . . .2, 43, 50, 54 29 U.S.C. 794(b) . . . . . . . . . . . . . . . . . . . . . . . 44 Voting Rights Act, Section 5, 42 U.S.C. 1973c . . . . . . . . . . . . . . . . . . . . . .23, 33 28 U.S.C. 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 2403(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 28 C.F.R. Pt. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 28 C.F.R. 35.102(a) . . . . . . . . . . . . . . . . . . . . . . . . . .51 28 C.F.R. 35.105-35.107 . . . . . . . . . . . . . . . . . . . . . . . .29 28 C.F.R. 35.130(b)(7) . . . . . . . . . . . . . . . . . . . . . . .31-32 28 C.F.R. 35.151(a)-(c) . . . . . . . . . . . . . . . . . . . . . . . .30 28 C.F.R. 35.151(c) . . . . . . . . . . . . . . . . . . . . . . . .31, 52 28 C.F.R. 35.190(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . 52 28 C.F.R. Pt. 35, App. A . . . . . . . . . . . . . . . . . . . . . 51, 52 28 C.F.R. Pt. 36, App. A . . . . . . . . . . . . . . . . . . . . . . . 52 28 C.F.R. 39.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 28 C.F.R. 39.170(d)(1)(ii) . . . . . . . . . . . . . . . . . . . . . . 55 28 C.F.R. Pt. 39, Editorial Note . . . . . . . . . . . . . . . . . . . 55 28 C.F.R. 41.5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .29 28 C.F.R. Pt. 42, Subpart G . . . . . . . . . . . . . . . . . . . . . . 2 28 C.F.R. 42.502 . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 - ix -CONSTITUTION, STATUTES AND REGULATIONS: PAGE 28 C.F.R. 42.540(h) . . . . . . . . . . . . . . . . . . . . . . . . . .51 28 C.F.R. 42.540(j) . . . . . . . . . . . . . . . . . . . . . . . . . .51 28 C.F.R. 42.540(l) . . . . . . . . . . . . . . . . . . . . . . . . . .46 41 C.F.R. Pt. 101-19.6, App. A . . . . . . . . . . . . . . . . . . . . 52 45 Fed. Reg. 37,620 (1980) . . . . . . . . . . . . . . . . . . . . . . 51 45 Fed. Reg. 37,630 (1980) . . . . . . . . . . . . . . . . . . . . . . 51 59 Fed. Reg. 31,770-31,772 (1994) . . . . . . . . . . . . . . . . . . .53 59 Fed. Reg. 31,809 (1994) . . . . . . . . . . . . . . . . . . . . . . 52 61 Fed. Reg. 62,078-62,079 (1996) . . . . . . . . . . . . . . . . . . .53 LEGISLATIVE HISTORY: H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . .24, 25, 29, 30 H.R. Rep. No. 485, Pt. 4, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . 47 H.R. Rep. No. 558, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . 25 S. Rep. No. 388, 99th Cong., 2d Sess. (1986) . . . . . . . . . . . . .39 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . .24, 30 S. Rep. No. 596, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . 25 131 Cong. Rec. 22,344 (1985) . . . . . . . . . . . . . . . . . . . . .38 131 Cong. Rec. 22,346 (1985) . . . . . . . . . . . . . . . . . . . . .38 132 Cong. Rec. 28,624 (1986) . . . . . . . . . . . . . . . . . . .39, 42 136 Cong. Rec. 10,870 (1990) . . . . . . . . . . . . . . . . . . . . .24 136 Cong. Rec. 11,467 (1990) . . . . . . . . . . . . . . . . . . .20, 24 136 Cong. Rec. 11,468 (1990) . . . . . . . . . . . . . . . . . . . . .20 S. 1579, 99th Cong., 1st Sess. (1985) . . . . . . . . . . . . . . . . 38 MISCELLANEOUS: Americans with Disabilities Act Title II Technical Assistance Manual (1993) . . . . . . . . . . . . .2, 53 U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (1983) . . . . . . . . . . . . . . . . 24 - x - IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 96-16870 JOHN ARMSTRONG, et al., Plaintiffs-Appellees v. PETE WILSON, et al., Defendants-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BRIEF FOR THE UNITED STATES AS INTERVENOR AND AMICUS CURIAE INTEREST OF THE UNITED STATES The United States appears as intervenor to defend the constitutionality of Congress' abrogation of States' Eleventh Amendment immunity for private suits under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. The United States has a statutory right to intervene to defend the constitutionality of its statutes, 28 U.S.C. 2403(a), giving it an interest distinct from the private parties' claims of injury. See Diamond v. Charles, 476 U.S. 54, 64-65 (1986). Moreover, because of the inherent limitations on administrative enforcement mechanisms and on the litigation resources of the United States, the United States has an interest in ensuring that - 2 - these statutes may be enforced against States by private parties acting as private attorneys general. The United States also appears as amicus curiae to address the scope of these statutes. The Department of Justice has significant responsibilities for the enforcement and implementation of Title II of the ADA and Section 504. See 29 U.S.C. 794(a); 42 U.S.C. 12133, 12134. Pursuant to 29 U.S.C. 794(a), the Department has issued regulations interpreting Section 504. See 28 C.F.R. Pt. 42, Subpart G. Pursuant to 42 U.S.C. 12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued regulations and a Technical Assistance Manual implementing and interpreting Title II. See 28 C.F.R. Pt. 35; Americans with Disabilities Act Title II Technical Assistance Manual (1993). The outcome of this appeal may affect the United States' ability to enforce Section 504 and Title II in the context of state- operated prison facilities. STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION The United States agrees with the plaintiffs-appellees' jurisdictional statement. - 3 - STATEMENT OF THE ISSUES 1. Whether the doctrine of Ex parte Young applies to suits brought against state officials for prospective injunctive relief to remedy continuing violations of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. 2. Whether the statutory abrogation of Eleventh Amendment immunity for suits under the ADA is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment. 3. Whether the statutory abrogation of Eleventh Amendment immunity for suits under Section 504 is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment or the Spending Clause. 4. Whether the ADA and Section 504 apply to state-operated prisons. STATEMENT OF THE CASE 1. Plaintiffs, a class consisting of all present and future inmates with mobility, sight, hearing, learning or kidney disabilities, brought a suit seeking injunctive relief under the ADA and Section 504 against various California state officials in their official capacities (E.R. 18-32).1/ The parties entered a stipulation for procedures to determine liability and remedy (E.R. 62-69). Under that _________________ 1/ E. R. refers to the appellants' Excerpts of Record. Br.__ refers the Appellants' Brief. - 4 - stipulation, the parties agreed that the defendants could file a motion for summary judgment on the grounds that they were immune from suit under the Eleventh Amendment and that the ADA and Section 504 do not apply to state prisons (E.R. 65). If the court denied their motion, the defendants agreed that a finding of liability and stipulated remedial order would be entered against them (E.R. 65).2/ On September 20, 1996, the district court issued an opinion denying the defendants' summary judgment motion on the Eleventh Amendment and coverage questions (E.R. 114-141). The district court then entered findings of facts and conclusions of law (E.R. 110-112) and a remedial order (E.R. 142-148) agreed to by the parties. This timely appeal followed (E.R. 150-152).3/ ______________________ 2./ Defendant James Nielsen, Chairman of the California Board of Prison Terms, did not enter the stipulation (E.R. 62), but joined the motion for summary judgment. Because no injunction was issued against defendant Nielsen, defendants concede (Br. 4) that Nielsen's appeal is limited to questions of Eleventh Amendment immunity. Although throughout this brief we will refer to the state officials collectively as "defendants," that term is not intended to include defendant Nielsen when discussing the questions of statutory interpretation addressed in Part IV. 3/ Pursuant to the stipulation (E.R. 66), the district court certified the question whether state prisons were covered by the ADA and Section 504 for immediate interlocutory appeal pursuant to 28 U.S.C. 1292(b) (E.R. 148). The state officials petitioned for immediate interlocutory appeal (docketed at No. 96-80358). On October 11, 1996, this Court issued its amended opinion in Duffy v. Riveland, 98 F.3d 447 (1996), which applied both the ADA and Section 504 in the prison context. On October 23, 1996, this Court denied the state officials in this case permission to appeal. On December 20, 1996, this Court denied the state officials' motion for reconsideration, citing Duffy. - 5 - 2. Of the 131,632 inmates in California's 31 state-operated prisons, 345 inmates use wheelchairs due to a permanent disability; 650 use canes, prostheses, or walkers; 141 are deaf or have a substantial hearing impairment (even when augmented with a hearing aid); and 219 are blind or have vision that cannot be corrected to 20/200 even with corrective lenses (E.R. 73-74). Some inmates with disabilities are subject to disparate treatment by the state prison system. Inmates who use wheelchairs and those on dialysis spend significantly longer periods of time (up to a year in some instances) in "reception centers," which process inmates upon entering prisons, than non- disabled inmates (E.R. 78-79). While housed in reception centers, inmates do not receive as much sentence credit and do not have the same privileges as inmates in "mainline" institutions (E.R. 79). In another example, inmates with mobility impairments who require a catheter or Foley bag or inmates on dialysis are totally excluded from work-furlough programs (E.R. 89-90). Inmates with disabilities are also disadvantaged by the failure of the prisons to accommodate their disabilities. For example, some prisoners cannot fit their wheelchairs into their cells or, if they can, cannot maneuver within their cells (E.R. 83). Similarly, some inmates cannot use the showers or toilets because of mobility impairments (E.R. 83). In some instances, inmates placed in an administrative segregation unit have had - 6 - their wheelchairs and prosthetic limbs removed without regard to the inmate's medical needs or disciplinary record (E.R. 82). In addition, the prisons have sirens that sound for disasters requiring evacuation, such as earthquakes and fire, but do not have visual alarms or strobe lights to warn prisoners with hearing impairments of emergencies (E.R 79-80). Similarly, general announcements are made on a public address system, yet no formal system exists to notify inmates with hearing impairments of such announcements (E.R. 85). 3. On the defendants' motion for summary judgment, the district court held that the plaintiffs' claims under the ADA and Section 504 were not barred by the Eleventh Amendment (E.R. 129- 141). It explained that because plaintiffs "seek prospective injunctive relief only against state officials acting in their official capacity," the suit was not barred by the Eleventh Amendment because it fell within the doctrine of Ex parte Young (E.R. 140). Moreover, it found that both statutes contained express abrogations of Eleventh Amendment immunity and that these abrogations were valid exercises of Congress' authority under Section 5 of the Fourteenth Amendment (E.R. 129-138). Finally, following this Court's decisions in Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988), and Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), the district court rejected the defendants' argument that the ADA and Section 504 do not apply to state-operated prisons (E.R. 118-129). - 7 - Pursuant to the parties' stipulation, the court entered a remedial order that required the defendants (except defendant Nielsen) to "submit guidelines, policies, procedures or plans" to address various inadequacies at the prisons (E.R. 143-144). The plaintiffs then had an opportunity to request an evidentiary hearing on those plans to see if they comply with the ADA and Section 504 (E.R. 144-145). That process is on-going (E.R. 65 (agreeing not to seek a stay pending appeal)). SUMMARY OF ARGUMENT The Eleventh Amendment is no bar to this action brought by private plaintiffs under the ADA and Section 504 to remedy discrimination against persons with disabilities. First, under the doctrine of Ex parte Young, federal courts have jurisdiction to hear suits against state officials seeking prospective injunctive relief in order to end a continuing violation of federal law. Because only state officials are defendants in this action, and because the only relief sought is a prospective injunction, there is no Eleventh Amendment bar to the district court's jurisdiction. If this Court finds it appropriate to reach the question, both the ADA and Section 504 contain valid statutory abrogations of Eleventh Amendment immunity. The abrogation in the ADA is a valid exercise of Congress' power under Section 5 of the Fourteenth Amendment, which authorizes Congress to enact "appropriate legislation" to "enforce" the Equal Protection - 8 - Clause. In exercising that power, Congress is not limited to legislating in regard to classifications that the courts have found are "suspect." To the contrary, Congress is authorized by the Fourteenth Amendment to enact whatever legislation it determines is appropriate to secure to all persons "the enjoyment of perfect equality of civil rights and the equal protection of the laws." Ex parte Virginia, 100 U.S. (10 Otto) 339, 346 (1879). Nor is Congress limited to prohibiting intentional discrimination. Congress found that persons with disabilities were excluded from full participation in all aspects of society in part because of policies and practices, neutral in their inception, that imposed barriers to meaningful access. In light of these findings, Congress required public entities to take reasonable steps to modify their practices and physical facilities so that persons with disabilities would have meaningful access to all the services, programs, or activities of those entities. This finely-tuned mandate is plainly adapted to the underlying purpose of the Equal Protection Clause: "the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit." Plyler v. Doe, 457 U.S. 202, 222 (1982). The abrogation of Eleventh Amendment immunity for Section 504 actions is also valid under Section 5 of the Fourteenth Amendment. In addition, the abrogation for Section 504 suits is - 9 - a valid exercise of Congress' power under the Spending Clause to impose unambiguous conditions for receiving federal funds. In 42 U.S.C. 2000d-7, Congress put States on notice that accepting federal funds waived their Eleventh Amendment immunity to discrimination suits under Section 504. In either case, the abrogation for Section 504 suits is constitutional and the district court had jurisdiction over the action. Finally, because this Court has jurisdiction, it should reaffirm its holding in Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988), Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), and Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996), that state prisons are covered by the ADA and Section 504 based on the plain language and consistent administrative interpretations of these statutes. ARGUMENT I DEFENDANTS ARE NOT ENTITLED TO ELEVENTH AMENDMENT IMMUNITY UNDER THE DOCTRINE OF EX PARTE YOUNG Citing the Supreme Court's recent decision in Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the defendants contend that Congress did not have the constitutional authority to abrogate Eleventh Amendment immunity for suits brought by private plaintiffs under Title II of the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504). There is no need to reach this constitutional question in this case because all the defendants - 10 - in this action are state officials sued in their official capacities for prospective injunctive relief. Under the doctrine of Ex parte Young, 209 U.S. 123 (1908), the Eleventh Amendment is no bar to "federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to 'end a continuing violation of federal law.'" Seminole Tribe, 116 S. Ct. at 1132 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). The defendants do not contest the district court's holding (E.R. 140) that only prospective injunctive relief is being sought. Instead, they argue (Br. 34-35) that because the relief sought in this case against the state officials is in reality against the State, Ex parte Young is inapplicable. But States may only act through their officials. And the Supreme Court recognized in Papasan v. Allain, 478 U.S. 265, 278 (1986), that the Eleventh Amendment is not a bar to seeking injunctive relief against state officials under Ex parte Young even though such relief may have a "substantial ancillary effect on the state treasury," so long as the "relief * * * serves directly to bring an end to a present violation of federal law." Second, the defendants argue (Br. 35-37) that Ex parte Young should extend only to violations of federal constitutional law, not federal statutory law. But they concede (Br. 35) that that is not the law of this Circuit. See Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 422-423 (9th - 11 - Cir. 1996) (collecting cases). Moreover, such an argument ignores that when state officials violate federal law, they also violate the Supremacy Clause, U.S. Const. Art. VI, which makes federal law "the supreme Law of the Land." See Green, 474 U.S. at 68; see also Edelman v. Jordan, 415 U.S. 651 (1974) (adjudicating case involving violation of federal statutory law under Ex parte Young); Quern v. Jordan, 440 U.S. 332 (1979) (same); Lussier v. Dugger, 904 F.2d 661, 670 n.10 (11th Cir. 1990) (collecting Section 504 cases litigated under Ex parte Young). Since neither the State nor any arm-of-the-state was named as a defendant in this action, it is not necessary to reach the question of Congress' power to remove States' Eleventh Amendment immunity. If this Court finds it appropriate to reach the constitutional question, however, for the reasons discussed below the statutory abrogations of Eleventh Amendment immunity enacted for the ADA and Section 504 are valid. - 12 - II THE ABROGATION OF ELEVENTH AMENDMENT IMMUNITY CONTAINED IN THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF CONGRESS' POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT In Seminole Tribe, the Supreme Court articulated a two-part test to determine whether Congress has properly abrogated States' Eleventh Amendment immunity: first, whether Congress has unequivocally expressed its intent to abrogate the immunity; and second, whether Congress has acted pursuant to a valid exercise of power. 116 S. Ct. at 1123 (citations, quotations, and brackets omitted). Section 12202 of Title 42 provides that a "State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter." This Court held in Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996), that the ADA contained the "unmistakably clear statutory language" necessary to constitute an asbroation. Indeed, the defendants concede (Br. 21) that Section 12202 clearly satisfies the first requirement. The second inquiry under Seminole Tribe is whether "Congress has the power to abrogate unilaterally the States' immunity from suit." 116 S. Ct. at 1125. Here the Fourteenth Amendment provides that authority. Section 5 of the Fourteenth Amendment empowers Congress to enact "appropriate legislation" to "enforce" the Equal Protection Clause. As the Supreme Court explained over - 13 - a hundred years ago: Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Ex parte Virginia, 100 U.S. (10 Otto) 339, 345-346 (1879). A statute is thus "appropriate legislation" to enforce the Equal Protection Clause if the statute "may be regarded as an enactment to enforce the Equal Protection Clause, [if] it is 'plainly adapted to that end' and [if] it is not prohibited by but is consistent with 'the letter and spirit of the constitution.'" Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court upheld the abrogation of States' Eleventh Amendment immunity in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as "appropriate" legislation under Section 5. It explained that "[w]hen Congress acts pursuant to S 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority." Id. at 456. In Seminole Tribe, the Court reaffirmed the holding of Fitzpatrick. See 116 S. Ct. at 1125, 1128, 1131 n.15. Thus, the abrogation of Eleventh Amendment immunity in the ADA can be - 14 - upheld if the ADA is a valid exercise of Congress' Section 5 power. A. The ADA Is An Enactment To Enforce The Equal Protection Clause The defendants concede (Br. 23-24 n.8) that Congress intended to exercise its Section 5 authority in enacting the ADA. Indeed, although Congress need not expressly invoke the constitutional powers upon which it relied, it did so in the ADA. Congress' express intent in enacting the ADA was "to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment * * *, in order to address the major areas of discrimination faced day-to-day by people with disabilities." 42 U.S.C. 12101 (b)(4).4/ Nor can the defendants dispute that discrimination on the basis of disability is subject to scrutiny under the Equal Protection Clause. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the Court unanimously declared unconstitutional a decision by a city to deny a special use ____________________ 4/ The defendants' reliance (Br. 23-24) on Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996), is therefore inappropriate. Wilson-Jones addressed the question whether the Fair Labor Standards Act (FLSA), a statute that was not directed at discrimination and expressly invoked only the Commerce Clause, could be regarded as an enactment to enforce the Equal Protection Clause. Unlike the FLSA, Congress expressly invoked the Fourteenth Amendment in the text of this anti-discrimination statute. Thus there can be no question that Congress intended the statute to be regarded as Section 5 legislation. See Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 838-842 (6th Cir. 1997) (limiting Wilson-Jones). - 15 - permit for the operation of a group home for people with mental retardation. Although a majority declined to deem classifications on the basis of mental retardation as "quasi- suspect," it held that this did not leave persons with such disabilities "entirely unprotected from invidious discrimination." Id. at 446. Instead, it found a violation of the Equal Protection Clause because "the record [did] not reveal any rational basis" for the decision to deny a special use permit. Id. at 448. The defendants argue (Br. 24-27) that the ADA cannot be regarded as a statute to enforce the Equal Protection Clause because classifications on the basis of disability are not "suspect." But suspectness describes the degree of scrutiny by which a court examines legislative actions. The concept does not govern the power of Congress to legislate pursuant to its plenary power under Section 5. As the Court noted in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314 (1976), the rational-basis standard for evaluating most equal protection claims "reflect[s] the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." That "the line might have been drawn differently * * * is a matter for legislative, rather than judicial, consideration." United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). But the institutional limitations that generally constrain the judiciary to employ a - 16 - standard of rational review in evaluating claims based on the Equal Protection Clause are, by definition, inapplicable to Congress. Not only is Congress institutionally better suited to making such determinations, it is also charged by the Constitution with the responsibility for making such determinations. Although federal courts have an important role to play in protecting individuals from State infringement of Fourteenth Amendment rights, Section 5 has vested in Congress the authority to enact legislation it believes necessary to enforce those rights -- giving it power over the States greater than that entrusted in the judiciary. "It is not said that the judicial power of the general government shall extend to enforcing the prohibition and protecting the rights and immunities guaranteed. * * * It is the power of Congress which has been enlarged." Ex parte Virginia, 100 U.S. at 345. Thus "[t]he fact that the Supreme Court has subjected governmental classifications involving suspect classes to a higher level of scrutiny than other classifications does not prevent Congress from finding that another class of persons has been subjected to a history of unequal treatment and legislating pursuant to its enforcement powers under the Fourteenth Amendment to protect that class of persons from arbitrary discrimination." Mayer v. University of Minn., 940 F. Supp. 1474, 1479 (D. Minn. 1996). - 17 - Oregon v. Mitchell, 400 U.S. 112 (1970), in which a majority of the Court invalidated Congress' attempt to lower the voting age in state elections from 21 to 18, is not to the contrary. The statute at issue in Oregon was not struck down because it involved age -- a non-suspect characteristic. Rather, it was invalidated because it imposed a nationwide voting age by altering qualifications for state elections -- a power committed to the States by the express language of the Constitution -- and because it did not purport to remedy discrimination of any kind.5/ Any implication in Oregon that Congress was limited in exercising its Section 5 authority to legislate only with regard to suspect classifications was repudiated by the Supreme Court in Maher v. Gagne, 448 U.S. 122 (1980). In Maher, the plaintiff brought a suit under 42 U.S.C. 1983 against a state official ___________________ 5/ Justice Black took the position that the Constitution reserved to the States the power to establish voter qualifications in state and local elections and, unless necessary to remedy racial discrimination, Congress could not interfere with the States' exercise of that power. See 400 U.S. at 130. Justice Harlan voted to invalidate the legislation because, in his view, the Fourteenth Amendment simply did not encompass "political rights" or, more specifically, the right to vote and, therefore, Congress had no power to legislate with respect to voter qualifications pursuant to Section t. See 400 U.S. at 140. Justice Stewart, writing for himself, Chief Justice Burger, and Justice Blackmun, agreed with Justice Black that the Constitution reserves to the States the power to set voter qualifications, including reasonable age limitations, and concluded that, unlike the situation presented in Katzenbach v. Morgan, there was no basis for regarding reduction of the minimum voting age to 18 as necessary to prevent invidious discrimination of any sort. See 400 U.S. at 203-206. - 18 - alleging that certain state AFDC regulations violated the Fourteenth Amendment's Equal Protection and Due Process Clauses by creating arbitrary, but non-suspect, classifications. Id. at 124-125 & n.5. After the parties entered into a consent decree, the plaintiff sought attorneys fees pursuant to 42 U.S.C. 1988. The state official argued that such an award was barred by the Eleventh Amendment. The Supreme Court held to the contrary, explaining that "[u]nder S 5 Congress may pass any legislation that is appropriate to enforce the guarantees of the Fourteenth Amendment. A statute awarding attorney's fees to a person who prevails on a Fourteenth Amendment claim falls within the category of 'appropriate' legislation." Id. at 132. The Court specifically declined to limit Congress' Section 5 authority to certain types of Fourteenth Amendment claims. See id. at 133 n.16; see also id. at 134-135 (Powell, J., concurring in part). We are aware of no court of appeals decision that has adopted the approach advocated by the defendants in this case and limited Congress' Section 5 authority to legislation regarding "suspect" classifications. To the contrary, the courts of appeals have unanimously upheld the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq., as a valid exercise of Congress' Section 5 authority, despite the fact that age is not a suspect classification. See, e.g., Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 698-700 (1st Cir. 1983); EEOC v. County of Calumet, 686 F.2d 1249, 1251-1252 (7th Cir. 1982); Arritt v. - 19 - Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); see also Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 30 (2d Cir. 1991) (dictum), cert. denied, 502 U.S. 1094 (1992).6/ The sole district court opinion upon which the defendants rely (Br. 26) is against the weight of authority and is currently on appeal. See MacPherson v. University of Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996), appeal pending, No. 96-6947 (11th Cir.).7/ Courts have reached a similar conclusion in cases involving the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., which requires "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Board of Educ. v. Rowley, 458 U.S. 176, 201 (1982). The four courts of appeals to address the question have held that Congress validly exercised ___________________ 6/ The defendants are incorrect in stating (Br. 25) that a majority of the Court in EEOC v. Wyoming, 460 U.S. 226 (1983), "suggested" that the ADEA was not a valid exercise of Congress' Section 5 authority. The Court held that the ADEA as applied to States was a valid exercise of Congress' Commerce Clause authority and expressly left the Fourteenth Amendment question open. See id. at 243-244 & n.18. Justice Stevens stated at the beginning of his concurrence that he "join[ed] the Court's opinion," but that he wished to add "additional comments" about "the origins and purpose of the Commerce Clause." Id. at 244. 7/ The United States has intervened in that appeal to defend the constitutionality of the abrogation. Every other reported opinion after Seminole Tribe has upheld the ADEA's abrogation. See Hodgson v. University of Texas Med. Branch, No. G-95-612, 1997 WL 50173 (S.D. Tex. Feb. 6, 1997); Teichgraeber v. Memorial Union Corp., 946 F. Supp. 900 (D. Kan. 1996); Kimel v. Florida Bd. of Regents, 1996 U.S. Dist. Lexis 7995 (N.D. Fla. May 17, 1996), appeal pending, No. 96-2788 (11th Cir.). - 20 - its Section 5 authority to abrogate States' Eleventh Amendment immunity for suits alleging that children with disabilities had been deprived of rights guaranteed by the Act. See Mitten v. Muscogee County Sch. Dist., 877 F.2d 932, 937 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990); Counsel v. Dow, 849 F.2d 731, 737 (2d Cir.), cert. denied, 488 U.S. 955 (1988); David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 421 n.7 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986); Crawford v. Pittman, 708 F.2d 1028, 1036-1038 (5th Cir. 1983). Like these statutes, the ADA can be regarded as legislation to enforce the Equal Protection Clause. As Representative Dellums explained during the enactment of the ADA, "we are empowered with a special responsibility by the 14th amendment to the Constitution to ensure that every citizen, not just those of particular ethnic groups, not just those who arguably are 'able- bodied,' not just those who own property -- but every citizen shall enjoy the equal protection of the laws." 136 Cong. Rec. 11,467 (1990); see also id. at 11,468 (remarks of Rep. Hoyer). B. The ADA Is Plainly Adapted To Enforcing The Equal Protection Clause The defendants next argue (Br. 30-32) that some provisions of the ADA are not "plainly adapted" to enforcing the Equal Protection Clause. Although not entirely clear, the defendants appear to concede (Br. 30) that a "straightforward prohibition - 21 - against discrimination" is "plainly adapted" to eliminating discrimination against persons with disabilities. In enacting the ADA, Congress found that persons with disabilities have been "faced with restrictions and limitations * * * 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), and that such discrimination "persists in such critical areas as * * * access to public services," id. at 12101 (a) (3). It also found that individuals with disabilities "continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural * * * and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices." Id. at 12101 (a) (5). It was certainly "plainly adapted" to the Equal Protection Clause for Congress to prohibit States from intentionally discriminating on the basis of disability and to eliminate States' Eleventh Amendment immunity in order that federal courts could adjudicate such claims and award appropriate relief. See Fitzpatrick, 427 U.S. at 456. The defendants also appear to concede (Br. 30) that Congress could "mandate that physical facilities be accessible to persons in wheelchairs." What it cannot do, according to the defendants (Br. 30-32), is prescribe how such meaningful access is to be procedurally achieved or substantively measured. Because the - 22 - legal foundations of their concession are critical to understanding the validity of the various challenged provisions, we discuss them below in detail. 1. Congress has broad power to enforce the Equal Protection Clause "It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees." Fullilove v. Klutznick, 448 U.S. 448, 483 (1980) (opinion of Burger, C.J.); see Schmidt v. Oakland Unified Sch. Dist., 662 F.2d 550, 557 n.8 (9th Cir. 1981). Congress' Section 5 power is thus not limited to prohibiting animus-based discrimination. "Congress is not circumscribed by any such artificial rules." South Carolina v. Katzenbach, 383 U.S. 301, 327 (1966). Pursuant to Section 5, Congress may enact "[w]hatever legislation is appropriate * * * to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion." Ex parte Virginia, 100 U.S. (10 Otto) 339, 345-346 (1879). This includes the power to prohibit or modify rules, policies and practices that have a disparate effect on a class or individual, regardless of the intent behind those actions. Thus in South Carolina v. Katzenbach, 383 U.S. at 325-337, and again in City of Rome v. United States, 446 U.S. 156, 177 (1980), the Supreme - 23 - Court upheld the constitutionality of Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, which prohibits covered jurisdictions from implementing any electoral change that was discriminatory in effect. Similarly, this Court in Blake v. City of Los Angeles, 595 F.2d 1367, 1373 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980), upheld the application of Title VII's disparate impact standard to States as a valid exercise of Congress' Section 5 authority. See also Grano v. Department of Dev., 637 F.2d 1073, 1080 n.6 (6th Cir. 1980) (collecting Title VII cases from other circuits); United States v. Marengo County Comm'n, 731 F.2d 1546, 1559 n.20 (11th Cir.) (collecting Fair Housing Act cases), cert. denied, 469 U.S. 976 (1984). In exercising its broad plenary power under Section 5, Congress is not limited to prohibiting unequal treatment of similarly situated individuals. Congress may determine that meaningful equality requires some consideration of the differences among people. For "[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike." Jenness v. Fortson, 403 U.S. 431, 442 (1971); see also United States v. Horton, 601 F.2d 319, 324 (7th Cir.), cert. denied, 444 U.S. 937 (1979). The Fourteenth Amendment grants to Congress the "discretion in determining whether and what legislation is needed" to address such discrimination. Katzenbach v. Morgan, 384 U.S. at 651. - 24 - 2. Congress found that persons with disabilities required accommodations to obtain equally meaningful access to programs and facilities After extensive investigation (and long experience with the analogous nondiscrimination requirement contained in Section 504), Congress found that the exclusion of persons with disabilities from programs and benefits was not just a result of discriminatory animus; it was also a result of "thoughtlessness or indifference -- of benign neglect" to the interaction between "neutral" rules and persons with disabilities. 8 As a result, Congress determined that for an entity to treat persons with disabilities as it did those without disabilities was not sufficient to eliminate discrimination and give persons with disabilities equally meaningful access to every aspect of society. See 42 U.S.C. 12101(a)(5); see also U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities 99 (1983); Crowder v. Kitagawa, 81 F.3d 1480, 1483-1484 (9th Cir. 1996); United States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1417 (9th Cir. 1994); Smith v. Barton, 914 F.2d 1330, 1339 & n.13 (9th Cir. 1990), cert. denied, 501 U.S. 1217 (1991). 9 Such access is denied when the State refuses to ___________________ 8 S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989) (quoting without attribution Alexander v. Choate, 469 U.S. 287, 295 (1985)); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 29 (1990) (same); 136 Cong. Rec. 10,870 (1990) (Rep. Fish); id. at 11,467 (Rep. Dellums). 9 "For example, under [the ADA], local and state governments (continued...) - 25 - acknowledge the "real and undeniable differences between [persons with disabilities] and others." Cleburne, 473 U.S. at 444; see also Lau v. Nichols, 483 F.2d 791, 806 (9th Cir. 1973) (Hufstedler, J., dissenting from the denial of reh'g en banc), rev'd, 414 U.S. 563 (1974); De La Cruz v. Tormey, 582 F.2d 45, 56-57 (9th Cir. 1978), cert. denied, 441 U.S. 965 (1979). The ADA's requirement that public entities make "reasonable modifications to rules, policies, or practices" for a "qualified individual with a disability," 42 U.S.C. 12131(2), is a thoughtfully crafted response to Congress' findings regarding the treatment of persons with disabilities and comports with the purposes underlying the Equal Protection Clause. By definition, persons with disabilities have "a physical or mental impairment that substantially limits one or more * * * major life activities." 42 U.S.C. 12102(2)(A). Thus, as to that life activity, "the handicapped typically are not similarly situated to the nonhandicapped." Alexander, 469 U.S. at 298. Congress is ____________________ 9 (...continued) are required to provide curb cuts on public streets. The employment, transportation, and public accommodation sections of this Act would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets." H.R. Rep. No. 485, Pt. 2, supra, at 84. Similarly, Congress intended "that the telephone emergency services operated by local and state governments be accessible to [hearing impaired and speech impaired] individuals. This means that such telephone emergency systems must be equipped with technology that gives these individuals direct access to emergency services." H.R. Rep. No. 558, 101st Cong., 2d Sess. 63 (1990); S. Rep. No. 596, 101st Cong., 2d Sess. 67-68 (1990); see also H.R. Rep. No. 485, Pt. 2, supra, at 39, 85. - 26 - not required to ignore this reality and be satisfied with nominal equality. When the only toilets and showers provided are inaccessible to persons who use wheelchairs (E.R. 83), and when the general announcements and evacuation alerts are given in a manner inaccessible to persons with hearing impairments (E.R. 80, 85), these persons with disabilities are not being granted equal access. 3. Congress' determination that it was necessary for States to modify their programs and facilities in order to provide equally meaningful access is consistent with the principles of equality contained in the Equal Protection Clause In the ADA, Congress attempted to redress this discrimination by mandating that "qualified handicapped individual[s] must be provided with meaningful access to the benefit that the [entity] offers." Alexander, 469 U.S. at 301 (emphasis added). 10 Congress' mandate is consistent with the principles of equality embodied in the Equal Protection Clause. "The power to 'enforce' [the Equal Protection Clause] may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations." City of 10 Alexander was discussing Section 504 of the Rehabilitation Act. This Court, however, has held that Title II of the ADA imposes substantive requirements similar to Section 504. See, e.g., Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996); Crowder, 81 F.3d at 1484. - 27 - Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (opinion of O'Connor, J.). In a series of Supreme Court cases beginning with Griffin v. Illinois, 351 U.S. 12 (1956), and culminating in M.L.B. v. S.L.J., 117 S. Ct. 555 (1996), the Court has instructed that principles of equality are sometimes violated by treating unlike persons alike. In these cases, the Supreme Court has held that a State violates the Equal Protection Clause in treating indigent parties appealing from certain court proceedings as if they were not indigent. Central to these holdings is the acknowledgement that "a law nondiscriminatory on its face may be grossly discriminatory in its operation." 117 S. Ct. at 569 (quoting Griffin, 351 U.S. at 17 n.11). The Court held in these cases that even though States are applying a facially neutral policy by charging all litigants equal fees for an appeal, the Equal Protection Clause requires States to waive such fees in order to ensure equal "access" to appeal. Id. at 560. Nor is it sufficient if a State permits an indigent person to appeal without charge, but does not provide free trial transcripts. The Court has declared that the State cannot "extend to such indigent defendants merely a 'meaningless ritual' while others in better economic circumstances have a 'meaningful appeal.'" Id. at 569 n.16 (quoting Ross v. Moffitt, 417 U.S. 600, 612 (1974)). Although only resolving a question of statutory construction, the Supreme Court in Lau v. Nichols, 414 U.S. 563 - 28 - (1974), again rejected the notion that equality is always realized by treating everyone alike. In that case, involving the education of students who did not speak English, it explained that "there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." Id. at 566; see also Lewis v. Casey, 116 S. Ct. 2174, 2182 (1996) (holding that State has not met its obligation to provide illiterate prisoners access to courts simply by providing a law library). There is no need for this Court to decide whether every "reasonable modification" required by the ADA could be ordered by a court under the authority of the Equal Protection Clause. "The legislative power is not confined to ratifying restrictions placed on the states by the judiciary * * * ." Mockaitis v. Harcleroad, No. 96-35901, 1997 WL 27111, at *8 (9th Cir. Jan. 27, 1997). It is enough that Congress found that the ADA was appropriate legislation to redress the rampant inequalities it discovered in its almost 20-year examination of the question. Because Congress bears primary responsibility for enforcing the Fourteenth Amendment, see South Carolina v. Katzenbach, 383 U.S. at 326, "significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it." United States v. Gainey, 380 U.S. 63, 67 - 29 - (1965); see J.A. Croson Co., 488 U.S. at 490; Fullilove, 448 U.S. at 483; Katzenbach v. Morgan, 384 U.S. at 652-653; Blake, 595 F.2d at 1373 (congressional finding that "widespread discrimination against minorities exists in State * * * employment" sufficient to extend Title VII disparate impact standard to States under Section 5). 4. The specific provisions of the ADA challenged by the defendants are plainly adapted to providing equally meaningful access to persons with disabilities In light of the above principles, the defendants' scatter- shot attack on various requirements of the ADA must fail because each requirement is plainly adapted to providing equally meaningful access to persons with disabilities. First, the defendants argue (Br. 30) that the provisions of 28 C.F.R. 35.105 through 35.107 that require public entities to perform a self-evaluation of their current programs, to notify program participants of their rights under the ADA, and to establish a publicized complaint procedure, are all beyond Congress' Section 5 authority. 11 But Congress believed that much of the burden on persons with disabilities was caused by ___________________ 11 Congress specifically required these provisions when it provided that the regulations promulgated under the ADA "shall be consistent with * * * the coordination regulations under part 41 of Title 28, Code of Federal Regulations * * * applicable to recipients of Federal financial assistance under [Section 504]." 42 U.S.C. 12134(b); see H.R. Rep. No. 485, Pt. 2, supra, at 97- 98; Crowder, 81 F.3d at 1484. Provisions analogous to those challenged by the defendants existed in Part 41. See 28 C.F.R. 41.5(b). - 30 - disregard of the effects of neutral policies on persons with disabilities and ignorance as to the particular circumstances and needs of such individuals. See S. Rep. No. 116, supra, at 6-7. In an attempt to lift this veil of ignorance and facilitate voluntary settlement of disputes, see 42 U.S.C. 12212, Congress appropriately required public entities to evaluate their programs and services in conjunction with the affected community and to create channels of communication by which persons with disabilities needing accommodations could make their needs known. See Tyler v. City of Manhattan, 857 F. Supp. 800, 815 (D. Kan. 1994); S. Rep. No. 116, supra, at 34-35; H.R. Rep. No. 485, Pt. 2, supra, at 65-66. Second, the defendants argue (Br. 30-31) that the regulations detailing accessibility standards for construction and alterations commenced after January 26, 1992, see 28 C.F.R. 35.151(a)-(c), are too detailed. But Congress is not limited to legislating in generalities. 12 To so hold would "depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment." Katzenbach v. Morgan, 384 U.S. at 648; see also Missouri v. Jenkins, 115 S. Ct. ___________________ 12 Congress required that regulations concerning "program accessibility" be "consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under [Section 504]." 42 U.S.C. 12134(b). Provisions analogous to those challenged by the defendants existed in Part 39. See 28 C.F.R. 39.151. - 31 - 2038, 2061 (1995) (O'Connor, J., concurring). Moreover, as discussed at pp. 52-53, infra, the defendants err in suggesting that the codes governing accessibility incorporated by the regulation are not tailored to the prison context. In any event, the regulations make clear that "[d]epartures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided." 28 C.F.R. 35.151(c). Finally, the defendants claim (Br. 31) that the ADA requires it to "identify inmates with learning disabilities and provide special education instructors for them." The ADA does not require the defendants to provide any educational programs at all. However, the defendants have decided that it is in their interest to make such programs available to inmates and in fact reward inmates who participate in such programs with extra sentence credits (E.R. 52, 57, 80-82). In such circumstances, the ADA requires that these programs not unnecessarily exclude, either intentionally or unintentionally, inmates with disabilities and that the defendants make "reasonable modifications" when the modifications are "necessary to avoid discrimination on the basis of disability," unless they can demonstrate that the modifications would "fundamentally alter the nature of the service, program, or activity." 28 C.F.R. - 32 - 35.130 (b) (7) (emphasis added).13/ This finely-tuned balance between the interests of persons with disabilities and public entities is undoubtedly plainly adapted to Congress' goal of equally meaningful access to persons with disabilities. C. The ADA Is Consistent With The Letter And Spirit Of The Constitution Finally, the defendants argue (Br. 33) that the ADA as applied to prisons is inconsistent with principles of federalism and thus violates the spirit of the Constitution. As an initial matter, we note that the defendants did not raise this claim below (E.R. 134) and therefore this Court should not reach it. If this Court chooses to reach that issue, the defendants are simply incorrect. The Fourteenth Amendment "fundamentally altered the balance of state and federal power struck by the Constitution." Seminole Tribe, 116 S. Ct. at 1125. Thus a long "line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States." Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976). For example, in Ex parte Virginia, the Supreme Court upheld ____________________ 13/ As part of determining the reasonableness of any modification, a court will not (as the defendants claim (Br. 31)) "disregard the prison context." To the contrary, the reasonableness of any modification is a case-specific inquiry that necessarily takes into account the fact that these programs occur in prison. See Gates v. Rowland, 39 F.3d 1439, 1446-1447 (9th Cir. 1994); Jeldness v. Pearce, 30 F.3d 1220, 1224-1225, 1228-1229 (9th Cir. 1994) (discussing Title IX's application to prison programs). - 33 - legislation that made it a federal crime for state judges to exclude jurors on the basis of race. The Court rejected the State's claim that "the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights." 100 U.S. at 346. Instead, it explained, a State cannot "deny to the general government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted. Indeed, every addition of power to the general government involves a corresponding diminution of the governmental powers of the States. It is carved out of them." Ibid. Similarly, in South Carolina v. Katzenbach, the Supreme Court upheld Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, which requires States subject to its provisions to obtain approval from the Attorney General or the District Court for the District of Columbia before implementing any law or regulation affecting voting. Although Justice Black, dissenting on this point, claimed that the federalism "mean[s] at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them," 383 U.S. at 359 (Black, J., concurring and dissenting), the Court upheld the provision as a permissible exercise of Congress' enforcement powers under the Fifteenth Amendment. See id. at 334-335; see also City of Rome, - 34 - 446 U.S. at 178-180 (reaffirming the constitutionality of Section 5 against federalism challenge). The defendants suggest (Br. 33) that the operation of prisons is such an integral state activity that it is immune from Congress' Section 5 power. Certainly it is not more (and possibly less) integral than enacting laws and holding jury trials, yet the Court held that the spirit of the Constitution was not violated by federal involvement (including the threat of criminal penalties) in such state affairs. Just as "prisoners do not shed all constitutional rights at the prison gate," Sandin v. Conner, 115 S. Ct. 2293, 2301 (1995), Congress is not barred by prison gates from enacting legislation under Section 5 of the Fourteenth Amendment. III 42 U.S.C. 2000d-7 VALIDLY REMOVES ELEVENTH AMENDMENT IMMUNITY FOR CLAIMS UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973 Section 2000d-7 of Title 42 provides that a "State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973." Section 2000d-7 is an express abrogation of Eleventh Amendment immunity. See Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996); Lane v. Pena, 116 S. Ct. 2092, 2099 (1996). As with the ADA, the only question is whether it is a valid exercise of any of Congress' powers. - 35 - As explained more fully below, Congress properly abrogated Eleventh Amendment immunity from Section 504 claims pursuant to its authority under Section 5 of the Fourteenth Amendment. Moreover, the State waived its Eleventh Amendment immunity to Section 504 suits when it elected to accept federal funds after the effective date of Section 2000d-7. A. The Abrogation Of Eleventh Amendment Immunity Contained In 42 U.S.C. 2000d-7 Is A Valid Exercise Of Congress' Power Under Section 5 Of The Fourteenth Amendment For the reasons discussed in Part II, Section 2000d-7 is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment to permit private suits against States for discriminating against individuals with disabilities in violation of federal law. The defendants argue (Br. 27-29) that because Section 504 is Spending Clause legislation, the abrogation of Eleventh Amendment immunity for Section 504 suits contained in Section 2000d-7 is an invalid Spending Clause enactment. We believe both the premise and conclusion of that argument are incorrect. 1. First, the Supreme Court has stated and this Court has held that, as applied to public entities, Section 504 was enacted pursuant to the Fourteenth Amendment. In Scanlon v. Atascadero State Hospital, 735 F.2d 359, 361 (9th Cir. 1984), this Court held that Congress validly abrogated States' Eleventh Amendment immunity for suits alleging discrimination on the basis of disability pursuant to Section 5 in Section 504 of the - 36 - Rehabilitation Act. See also Students of Cal. Sch. for the Blind v. Honig, 736 F.2d 538, 544 (9th Cir. 1984), vacated, 471 U.S. 148 (1985); Department of Educ. v. Katherine D., 531 F. Supp. 517, 530 (D. Haw. 1982), rev'd in part on other grounds, 727 F.2d 809 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985). Although the Supreme Court reversed because of the absence of an express abrogation (an absence remedied by 42 U.S.C. 2000d-7), it did not question this Court's holding as to the constitutional basis of Section 504. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244-245 n.4 (1985). Indeed, in Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468 (1987), the Supreme Court stated, albeit in dictum, that "[t]he Rehabilitation Act was passed pursuant to S 5 of the Fourteenth Amendment. Congress therefore had the power to subject unconsenting States to suit in federal court." Id. at 472 n.2 (citations omitted). Assuming the question were still open in this Circuit, the defendants' argument contradicts the longstanding rule of judicial review (which they invoke (Br. 23-24 n.8)) that "the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948); EEOC v. Wyoming, 460 U.S. 226, 243-244 n.18 (1983) (quoting Woods). The courts can strike down laws only if they exceed Congress' constitutional authority or otherwise violate rights guaranteed by the - 37 - Constitution. Nothing in the Constitution, however, requires Congress to identify the constitutional provision by which it legislates. Congress is not required "to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." United States v. Rybar, 103 F.3d 273, 282 (3d Cir. 1996). As the Seventh Circuit recently held, "a statute's constitutionality should not depend on the ability of congressional staff to write a plausible brief for it into the committee reports. * * * [I]t is not the motive of the legislators that is important * * *, but whether the statute they pass is within the scope of their constitutional authority." Sasnett v. Sullivan, 91 F.3d 1018, 1020-1021 (1996), petition for cert. filed, 65 U.S.L.W. 3370 (Oct. 29, 1996) (No. 96-710). The Sixth Circuit reached a similar conclusion in Timmer v. Michigan Department of Commerce, 104 F.3d 833, 842 (6th Cir. 1997), holding that it "discerned no persuasive reasons * * * why the courts should frustrate [Congress' intent to abrogate] simply because the legislative history does not contain the words 'S 5 of the Fourteenth Amendment.'" These holdings are consistent with Supreme Court precedent that statutes must be upheld against constitutional attack if they are within any of Congress' power. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 473-478 (1980) (opinion of Burger, C.J.); United States v. Butler, 297 U.S. 1, - 38 - 61 (1936); Keller v. United States, 213 U.S. 138, 147 (1909); United States v. Harris, 106 U.S. (16 Otto) 629, 635-636 (1883). 2. Moreover, assuming arguendo that Section 504 as enacted in 1973 was solely Spending Clause legislation, that would not be dispositive as to the constitutional basis of Section 2000d-7. In Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976), the Court found that the abrogation of States' Eleventh Amendment immunity for Title VII suits was a valid exercise of Congress' Section 5 authority, even though Title VII itself was originally enacted pursuant to the Commerce Clause. See United Steelworkers of America v. Weber, 443 U.S. 193, 207 n.6 (1979). Similarly, the abrogation of States' Eleventh Amendment immunity in Section 504 is a valid exercise of Congress' Section 5 authority, even if Section 504 itself was originally enacted solely pursuant to the Spending Clause. See Timmer, 104 F.3d at 838 n.7.14/ 14/ Although Congress need not state its intent to rely upon its Section 5 authority in the text or legislative history, the legislative history of Section 2000d-7 makes clear that Congress so intended. See Fitzpatrick, 427 U.S. at 453 n.9 (relying on legislative history in determining whether "Congress exercised its power under S 5 of the Fourteenth Amendment"). Section 2000d-7 was originally introduced by Senator Cranston as the Civil Rights Remedies Equalization Act, S. 1579, 99th Cong., 1st Sess. (1985), as a response to the Supreme Court's decision in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). See 131 Cong. Rec. 22,344 (1985). Senator Cranston described the proposed legislation as "clearly authorized" by both the Spending Clause and Section 5 of the Fourteenth Amendment. Id. at 22,346. The Senate Committee Report likewise referred to both of these constitutional provisions as permitting abrogation of state immunity. See S. (continued...) - 39 - Not surprisingly, every court that has considered the constitutional basis of Section 2000d-7 since Seminole Tribe was decided has held it was a proper exercise of Congress' Section 5 authority.15/ This is the same conclusion courts reached prior to Seminole Tribe.16/ ___________________ 14/ (...continued) Rep. No. 388, 99th Cong., 2d Sess. 27 (1986). After the Senate version of the bill was adopted in conference, Senator Cranston submitted for the record a letter from the Department of Justice stating that [t]he proposed amendment * * * fulfills the requirements that the Supreme Court laid out in Atascadero. Thus, to the extent that the proposed amendment is grounded on congressional powers under section five of the fourteenth amendment, [it] makes Congress' intention "unmistakably clear in the language of the statute" to subject States to the jurisdiction of Federal courts. 132 Cong. Rec. 28,624 (1986) (citations omitted). 15/ In addition to the district court below, see Hunter v. Chiles, 944 F. Supp. 914, 917 (S.D. Fla. 1996), appeal pending, No. 96-5388 (11th Cir.); Mayer v. University of Minn., 940 F. Supp. 1474, 1478-1480 (D. Minn. 1996); Niece v. Fitzner, 941 F. Supp. 1497, 1501-1504 (E.D. Mich. 1996). 16/ See United States v. Yonkers Bd. of Educ., 893 F.2d 498, 503 (2d Cir. 1990); Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 31 (2d Cir. 1991) (dictum), cert. denied, 502 U.S. 1094 (1992); Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341, 1363-1364 (D.S.C. 1995), rev'd in part on other grounds, 84 F.3d 707 (4th Cir. 1996); Martin v. Voinovich, 840 F. Supp. 1175, 1187 (S.D. Ohio 1993). - 40 - B. The State Waived Its Eleventh Amendment Immunity To Section 504 Suits By Accepting Federal Funds After The Enactment Of Section 2000d-7 Since Congress had authority under the Fourteenth Amendment to abrogate the States' Eleventh Amendment immunity, it is unnecessary to consider whether Congress may also, pursuant to the Constitution's Spending Clause, Art. I, S 8, Cl. 1, require the waiver of States' Eleventh Amendment immunity as a condition of receiving federal financial assistance. Nonetheless, the defendants' contention that the Supreme Court's decision in Seminole Tribe somehow prohibits such an exercise of the Spending Clause power is incorrect. To the contrary, Congress may condition the receipt of federal funds on a waiver of Eleventh Amendment immunity so long as, as here, the statute provides unequivocal notice to the States of this condition. States may waive their Eleventh Amendment immunity. See Seminole Tribe, 116 S. Ct. at 1128; Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959). It is well-settled that a State may "by its participation in the program authorized by Congress * * * in effect consent [] to the abrogation of that immunity." Edelman v. Jordan, 415 U.S. 651, 672 (1974); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985) ("[a] State may effectuate a waiver of its constitutional immunity by * * * waiving its immunity to suit in the context of a particular federal program"). - 41 - In Atascadero, the Court stated that if a statute "manifest[ed] a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity," the federal courts would have jurisdiction over States that accepted federal funds. 473 U.S. at 247; see also Florida Dep't of Health & Rehabilitative Servs. v. Florida Nursing Home Ass'n, 450 U.S. 147, 153 (1981) (Stevens, J., concurring). It was in response to Atascadero that Congress enacted 42 U.S.C. 2000d-7, making unambiguously clear that Congress intended the States to be amenable to suit in federal court under Section 504 if they accepted federal funds. See Lane v. Pena, 116 S. Ct. at 2100 (acknowledging "the care with which Congress responded to our decision in Atascadero by crafting an unambiguous waiver of the States' Eleventh Amendment immunity" in Section 2000d-7). The defendants cannot now claim that suits against it under Section 504 are barred, as the State consented to such suits when it accepted federal funding after Section 2000d-7 took effect (E.R. 112). The defendants may argue that Seminole Tribe precludes Congress from using its Spending Clause power to abrogate a State's Eleventh Amendment immunity. Although the effect is the same, when Congress acts under the Spending Clause, it does not abrogate Eleventh Amendment immunity. Instead, Congress conditions the receipt of federal funds on a waiver of that immunity by the States themselves. As the Department of Justice - 42 - explained to Congress at the time the statute was being considered, "[t]o the extent that the proposed amendment is grounded on congressional spending powers, [it] makes it clear to states that their receipt of Federal funds constitutes a waiver of their [E]leventh [A]mendment immunity." 132 Cong. Rec. 28,624 (1986). Section 2000d-7 thus embodies exactly the type of unambiguous condition discussed by the Court in Atascadero, putting States on express notice that part of the "contract" for receiving federal funds was the requirement that they consent to suit in federal court for alleged violations of Section 504. Since the State accepted federal funds after the effective date of Section 2000d-7, it has waived its Eleventh Amendment immunity to suit in this case. "Requiring States to honor the obligations voluntarily assumed as a condition of federal funding * * * simply does not intrude on their sovereignty." Bell v. New Jersey, 461 U.S. 773, 790 (1983); see South Dakota v. Dole, 483 U.S. 203, 210 (1987). IV TITLE II OF THE ADA AND SECTION 504 APPLY TO STATE PRISONS Since this Court has subject-matter jurisdiction over the defendants, it can address the question of whether the ADA and Section 504 were intended to cover programs and activities of state prisons. Relying primarily on Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996) -- a Fourth Circuit decision addressing a question of qualified - 43 - immunity17/ -- the defendants argue (Br. 5-20) that Section 504 and Title II of the ADA do not apply to state prisons. This Court should reaffirm its holdings in Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988), Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), and Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996), that state prisons are covered by Section 504 and the ADA based on the plain language and consistent administrative interpretations of these statute. A. The Plain Language Of Both Statutes Applies To State Entities That Operate Prisons Section 504 provides in pertinent part: No otherwise qualified individual with a disability in the United States * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance * * *. 29 U.S.C. 794(a). The statutory definition of "[p]rogram or activity" in Section 504 indicates that this term was intended to be all- encompassing. It includes "all of the operations of * * * a ___________________ 17/ Torcasio did not decide whether either Section 504 or Title II of the ADA applies to prisons. Rather, it concluded that the individual defendants in that case were entitled to qualified immunity on three alternative grounds. First, it held that it was not clearly established "at the time" that either statute applied to state prisons. Id. at 1343; see id. at 1344-1352. Second, it held that it was not clearly established that either statute provided protections to a morbidly obese prisoner such as the plaintiff in that case. See id. at 1344, 1353-1355. Third, it held that the individual defendants could reasonably have believed that their actions were lawful. See id. at 1355-1356. - 44 - department, agency, special purpose district, or other instrumentality of a State or of a local government * * * any part of which is extended Federal financial assistance." 29 U.S.C. 794(b) (emphasis added). The district court found (E.R. 112) that "[s]some programs of the California Department of Corrections receive federal financial assistance." Thus under the plain language of the statute, all of the "operations" of the California Department of Corrections are subject to Section 504's requirements. Similarly, Title II of the ADA provides in pertinent part: 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. 12132. Congress directed that Title II of the ADA be interpreted in a manner consistent with Section 504. See 42 U.S.C. 12134(b), 12201(a). Thus, the terms "programs" and "activities" in Title II have the same meaning as in Section 504. In addition, Title II's definition of a "public entity" clearly encompasses a state correctional facility or authority: "any department, agency, * * * or other instrumentality of a State or States or local government." 42 U.S.C. 12131(1)(B) (emphasis added). In Torcasio, the Fourth Circuit stated that prisons "generally do not provide 'services,' 'programs,' or 'activities' as those terms are ordinarily understood." 57 F.3d at 1347. But - 45 - this Court held in Bonner, 857 F.2d at 562, that "prison activities, such as disciplinary proceedings and counseling" fell within the "plain language of * * * the Act itself." See also Duffy, 98 F.3d at 455 (holding that ADA applied to inmate with hearing impairment who was forced to participate in disciplinary and classification hearings); Gates, 39 F.3d at 1446-1447 (holding that Section 504 applied to HIV-positive inmates who wished to participate in the prison's "food service program"); Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir. 1991) (dictum) (agreeing with Bonner). Similarly, in Jeldness v. Pearce, 30 F.3d 1220, 1224-1225 (9th Cir. 1994), this Court held that the "broad language" of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 (a), which prohibit sex discrimination in "any education program or activity receiving Federal financial assistance," applied to state prisons. The defendants make two text-based arguments why these statutes should not apply to prisons. First, they suggest (Br. 12, 14-15) that an inmate cannot be a "qualified" individual with a disability because most services, programs, or activities in prison are compulsory. See Torcasio, 57 F.3d at 1347. But this Court has held that the term "qualified" is not limited to voluntary activities -- it can include mandatory disciplinary proceedings. See Duffy, 98 F.3d at 454; Bonner, 857 F.2d at 562. More generally, "it would be anomalous to follow the Fourth Circuit's suggestion in Torcasio that the Rehabilitation Act and - 46 - the ADA are inapplicable to programs and services that are obligatory in nature. Such a limitation would appear to immunize disability-based discrimination in the provision of such compulsory services as public education, jury service, and mandatory inoculations. Nothing in the texts of the ADA and the Rehabilitation Act hints at such a result." Inmates of Allegheny County Jail v. Wecht, No. 95-3402, 1996 WL 474106, at *10 n.14 (3d Cir. Aug. 22, 1996), vacated for reh'g en banc, 93 F.3d 1146 (1996), dismissed as moot (Dec. 4, 1996) [Attachment A].18/ The defendants also suggest (Br. 12) that the term "qualified individual" would be rendered superfluous if it referred to no qualification other than being an inmate. That term is defined in Title II to mean: an individual with a disability who, with or without reasonable modifications * * * meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. 12131(2). Under this definition, drawn from Rehabilitation Act regulations, see 28 C.F.R. 42.540(l), "qualified" cannot be read to require that the services are not generally available. Thus, for example, a public park is a service to which persons with disabilities cannot be excluded, see Crowder v. Kitagawa, 81 F.3d 1480, 1487 n.1 (9th Cir. 1996) 18/ Although the panel opinion in Inmates of Allegheny County Jail was vacated and thus has no precedential value, the panel's discussion retains its persuasive authority. See Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir. 1994). - 47 - (O'Scannlain, J., dissenting), despite the fact that parks impose no "qualifications" for their use. Instead, the definition of "qualified" is intended to set forth the common sense proposition that entities that are covered by the Act need not jettison any essential eligibility requirements of their programs or activities in order to avoid liability. See Southeastern Community College v. Davis, 442 U.S. 397 (1979); H.R. Rep. No. 485, Pt. 4, 101st Cong., 2d Sess. 38 (1990). Second, the defendants argue (Br. 12-14) that the services, programs or activities it provides (such as shelter, prison jobs, vocational programs, educational classes and medical services) are not for the "benefit" of inmates, but rather serve the State's penological interest. But the reason the State operates prisons is irrelevant to whether the inmates "benefit" from the programs provided. Indeed, many government services provided to the public (such as vaccination programs) could be viewed at some level as serving the government's interest by reducing future costs. Moreover, even if the term "benefits" could be read so narrowly, neither Section 504 or the ADA are limited to protecting the "benefits" of services, programs or activities. Section 504 also prohibits "exclu[sion] from * * * participation" and "subject[ion] to discrimination" in any program or activity receiving federal financial assistance. Similarly, the ADA prohibits "exclu[sion] from participation in * * * the services, programs, or activities of a public entity" and "subject[ion] to - 48 - discrimination by any such entity." These independent prohibitions are not limited to the provision of "benefits." See Crowder, 81 F.3d at 1483.19/ Finally, relying on principles of federalism, the defendants argue (Br. 5-11) that Congress did not make sufficiently clear that it intended to cover prisons. But as discussed above, prisons fall within the plain language of the statute. Thus the presumption that Congress does not intend to alter the usual federal-state balance relied upon in Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991), is inapplicable. The plain statement rule applied in Gregory to measure the scope of an ambiguous exception is simply a "rule of statutory construction to be applied where statutory intent is ambiguous." Id. at 470; see United States v. Culbert, 435 U.S. 371, 379 (1978). Unlike the statute in Gregory, these statutes are without exceptions for any state function. Both Section 504 and Title II speak unambiguously of their application to state and local governments and to "any" or "all" of their operations. And in each statute, Congress has made clear that it intended the ____________________ 19/ In a claim directed only at the ADA, the defendants argue (Br. 11-12) that the use of the phrase "Public Services" in the heading of Title II indicates a limit on the scope of the statute. First, headings cannot be used to limit the plain meaning of the statutory text. See Oregon Pub. Utility Comm'n v. ICC, 979 F.2d 778, 780 (9th Cir. 1992). Second, the phrase "Public Services" does not signify that it applies only to services that are open to the public. Rather, it indicates coverage of all services provided by public entities. - 49 - provisions to apply to the States by expressly abrogating Eleventh Amendment immunity. In light of the clear and all- encompassing language of both statutes, there is simply no basis for requiring Congress to have detailed which of the many important components of state and local governments were to be included in the terms "any" and "all." "This Court cannot judicially impose a special exception to these statutes for correctional institutions." Jeldness, 30 F.3d at 1225. To the extent the defendants suggest that Congress must specifically identify state prisons in the statutory text if it wishes to regulate them, such a claim would in fact be contrary to the holding in Gregory. See 501 U.S. at 467 ("This does not mean that the Act must mention judges explicitly[.]"). Once it is clear that Congress intended to include the States within the sweep of the statutes, Congress is not required to detail each aspect of state services that it intends to cover. As the panel in Inmates of Allegheny County Jail explained (1996 WL 474106, at *8): We of course acknowledge that the management of prisons is a governmental responsibility of great importance. But so too are the management of police and firefighting forces, the management of child protection services, and the management of the court system -- state functions routinely understood to be covered by the Rehabilitation Act and the ADA notwithstanding that these functions are not expressly referred to in either of the statutes. This Court appears to have followed similar reasoning in Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996), when it held - 50 - that the ADA applied to a quarantine law enacted by the state to protect the public health. While acknowledging that "public health and safety decisions of state legislatures" are "within their traditional police powers," the Court explained that "when Congress has passed antidiscrimination laws such as the ADA * * *, it is incumbent upon the courts to insure that the mandate of federal law is achieved." Id. at 1485. Certainly if public health laws are covered by the ADA without specific mention, so too are prisons. B. Administrative Interpretations Of Section 504 And Title II Of The ADA Confirm Their Application To State Prisons As set forth in the regulations and the other administrative materials cited below, the Department of Justice has interpreted both Section 504 and Title II of the ADA to apply to correctional facilities. Congress expressly authorized the Department of Justice to issue regulations implementing both Section 504 and Title II of the ADA. See 29 U.S.C. 794(a); 42 U.S.C. 12134(a). In view of Congress' delegation, the Department's regulations "must be given 'legislative and hence controlling weight unless they are arbitrary, capricious, or clearly contrary to the statute.'" Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir. 1996). The same is true of the preamble or commentary accompanying the regulations, since both are part of the Department's official interpretation of legislation. See Thomas - 51 - Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994); Stinson v. United States, 508 U.S. 36, 45 (1993). 1. The regulations promulgated by the Department of Justice to enforce Section 504 encompass prison administration. The regulations define "program" to mean "the operations of the agency or organizational unit of government receiving or substantially benefiting from the Federal assistance awarded, e.g., a police department or department of corrections." 28 C.F.R. 42.540 (h) (emphasis added). The term "[b]enefit" includes "provision of services, financial aid or disposition (i.e., treatment, handling, decision, sentencing, confinement, or other prescription of conduct)." 28 C.F.R. 42.540(j) (emphasis added). In promulgating the regulations, the Department made clear that services and programs provided by "jails, prisons, reformatories and training schools, work camps, reception and diagnostic centers, pre-release and work release facilities, and community- based facilities" are covered by Section 504. 45 Fed. Reg. 37,620, 37,630 (1980). 2. The regulations promulgated under Title II of the ADA similarly protect persons with disabilities who are incarcerated in prisons. The regulations state that the statute's coverage extends to "all services, programs, and activities provided or made available by public entities." 28 C.F.R. 35.102 (a). This broad language is intended to "appl[y] to anything a public entity does." 28 C.F.R. Pt. 35, App. A at 456 (1996). The - 52 - preamble to the Department's ADA regulations makes express reference to the statute's application to prisons, stating that an entity is required to provide "assistance in toileting, eating, or dressing to individuals with disabilities * * * where the individual is an inmate of a custodial or correctional institution." 28 C.F.R. Pt. 35, App. A at 468. Furthermore, as part of its regulatory obligations under Title II, the Department of Justice is designated as the agency responsible for coordinating the compliance activities of public entities that administer "[a]all programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions." 28 C.F.R. 35.190(b)(6). Finally, both accessibility codes incorporated by the Department of Justice regulations, 28 C.F.R. 35.151(c), make specific reference to prisons. The Uniform Federal Accessibility Standards, 41 C.F.R. Pt. 101-19.6, App. A at 10, lists "jails, prisons, reformatories" and "[o]ther detention or correctional facilities" as institutions to which the accessibility standards apply. Similarly, the Department of Justice has proposed adoption of an amended Americans with Disabilities Act Accessibility Guidelines, 28 C.F.R. Pt. 36, App. A, to include specific accessibility guidelines for detention and correctional facilities. See 59 Fed. Reg. 31,809 (1994). The proposed guidelines, which modify certain generally applicable - 53 - accessibility requirements to address security concerns, are reprinted at pages 31,770-31,772. These proposed amendments are not yet in force, but are expected to be formally promulgated this year. See 61 Fed. Reg. 62,078-62,079 (1996).20 3. The specific provisions in the Justice Department's Section 504 and Title II regulations listing correctional facilities or departments as covered entities, as well as the more detailed discussions of prisons in the interpretive analyses and accessibility guidelines under both statutes, confirm that the Rehabilitation Act and the ADA apply to state correctional facilities.21 ________________________ 20 The Department of Justice is also charged with creating a technical assistance manual. See 42 U.S.C. 12206(c)(3). The Department of Justice's Title II Technical Assistance Manual specifically lists "jails and prisons" as types of facilities that must be designed and constructed so that they are readily accessible to and usable by individuals with disabilities. See Title II Technical Assistance Manual at II-6.0000, II-6.3300(6). This Manual is also entitled to deference. See, e.g., Ferguson v. City of Phoenix, 931 F. Supp. 688, 694-696 (D. Ariz. 1996); Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35, 36-37 n.4 (D.D.C. 1994). 21 The Fourth Circuit in Torcasio failed to consider most of these provisions. The Torcasio court concluded that a single Section 504 regulation cited by the plaintiff in that case failed clearly to establish the statute's applicability to prisons because it merely repeated the broad language of the statute, and did not expressly mention prisons. 57 F.3d at 1350-1351 (citing 28 C.F.R. 42.502). But the court failed to take account of other provisions of both the Section 504 and the Title II regulations set forth above that do expressly apply the statutes to correctional facilities and/or functions. Torcasio did acknowledge that the ADA Accessibility Guidelines expressly apply to prisons, but concluded that, (continued ...) - 54 - Relying on EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), however, the defendants argue (Br. 16-17) that these regulations are not entitled to deference. In Arabian American, the Court held that a presumption against extraterritorial application of statutes was not overcome by the EEOC's interpretation of Title VII. See id. at 248-249. However, there is no similar presumption against applying statutes that clearly cover States to state prisons. Moreover, the regulations discussed above stand in stark contrast to the administrative interpretation the Court found insufficient in Arabian American. First, unlike the EEOC with respect to Title VII, see id. at 257, Congress specifically authorized the Department of Justice to promulgate regulations to implement Section 504 and Title II of the ADA. See 29 U.S.C. 794(a); 42 U.S.C. 12134(a). Indeed, as to Title II, Congress dictated the specific content of the regulation when it required that various parts of the regulations be "consistent" with previously promulgated Section 504 regulations. See 42 U.S.C. 12134(b); Crowder, 81 F.3d at 1484. These Section 504 ___________________ 21 (...continued) because they would not become effective until after the plaintiff in Torcasio had been paroled, they did not "show that the applicability of the ADA to state prisons was clearly established at the time [the plaintiff] was in prison in Virginia." 57 F.3d at 1351. The court also noted that the Guidelines had not yet been finally adopted by the Department of Justice. Significantly, however, the court acknowledged that the Guidelines "may provide some evidence that it is now established that the ADA applies to state prisons." Ibid. - 55 - regulations expressly included prisons within their coverage. See, e.g., 28 C.F.R. 39.170(d)(1)(ii); 28 C.F.R. Pt. 39, Editorial Note, at 675, 683 (1996). Second, unlike the EEOC's interpretation in Arabian American, the Department of Justice's determination that Section 504 and Title II cover prisons has been consistent and longstanding. Thus neither of the reasons articulated by the Court in Arabian American for failing to give the regular level of deference to an agency's construction of the statute it is charged with enforcing are applicable to the Department of Justice's regulations concerning Section 504 and Title II of the ADA. CONCLUSION The district court's judgment should be affirmed. Respectfully submitted, ISABELLE KATZ PINZLER Acting Assistant Attorney General JESSICA DUNSAY SILVER SETH M. GALANTER Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 307-9994 - 56 - STATEMENT OF RELATED CASES The appellants in Clark v. State of California, No. 96- 16952, which is also calendared before this panel, have mounted a similar challenge to the constitutionality of the abrogations in the ADA and Section 504. Similarly, one of the issues raised by the appellants (California officials sued in their official capacities) in Hale v. Belshe, No. 97-15177, is whether the ADA's abrogation of Eleventh Amendment immunity is constitutional. CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the answering brief of the United States uses a monospaced typeface of 10.5 or less characters per inch, is appropriately double- spaced, and contains 12,591 words. February 25, 1997 SETH M. GALANTER Attorney ATTACHMENT A UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 95-3402 INMATES OF THE ALLEGHENY COUNTY JAIL, THOMAS PRICE BEY, ARTHUR GOSLEE, ROBERT MALONEY, and CALVIN MILLIGAN on their own behalf and on behalf of all others similarly situated, Appellants v. CYRIL H. WECHT, President of the Allegheny County Board of Prison Inspectors, and the other members of the Board; THOMAS FOERSTER and WILLIAM H. HUNT, Commissioners for Allegheny County; FRANK J. LUCCHINO, Controller for Allegheny County; EUGENE COON, Sheriff for Allegheny County; THE HONORABLE PATRICK R. TAMILIA; MICHAEL J. O'MALLEY and MARION K. FINKELHOR, JUDGES, Court of Common Pleas of Allegheny County; RICHARD S. CALIGUIRI, Mayor of the City of Pittsburgh, HARRIET MCCRAY; MSGR. CHARLES OWEN RICE; and CHARLES KOZAKIEWICZ, Warden of the Allegheny County Jail, and WILLIAM B. ROBINSON, Executive Director of Prison Inspectors; and CYRIL WECHT, THOMAS FOERSTER and WILLIAM H. HUNT, as Commissioners of Allegheny County, v. THE COMMONWEALTH OF PENNSYLVANIA; THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS; DAVIS S. OWENS, JR., Commissioner, Department of Corrections; and ERSKIND DERAMUS, Deputy Commissioner, Department of Corrections On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 76-00743) Argued December 2, 1996 1 Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, Circuit Judges. O R D E R After argument and consideration of the issues raised in the above matter, and noting that the order of the district court that is the subject of the appeal was dated May 26, 1995 and expired by its own terms one year from that date, it is hereby O R D E R E D that this appeal is dismissed as moot.1 Each party to bear its own costs. By the Court, Chief Judge Attest: P. Douglas Sisk, Clerk 1. This order is without prejudice to the right of the appellants to raise the issue that the program of Allegheny County that was the subject of the appeal is in violation of the Rehabilitation Act of 1973 and the Americans With Disabilities Act of 1990 in another appropriate proceeding. 2 CERTIFICATE OF SERVICE I hereby certify that on February 25, 1997, two copies of the foregoing Brief for the United States As Intervenor and Amicus Curiae were served by first-class mail, postage prepaid, on the following counsel: James M. Humes Deputy Attorney General 50 Fremont Street, Room 300 San Francisco, California 94105 Donald Specter Prison Law Office General Delivery San Quentin, California 94964 Elain B. Feingold 1542 Scenic Avenue Berkeley, California 94708 Michael W. Bien Rosen, Bien & Asaro 155 Montgomery Street, 8th Floor San Francisco, California 94104 Warren E. George McCutchen, Doyle, Brown & Enersen, LLP Three Embarcadero Center San Francisco, California 94111 Eve Shapiro Howard, Rice, Nemerovski, Canady, Falk & Rabkin Three Embarcadero Center, Seventh Floor San Francisco, California 94111-4065 SETH M. GALANTER Attorney Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 307-9994