Appeal from the United States District Courtfor the Northern District of CaliforniaFern M. Smith, District Judge, PresidingArgued and SubmittedJune 9, 1997--San Francisco, CaliforniaFiled August 27, 1997Before: Alfred T. Goodwin, Dorothy W. Nelson, andStephen S. Trott, Circuit Judges.Opinion by Judge Goodwin
_____________________________SUMMARY
______________________COUNSEL William Jenkins and James M. Humes, Deputy AttorneysGeneral, San Francisco, California, for the defendants-appellants.Caroline N. Mitchell, Pillsbury Madison & Sutro, San Fran-cisco, California; Donald H. Spector, Prison Law Office, SanQuentin, California, for the plaintiffs-appellees.Seth M. Galanter, United States Department of Justice, Wash-ington, D.C., for intervenor United States of America.
_____________________________OPINION GOODWIN, Circuit Judge:The State of California appeals the denial of its motion todismiss on the ground that the Eleventh Amendment bars thisaction against the state. Plaintiffs sued under Title II of theAmericans With Disabilities Act, 42 U.S.C. SS 12131-34("ADA"), and section 504 of the Rehabilitation Act of 1973,29 U.S.C. S 794 ("section 504" or "Rehabilitation Act"). Weagree with the district court that both acts are valid exercisesof Congress's power under Section 5 of the FourteenthAmendment, and we affirm.JURISDICTIONThis court has jurisdiction to hear an interlocutory appealfrom an order denying a state's motion to dismiss on theground of immunity under the Eleventh Amendment. PuertoRico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506U.S. 139 (1993).FACTSPlaintiffs allege that they are a class of all individuals whohave developmental disabilities, that they are incarcerated incorrectional facilities operated by the State of California, andthat they have suffered discrimination because of their disabil-ities. Plaintiffs seek injunctive relief under the ADA, theRehabilitation Act, and 42 U.S.C. S 1983 against the State ofCalifornia and the named state officials in their official capac-ities. Plaintiffs allege in part that the defendants have discrim-inated against them based on their disabilities.The State of California moved to dismiss the complaint,claiming immunity under the Eleventh Amendment to suitsbrought under the ADA and the Rehabilitation Act. The dis-trict court denied the motion, holding that Congress had val-idly abrogated the State's immunity. California now appeals.DISCUSSION[1] Under the Eleventh Amendment, a state is not subjectto suit by its own citizens in federal court. U.S. Const. amend.XI; Edelman v. Jordan,
415 U.S. 651, 662
-63 (1974). Con-gress can, however, abrogate a state's immunity to suit, or thestate can waive it. Atascadero State Hosp. v. Scanlon, 473U.S. 234, 240-41 (1985).We first inquire whether Congress properly abrogated theimmunity of the state from suit by applying Seminole Tribev. Florida, 116 S. Ct. 1114 (1996). The Seminole Tribe testcontains two parts: "first, whether Congress has`unequivo-cally expressed its intent to abrogate the immunity;' and sec-ond, whether Congress has acted `pursuant to a valid exerciseof power' " in abrogating the immunity. Id. at 1123 (quotingGreen v. Mansour,
474 U.S. 64, 68
(1985)).[2] Here, Congress has unequivocally expressed its intentto abrogate the State's immunity under both the ADA and theRehabilitation Act. Section 42 U.S.C. S 12202 of the ADAexplicitly states, "A State shall not be immune under the elev-enth amendment." See also Duffy v. Riveland, 98 F.3d 447,452 (9th Cir. 1996). Similarly, 42 U.S.C. S 2000d-7(a)(1) ofthe Rehabilitation Act explicitly states, "A State shall not beimmune under the Eleventh Amendment of the Constitutionof the United States from suit in Federal court for a violationof section 504 of the Rehabilitation Act of 1973. " The onlyissue before this court, therefore, is whether Congress actedunder a valid exercise of its power.[3] Under the Supreme Court's decision in Seminole Tribe,Congress "act[s] pursuant to a valid exercise of power" inabrogating the immunity if Congress enacts legislation pursu-ant to the enforcement clause of the Fourteenth Amendment.Seminole Tribe, 116 S. Ct. at 1123, 1125. The parties agreethat a statute is "appropriate legislation" to enforce the EqualProtection Clause if the statute "may be regarded as an enact-ment to enforce the Equal Protection Clause, [if ] it is `plainlyadapted to that end' and [if] it is not prohibited by but is con-sistent with `the letter and spirit of the constitution.' "Katzenbach v. Morgan,
384 U.S. 641, 651
(1966).[4] The Supreme Court has defined the Equal ProtectionClause to mean "that no State shall deny to any person withinits jurisdiction the equal protection of the laws, which isessentially a direction that all persons similarly situatedshould be treated alike." City of Cleburne v. Cleburne LivingCtr., Inc.,
473 U.S. 432, 439
(1985) (internal quotations omit-ted). Congress's power to pass legislation under the Four-teenth Amendment is very broad. As the Supreme Courtexplained: Correctly viewed, S 5 is a positive grant of legisla- tive power authorizing Congress to exercise its dis- cretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.Katzenbach,
384 U.S. at 651
. The Fourteenth Amendmentgives Congress the same broad powers as does the Necessaryand Proper Clause. See id. at 650. Congress's powers underthe Fourteenth Amendment extend beyond conduct which isunconstitutional, and Congress may create broader equal pro-tection rights than the Constitution itself mandates. See id. at648-49.[5] At the same time, Congress's powers under the Four-teenth Amendment are not unlimited. The Supreme Courtretains the power to decree the substance of the FourteenthAmendment's restrictions on the states, and Congress may notenlarge those rights. City of Boerne v. P.F. Flores, 117 S. Ct.2157, 2166 (1997). Also, enforcement legislation must evi-dence a congruence and proportionality between the injury tobe prevented or remedied and the means adopted to that end.Id. at 2169. Congress acts within its authority under the Four-teenth Amendment if the court can perceive a basis uponwhich Congress might predicate a judgment that the stateaction "constituted an invidious discrimination in violation ofthe Equal Protection Clause." Katzenbach,
384 U.S. at 656
.[6] The Supreme Court has previously held that discrimina-tion against the disabled is a form of discrimination protectedunder the Equal Protection Clause. See City of Cleburne, 473U.S. at 450. Here, the purpose of both the ADA and section504 of the Rehabilitation Act is to prohibit discriminationagainst the disabled. See 42 U.S.C. S 12101(b) (ADA); 29U.S.C. S 701(b)(1)(F) (Rehabilitation Act). In both acts, Con-gress explicitly found that persons with disabilities have suf-fered discrimination. See 42 U.S.C. S 12101(a) (ADA); 29U.S.C. S 701(a)(5) (Rehabilitation Act). Both the ADA andthe Rehabilitation Act therefore are within the scope of appro-priate legislation under the Equal Protection Clause as definedby the Supreme Court. At the same time, neither act providesremedies so sweeping that they exceed the harms that they aredesigned to redress. We therefore agree with the district courtthat both the ADA and the Rehabilitation Act were validlyenacted under the Fourteenth Amendment.[7] We reject California's argument that Congress's powermust be limited to the protection of those classes found by theCourt to deserve "special protection" under the Constitution.The State does not explain why the Court's choice of a levelof scrutiny for purposes of judicial review should be theboundary of the legislative power under the FourteenthAmendment, nor have we found any case to so hold. Thelevels of scrutiny in equal protection cases are "standards fordetermining the validity of state legislation or other officialaction that is challenged as denying equal protection." City ofCleburne,
473 U.S. at 439
-40. The State cites no case whichholds that these levels of scrutiny define the limits of Con-gress's power to enforce the Fourteenth Amendment.[8] In our holding with respect to the ADA, moreover, wefollow Congress's own determination of its powers. In enact-ing the ADA, Congress announced that it was acting pursuantto its Fourteenth Amendment powers. See 42 U.S.C.S 12101(b)(4). Although "the constitutionality of action takenby Congress does not depend on recitals of power which itundertakes to exercise," Woods v. Cloyd W. Miller Co., 333U.S. 138, 144 (1948), we give great deference to congressio-nal statements. See, e.g., Wilson-Jones v. Caviness, 99 F.3d203, 210 (6th Cir. 1996) (holding that a clear indication fromCongress is the simplest way to show that a statute is enactedunder the Fourteenth Amendment), amended on othergrounds, 107 F.3d 358 (6th Cir. 1997).[9] Also, in our holding with respect to the RehabilitationAct, we follow past decisions of our court as well as those ofthe Supreme Court. Supreme Court opinions have consistentlyconsidered section 504 to be enacted pursuant to the Four-teenth Amendment. In its opinion in Atascadero, the SupremeCourt assumed without deciding that the Rehabilitation Actwas enacted under the Fourteenth Amendment. See Atas-cadero,
473 U.S. at 244
n.4. In dicta in a later case, theSupreme Court expressly noted that "[t]he Rehabilitation Actwas passed pursuant to S 5 of the Fourteenth Amendment."Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S.468, 472 n.2 (1987). Moreover, our own court has expresslyheld that the Rehabilitation Act was enacted under the Four-teenth Amendment. See Scanlon v. Atascadero State Hosp.,735 F.2d 359, 361 (9th Cir. 1984), rev'd on other grounds,
473 U.S. 234
(1985).[10] We note also that the Rehabilitation Act includes anexpress waiver of Eleventh Amendment immunity which Cal-ifornia accepted when it accepted Rehabilitation Act funds.Even if Congress has not abrogated a state's immunity underthe Eleventh Amendment, a state may waive it. See SeminoleTribe, 116 S. Ct. at 1128. One way for a state to waive itsimmunity is to accept federal funds where the funding statute"manifest[s] a clear intent to condition participation in theprograms funded under the Act on a State's consent to waiveits constitutional immunity." Atascadero,
473 U.S. at 247
.[11] In this case, the Rehabilitation Act manifests a clearintent to condition a state's participation on its consent towaive its Eleventh Amendment immunity. The amendedRehabilitation Act provides: (1) A State shall not be immune under the Eleventh Amendment . . . from any suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . . of the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.42 U.S.C. S 2000-7. The Supreme Court has characterizedthis section as "an unambiguous waiver of the States' Elev-enth Amendment immunity." Lane v. Pena, 116 S. Ct. 2092,2100 (1996). Because California accepts federal funds underthe Rehabilitation Act, California has waived any immunityunder the Eleventh Amendment.Finally, we note that plaintiffs' suit may go forward againstthe named officials under the doctrine of Ex parte Young, 209U.S. 123 (1908). See Armstrong v. Wilson, No. 96-16870 (9thCir. _______, 1997).AFFIRMED. the end