1 No IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT IVAN TOLEDO, v. Plaintiff-Appellee JORGE SANCHEZ-RIVERA, Deputy President; GEORGE V. HILLYER, Chancellor; JOHN HERTZ, Dean; PEDRO PARILLA, Counselor; SONIA BAZAN, Design Professor; NATHANIEL FUSTER, Design Professor/Design Committee Director; UNIVERSITY OF PUERTO RICO, Defendants-Appellants UNIVERSITY OF PUERTO RICO, Rio Piedras Campus; UNIVERSITY OF PUERTO RICO, Rio Piedras Campus - Resource Office for the Disabled; LUDIM DIAZ; UNIVERSITY OF PUERTO RICO, Rio Piedras Campus, Legal Advisor s Office; LUIS M. VAZQUEZ, Director; MARIA LUGO, Legal Advisor; UNIVERSITY OF PUERTO RICO, Rio Piedras Campus - School of Architecture; MANUEL GARCIA; LIZETTE COLON, Student Affairs Administrator; Defendants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO BRIEF FOR THE UNITED STATES AS INTERVENOR BRADLEY J. SCHLOZMAN Acting Assistant Attorney General JESSICA DUNSAY SILVER SARAH E. HARRINGTON Attorneys Department of Justice, Civil Rights Division Ben Franklin Station P.O. Box Washington, DC (202)
2 TABLE OF CONTENTS PAGE REASONS WHY ORAL ARGUMENT SHOULD BE HEARD STATEMENT OF JURISDICTION...1 STATEMENT OF THE ISSUE...2 STATEMENT OF THE CASE...2 SUMMARY OF ARGUMENT...5 ARGUMENT UNDER THE ANALYSIS OF TENNESSEE V. LANE, TITLE II IS VALID FOURTEENTH AMENDMENT LEGISLATION AS APPLIED IN THE CONTEXT OF PUBLIC EDUCATION...7 A. Lane Dictates A Category-By-Category Analysis, Not A Case-By-Case Analysis...10 B. Constitutional Rights At Stake...14 C. Historical Predicate Of Unconstitutional Disability Discrimination In Public Services Lane Conclusively Established The Adequacy Of The Predicate For Title II s Application To Discrimination In All Public Services History Of Disability Discrimination In Public Education..20 a. Record Of Exclusion From Education...22 b. Record Of Discriminatory Treatment Within Schools...26
3 TABLE OF CONTENTS (continued): PAGE c. Record Of Educational Segregation...28 d. Record Of Physical Mistreatment Gravity Of Harm Of Disability Discrimination In Public Education This Court Should Consider The Context Of Public Education Rather Than The More Limited Context of Higher Education...32 D. As Applied To Discrimination In Education, Title II Is Congruent And Proportional To The Constitutional Rights At Issue And The History Of Discrimination...33 CONCLUSION...43 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE -ii-
4 TABLE OF AUTHORITIES CASES: PAGE Acevedo Lopez v. Police Dep t of Puerto Rico, 247 F.3d 26 (1st Cir. 2001)...8 Alexander v. Choate, 469 U.S. 287 (1985)...41 Association of Disabled Ams. v. Florida Int l Univ., 405 F.3d 954 (11th Cir. 2005)...7, 19 Baird v. Rose, 192 F.3d 462 (4th Cir. 1999)...30 Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)...31 Board of Educ. v. Cooperman, 507 A.2d 253 (N.J. Super. Ct. App. Div. 1986) aff d as modified, 523 A.2d 655 (N.J. Sup. Ct. 1987)...25 Board of Educ. v. Rowley, 458 U.S. 176 (1982)...20, 42 Brown v. Board of Educ., 347 U.S. 483 (1954)... passim Chalk v. United States Dist. Ct. Cent. Dist., 840 F.2d 701 (9th Cir. 1988)...25 City of Boerne v. Flores, 521 U.S. 507 (1997)...8, 13 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)...16, 20, 41 Collins v. Harker Heights, 503 U.S. 115 (1992)...16 Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005)...7, 19 County of Sacramento v. Lewis, 523 U.S. 833 (1998)...16 Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989) iii-
5 CASES (continued): PAGE District 27 Cmty. Sch. Bd. v. Board of Educ., 502 N.Y.S.2d 325 (N.Y. Sup. Ct. 1986)...25 Doe v. Belleville Pub. Sch. Dist. No. 118, 672 F. Supp. 342 (S.D. Ill. 1987)...25 Doe v. Dolton Elem. Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988)...25 Goss v. Lopez, 419 U.S. 565 (1975)...16 First Nat l Bank v. County of Yankton, 101 U.S. 129 (1879)...8 Gaston County v. United States, 395 U.S. 285 (1969)...40 Greer v. Rome City Sch. Dist., 950 F.2d 688 (11th Cir. 1991)...29 Grutter v. Bollinger, 539 U.S. 306 (2003)...15 Hairston v. Drosick, 423 F. Supp. 180 (S.D. W. Va. 1976)...25, 29 Harrison v. Michigan, 350 F. Supp. 846 (E.D. Mich. 1972)...25 Honig v. Doe, 484 U.S. 305 (1988)...21, 35 Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987)...16 Johnston v. Ann Arbor Pub. Sch., 569 F. Supp (E.D. Mich. 1983)...29 Jusino Mercado v. Puerto Rico, 214 F.3d 34 (1st Cir. 2000)...8 Katzenbach v. Morgan, 384 U.S. 641 (1966)...40 Kiman v. New Hampshire Dep t of Corr., 301 F.3d 13 (1st Cir. 2002) , 13 Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)...7, 13 -iv-
6 CASES (continued): PAGE Martinez v. School Bd., 861 F.2d 1502 (11th Cir. 1988)...25 Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972)...25 Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982)...39 Nevada Dep t of Human Res. v. Hibbs, 538 U.S. 721 (2003)... 13, 35, New York State Ass n for Retarded Children, Inc. v. Carey, 466 F. Supp. 48 (E.D.N.Y. 1979)...25 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) Oregon v. Mitchell, 400 U.S. 112 (1970)...40 Palmore v. Sidoti, 466 U.S. 429 (1984)...16 Pennsylvania Ass n for Retarded Children v. Pennsylvania, 334 F. Supp (E.D. Pa. 1971)...25 Plyler v. Doe, 457 U.S. 202 (1982)...14, 31, 42 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993)...2 Ray v. School Dist., 666 F. Supp (M.D. Fla. 1987)...25 Robertson v. Granite City Cmty. Unit Sch. Dist. No. 9, 684 F. Supp (S.D. Ill. 1988)...24 Romer v. Evans, 517 U.S. 620 (1996)...16 Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied, 464 U.S. 864 (1983)...29 Shapiro v. Thompson, 394 U.S. 618 (1969) v-
7 CASES (continued): PAGE South Carolina v. Katzenbach, 383 U.S. 301 (1966)...40 State v. Board of Educ., 172 N.W. 153 (Wis. 1919)...27, 42 Tennessee v. Lane, 541 U.S. 509 (2004)... passim Thomas v. Atascadero Unified Sch. Dist., 662 F. Supp. 376 (C.D. Cal. 1986)...24 United States v. Virginia, 518 U.S. 515 (1996)... University of Alabama v. Garrett, 531 U.S. 356 (2001) , 23, 31 Wilson v. Marana Unified Sch. Dist. No. 6, 735 F.2d 1178 (9th Cir. 1984)...29 Wisconsin v. Yoder, 406 U.S. 205 (1972)...15 CONSTITUTION AND FEDERAL STATUTES: U.S. Const. Art. IV, U.S.C. 1400(c)(2)(C) U.S.C U.S.C Americans with Disabilities Act, 42 U.S.C et seq U.S.C (a)(3)...13, 19, 21, U.S.C (a)(6) U.S.C (a)(7) U.S.C (b)(1) U.S.C (2) U.S.C (3)...8 -vi-
8 FEDERAL STATUTES (continued): PAGE 42 U.S.C (Title I) U.S.C (Title II) , 4 42 U.S.C (1)(A) U.S.C (1)(B) U.S.C (2) U.S.C , U.S.C U.S.C U.S.C (Title III) U.S.C U.S.C (c)...5 Carl D. Perkins Vocational Education Act of 1984, Pub. L. No , 98 Stat Education Amendments of 1974, Pub. L. No , 88 Stat Education for All Handicapped Children Act of 1975, Pub. L. No , 89 Stat Education of the Handicapped Act Amendments of 1983, Pub. L. No , 97 Stat Education of the Handicapped Act Amendments of 1986, Pub. L. No , 100 Stat Education of the Handicapped Act of 1975 (EHA), Pub. L. No , 84 Stat Elementary and Secondary Education Amendments Act of 1965, Pub. L. No , 79 Stat Elementary and Secondary Education Amendments of 1966, Pub. L. No , 80 Stat vii-
9 FEDERAL STATUTES (continued): PAGE Handicapped Children s Protection Act of 1986, Pub. L. No , 100 Stat Individuals with Disabilities Education Act, 20 U.S.C et seq Rehabilitation Act of 1973, Pub. L. No , 87 Stat Section 504 of the Rehabilitation Act of 1973, 29 U.S.C , 35 STATE STATUTES: Act of Feb. 21, 1917, ch. 354, 5, 1917 Or. Laws Act of June 21, 1906, ch. 508, 12, 1906 Mass. Acts & Resolves Act of Mar. 3, 1921, ch. 235, 1921 S.D. Sess. Laws Act of May 18, 1965, ch. 584, 1965 N.C. Sess. Laws Ala. Code (1975)...20 Iowa Code Ann (1983)...20 Mont. Code Ann (1961)...20 Ohio Rev. Code Ann (2002)...20 Okla. Stat. Ann. tit. 70, 1744 (West 1990)...20 Tex. Code Ann (West 1990) viii-
10 LEGISLATIVE HISTORY: PAGE Commission on the Education of the Deaf s Report to Congress: Hearing Before the Subcomm. on the Handicapped of the Senate Comm. on Labor and Human Resources, 100th Cong., 2d Sess. (1988).. 24 Education for All Handicapped Children, : Hearings Before the Subcomm. on the Handicapped of the Senate Comm. on Labor and Public Welfare, 93d Cong., 1st Sess. (1973)...24, 26, 30, 37 GAO, Briefing Reports on Costs of Accommodations, Americans with Disabilities Act: Hearing Before the House Comm. on Small Business, 101st Cong., 2d Sess. (1990)...36 Hearing on the Commission on Education of the Deaf and Special Education Programs: Hearing Before the Subcomm. on Select Education of the House Comm. on Education and Labor, 100th Cong., 2d Sess. (1988)...22 Staff of the House Comm. on Education and Labor, 101st Cong., 2d Sess., Legislative History of Public Law : The Americans with Disabilities Act 989 (Comm. Print 1990) (Vol. 2)... passim H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990)...36 S. Rep. No. 116, 101st Cong., 1st Sess. (1989)...23, 26, Cong. Rec (May 17, 1990)...24 REGULATIONS: 28 C.F.R (b)(1)(i) C.F.R (b)(1)(iii) C.F.R (b)(1)(vii)...5 -ix-
11 REGULATIONS (continued): PAGE 28 C.F.R (b)(7) C.F.R C.F.R MISCELLANEOUS: Frederick J. Weintraub & Alan R. Abeson, Appropriate Education for All Handicapped Children: A Growing Issue, 23 Syracuse L. Rev. (1972)...25 National Council on Disability, Back to School on Civil Rights: Advancing the Federal Commitment to Leave No Child Behind (2000)...29 National Council on the Handicapped, On the Threshold of Independence (1988) Office of the Att y Gen., Cal. Dep t of Justice, Attorney General s Commission on Disability: Final Report (1989)...27 Philip T.K. Daniel, Educating Students with Disabilities in the Least Restrictive Environment: A Slippery Slope for Educators, 35 J. of Educ. and Admin. (1997)...20 T. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temple L. Rev. (1991)...42 U.S. Civil Rights Comm n, Accomodating the Spectrum of Individual Abilities (1983)... 22, 29-30, 41 -x-
12 REASONS WHY ORAL ARGUMENT SHOULD BE HEARD Because this appeal will require this Court to adjudicate the constitutional validity of an Act of Congress, the United States believes oral argument would be appropriate and helpful.
13 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No IVAN TOLEDO, v. Plaintiff-Appellee JORGE SANCHEZ-RIVERA, Deputy President; GEORGE V. HILLYER, Chancellor; JOHN HERTZ, Dean; PEDRO PARILLA, Counselor; SONIA BAZAN, Design Professor; NATHANIEL FUSTER, Design Professor/Design Committee Director; UNIVERSITY OF PUERTO RICO, Defendants-Appellants UNIVERSITY OF PUERTO RICO, Rio Piedras Campus; UNIVERSITY OF PUERTO RICO, Rio Piedras Campus - Resource Office for the Disabled; LUDIM DIAZ; UNIVERSITY OF PUERTO RICO, Rio Piedras Campus, Legal Advisor s Office; LUIS M. VAZQUEZ, Director; MARIA LUGO, Legal Advisor; UNIVERSITY OF PUERTO RICO, Rio Piedras Campus - School of Architecture; MANUEL GARCIA; LIZETTE COLON, Student Affairs Administrator; Defendants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO BRIEF FOR THE UNITED STATES AS INTERVENOR STATEMENT OF JURISDICTION Plaintiff s complaint alleges, among other things, violations of Title II of the Americans with Disabilities Act, 42 U.S.C et seq. The district court had jurisdiction pursuant to 28 U.S.C On January 14, 2005, the district court denied defendants motion to dismiss the plaintiff s Title II claims on Eleventh
14 -2- Amendment immunity grounds, and subsequently denied defendants motion to reconsider on February 2, Defendants filed a timely notice of appeal on February 11, This Court has jurisdiction pursuant to 28 U.S.C See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). STATEMENT OF THE ISSUE Whether the statutory provision abrogating Eleventh Amendment immunity for suits under Title II of the Americans with Disabilities Act, 42 U.S.C et seq., is a valid exercise of Congress s authority under Section 5 of the Fourteenth Amendment, as it applies in the context of public education. STATEMENT OF THE CASE 1. Plaintiff, an individual with a disability, alleges that, while he was enrolled at the University of Puerto Rico School of Architecture, various university employees discriminated against him on the basis of his disability and refused to provide reasonable accommodations to him. J.A (Complaint). In particular, plaintiff suffers from Schizoaffective Disorder, a mental disability that caused him to miss some classes during his first year of enrollment. J.A Plaintiff alleges that, when he returned to class, one of his professors refused to provide reasonable accommodations to him, causing him to turn in an incomplete assignment. J.A. 6. Plaintiff alleges that the professor then ridiculed plaintiff s work in front of the class. J.A. 6. Repeated meetings with the professor and with school administrators did not result in the University providing reasonable accommodations to plaintiff,
15 -3- and plaintiff received a grade of D for the class in question. J.A During subsequent academic terms, plaintiff continued to suffer from his disability, requiring several hospital stays that resulted in more missed classes. J.A When he returned to school after his absences, he alleges, the school continued to refuse to provide reasonable accommodations to him and otherwise discriminated against him. J.A Plaintiff filed suit in federal court against the University and various University officials, alleging violations of, inter alia, Title II of the ADA and Section 504 of the Rehabilitation Act. J.A. 30. The state defendants and the individual defendants sued in their official capacities moved to dismiss the Title II claims on Eleventh Amendment immunity grounds. J.A The district court initially granted defendants motion to dismiss the Title II claims on immunity grounds. J.A Plaintiff filed a motion for reconsideration after the Supreme Court s decision in Tennessee v. Lane, 541 U.S. 509 (2004). J.A The district court granted the motion, holding that defendants do not enjoy Eleventh Amendment immunity to plaintiff s Title II claims and reinstating those claims. J.A Defendants filed an interlocutory appeal to this Court. 2. In 1990, Congress enacted the Americans with Disabilities Act (ADA), 42 U.S.C et seq., to supplement the requirements of Section 504 and to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C (b)(1). Title I of the ADA, 42 U.S.C , addresses discrimination by employers
16 -4- affecting interstate commerce; Title II, 42 U.S.C , addresses discrimination by governmental entities in the operation of public services, programs, and activities, including transportation; and Title III, 42 U.S.C , addresses discrimination in public accommodations operated by private entities. This appeal concerns Title II, which provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C A public entity is defined to include any State or local government and its components. 42 U.S.C (1)(A) & (B). The term disability is defined as a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; * * * a record of such an impairment; or * * * being regarded as having such an impairment. 42 U.S.C (2). A qualified individual with a disability is a person who, with or without reasonable modifications * * * meets the essential eligibility requirements for the governmental program or service. 42 U.S.C (2); 28 C.F.R The discrimination prohibited by Title II of the Disabilities Act includes, among other things, denying a government benefit to a qualified individual with a 1 Congress instructed the Attorney General to issue regulations to implement Title II based on prior regulations promulgated under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C See 42 U.S.C
17 -5- disability because of his disability, providing him with a lesser benefit than is given to others, or limiting his enjoyment of the rights and benefits provided to others. See 28 C.F.R (b)(1)(i), (iii), (vii). In addition, a public entity must make reasonable modifications in policies, practices, or procedures if the accommodation is necessary to avoid the exclusion of individuals with disabilities and can be accomplished without imposing an undue financial or administrative burden on the government, or fundamentally altering the nature of the service. See 28 C.F.R (b)(7). Title II may be enforced through private suits against public entities. See 42 U.S.C , 12203(c). Congress expressly abrogated the States Eleventh Amendment immunity to private suits in federal court. See 42 U.S.C SUMMARY OF ARGUMENT Congress validly abrogated the University s Eleventh Amendment immunity to plaintiff s claims under Title II of the ADA. Viewed in light of Tennessee v. Lane, 541 U.S. 509 (2004), Title II is valid Fourteenth Amendment legislation as applied to disability discrimination in public education. In Lane, the Court found that Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. Lane, 541 U.S. at 524. That history of unconstitutional discrimination, the Court held, authorized Congress to enact prophylactic legislation to address public services generally, see id. at 529,
18 -6- including public educational services. In any case, there is ample support for Congress s decision to extend Title II to public schools. Title II, as it applies to public education, is a congruent and proportionate response to that record. Title II is carefully tailored to respect Puerto Rico s legitimate interests while protecting against the risk of unconstitutional discrimination in education and remedying the lingering legacy of discrimination against people with disabilities in education. Thus, Title II applies in public education to prohibit discrimination based on hidden invidious animus that would be difficult to detect or prove directly. The statute also establishes reasonable uniform standards for treating requests for accommodations in public schools where unfettered discretionary decision-making has, in the past, led to irrational and invidious decisions. Moreover, in integrating students with disabilities among their peers, Title II acts to relieve the ignorance and stereotypes Congress found at the base of much discrimination in education. These limited prophylactic and remedial measures, judged against the backdrop of pervasive unconstitutional discrimination that Congress found both in public education and in other areas of governmental services, represent a good faith effort to make meaningful the guarantees of the Fourteenth Amendment, not an illicit attempt to rewrite them.
19 -7- ARGUMENT UNDER THE ANALYSIS OF TENNESSEE V. LANE, TITLE II IS VALID FOURTEENTH AMENDMENT LEGISLATION AS APPLIED IN THE CONTEXT OF PUBLIC EDUCATION This Court should hold that Congress validly abrogated the University s sovereign immunity to private claims under Title II of the ADA in the education context, as have both courts of appeals to consider this question to date. 2 See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005); Association of Disabled Americans v. Florida Int l Univ., 405 F.3d 954 (11th Cir. 2005). Congress may abrogate the States immunity if it unequivocally expressed its intent to abrogate that immunity, Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000), and acts pursuant to a valid exercise of its power under 5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment, Tennessee v. Lane, 541 U.S. 509, 518 (2004). Congress clearly expressed its intent to abrogate sovereign immunity to Title II claims. See id. at The University argues, however, that Title II exceeds Congress s Fourteenth Amendment powers in the context of this case. 3 2 We note that the Supreme Court has granted two petitions for certiorari in a case presenting the question whether Title II is valid Section 5 legislation in the prison context. United States v. Georgia, No , and Goodman v. Georgia, No (collectively Goodman ). We recommend that the Court delay resolution of this appeal until the Supreme Court issues a decision in Goodman. 3 Regardless of the validity of Title II s abrogation provision as legislation to enforce the Fourteenth Amendment in the context of education, Congress could abrogate Puerto Rico s sovereign immunity pursuant to its Article IV authority to (continued...)
20 -8- In Lane, the Supreme Court considered the claims of two plaintiffs, George Lane and Beverly Jones, both of whom are paraplegics who use wheelchairs for mobility and who claimed that they were denied access to, and the services of, the state court system by reason of their disabilities in violation of Title II. 541 U.S. at 513. The state defendant in that case argued that Congress lacked the authority to abrogate the State s Eleventh Amendment immunity to these claims, and the Supreme Court in Lane disagreed. See id. at To reach this conclusion, the Court applied the three-part analysis for Fourteenth Amendment legislation created by City of Boerne v. Flores, 521 U.S. 507 (1997). The Court considered: (1) the constitutional right or rights that Congress sought to enforce when it enacted Title II, Lane, 541 U.S. at 522; (2) whether there was a history of unconstitutional disability discrimination to support Congress s determination that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation, id. at 3 (...continued) make all needful rules and regulations respecting the territory or other property belonging to the United States. U.S. Const. Art. IV, 3; see First Nat l Bank v. County of Yankton, 101 U.S. 129, 133 (1879) (Congress has full and complete legislative authority over the people of the Territories and all the departments of the territorial governments. ). We recognize, however, that this Court has adopted a presumption that Congress would not have intended to abrogate Puerto Rico s immunity to suit if Congress did not have the power to abrogate States Eleventh Amendment immunity, at least so long as a statute (like the ADA, see 42 U.S.C (3)) defines Puerto Rico as a State. See Jusino Mercado v. Puerto Rico, 214 F.3d 34, (1st Cir. 2000); see also Acevedo Lopez v. Police Dep t of Puerto Rico, 247 F.3d 26 (1st Cir. 2001). While we disagree with that presumption, we acknowledge that this panel is bound to apply it in this case.
21 -9-529; and (3) whether Title II is an appropriate response to this history and pattern of unequal treatment, as applied to the class of cases implicating access to judicial services. Id. at 530. With respect to the first question, the Court found that Title II enforces rights under the Equal Protection Clause as well as an array of rights subject to heightened constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment. With respect to the second question, the Court conclusively found a sufficient historical predicate of unconstitutional disability discrimination in the provision of public services to justify enactment of a prophylactic remedy pursuant to Congress s authority under Section 5 of the Fourteenth Amendment. And finally, with respect to the third question, the Court found that the congruence and proportionality of the remedies in Title II should be judged on a category-bycategory basis in light of the particular constitutional rights at stake in the relevant category of public services. 4 Applying the holding of Lane, this Court should conclude that Title II is valid Fourteenth Amendment Legislation as it applies in the context of public education. 4 The Court in Lane did not examine the congruence and proportionality of Title II as a whole because the Court found that the statute was valid Section 5 legislation as applied to the class of cases before it. Because Title II is valid Section 5 legislation as applied to the class of cases implicating students rights, this Court need not consider the validity of Title II as a whole. The United States continues to maintain, however, that Title II as a whole is valid Section 5 legislation because it is congruent and proportional to Congress s goal of eliminating discrimination on the basis of disability in the provision of public services an area that the Supreme Court in Lane determined is an appropriate subject for prophylactic legislation under Section 5. Lane, 541 U.S. at 529.
22 -10- A. Lane Dictates A Category-By-Category Analysis, Not A Case-By-Case Analysis In their brief (Def. Br , 22-25), defendants suggest that this Court should consider whether Title II is valid Section 5 legislation, not as applied to the context of public education, but as applied to the facts of this case, and should uphold the statute only if the Court finds that plaintiff alleges a constitutional violation. In support of this suggestion, Puerto Rico relies on the reasoning of the vacated panel decision of this Court in Kiman v. New Hampshire Department of Corrections, 301 F.3d 13 (1st Cir. 2002), which analyzed an Eleventh Amendment challenge to Title II by considering Title II as applied to the allegations in the case before it, rather than by considering Title II in all of its applications. 5 Because the panel in Kiman found that the plaintiff had alleged constitutional violations, the Court limited its holding to a finding that Congress acted within its powers in subjecting the states to private suit under Title II of the ADA, at least as that Title is applied to cases in which a court identifies a constitutional violation by the state. Id. at 24. The panel acknowledged that: It may be that the legislative record taken as a whole supports Congress s conclusion that the enactment of Title II taken as a whole, 5 That opinion is no longer precedential, however, because the full Court granted rehearing en banc, vacating the panel opinion, and subsequently split evenly, thereby affirming the judgment of the district court. 332 F.3d 29 (1st Cir. 2003). The Supreme Court then granted the plaintiff s petition for certiorari, vacated the judgment of the en banc court, and remanded the case for further consideration in light of Lane. 541 U.S (2004). This Court remanded it to the district court, which held for the defendants on the merits and did not reach the Eleventh Amendment issue. It is now on appeal from that decision. See No
23 -11- including the abrogation of sovereign immunity, is within the section five power. * * * It might also be that the legislative record taken as a whole supports some of Congress s decisions to render states liable for some acts not in violation of the Constitution, but not others. Id. at 23. However, the panel declined to reach those broader questions because it could uphold Title II as applied to the case before it. But in the wake of Lane, this Court must consider the validity of Title II and its abrogation provision as applied to the entire category of public education rather than merely as applied to the facts of the instant case. 6 Both of the plaintiffs in Lane were paraplegics who use wheelchairs for mobility and who were denied physical access to and the services of the state court system because of their disabilities. Plaintiff Lane alleged violations that implicated his rights under the Due Process Clause and the Confrontation Clause namely, that when he was physically unable to appear to answer criminal charges because the courthouse was inaccessible, he was arrested and jailed for failure to appear. Plaintiff Jones alleged violations that implicated her equal protection rights namely, that she could not work as a certified court reporter because she could not gain access to a number of county courthouses. 541 U.S. at In analyzing Congress s power to enact Title II, however, the Supreme Court discussed the full range of applications Title II could have in cases implicating the accessibility of judicial services, Lane, 514 U.S. at 531, including applications to 6 Indeed, Puerto Rico acknowledges in its brief (Def. Br ) that the Supreme Court s approach in Lane differs from the panel s approach in Kiman.
24 -12- criminal defendants, civil litigants, jurors, public spectators and press, and witnesses. Id. at (discussing constitutional rights at stake in courthouse context); id. at 527 (discussing evidence presented to Congress of disability discrimination in the provision of judicial services); see also id. at 525 n.14 (considering cases involving the denial of interpretive services to deaf defendants and the exclusion of blind and hearing impaired persons from jury duty). Thus, a number of the statutory applications and implicated constitutional rights that the Court found relevant to its analysis in Lane were not pressed by the plaintiffs or directly implicated by the facts of their case. For instance, neither Lane nor Jones alleged that he or she was unable to participate in jury service or was subjected to a jury trial that excluded persons with disabilities from jury service. Similarly, neither Lane nor Jones was prevented by disability from participating in any civil litigation, nor did either allege a violation of First Amendment rights. The facts of their cases also did not implicate Title II s requirement that government, in the administration of justice, provide aides to assist persons with disabilities in accessing services, such as sign language interpreters or materials in Braille, 541 U.S. at 532, yet the Supreme Court considered the full range of constitutional rights and Title II remedies potentially at issue, framing its analysis in terms of the class of cases implicating the accessibility of judicial services. Id. at 531 (emphasis added).