No. 96-7091

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

GRANVILLE AMOS, et al.
Plaintiffs-Appellants,

v.

THE MARYLAND DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONAL SERVICES, et al.
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

EN BANC SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS INTERVENOR

BILL LANN LEE
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

TABLE OF CONTENTS

PAGE

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION 1

STATEMENT OF THE ISSUES 2

STANDARD OF REVIEW 2

STATEMENT OF THE FACTS 2

STATEMENT OF THE CASE 5

SUMMARY OF ARGUMENT 7

ARGUMENT:

I. THE AMERICANS WITH DISABILITIES ACT IS A VALID
EXERCISE OF CONGRESS' POWER UNDER SECTION 5 OF
THE FOURTEENTH AMENDMENT 9

A. The ADA Is An Enactment To Enforce The
Equal Protection Clause 11

B. The ADA Is Plainly Adapted To Enforcing
The Equal Protection Clause 13

II. SECTION 504 OF THE REHABILITATION ACT IS A
VALID EXERCISE OF CONGRESS' POWER UNDER SECTION
5 OF THE FOURTEENTH AMENDMENT 33

A. Section 504 Is A Valid Exercise Of
Congress' Power To Enforce The Fourteenth
Amendment 35

B. Section 504 Is A Valid Exercise Of The
Spending Clause 35

CONCLUSION 45

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES: PAGE

Abril v. Virginia, 145 F.3d 182 (4th Cir. 1998) 11

Alexander v. Choate, 469 U.S. 287 (1985) 16, 32

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

1999), petition for cert. filed, 68 U.S.L.W.

3164 (U.S. Sept. 8, 1999) (No. 99-423) 10, 18, 19

Amos v. Maryland Dep't of Pub. Safety & Correctional

Servs., 126 F.3d 589 (4th Cir. 1997), vacated

and remanded, 524 U.S. 935 (1998) 5

Amos v. Maryland Dep't of Pub. Safety & Correctional

Servs., 178 F.3d 212 (4th Cir.), reh'g en banc

granted, judgment vacated (Dec. 28, 1999) 6, 16, 33, 44

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) 42, 43

Bankers Life & Cas. Co. v. Crenshaw, 486 U.S.

71 (1988) 12

Beasley v. Alabama State Univ., 3 F. Supp. 2d 1304

(M.D. Ala. 1998) 44

Board of Educ. v. Mergens, 496 U.S. 226 (1990) 11, 41

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

vacated in part for reh'g en banc, 197 F.3d 958

(8th Cir. 1999) 10

Brown v. Board of Educ., 347 U.S. 483 (1954) 24

Brown v. North Carolina Div. of Motor Vehicles,

166 F.3d 698 (4th Cir. 1999), petition for cert.

filed, 68 U.S.L.W. 3164 (U.S. Sept. 8, 1999)

(No. 99-424) 14-15, 17, 18

Brzonkala v. Virginia Polytechnic Inst. & State Univ.,

169 F.3d 820 (4th Cir.), cert. granted,

120 S. Ct. 11 (1999) 28, 30

California v. United States, 104 F.3d 1086 (9th Cir.),

cert. denied, 522 U.S. 806 (1997) 40

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

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CASES (continued): PAGE

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

432 (1985) passim

Clark v. Barnard, 108 U.S. 436 (1883) 41

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

cert. denied, 524 U.S. 937 (1998) 10, 44

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 119 S. Ct. 2219 (1999) 6, 35, 41

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

cert. denied, 119 S. Ct. 58 (1998) 10

Crawford v. Indiana Dep't of Corrections,

115 F.3d 481 (7th Cir. 1997) 13

Dare v. California, 191 F.3d 1167 (9th Cir. 1999) 10, 15

Edelman v. Jordan, 415 U.S. 651 (1974) 42

Ex parte Virginia, 100 U.S. 339 (1879) 7, 11

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 20, 32

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 119 S. Ct. 2199 (1999) passim

Fullilove v. Klutznick, 448 U.S. 448 (1980) 20, 32

Garret v. University of Ala., 193 F.3d 1214

(11th Cir. 1999) 10

Grove City College v. Bell, 465 U.S. 555 (1984) 33-34, 37, 40

In re Innes, 184 F.3d 1275 (10th Cir. 1999), petition

for cert. pending, No. 99-1048 44

Katzenbach v. Morgan, 384 U.S. 641 (1966) 11, 32

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

(11th Cir. 1998), petition for cert. filed

sub nom. Florida Dep't of Corrections v. Dickson,

67 U.S.L.W. 3364 (U.S Nov. 16, 1998) (No. 98-829) 10

Kimel v. Florida Bd. of Regents, Nos. 98-791, 98-796,

2000 WL 14165 (U.S. Jan. 11, 2000) passim

-iii-

CASES (continued): PAGE

Lane v. Pena, 518 U.S. 187 (1996) 42

Lau v. Nichols, 414 U.S. 563 (1974) 37

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

(8th Cir. 1999) 44

Litman v. George Mason Univ., 186 F.3d 544

(4th Cir. 1999), petition for cert. filed,

68 U.S.L.W. 3263 (U.S. Oct. 5, 1999)

(No. 99-596) 43, 44

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

Mills v. Maine, 118 F.3d 37 (1st Cir. 1997) 12

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) 10

Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989), cert.

denied, 493 U.S. 1070 (1990) 40

Oklahoma v. Civil Serv. Comm'n, 330 U.S. 127 (1947) 38

Oklahoma v. Schweiker, 655 F.2d 401 (D.C. Cir. 1981) 40

Oregon v. Mitchell, 400 U.S. 112 (1970) 20

Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1 (1981) 36

Pennsylvania Dep't of Corrections v. Yeskey,

524 U.S. 206 (1998) 5

Petty v. Tennessee-Missouri Bridge Comm'n,

359 U.S. 275 (1959) 41

Plyler v. Doe, 457 U.S. 202 (1982) 8, 24

Radice v. New York, 264 U.S. 292 (1924) 28

Romer v. Evans, 517 U.S. 620 (1996) 12

Salinas v. United States, 522 U.S. 52 (1997) 38

Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) 44

School Bd. of Nassau County v. Arline, 480 U.S. 273

(1987) passim

-iv-

CASES (continued): PAGE

Seaborn v. Florida, 143 F.3d 1405 (11th Cir. 1998),

cert. denied, 119 S. Ct. 1038 (1999) 10

Smith v. Robinson, 468 U.S. 992 (1984) 33

South Dakota v. Dole, 483 U.S. 203 (1987) 35, 36, 39, 40

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S.

101 (1944) 18

Steward Machine Co. v. Davis, 301 U.S. 548 (1937) 39, 40

Sunday Lake Iron Co. v. Township of Wakefield,

247 U.S. 350 (1918) 12

TAP Pharm. v. Department of Health & Human Servs.,

163 F.3d 199 (4th Cir. 1998) 39

Thomlison v. City of Omaha, 63 F.3d 786 (8th Cir. 1995) 34-35

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

(1st Cir. 1999) 10

Turner v. Safley, 482 U.S. 78 (1987) 6

United States v. Presley, 52 F.3d 64 (4th Cir.), cert.

denied, 516 U.S. 891 (1995) 2

United States v. Raines, 362 U.S. 17 (1960) 19

United States v. Salerno, 481 U.S. 739 (1987) 17

Usery v. Charleston County Sch. Dist., 558 F.2d

1169 (4th Cir. 1977) 11

Westinghouse Elec. Corp. v. West Virginia Dep't of

Highways, 845 F.2d 468 (4th Cir.), cert. denied,

488 U.S. 855 (1988) 41

-v-

CONSTITUTION AND STATUTES: PAGE

United States Constitution:

Spending Clause, Art. I, § 8, Cl. 1 passim

First Amendment 37

Eight Amendment 1

Eleventh Amendment passim

Fourteenth Amendment passim

Section 1, Equal Protection Clause passim

Section 5 passim

Americans with Disabilities Act of 1990 (ADA),

42 U.S.C. 12101 et seq. 1, 22

42 U.S.C. 12101(a)(2) 31

42 U.S.C. 12101(a)(4) 20

42 U.S.C. 12101(a)(5) 21

42 U.S.C. 12101(a)(6) 25

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

42 U.S.C. 12101(a)(9) 21

42 U.S.C. 12101(b)(4) 11

Title II,

42 U.S.C. 12131 et seq. 6, 7, 33

42 U.S.C. 12131(1) 9

42 U.S.C. 12132 7, 9

42 U.S.C. 12134(b) 16

42 U.S.C. 12134(c) 16

Title IV,

42 U.S.C. 12202 32

Age Discrimination in Employment Act (ADEA),

29 U.S.C. 621 et seq. 21

Civil Rights Act of 1964,

Title VI, 36 37 38

42 U.S.C. 2000d-4a 34

42 U.S.C. 2000d-7 41, 42, 43, 44

42 U.S.C. 2000d-7(a)(1) 43

Title VII,

42 U.S.C. 2000e et seq. 19, 20

Civil Rights Restoration Act of 1987,

Pub. L. No. 100-259, 102 Stat. 28 (1988) 34

Education Amendments of 1972,

Title IX,

20 U.S.C. 1681 et seq. 36, 38, 44

20 U.S.C. 1687 (1)(A) 34

-vi-

STATUTES (continued): PAGE

Education for All Handicapped Children Act,

Pub. L. No. 94-142, § 3, 89 Stat. 774 (1975) 23

Rehabilitation Act of 1973, Section 504,

29 U.S.C. 794 passim

29 U.S.C. 794(a) 7, 33

29 U.S.C. 794(b) 34

Pub. L. No. 102-395, Tit. I, 106 Stat. 1829 (1993) 3

28 U.S.C. 1291 1

28 U.S.C. 1331 1

28 U.S.C. 2403(a) 1, 6

42 U.S.C. 1983 1

42 U.S.C. 4271-4273 24

STATE STATUES:

Md. Code Ann., Corr. Serv. § 2-201(1) 2

Md. Code Ann., Corr. Serv. § 3-203(a) 2

Md. Code Ann., Corr. Serv. § 3-210 4

Md. Code Ann., Corr. Serv. § 3-211 4

Md. Code Ann., Corr. Serv. § 3-221(a) 3

REGULATIONS:

28 C.F.R. Pt. 35 16

28 C.F.R. 35.130(b)(7) 15

28 C.F.R. 35.130(f) 15

28 C.F.R. 35.150(a) 15

28 C.F.R. 35.151(b) 15

28 C.F.R. 35.151(c) 15

28 C.F.R. Pt. 42 3, 15

28 C.F.R. 42.503 15

28 C.F.R. 42.521(b) 15

28 C.F.R. 42.522 15

LEGISLATIVE HISTORY:

S. Rep. No. 64, 100th Cong., 2d Sess. (1987) 34

-vii-

LEGISLATIVE HISTORY (continued): PAGE

S. Rep. No. 415, 92d Cong., 1st Sess. (1971) 19

110 Cong. Rec. 2465 (1964) (Rep. Powell). 38

110 Cong. Rec. 2468 (1964) (Rep. Celler) 38

110 Cong. Rec. 6544 (1964) (Sen. Humphrey) 38

110 Cong. Rec. 7061-7062 (1964) (Sen. Pastore) 38

131 Cong. Rec. 22,344-22,345 (1985) 42

132 Cong. Rec. 28,624 (1986) 43

136 Cong. Rec. 11,467 (1990) (Rep. Dellums) 13

136 Cong. Rec. 11,468 (1990) (Rep. Hoyer) 13

22 Weekly Comp. Pres. Doc. 1421 (Oct. 27, 1986),

reprinted in 1986 U.S.C.C.A.N. 3554 43

MISCELLANEOUS:

Advisory Comm'n on Intergovernmental Relations,

Disability Rights Mandates: Federal and State

Compliance with Employment Protections and

Architectural Barrier Removal (Apr. 1989) 20, 24, 25

Maryland Dep't of Budget & Analysis, Maryland FY

2001 Budget, Pt. 2 (January 2000) 3

U.S. Comm'n on Civil Rights, Accomodating the

Spectrum of Individual Abilities (1983) 22-23, 24, 31

-viii-

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 96-7091

GRANVILLE AMOS, et al.,
Plaintiffs-Appellants

v.

THE MARYLAND DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONAL SERVICES, et al.,
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

EN BANC SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS INTERVENOR

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

Plaintiffs-appellants filed a complaint in the United States District Court for the District of Maryland, alleging that the defendants violated the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. 794, and the Eighth Amendment (via 42 U.S.C. 1983). For the reasons discussed in this brief, the district court had jurisdiction over the case pursuant to 28 U.S.C. 1331.

This appeal is from a final judgment filed on June 11, 1996, granting judgment for defendants. The plaintiffs filed a timely notice of appeal on July 8, 1996. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291.

STATEMENT OF THE ISSUES

The United States will address the following issues:

1. Whether Title II of the Americans with Disabilities Act -- and its attendant removal of Eleventh Amendment immunity for private suits -- is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment.

2. Whether Section 504 of the Rehabilitation Act -- and its attendant removal of Eleventh Amendment immunity for private suits -- is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment or the Spending Clause.

STANDARD OF REVIEW

The district court did not address these questions. Because in this case the constitutionality of a federal statute is purely one of law, this Court may determine the issue de novo. United States v. Presley, 52 F.3d 64, 67 (4th Cir.), cert. denied, 516 U.S. 891 (1995).

STATEMENT OF THE FACTS

1. Defendant Maryland Department of Public Safety and Correctional Services is the department that contains the Division of Correction. See Md. Code Ann., Corr. Serv. § 2-201(1). Defendant Commissioner of Correction (Richard A. Lanham at the time the lawsuit was filed) "is in charge of the Division and its units." Id. § 3-203(a). The Division is empowered to "apply for and receive funds or property in the form of a grant or loan from the federal government or a unit of the federal government to establish or maintain correctional facilities in the Division on the terms that the Division approves." Id. § 3-221(a). Every year from 1981 to 1992, the Department received federal financial assistance, and in each of those years except 1982, 1985, and 1990, the Division also received federal funds.(1)

2. The Roxbury Correctional Institution (RCI) is a prison operated by the Division of Corrections. Built between 1982 and 1984, RCI was designated as the only facility to incarcerate medium security inmates with disabilities. J.A. 167-168, 514. Defendant Warden for RCI (Jon P. Galley at the time the lawsuit was filed) "serves at the pleasure of the Commissioner," and is "in direct charge of the correctional facility." Md. Code Ann., Corr. Serv. §§ 3-210, 3-211.

Plaintiffs are 13 inmates with mobility impairments who are or were incarcerated in RCI.(2) Defendants conceded below that plaintiffs were individuals with disabilities for purposes of the ADA and Section 504. R. 67 at 3 n.2 (Memorandum in Support of Defendants' Motion for Summary Judgment as to Damages) (July 7, 1995). Plaintiffs' amended complaint alleged that they have been denied the opportunity to participate in work release and pre-release programs because of their disabilities, resulting in a denial of benefits, training, and rehabilitation, and possibly in longer sentences; that they have been denied equal access to bathroom and athletic facilities, to the "honor tier," and to food services at RCI because of their disabilities; that they have been denied adequate medical attention and hygienic facilities; that defendants have failed to make reasonable accommodations to ensure the safety of disabled inmates; and that they have been assigned to RCI because of their disabilities, and thus were deprived of the opportunity to serve their sentences at available facilities closer to their homes. J.A. 32-37. Plaintiffs sought declaratory and injunctive relief and damages. J.A. 38-39

STATEMENT OF THE CASE

On cross-motions for summary judgment, the district court entered judgment for the defendants on the Section 504 and ADA claims on the ground that neither statute applied to state prisons. J.A. 41-43. Subsequently, the district court granted summary judgment for the defendants on the outstanding Eighth Amendment claims. J.A. 136. This Court affirmed. First, the Court held as a matter of statutory interpretation that neither the ADA nor Section 504 has any applicability to state correctional facilities. See Amos v. Maryland Dep't of Pub. Safety & Correctional Servs., 126 F.3d 589, 593-603 (1997). It also affirmed entry of summary judgment on the Eighth Amendment claims. Id. at 609-612.

The Supreme Court subsequently issued its opinion in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), which held that the plain language of the ADA clearly covered state prisons. The Court then granted plaintiffs' petition for certiorari and vacated and remanded this Court's judgment in Amos in light of its decision in Yeskey. See Amos, 118 S. Ct. 2339 (1998).

Defendants had not raised any constitutional questions in either the district court or on appeal. In a briefing order issued July 10, 1998, the panel directed the parties to address the constitutionality of the ADA to state prisons and authorized them "to raise any other issue appearing in the case." The United States intervened, pursuant to 28 U.S.C. 2403(a), to defend the constitutionality of the statute. Defendants argued that "Title II of the ADA and § 504 of the Rehabilitation Act are proper legislation enacted to enforce the Fourteenth Amendment, but only to the extent that the legal rights they protect do not go beyond the limited constitutional rights retained by state prison inmates," and incorporated the argument, made by the Association of State Correctional Administrators (ASCA) in an amicus brief, that Section 504 was not a valid exercise of the Spending Clause "as applied to state prison inmates." Supp. Br. of Appellees 11, 31 n.24.

On June 24, 1999, a panel of this Court issued an opinion upholding the ADA and Section 504 as valid exercises of Congress' power under Section 5 of the Fourteenth Amendment. Amos v. Maryland Dep't of Pub. Safety & Correctional Servs., 178 F.3d 212 (1999). Defendants petitioned for rehearing en banc. They noted that "[i]n its briefs and at argument below [i.e., before the panel], the State of Maryland did not argue that Congress was without power to enact the ADA, and requested instead that the Court limit application of the ADA to those rights of disabled inmates substantively defined by this Court in Turner v. Safley, 482 U.S. 78 (1987). * * * This Court should grant rehearing en banc to address the impact of [Florida Prepaid Postsecondary Education v. College Savings Bank, 119 S. Ct. 2199 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Education, 119 S. Ct. 2219 (1999)] on this case, because these decisions support Maryland's position below." Appellees' Amended Pet. for Reh'g & Sugg. for Reh'g En Banc 6 (July 22, 1999). The petition was granted on December 29, 1999.

SUMMARY OF ARGUMENT

Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act both provide (with minor variations) that no "qualified individual with a disability" shall "be excluded from participation in or be denied the benefits of the services, programs, or activities" or "be subjected to discrimination" by any public entity "by reason of such disability." 42 U.S.C. 12132; 29 U.S.C. 794(a).

The ADA and Section 504 are valid exercises of Congress' power under Section 5 of the Fourteenth Amendment, which authorizes Congress to enact "appropriate legislation" to "enforce" the Equal Protection 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 has broad discretion 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. 339, 346 (1879).

Nor is Congress' remedial authority limited to prohibiting present intentional discrimination against persons with disabilities. Congress found that due to the pervasiveness of discriminatory exclusion, irrational fears, and inaccurate stereotypes, the interests of people with disabilities were not considered when purportedly "neutral" rules and practices were established. The continuing effects of this past exclusion, combined with present discrimination, have resulted in persons with disabilities being excluded from full participation in all aspects of society. 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). There is nothing about the operation of state prisons that precludes application of these otherwise valid remedial statutes.

Moreover, Section 504 is also a valid exercise of the Spending Clause. Section 504 applies only to those programs or activities that receive federal financial assistance. By accepting federal funds, defendants agreed to the condition clearly laid out in Section 504 -- not to discriminate against any "otherwise qualified individual with a disability." As an exercise of Congress' Spending Power, Section 504 may require recipients of federal money to comply with this condition, even assuming (as defendants argue) that Congress would not have the power to impose such a requirement unilaterally. This requirement is related to the federal government's interest that none of its funds be used to support, subsidize, or condone practices that improperly exclude qualified persons with disabilities. Nor (assuming the argument has been properly raised) have defendants shown that the requirement is so "coercive" that they lost their ability to voluntarily agree to Section 504's terms when they accepted the federal funds.

ARGUMENT

I

THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF

CONGRESS' POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT

Title II of the Americans with Disabilities Act provides that no "qualified individual with a disability" shall "be excluded from participation in or be denied the benefits of the services, programs, or activities" or "be subjected to discrimination" by any "public entity" by "reason of such disability." 42 U.S.C. 12132. Title II applies to all "public entit[ies]," which is defined to include "any State or local government" and "any department, agency * * * or other instrumentality of a State." 42 U.S.C. 12131(1).

In three recent cases, City of Boerne v. Flores, 521 U.S. 507 (1997), Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S. Ct. 2199 (1999), and Kimel v. Florida Board of Regents, Nos. 98-791, 98-796, 2000 WL 14165 (Jan. 11, 2000), the Supreme Court has clarified the scope of Congress' Section 5 authority. After City of Boerne, three courts of appeals upheld the abrogation in the ADA as valid Section 5 legislation.(3) Since Florida Prepaid, four other courts have reached the same conclusion or reaffirmed their previous holdings.(4) A divided Eighth Circuit has held to the contrary. See Alsbrook v. City of Maumelle, 184 F.3d 999 (1999) (en banc, with four judges dissenting), petition for cert. filed, 68 U.S.L.W. 3164 (U.S. Sept. 8, 1999) (No. 99-423); see also Bradley v. Arkansas Dep't of Educ., 189 F.3d 745 (Section 504 not valid Section 5 legislation), vacated in part for reh'g en banc, 197 F.3d 958 (1999). We agree with the majority of the courts of appeals and urge this Court to follow these well-reasoned decisions.

Section 5 of the Fourteenth Amendment empowers Congress to enact "appropriate legislation" to "enforce" the Equal Protection Clause. As the Supreme Court explained over 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. 339, 345-346 (1879). A statute is thus "appropriate legislation" if it "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); Abril v. Virginia, 145 F.3d 182, 187 (4th Cir. 1998).

A. The ADA Is An Enactment To Enforce The Equal
Protection Clause

Although Congress need not announce that it is legislating pursuant to its Section 5 authority, see Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir. 1977), Congress, in enacting the ADA, declared that its intent 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). While such a declaration is not dispositive, it should not be ignored. "Given the deference due 'the duly enacted and carefully considered decision of a coequal and representative branch of our Government,'" a court is "not lightly [to] second-guess such legislative judgments." Board of Educ. v. Mergens, 496 U.S. 226, 251 (1990).

Neither the prohibitions of the Equal Protection Clause nor Congress' Section 5 authority is limited to suspect or quasi-suspect classifications. "The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918). Thus "arbitrary and irrational discrimination violates the Equal Protection Clause under even [the] most deferential standard of review." Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988); see, e.g., Romer v. Evans, 517 U.S. 620, 631-634 (1996); Mills v. Maine, 118 F.3d 37, 46 (1st Cir. 1997) (collecting cases).

The Court in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985), made clear that government discrimination on the basis of disability is prohibited by the Equal Protection Clause when it is arbitrary. 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 "unprotected from invidious discrimination." Id. at 446. As the Seventh Circuit explained, "[i]nvidious discrimination by governmental agencies * * * violates the equal protection clause even if the discrimination is not racial, though racial discrimination was the original focus of the clause. In creating a remedy against such discrimination, Congress was acting well within its powers under section 5 * * *." Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 487 (1997) (Posner, J.).

Thus, 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 Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507 (1997), addressed the question of what constitutes "plainly adapted" legislation. The Court concluded that even statutes that prohibit more than the Equal Protection Clause does on its own can be "appropriate remedial measures" when there is "a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented." Id. at 530.

The Court reaffirmed this premise in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S. Ct. 2199 (1999), where it reiterated "'[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into "legislative spheres of autonomy previously reserved to the States,"'" and that "'the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies.'" Id. at 2206 (quoting City of Boerne, 521 U.S. at 518, 519-520).

Most recently in Kimel v. Florida Board of Regents, Nos. 98-791, 98-796, 2000 WL 14165, at *12 (Jan. 11, 2000), the Court once again explained that "Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress' power 'to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." The Court also stressed that the fact that a statute "prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our § 5 inquiry," for "we have never held that § 5 precludes Congress from enacting reasonably prophylactic legislation." Id. at *16.

1. Before discussing the "plainly adapted" nature of the ADA, we address the level of generality at which the statute should be examined. In Brown v. North Carolina Division of Motor Vehicles, 166 F.3d 698 (4th Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3164 (U.S. Sept. 8, 1999) (No. 99-424), plaintiffs had appealed the district court's judgment that the Eleventh Amendment barred their claim to enforce a Title II regulation (not raised by plaintiffs in this case) prohibiting "plac[ing] a surcharge on a particular individual with a disability * * * to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by" Title II. 28 C.F.R. 35.130(f). A panel of this Court held that it was appropriate to focus on "the specific statute and regulation whose asserted violation by state government gave rise to the claim for relief in federal court," rather than passing on the constitutionality of the statutory provision as a whole. 166 F.3d at 705. But see Dare v. California, 191 F.3d 1167, 1176 n.7 (9th Cir. 1999).

In contrast to the discrete claim at issue in Brown, this case involves allegations of systemic violations that implicate a host of regulations involving discriminatory treatment, failure to modify policies and practices, and failure to remove architectural barriers. See Br. of Appellants 37-38, 40 n.35, 41 (citing 28 C.F.R. 42.503, 42.521(b), 42.522; 28 C.F.R. 35.130(b)(7), 35.150(a), 35.151(c)).(5) In their Supplemental Brief of Appellees before the panel, defendants did not analyze the claims at issue on a regulation-by-regulation basis, but simply condemned the "unreasonableness" of the regulations in general. Supp. Br. of Appellees 23 n.14.(6) After rejecting defendants' extratextual gloss on the statute, the panel affirmed "Congress' general exercise of its authority in adopting the ADA with the intent that it apply to state prisons." 178 F.3d at 221 n.8. Consistent with Brown, it cautioned, however, that it was not "automatically affirm[ing] the constitutionality of all regulations promulgated under the ADA." Ibid.

We think this is an appropriate approach for a case of this sort. Unlike Brown, which clearly involved only a single, easily identifiable, regulation and almost no factual record as to whether the regulation had been violated, this case involves multiple regulations and, as yet, does not have "an adequately developed record of the facts surrounding Appellants' statutory claims to make a determination about whether Appellees violated Appellants' statutory rights." 178 F.3d at 223. In response to the panel's request for briefing on the constitutional question, defendants mounted, in essence, a facial challenge to the statute as applied to state prisons. As this Court noted in Brown, "the statute itself * * * may be facially constitutional, despite the fact that the regulations promulgated under it are unconstitutional." 166 F.3d at 704. Yet, as the defendants appear to acknowledge (Supp. Br. of Appellees 13-14, 22), and as we discuss below in greater detail, the ADA is sufficiently congruent and proportional to the Equal Protection Clause that it cannot be declared unconstitutional in every one of its applications to state prisons, and thus the panel correctly concluded that such a facial challenge must fail. Cf. United States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.").

Under such circumstances, the panel properly remanded this case to the district court for further proceedings. Which provisions of the ADA and Section 504 regulations apply to the plaintiffs' claims and whether there are facts to support those claims should be addressed first by the district court so that this Court has a factual context by which to judge the constitutionality of these statutes in particular applications. Should plaintiffs ultimately prevail on the merits in any respect, defendants would then have an opportunity to challenge whether the precise obligation of the ADA or Section 504 they were found to have violated was itself in excess of Congress' constitutional authority. By deferring adjudicating defendants' as-applied constitutional challenge until it is clear that the issues need to be resolved, this procedure would be most consonant with the judiciary's "deeply rooted" doctrine "not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Brown, 166 F.3d at 703-704 (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 104 (1944)).(7)

2. In their petition for rehearing en banc, the defendants suggested that Florida Prepaid would be helpful in examining the validity of the ADA. But defendants, like the Eighth Circuit in Alsbrook, ignore the fundamental differences in the nature of the constitutional violation at issue in Florida Prepaid compared with this case. The legal theory of Florida Prepaid was that Congress was attempting to prevent and redress violations of procedural due process. This required the Court to focus on availability of state remedies, because a procedural due process violation requires not only a deprivation of property but also a lack of post-deprivation remedies. 119 S. Ct. at 2208-2209. Here, by contrast, when the constitutional right is based on the Equal Protection Clause, the violation is complete when the action is taken. "It is, however, established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments. We think this Court has already made it clear that it follows from this that Congress has the power to provide for the correction of the constitutional violations of every such official without regard to the presence of other authority in the State that might possibly revise their actions." United States v. Raines, 362 U.S. 17, 25 (1960) (citation omitted).

The Eighth Circuit thus erred in Alsbrook, relying on Florida Prepaid, in suggesting that the fact that some States have laws prohibiting discrimination against persons with disabilities was relevant to whether the ADA was "appropriate" legislation to "enforce" the Fourteenth Amendment. No one would suggest, for example, that the validity of Title VII of the Civil Rights Act of 1964 as Section 5 legislation is premised on whether States prohibited race and sex discrimination. Indeed, when Congress extended Title VII to the States in 1972, 37 States already prohibited race discrimination in employment, see S. Rep. No. 415, 92d Cong., 1st Sess. 19 (1971), yet the Supreme Court had no compunction about upholding Title VII as valid Section 5 legislation in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Moreover, there was evidence that even when States had good policies on paper, "implementation has sometimes been impeded by negative attitudes and misconceptions about persons with disabilities and their performance capabilities" by those mid-level managers "who actually make hiring and promotion decisions." Advisory Comm'n on Intergovernmental Relations, Disability Rights Mandates: Federal and State Compliance with Employment Protections and Architectural Barrier Removal 75 (Apr. 1989).(8)

Because the statute in Florida Prepaid was based on a perceived need to afford procedural due process, and thus a constitutional violation did not exist unless a State failed to provide post-deprivation remedies, the Court found that Congress' failure to consider the existence of state remedies undermined its determination that constitutional violations existed. 119 S. Ct. at 2209. Here, by contrast, Congress made express findings that people with disabilities "continually encounter various forms of discrimination, including outright intentional exclusion * * * and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities," as well as having been subject to "a history of purposeful unequal treatment," and "unfair and unnecessary discrimination and prejudice" that continues to exist. 42 U.S.C. 12101(a)(5), (7), and (9). These are the very types of actions prohibited by the Equal Protection Clause as interpreted by the Supreme Court in City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).

3. In Kimel, the Court held that a law which "prohibits substantially more state * * * decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard" is congruent and proportional if it is a response to a "[d]ifficult and intractable problem[]." 2000 WL 14165, at *15, *16. That is, a nondiscrimination statute may be appropriate Section 5 legislation if it either "deter[s]" violations of constitutional rights or "remed[ies]" a pattern of prior violations. Id. at *12.

The statute at issue in Kimel, the Age Discrimination in Employment Act (ADEA), bears a superficial similarity to the ADA because both age and disability are subject only to "rational basis" review. But that is where the similarity ends. Unlike the Supreme Court's treatment of age, the Court in Cleburne has identified actual unconstitutional discrimination on the basis of disability, and recognized that "[d]oubtless, there have been and will continue to be instances of discrimination against the retarded that are in fact invidious." Cleburne, 473 U.S. at 446 (1985).

In Kimel, the Court found that the 1974 extension of the ADEA to the States was "an unwarranted response to a perhaps inconsequential problem," noting that "Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation." 2000 WL 14165, at *16. Unlike the legislative history recounted by the Court in Kimel, Congress here made express findings that persons with disabilities have been subject to discrimination by government and that such discrimination persists in critical areas. 42 U.S.C. 12101. We have discussed these findings and summarized much of the relevant legislative history supporting them in our Brief for the United States as Intervenor 11-17. We focus here on the broader "[d]ifficult and intractable problems" that made appropriate the prophylactic provisions of the ADA.

In enacting the ADA, Congress relied on the Civil Rights Commission report, Accommodating the Spectrum of Individual Abilities (1983). That report gave some historical background regarding treatment of persons with disabilities. For example, it reviews the history of institutionalization of persons with disabilities, which it attributes, in part, to the eugenics movement, which was "based on the notion that mental and physical disabilities were the underlying source of nearly all social problems." Id. at 19; see also id. at 33-34 ("a desire to segregate handicapped people from the rest of society prompted the development of residential institutions"). Under state statutes, mentally and physically disabled persons have been sterilized without their consent. Id. at 36. In the late 1950's, 28 States had sterilization statutes, and 17 included persons with epilepsy along with mentally ill and mentally retarded individuals. Id. at 36-37. In 1983, there were 15 such laws, 4 including persons with epilepsy. Id. at 37. Similarly, people with disabilities were denied the right to marry and to enter into contracts. Id. at 40.

Education is another critical area in which persons with disabilities were mistreated and in which that mistreatment had long term consequences. In passing the Education for All Handicapped Children Act and its successor, the Individuals with Disabilities Education Act (IDEA), Congress found that of the more than 8 million handicapped children in the country, more than half do not receive appropriate educational services and one million are excluded entirely from the public school system. See Pub. L. No. 94-142, § 3, 89 Stat. 774 (1975). The Civil Rights Commission report noted that even after the passage of the EHA, handicapped children are being denied appropriate educational opportunities because they languish for months or years awaiting placement. U.S. Comm'n on Civil Rights, supra, at 28. Some handicapped children have been "dumped" into regular classrooms where they lack support services and personnel. Id. at 29. Others are still segregated and isolated in separate schools. Ibid. These widespread practices necessarily adversely affect the ability of persons with disabilities to participate in every aspect of society and to benefit from the other programs and opportunities offered by the State. See Plyler v. Doe, 457 U.S. 202, 221 (1982); Brown v. Board of Educ., 347 U.S. 483, 493 (1954).

Although, in Kimel, the Court found that the legislative history of the ADEA bore no evidence that Congress thought the States were engaging in the same type of discrimination as the private sector, the same is not true of the ADA. The report of the Advisory Commission on Intergovernmental Relations (ACIR), Disability Rights Mandates: Federal and State Compliance with Employment Protections and Architectural Barrier Removal (Apr. 1989), reflects the results of a survey of state officials on the perceived impediments to employment of persons with disabilities in state governments. Forty-eight percent of state officials considered negative attitudes and misconceptions to be a moderate impediment to employment of persons with disabilities, while thirty-four percent considered those reasons to be strong impediments, for a total of eighty-two percent. Id. at 72-73.(9) Similarly, these state officials "pointed to negative attitudes and misconceptions as potent impediments to [their own] barrier removal policies." Id. at 87. There was also evidence that law enforcement and incarceration policies of governments were not immune from this pervasive pattern of discrimination. See Br. for U.S. as Intervenor 33.

These government policies and practices, in tandem with similar private discrimination, produced a situation in which people with disabilities were largely isolated, segregated, and poor. As Justice Marshall explained, "lengthy and continuing isolation of [persons with disabilities] perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them." Cleburne, 473 U.S. at 464. Given a history of institutionalization, sterilization, failure to educate, and refusal to employ persons with disabilities, Congress had before it strong evidence that state actions contributed to "people with disabilities, as a group, occupy[ing] an inferior status in our society, and [being] severely disadvantaged socially, vocationally, economically, and educationally." 42 U.S.C. 12101(a)(6).

4. "Prejudice, once let loose, is not easily cabined." Cleburne, 473 U.S. at 464 (Marshall, J.). After extensive investigation (and long experience with the analogous nondiscrimination requirement contained in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794), Congress found that the exclusion of persons with disabilities from government facilities, programs, and benefits was a result of past and on-going discrimination. In enacting the ADA, Congress was acting within the constitutional framework that has been laid out by the Supreme Court. As discussed above, the Equal Protection Clause prohibits invidious discrimination, that is "a classification whose relationship to [a legitimate] goal is so attenuated as to render the distinction arbitrary or irrational." Cleburne, 473 U.S. at 446. In Cleburne, the Supreme Court unanimously declared unconstitutional as invidious discrimination a decision by a city to deny a special use permit for the operation of a group home for people with mental retardation. A majority of the Court recognized that "through ignorance and prejudice [persons with disabilities] 'have been subjected to a history of unfair and often grotesque mistreatment.'" Id. at 454 (Stevens, J., concurring); see id. at 461 (Marshall, J., concurring in the judgment in part). The Court acknowledged that "irrational prejudice," id. at 450, "irrational fears," id. at 455 (Stevens, J.), and "impermissible assumptions or outmoded and perhaps invidious stereotypes," id. at 465 (Marshall, J.), existed against people with disabilities in society at large and sometimes inappropriately infected government decision making.

In declining to deem classifications based on disability as suspect or "quasi-suspect," a majority of the Court cited its concern that heightened scrutiny would unduly limit legislative solutions to problems faced by the disabled. The Court reasoned that "[h]ow this large and diversified group is to be treated under the law is a difficult and often technical matter, very much a task for legislators guided by qualified professionals." 473 U.S. at 442-443. It specifically noted with approval legislation such as Section 504, which aimed at protecting persons with disabilities, and openly worried that requiring governmental entities to justify their efforts under heightened scrutiny might "lead [governmental entities] to refrain from acting at all." Id. at 444.

Nevertheless, the Court did affirm that "there have been and there will continue to be instances of discrimination against the retarded that are in fact invidious, and that are properly subject to judicial correction under constitutional norms," 473 U.S. at 446, and it found the actions at issue in that case unconstitutional. In doing so, the Court articulated several criteria for making such determinations in cases involving disabilities. First, the Court held that the fact that persons with mental retardation were "indeed different from others" did not preclude a claim that they were denied equal protection; instead, it had to be shown that the difference was relevant to the "legitimate interests" furthered by the rules. Id. at 448. Second, in measuring the government's interest, the Court did not examine all conceivable rationales for the differential treatment of the mentally retarded; instead, it looked to the record and found that "the record [did] not reveal any rational basis" for the decision to deny a special use permit. Ibid.; see also id. at 450 (stating that "this record does not clarify how * * * the characteristics of [people with mental retardation] rationally justify denying" to them what would be permitted to others). Third, the Court found that "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable * * * are not permissible bases" for imposing special restrictions on persons with disabilities. Id. at 448. Thus, the Equal Protection Clause of its own force already proscribes treating persons with disabilities differently when the government has not put forward evidence justifying the difference or where the justification is based on mere negative attitudes.

5. It is appropriate for the Court to examine whether Congress had reason to believe that there was a "difficult and intractable problem" of discrimination against persons with disabilities. For, the greater the constitutional evil, the broader Congress' remedial power. See Kimel, 2000 WL 14165, at *16; City of Boerne, 521 U.S. at 530. At the same time, "[w]here the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the Legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker." Radice v. New York, 264 U.S. 292, 294 (1924).

We recognize that this Court "cannot simply defer to these congressional findings or conclusions" and must make "an independent judgment." Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d 820, 881 (4th Cir.) (en banc), cert. granted, 120 S. Ct. 11 (1999). But great weight is due these findings not only because Congress is specifically charged by Section 5 with the power to enforce the Fourteenth Amendment, but also because Congress has a unique institutional capacity to gather information on a comprehensive basis, unconstrained by the limitations of particular litigation, and a distinct capacity to draw relevant information from the people and communities represented by its Members. Congress can study a problem for decades (as it did here), hold fact-finding hearings, and receive reports from the executive branch on the state of a problem across the nation. Thus, the question is whether Congress' conclusions that this legislation was appropriate to redress the rampant discrimination it discovered in its decades-long examination of the question are not only different from that that a court might reach, but are outside the bounds of "deference" to which Congress is entitled.

6. Viewed in light of the underlying Equal Protection principles, the ADA is appropriate preventive and remedial legislation. First, it is preventive in that it established a statutory scheme that attempts to detect government activities likely tainted by discrimination. By requiring the State to show on the record that distinctions it makes based on disability, or refusals to provide meaningful access to facilities, programs, and services, are not the result of prejudice or stereotypes, but rather are based on legitimate governmental objectives, it attempts to ensure that inaccurate stereotypes or irrational fear is not the true cause of the decision. Cf. School Bd. of Nassau County v. Arline, 480 U.S. 273, 284-285 (1987). This requirement is similar to the standards articulated by the Court in Cleburne.

Second, the ADA is remedial in that it attempts to ensure that persons with disabilities are given access to benefits and opportunities enjoyed by those who do not have disabilities. Given a history of institutionalization, sterilization, and failure to educate persons with disabilities, Congress had a strong basis to find that States contributed to the segregation and isolation of the disabled. Not only did that directly contribute to the poverty and unemployment of those persons, but it encouraged bias and misunderstanding. In addressing that pervasive, nationwide problem, Congress was entitled to conclude that a simple ban on discrimination would not be sufficient to purge the process of the effects of past discrimination and to prevent discrimination in the future. Congress could conclude that it would be difficult, on a case-by-case basis, to prove that prejudicial attitudes or misinformation about disabilities affected any particular decision. In many instances, individual decision-makers may not be aware of their own stereotypical thinking. "Congress may categorically prohibit the States from enacting or enforcing certain types of constitutional laws in order to 'remedy' the significant likelihood that such laws will be applied unconstitutionally in a manner that could be either difficult to detect in particular instances or otherwise difficult to remedy in case-by-case judicial proceedings." Brzonkala, 169 F.3d at 874.

Not surprisingly, given their profound segregation from the rest of society, see 42 U.S.C. 12101(a)(2), the needs of persons with disabilities were not taken into account when buildings were designed, standards were set, and rules were promulgated. Thus, for example, sidewalks and buildings were often built based on the standards for those who are not disabled. The ability of people in wheelchairs to use such facilities or of people with visual impairments to navigate within them was not likely considered. See U.S. Comm'n on Civil Rights, supra, at 21-22, 38. Even when considered, their interests may not have been properly weighed, since "irrational fears or ignorance, traceable to the prolonged social and cultural isolation of [persons with disabilities] continue to stymie recognition of [their] dignity and individuality." Cleburne, 473 U.S. at 467 (Marshall, J.).

Moreover, rules that exclude those with disabilities may have originated at a time when segregation and isolation of those with disabilities was the norm. At best, those rules were devised without any consideration of how a disabled person could participate in the program. At worst, the prejudices and misconceptions of the time are reflected in the rule. Even the neutral application of those rules would carry forward the effects of past discrimination. Congress required government entities to make reasonable accommodations for qualified individuals with disabilities for two reasons: that absent discriminatory attitudes, governments would have made those accommodations on their own and that public entities needed to take affirmative steps to overcome the effects of past discrimination, segregation, and isolation. Cf. Fullilove, 448 U.S. at 477-478.

There can be no dispute that "well-cataloged instances of invidious discrimination against the handicapped do exist." Alexander v. Choate, 469 U.S. 287, 295 n.12 (1985). In exercising its broad power under Section 5 to remedy the on-going effects of past discrimination and prevent future discrimination, Congress is afforded "wide latitude." Florida Prepaid, 119 S. Ct. at 2206 (quoting City of Boerne, 521 U.S. at 518). As the Supreme Court reaffirmed in City of Boerne, "[i]t is for Congress in the first instance to 'determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." Id. at 519-520 (quoting Katzenbach, 384 U.S. at 651). And because the ADA is appropriate Section 5 legislation, its clear abrogation provision, 42 U.S.C. 12202, validly removes defendants' Eleventh Amendment immunity. Florida Prepaid, 119 S. Ct. at 2206 ("appropriate legislation pursuant to the Enforcement Clause of the Fourteenth Amendment could abrogate state sovereignty"); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).

II

SECTION 504 OF THE REHABILITATION ACT IS A VALID EXERCISE OF

CONGRESS' POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT

Section 504 of the Rehabilitation Act of 1973, prohibits any "program or activity receiving Federal financial assistance" from "subject[ing] to discrimination" any "qualified individual with a disability." 29 U.S.C. 794(a). Like the ADA, Section 504 embodies "an equal protection premise." Smith v. Robinson, 468 U.S. 992, 1018 (1984).

A. Section 504 Is A Valid Exercise Of Congress'
Power To Enforce The Fourteenth Amendment

The panel "combine[d]" the analysis of Section 504's constitutionality under Section 5 of the Fourteenth Amendment with that of the ADA. 178 F.3d at 216. Indeed, defendants stated (Supp. Br. of Appellees 14 n.6) that "it may be assumed that § 504 is a valid act enforcing the 14th Amendment only if and only to the same extent as is Title II." We rely on this concession and thus do not separately address the evidence before Congress when it enacted, and later amended, Section 504.

B. Section 504 Is A Valid Exercise Of The Spending Clause

1. The panel did not reach the question whether Section 504 could be upheld under the Spending Clause, Art. I, § 8, Cl. 1, because of "the lack of evidence in the record on the status of federal funding made available to and accepted by RCI." 178 F.3d at 223 n.9. That was not the correct inquiry.

Section 504 applies to a "program or activity receiving Federal financial assistance." In response to Grove City College v. Bell, 465 U.S. 555 (1984), which construed the term "program or activity" narrowly, Congress engaged in extensive hearings and deliberations that culminated in the Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988). That statute defined the term "program or activity" in Section 504 to mean, for general governmental entities, "all of the operations of * * * a 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). Congress made similar amendments to the definitions of "program or activity" in Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-4a (race discrimination), and Title IX of the Education Amendments of 1972, 20 U.S.C. 1687 (sex discrimination), as well.

The plain language indicates that, in general, States are able to choose only on an "agency" or "department" basis whether to accept federal funds and the attendant obligation to make their programs and activities nondiscriminatory and accessible. As it is uncontested that both the Department of Public Safety and Correctional Services and the Division of Correction receive federal financial assistance, see note 1, supra, "all the operations" of the Division (including RCI) are covered by Section 504. See S. Rep. No. 64, 100th Cong., 2d Sess. 16 (1987) ("Example[]: If federal health assistance is extended to a part of a state health department, the entire health department would be covered in all of its operations."); Thomlison v. City of Omaha, 63 F.3d 786, 789 (8th Cir. 1995) ("Because the definition of program or activity covers all the operations of a department, here the Public Safety Department, and part of the Department received federal assistance, the entire Department is subject to the Rehabilitation Act.").

2. Because defendants are clearly governed by Section 504, we address its constitutionality under the Spending Clause.

a. Congress does not force people to take federal funds. But when it elects to disburse federal funds, "Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and * * * acceptance of the funds entails an agreement to the actions." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2231 (1999).

The Supreme Court in South Dakota v. Dole, 483 U.S. 203 (1987), identified four limitations on Congress' Spending Power. First, the Spending Clause by its terms requires that Congress legislate in pursuit of "the general welfare." Id. at 207.(10) Second, if Congress conditions the States' receipt of federal funds, it "'must do so unambiguously * * *, enabling the States to exercise their choice knowingly, cognizant of the consequence of their participation.'" Ibid. (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Third, the Supreme Court's cases "have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" Ibid. And fourth, the obligations imposed by Congress may not violate any independent constitutional provisions. Id. at 208; see also id. at 210 (Congress' spending power "may not be used to induce the States to engage in activities that would themselves be unconstitutional").

b. Defendants incorporated by reference (Supp. Br. of Appellees 31 n.24), the arguments of ASCA as amicus that Section 504 is not a constitutional exercise of Congress' Spending Power. ASCA did not dispute that Section 504 meets three of the Dole conditions: it is clearly for the general welfare, see Cleburne, 473 U.S. at 443-444 (discussing Section 504 with approval); it is an unambiguous condition on the receipt of federal funds, see Arline, 480 U.S. at 286 n.15; and it does not require the recipient to engage in any unconstitutional activity.

ASCA argued (Br. 40-41) that because Section 504 was a "free-standing enactment" and not tied to any particular federal expenditure, it was not "related" or "germane" to the federal funds received. But this is contrary to settled Supreme Court precedent. Section 504's nondiscrimination requirement is patterned on Title VI and Title IX, which prohibit race and sex discrimination by "programs" that receive federal funds. See Arline, 480 U.S. at 278 n.2. Both Title VI and Title IX have been upheld as valid Spending Clause legislation. In Lau v. Nichols, 414 U.S. 563 (1974), the Court held that Title VI, which the Court interpreted to prohibit a school district from ignoring the disparate impact its policies had on limited-English proficiency students, was a valid exercise of the Spending Power. "The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Whatever may be the limits of that power, they have not been reached here." Id. at 569 (citations omitted). The Court made a similar holding in Grove City College v. Bell, 465 U.S. 555 (1984). In Grove City, the Court addressed whether Title IX, which prohibits education programs or activities receiving federal financial assistance from discriminating on the basis of sex, infringed on the college's First Amendment rights. The Court rejected that claim, holding that "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." Id. at 575.

These cases stand for the proposition that Congress has an interest that none of its funds are used to support, directly or indirectly, programs that discriminate or otherwise make inaccessible their benefits and services to qualified persons. Thus, when a condition is designed to assure that federal money is not used to support or subsidize programs that are inaccessible to persons with disabilities, it is a valid condition on the receipt of all federal financial assistance.

Because this interest extends to all federal funds, Congress drafted Title VI, Title IX, and Section 504 to apply across-the-board to all federal financial assistance, rather than adding a separate nondiscrimination provision into each grant statute. The purposes articulated by Congress in selecting this means of establishing the condition in Title VI, purposes equally attributable to Title IX and Section 504, were to avoid the need to attach nondiscrimination provisions each time a federal assistance program was before Congress, and to avoid "piecemeal" application of the nondiscrimination requirement if Congress failed to place the provision in each grant statute. See 110 Cong. Rec. 6544 (1964) (Sen. Humphrey); id. at 7061-7062 (Sen. Pastore); id. at 2468 (Rep. Celler); id. at 2465 (Rep. Powell). Certainly, there is no distinction of constitutional magnitude between a nondiscrimination provision attached to each appropriation and a single provision applying to all federal spending.(11) Thus, ASCA's challenge fails under current Spending Clause doctrine.

c. Unable to establish that the challenged legislation raises any legitimate concerns under the four-part test applied by the Supreme Court in Dole, ASCA also urged (Br. 41) that Section 504 is "as coercive as it gets" because an agency "must choose between taking the funds with the liability or taking no funds." Assuming this one paragraph in ASCA's amicus brief is sufficient to preserve an affirmative defense of coercion, (but see TAP Pharm. v. United States Dep't of Health & Human Servs., 163 F.3d 199, 209 (4th Cir. 1998) (Williams, J., concurring in part & concurring in judgment) (in order to be "properly raised," issue must be "fully briefed")), ASCA is mistaken.

The Court in Dole observed that "[the Court's] decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'" 483 U.S. at 211 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937)). But the only case the Court cited was Steward Machine, a decision that expressed doubt about the viability of such a theory. See 301 U.S. at 590 (finding no undue influence even "assum[ing] that such a concept can ever be applied with fitness to the relations between state and nation").

Every congressional spending statute "'is in some measure a temptation.'" Dole, 483 U.S. at 211. As the Court in Dole recognized, however, "'to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.'" 483 U.S. at 211.(12) The Court in Dole thus reaffirmed the assumption, founded on "'a robust common sense,'" that the States are voluntarily exercising their power of choice in accepting the conditions attached to the receipt of federal funds. 483 U.S. at 211 (quoting Steward Machine, 301 U.S. at 590). As the Ninth Circuit recently observed, the Court in Dole indicated "that it would only find Congress' use of its spending power impermissibly coercive, if ever, in the most extraordinary circumstances." California v. United States, 104 F.3d 1086, 1092, cert. denied, 522 U.S. 806 (1997). No such circumstances are present here.

While it may not always be easy to decline federal largesse, each department or agency of the State, under the control of state officials, is free to make a cost-benefit analysis as to whether they will benefit from accepting the federal funds with the Section 504 "string" attached, or simply decline the funds. See Grove City, 465 U.S. at 575. "Although we do not doubt that in some cases this may be an unrealistic option," Congress clearly conditioned the receipt of funds on the compliance with Section 504, and if defendants wish to keep their federal money, "that obligation is the price a federally funded [entity] must pay." Board of Educ. v. Mergens, 496 U.S. 226, 241 (1990).

3. Defendants and their amicus argued (Supp. Br. of Appellees 37; ASCA Br. 44-45) that if Section 504 is upheld solely as Spending Clause legislation, then the Eleventh Amendment would bar plaintiffs' claims against the Department and damage claims against the state officials sued in their official capacities. But 42 U.S.C. 2000d-7 contains a clear statement of Congress' intent to remove States' Eleventh Amendment immunity for Section 504 suits. Like Section 504 itself, Section 2000d-7 is not only a valid exercise of Congress' power to enforce the Fourteenth Amendment, it is also a valid exercise of Congress' Spending Power -- conditioning the receipt of federal funds on the waiver of Eleventh Amendment immunity.

States may waive their Eleventh Amendment immunity. See College Sav. Bank, 119 S. Ct. at 2226; Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959); Clark v. Barnard, 108 U.S. 436, 447 (1883). A State may manifest its waiver in at least two ways: "(1) directly by statutory or constitutional provision, * * * or (2) 'constructively,' by voluntarily participating in a federal program when Congress has expressly conditioned state participation in that program on the state's consent to suit in federal court." Westinghouse Elec. Corp. v. West Virginia Dep't of Highways, 845 F.2d 468, 470 (4th Cir.), cert. denied, 488 U.S. 855 (1988). Under the second method of waiver, 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).

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), held that Congress had not provided sufficiently clear statutory language to remove States' Eleventh Amendment immunity for Section 504 claims. And it reaffirmed that "mere receipt of federal funds" was insufficient to constitute a waiver. Id. at 246. But 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. Id. at 247.

Section 2000d-7 was a direct response to the Supreme Court's decision in Atascadero. See 131 Cong. Rec. 22,344-22,345 (1985). And Section 2000d-7 makes 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, 518 U.S. 187, 200 (1996) (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). As the Department of Justice 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 [S]tates that their receipt of Federal funds constitutes a waiver of their [E]leventh [A]mendment immunity." 132 Cong. Rec. 28,624 (1986). On signing the bill into law, President Reagan similarly explained that the Act "subjects States, as a condition of their receipt of Federal financial assistance, to suits for violation of Federal laws prohibiting discrimination on the basis of handicap, race, age, or sex to the same extent as any other public or private entities." 22 Weekly Comp. Pres. Doc. 1421 (Oct. 27, 1986), reprinted in 1986 U.S.C.C.A.N. 3554.

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. Thus, after an extensive analysis of the text and structure of the Act, Judge Niemeyer held for a unanimous panel of this Court in Litman v. George Mason University, 186 F.3d 544, 554 (1999), petition for cert. filed, 68 U.S.L.W. 3263 (U.S. Oct. 5, 1999) (No. 99-596), that "Congress succeeded in its effort to codify a clear, unambiguous, and unequivocal condition of waiver of Eleventh Amendment immunity in 42 U.S.C. § 2000d-7(a)(1)."

It is true, as Judge Williams noted in her dissent in this case, that Section 2000d-7 "did not use the type of words or phrases, e.g. 'if,' 'provided that,' 'when,' 'after,' 'as soon as,' and 'subject to,' that would indicate that the receipt of funds had been made conditional" on waiver of Eleventh Amendment immunity. 178 F.3d at 231. But those terms also do not appear in Section 504 itself, nor Title VI nor Title IX, all of which have always been viewed as clear conditions on the receipt of federal funds.

What is critical is that every prospective applicant would know simply from reading the U.S. Code that if they accepted federal funds, they would have to comply with Section 504 and Section 2000d-7. The entire package (nondiscrimination obligation and removal of Eleventh Amendment immunity) is conditioned on the entity accepting the federal financial assistance. Thus, defendants were able to make knowing assessment of the costs and benefits of accepting the federal funds. Every court to address this issue has agreed with Litman that the Section 2000d-7 language manifests a clear intent to condition a department's receipt of federal financial assistance on its consent to waive its Eleventh Amendment immunity. See Sandoval v. Hagan, 197 F.3d 484, 493-494 (11th Cir. 1999); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998); Little Rock Sch. Dist. v. Mauney, 183 F.3d 816, 831-832 (8th Cir. 1999) (addressing same language in 20 U.S.C. 1403); In re Innes, 184 F.3d 1275, 1282-1283 (10th Cir. 1999) (dictum), petition for cert. pending, No. 99-1048; Beasley v. Alabama State Univ., 3 F. Supp. 2d 1304, 1307-1316 (M.D. Ala. 1998). This Court should do so as well.

CONCLUSION

The Americans with Disabilities Act and Section 504 of the Rehabilitation Act are constitutional and validly remove defendants' Eleventh Amendment immunity.

Respectfully submitted,

BILL LANN LEE
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

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C) and 4th Cir. R. 32 (b), the undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B). Based on the word-count in the word-processing system, the brief contains 11,132 words. If the Court so requests, the undersigned will provide an electronic version of the brief and/or a copy of the word printout.

JESSICA DUNSAY SILVER
Attorney

CERTIFICATE OF SERVICE

I hereby certify that on January 20, 2000, two copies of the foregoing En Banc Supplemental Brief for the United States as Intervenor were served on the following counsel:

Margaret Winter
American Civil Liberties Union
1875 Connecticut Avenue, NW
Washington, D.C. 20009

Susan Goering
American Civil Liberties Union of Maryland
2219 St. Paul Street
Baltimore, Maryland 21218

Bradley S. Albert
Crowell & Moring
1001 Pennsylvania Avenue, NW
Washington, D.C. 20004

Richard Bardos
3716 Court Place, Suite 201
Ellicott City, Maryland 21043

Maureen Mullen Dove
Carmen Shepard
John B. Howard, Jr.
Office of the Attorney General of Maryland
200 St. Paul Place
Baltimore, Maryland 21202-2021

Andrew M. Dansicker
Hoguet, Newman, & Regal, LLP
10 East 40th Street
New York, NY 10016

Prof. Marci A. Hamilton
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY 10003

Barbara Elizabeth Ransom
Public Interest Law Center of Philadelphia
125 South 9th Street, Suite 700
Philadelphia, PA 19107

Jonathan Mark Smith
Public Justice Center
500 East Lexington Street, Suite 200
Baltimore, MD 21202

Jessica Dunsay Silver
Principal Deputy Chief

1. The affidavit of Susan Dooley, Director of Budget Management for the Department, was not reprinted in the Joint Appendix, but was attached as Exhibit 47 to R. 46 (Defendants' Partial Motion to Dismiss or for Summary Judgment) (Aug. 16, 1993), and was relied on by defendants in their initial appellate brief. See Br. for Appellees 7 n.3. An earlier affidavit by Dooley states that the Division received "extremely limited" federal funding for "Mariel-Cuban inmates" and "consultants." J.A. 161. Those affidavits did not expressly identify the agency that distributed the federal funds, but the Office of Justice Programs at the Department of Justice was responsible for administering the grant program involving the Mariel Cubans, see, e.g., Pub. L. No. 102-395, Tit. I, 106 Stat. 1829 (1992), and defendants below invoked Section 504 regulations governing programs that received funds from the Department of Justice in arguing they were in compliance with the Act. R. 67 at 8, 13 (Memorandum in Support of Defendants' Motion for Summary Judgment as to Damages) (July 7, 1995) (citing 28 C.F.R. Pt. 42).

We are informed by our Office of Justice Programs that the Division of Corrections continues to receive federal financial assistance under several different programs. The most recent Maryland Budget Report, issued January 2000, reports that Roxbury Correctional Institution (RCI) received $835,000 in federal funds in Fiscal Year 1999. Maryland Dep't of Budget & Analysis, Maryland FY 2001 Budget, Pt. 2, at 670. We recognize that facts outside the record may normally not be considered, but we are informed by plaintiffs' counsel that plaintiff Anderson is still incarcerated at RCI. But see Supp. Br. of Appellees 38 n.28 (asserting that "none of the Inmates remains at RCI"). Because plaintiffs seek injunctive relief, we provide this information to preclude any suggestion that the Section 504 injunctive claims may be moot because defendants are no longer accepting federal financial assistance.

2. A fourteenth plaintiff (Winfried Rhodes) who had a visual impairment withdrew from the case.

3. See Clark v. California, 123 F.3d 1267, 1270-1271 (9th Cir. 1997) (ADA and Section 504), cert. denied, 524 U.S. 937 (1998); Coolbaugh v. Louisiana, 136 F.3d 430, 432-433 (5th Cir.) (ADA), cert. denied, 119 S. Ct. 58 (1998); Kimel v. Florida Bd. of Regents, 139 F.3d 1426, 1433 (11th Cir. 1998) (ADA), petition for cert. filed sub nom. Florida Dep't of Corrections v. Dickson, 67 U.S.L.W. 3364 (U.S. Nov. 16, 1998) (No. 98-829); Seaborn v. Florida, 143 F.3d 1405, 1407 (11th Cir. 1998) (ADA), cert. denied, 119 S. Ct. 1038 (1999); see also Torres v. Puerto Rico Tourism Co., 175 F.3d 1, 5 n.7 (1st Cir. 1999) ("we have considered the issue of Congress's authority sufficiently to conclude that, were we to confront the question head-on, we almost certainly would join the majority of courts upholding the provision" in the ADA).

4. See Muller v. Costello, 187 F.3d 298, 302 (2d Cir. 1999) (ADA); Martin v. Kansas, 190 F.3d 1120, 1125-1128 (10th Cir. 1999) (ADA); Dare v. California, 191 F.3d 1167, 1173-1176 (9th Cir. 1999) (ADA); Garrett v. University of Ala., 193 F.3d 1214, 1216-1218 (11th Cir. 1999) (ADA and Section 504).

5. The Department of Justice, along with all other agencies responsible for disbursing federal financial assistance, has issued regulations interpreting Section 504's requirements. See 28 C.F.R. Pt. 42; School Bd. of Nassau County v. Arline, 480 U.S. 273, 286 n.15 (1987); Alexander v. Choate, 469 U.S. 287, 304 n.24 (1985). Consistent with Congress' instructions, see 42 U.S.C. 12134(b) and (c), the Department of Justice has also promulgated regulations to implement Title II. See 28 C.F.R. Pt. 35.

6. While defendants did urge the panel "to eschew the broad-brush approach taken by most courts in either upholding or striking down Title II," this was in the context of their argument that Title II should be upheld as constitutional "to the extent that the substantive standards imposed by Title II are the same as the constitutional standards already in place." Supp. Br. of Appellees 30.

7. Brown states that the United States argued that "courts are to look broadly at the entire statutory framework * * * and ratify its constitutionality without looking at the validity of its individual provisions or the agency regulations promulgated under its authority." 166 F.3d at 703. This issue was not addressed in the briefs in Brown. Counsel who appeared at oral argument for the United States (and who is also one of the authors of this brief) did not intend to argue that the Court should not look at individual provisions. Instead, counsel was attempting to convey that it was important to judge any particular provision within the context of the entire statutory scheme and, similarly, that the entire legislative history should be considered in assessing the scope of the problem, rather than focusing on whether there was evidence in the "record" about fact-patterns identical to that before the Court. To the extent counsel made any statement that is contrary to the views expressed in this brief, this brief should be considered the view of the United States.

8. Moreover, the Eighth Circuit's decision ignored express congressional findings. Congress found that nationwide "individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination." 42 U.S.C. 12101(a)(4). The fact that some States have provided remedies in some instances does not negate Congress' power to enact Section 5 legislation that governs all States. For example, in Oregon v. Mitchell, 400 U.S. 112 (1970), while the Court agreed that there was little evidence that literacy tests were unconstitutional in every State, it concluded that Congress had the authority to enact a nationwide ban to address what it perceived to be a more than sporadic problem. See especially id. at 283-284 (opinion of Stewart, J.); see also Fullilove v. Klutznick, 448 U.S. 448, 483 (1980) (plurality); id. at 501 n.3 (Powell, J., concurring).

9. ACIR was created by Congress as a bipartisan commission composed of representatives from state and local governments and the federal government (including members of Congress) to study the relations between governmental entities. See 42 U.S.C. 4271-4273.

10. Dole noted that the judicial deference to Congress as to whether legislation furthers the general welfare is so substantial that there is some question "whether 'general welfare' is a judicially enforceable restriction at all." 483 U.S. at 207 n.2.

11. For other Supreme Court cases upholding as valid exercises of the Spending Clause conditions not tied to any particular spending program, see Oklahoma v. Civil Serv. Comm'n, 330 U.S. 127 (1947) (upholding an across-the-board requirement in the Hatch Act that no state employee whose principal employment was in connection with any activity that was financed in whole or in part by the United States could take "any active part in political management"); Salinas v. United States, 522 U.S. 52, 60-61 (1997) (upholding federal bribery statute covering entities receiving more than $10,000 in federal funds).

12. Other courts have recognized the inherent difficulties in determining whether a State has been "coerced" into accepting a funding condition. See California v. United States, 104 F.3d 1086, 1091-1092 (9th Cir.) (questioning whether there is "any viability" left in the coercion theory), cert. denied, 118 S. Ct. 44 (1997); Nevada v. Skinner, 884 F.2d 445, 448 (9th Cir. 1989) (recognizing "[t]he difficulty if not the impropriety of making judicial judgments regarding a state's financial capabilities"), cert. denied, 493 U.S. 1070 (1990); Oklahoma v. Schweiker, 655 F.2d 401, 414 ("The courts are not suited to evaluating whether the states are faced here with an offer they cannot refuse or merely a hard choice.").