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    BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA et al. v. GARRETT et al.

    certiorari to the united states court of appeals for the eleventh circuit

    No. 99-1240. Argued October 11, 2000--Decided February 21, 2001

    Respondents Garrett and Ash filed separate lawsuits against petitioners, Alabama state employers, seeking money damages under Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits the States and other employers from "discriminat[ing] against a qualified individual with a disability because of th[at] disability ... in regard to ... terms, conditions, and privileges of employment," 42 U. S. C. §12112(a). In an opinion disposing of both cases, the District Court granted petitioners summary judgment, agreeing with them that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. The Eleventh Circuit reversed on the ground that the ADA validly abrogates such immunity.

    Held: Suits in federal court by state employees to recover money damages by reason of the State's failure to comply with Title I of the ADA are barred by the Eleventh Amendment. Pp. 4-17.

         (a) Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority. Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73. Only the second of these requirements is in dispute here. While Congress may not base abrogation of state immunity upon its Article I powers, see e.g., id., at 79, it may subject nonconsenting States to federal-court suit when it does so pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment, see e.g., id., at 80. Section 5 authorizes Congress to enforce the substantive guarantees contained in §1 of that Amendment by enacting "appropriate legislation." See City of Boerne v. Flores, 521 U. S. 507, 536. Because it is this Court's responsibility, not Congress', to define the substance of constitutional guarantees, id., at 519-524, §5 legislation, to the extent it reaches beyond the precise scope of §1's protections, must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end, id., at 520. Pp. 4-7.

         (b) The first step in applying these principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires examination of the limitations §1 of the Fourteenth Amendment places upon States' treatment of the disabled. To do so, the Court looks to its prior decisions under the Equal Protection Clause dealing with this issue. Kimel, supra, at 83. In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, the Court held, inter alia, that mental retardation did not qualify as a "quasi-suspect" classification for equal protection purposes, id., at 435, and that, accordingly, a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded incurred only the minimum "rational-basis" review applicable to general social and economic legislation, id., at 446. Although "negative attitudes" and "fear" often accompany irrational biases, their presence alone does not a constitutional violation make. Thus, the Fourteenth Amendment does not require States to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly--and perhaps hardheartedly--hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause. Pp. 7-10.

         (c) The requirements for private individuals to recover money damages against the States--that there be state discrimination violative of the Fourteenth Amendment and that the remedy imposed by Congress be congruent and proportional to the targeted violation--are not met here. First, the ADA's legislative record fails to show that Congress identified a history and pattern of irrational employment discrimination by the States against the disabled. See, e.g., Kimel, supra, at 89. Because Eleventh Amendment immunity does not extend to local governmental units such as cities and counties, see Lincoln County v. Luning, 133 U. S. 529, 530, the Court rejects respondents' contention that the inquiry as to unconstitutional discrimination should extend to such units as well as to States. Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination ... continue to be a serious and pervasive social problem." 42 U. S. C. §12101(a)(2). Although the record includes instances to support such a finding, the great majority of these incidents do not deal with state activities in employment. Even if it were to be determined that the half a dozen relevant examples from the record showed unconstitutional action on the part of States, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which §5 legislation must be based. See, e.g., Kimel, supra, at 89-91. Moreover, statements in House and Senate committee reports indicate that Congresss targeted the ADA at employment discrimination in the private sector. Second, the rights and remedies created by the ADA against the States raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, while it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees able to use existing facilities, the ADA requires employers to make such facilities readily accessible to and usable by disabled individuals, §§12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer can demonstrate that accommodation would impose an "undue hardship" upon it, §12112(b)(5)(A), but, even with this exception, the accommodation duty far exceeds what is constitutionally required. The ADA's constitutional shortcomings are apparent when it is compared to the Voting Rights Act of 1965. Holding the latter Act to be "appropriate" legislation to enforce the Fifteenth Amendment's protection against racial discrimination in voting, South Carolina v. Katzenbach, 383 U. S. 301, this Court emphasized that Congress had there documented a marked pattern of unconstitutional action by the States, see id., at 312, and had determined that litigation had proved ineffective to remedy the problem, see id., at 313. The contrast between the kind of evidence detailed in Katzenbach, and the evidence that Congress considered in the present case, is stark. To uphold the ADA's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne. Section 5 does not so broadly enlarge congressional authority. Pp. 10-17.

    193 F. 3d 1214, reversed.

         Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.


    BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, et al., PETITIONERS v.
    PATRICIA GARRETT et al.

    on writ of certiorari to the united states court of
    appeals for the eleventh circuit

    [February 21, 2001]


         Chief Justice Rehnquist delivered the opinion of the Court.

         We decide here whether employees of the State of Alabama may recover money damages by reason of the State's failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U. S. C. §§12111-12117.1 We hold that such suits are barred by the Eleventh Amendment.

         The ADA prohibits certain employers, including the States, from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." §§12112(a), 12111(2), (5), (7). To this end, the Act requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." §12112(b)(5)(A).

    " `[R]easonable accommodation' may include--

    "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." §12111(9).

    The Act also prohibits employers from "utilizing standards, criteria, or methods of administration ... that have the effect of discrimination on the basis of disability." §12112(b)(3)(A).

         The Act defines "disability" to include "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." §12102(2). A disabled individual is otherwise "qualified" if he or she, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." §12111(8).

         Respondent Patricia Garrett, a registered nurse, was employed as the Director of Nursing, OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham Hospital. See App. 31, 38. In 1994, Garrett was diagnosed with breast cancer and subsequently underwent a lumpectomy, radiation treatment, and chemotherapy. See id., at 38. Garrett's treatments required her to take substantial leave from work. Upon returning to work in July 1995, Garrett's supervisor informed Garrett that she would have to give up her Director position. See id., at 39. Garrett then applied for and received a transfer to another, lower paying position as a nurse manager. See ibid.

         Respondent Milton Ash worked as a security officer for the Alabama Department of Youth Services (Department). See id., at 8. Upon commencing this employment, Ash informed the Department that he suffered from chronic asthma and that his doctor recommended he avoid carbon monoxide and cigarette smoke, and Ash requested that the Department modify his duties to minimize his exposure to these substances. See ibid. Ash was later diagnosed with sleep apnea and requested, again pursuant to his doctor's recommendation, that he be reassigned to daytime shifts to accommodate his condition. See id., at 9. Ultimately, the Department granted none of the requested relief. See id., at 8-9. Shortly after Ash filed a discrimination claim with the Equal Employment Opportunity Commission, he noticed that his performance evaluations were lower than those he had received on previous occasions. See id., at 9.

         Garrett and Ash filed separate lawsuits in the District Court, both seeking money damages under the ADA.2 Petitioners moved for summary judgment, claiming that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. See 989 F. Supp. 1409, 1410 (ND Ala. 1998). In a single opinion dispos-
    ing of both cases, the District Court agreed with petitioners' position and granted their motions for summary judgment. See id., at 1410, 1412. The cases were consolidated on appeal to the Eleventh Circuit. The Court of Appeals reversed, 193 F. 3d 1214 (1999), adhering to its intervening decision in Kimel v. State Bd. of Regents, 139 F. 3d 1426, 1433 (CA11 1998), cert. granted, 525 U. S. 1121, cert. dismissed, 528 U. S. 1184 (2000), that the
    ADA validly abrogates the States' Eleventh Amendment immunity.

         We granted certiorari, 529 U. S. 1065 (2000), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court under the ADA.

    I

         The Eleventh Amendment provides:

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

    Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890). The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73.

         We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and "act[s] pursuant to a valid grant of constitutional authority." 528 U. S., at 73. The first of these requirements is not in dispute here. See 42 U. S. C. §12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter"). The question, then, is whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA.

         Congress may not, of course, base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra, at 79 ("Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers"); Seminole Tribe, supra, at 72-73 ("The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction"); College Savings Bank, supra, at 672; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 636 (1999); Alden v. Maine, 527 U. S. 706, 730-733 (1999). In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), however, we held that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment." Id., at 456 (internal citation omitted). As a result, we concluded, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its §5 power. See ibid. Our cases have adhered to this proposition. See, e.g., Kimel, supra, at 80. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate §5 legislation.3

         Section 1 of the Fourteenth Amendment provides, in relevant part:

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

    Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in §1 by enacting "appropriate legislation." See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence. "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." Kimel, supra, at 81; City of Boerne, supra, at 536.

         City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. Accordingly, §5 legislation reaching beyond the scope of §1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520.

    II

         The first step in applying these now familiar principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires us to examine the limitations §1 of the Fourteenth Amendment places upon States' treatment of the disabled.      As we did last Term in Kimel, see 528 U. S., at 83, we look to our prior decisions under the Equal Protection Clause dealing with this issue.

         In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), we considered an equal protection challenge to a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded. The specific question before us was whether the Court of Appeals had erred by holding that mental retardation qualified as a "quasi-suspect" classification under our equal protection jurisprudence. Id., at 435. We answered that question in the affirmative, concluding instead that such legislation incurs only the minimum "rational-basis" review applicable to general social and economic legislation.4 Id., at 446. In a statement that today seems quite prescient, we explained that

    "if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so." Id., at 445-446.

         Under rational-basis review, where a group possesses "distinguishing characteristics relevant to interests the State has the authority to implement," a State's decision to act on the basis of those differences does not give rise to a constitutional violation. Id., at 441. "Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe, 509 U. S. 312, 320 (1993) (citing Nordlinger v. Hahn, 505 U. S. 1 (1992); New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam)). Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative " `any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Heller, supra, at 320 (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993)).

         Justice Breyer suggests that Cleburne stands for the broad proposition that state decisionmaking reflecting "negative attitudes" or "fear" necessarily runs afoul of the Fourteenth Amendment. See post, at 5 (dissenting opinion) (quoting Cleburne, 473 U. S., at 448). Although such biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make. As we noted in Cleburne: "[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently ... ." Id., at 448 (emphasis added). This language, read in context, simply states the unremarkable and widely acknowledged tenet of this Court's equal protection jurisprudence that state action subject to rational-basis scrutiny does not vio-
    late the Fourteenth Amendment when it "rationally furthers the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (1976)
    (per curiam).

         Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational. They could quite hard headedly--and perhaps hardheartedly--hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.5

    III

         Once we have determined the metes and bounds of the constitutional right in question, we examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled. Just as §1 of the Fourteenth Amendment applies only to actions committed "under color of state law," Congress' §5 authority is appropriately exercised only in response to state transgressions. See Florida Prepaid, 527 U. S., at 640 ("It is this conduct then--unremedied patent infringement by the States--that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act"); Kimel, 528 U. S., at 89 ("Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation"). The legislative record of the ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.

         Respondents contend that the inquiry as to unconstitutional discrimination should extend not only to States themselves, but to units of local governments, such as cities and counties. All of these, they say, are "state actors" for purposes of the Fourteenth Amendment. Brief for Respondents 8. This is quite true, but the Eleventh Amendment does not extend its immunity to units of local government. See Lincoln County v. Luning, 133 U. S. 529, 530 (1890). These entities are subject to private claims for damages under the ADA without Congress' ever having to rely on §5 of the Fourteenth Amendment to render them so. It would make no sense to consider constitutional violations on their part, as well as by the States themselves, when only the States are the beneficiaries of the Eleventh Amendment.

         Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U. S. C. §12101(a)(2). The record assembled by Congress includes many instances to support such a finding. But the great majority of these incidents do not deal with the activities of States.

         Respondents in their brief cite half a dozen examples from the record that did involve States. A department head at the University of North Carolina refused to hire an applicant for the position of health administrator because he was blind; similarly, a student at a state university in South Dakota was denied an opportunity to practice teach because the dean at that time was convinced that blind people could not teach in public schools. A microfilmer at the Kansas Department of Transportation was fired because he had epilepsy; deaf workers at the University of Oklahoma were paid a lower salary than those who could hear. The Indiana State Personnel Office informed a woman with a concealed disability that she should not disclose it if she wished to obtain employment.6

         Several of these incidents undoubtedly evidence an unwillingness on the part of state officials to make the sort of accommodations for the disabled required by the ADA. Whether they were irrational under our decision in Cleburne is more debatable, particularly when the incident is described out of context. But even if it were to be determined that each incident upon fuller examination showed unconstitutional action on the part of the State, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which §5 legislation must be based. See Kimel, 528 U. S., at 89-91; City of Boerne, 521 U. S., at 530-531. Congress, in enacting the ADA, found that "some 43,000,000 Americans have one or more physical or mental disabilities." 42 U. S. C. §12101(a)(1). In 1990, the States alone employed more than 4.5 million people. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 338 (119th ed. 1999) (Table 534). It is telling, we think, that given these large numbers, Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled.

         Justice Breyer maintains that Congress applied Title I of the ADA to the States in response to a host of incidents representing unconstitutional state discrimination in employment against persons with disabilities. A close review of the relevant materials, however, undercuts that conclusion. Justice Breyer's Appendix C consists not of legislative findings, but of unexamined, anecdotal accounts of "adverse, disparate treatment by state officials." Post, at 3. Of course, as we have already explained, "adverse, disparate treatment" often does not amount to a constitutional violation where rational-basis scrutiny applies. These accounts, moreover, were submitted not directly to Congress but to the Task Force on the Rights and Empowerment of Americans with Disabilities, which made no findings on the subject of state discrimination in employment.7 See the Task Force's Report entitled From ADA to Empowerment (Oct. 12, 1990). And, had Congress truly understood this information as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act's legislative findings. There is none. See 42 U. S. C. §12101. Although Justice Breyer would infer from Congress' general conclusions regarding societal discrimination against the disabled that the States had likewise participated in such action, post, at 3, the House and Senate committee reports on the ADA flatly contradict this assertion. After describing the evidence presented to the Senate Committee on Labor and Human Resources and its subcommittee (including the Task Force Report upon which the dissent relies), the Committee's report reached, among others, the following conclusion: "Discrimination still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and telecommunications." S. Rep. No. 101-116, p. 6 (1989) (emphasis added). The House Committee on Education and Labor, addressing the ADA's employment provisions, reached the same conclusion: "[A]fter extensive review and analysis over a number of Congressional sessions, ... there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the areas of employment in the private sector, public accommodations, public services, transportation, and telecommunications." H. R. Rep. No. 101-485, pt. 2 p. 28 (1990) (emphasis added). Thus, not only is the inference Justice Breyer draws unwarranted, but there is also strong evidence that Congress' failure to mention States in its legislative findings addressing discrimination in employment reflects that body's judgment that no pattern of unconstitutional state action had been documented.

         Even were it possible to squeeze out of these examples a pattern of unconstitutional discrimination by the States, the rights and remedies created by the ADA against the States would raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U. S. C. §§12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." §12112(b)(5)(A). However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall short of imposing an "undue burden" upon the employer. The Act also makes it the employer's duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer's decision. See ibid.

         The ADA also forbids "utilizing standards, criteria, or methods of administration" that disparately impact the disabled, without regard to whether such conduct has a rational basis. §12112(b)(3)(A). Although disparate impact may be relevant evidence of racial discrimination, see Washington v. Davis, 426 U. S. 229, 239 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny. See, e.g., ibid. ("[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact").

         The ADA's constitutional shortcomings are apparent when the Act is compared to Congress' efforts in the Voting Rights Act of 1965 to respond to a serious pattern of constitutional violations. In South Carolina v. Katzenbach, 383 U. S. 301 (1966), we considered whether the Voting Rights Act was "appropriate" legislation to enforce the Fifteenth Amendment's protection against racial discrimination in voting. Concluding that it was a valid exercise of Congress' enforcement power under §2 of the Fifteenth Amendment,8 we noted that "[b]efore enacting the measure, Congress explored with great care the problem of racial discrimination in voting." Id., at 308.

         In that Act, Congress documented a marked pattern of unconstitutional action by the States. State officials, Congress found, routinely applied voting tests in order to exclude African-American citizens from registering to vote. See id., at 312. Congress also determined that litigation had proved ineffective and that there persisted an otherwise inexplicable 50-percentage-point gap in the registration of white and African-American voters in some States. See id., at 313. Congress' response was to promulgate in the Voting Rights Act a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified.

         The contrast between this kind of evidence, and the evidence that Congress considered in the present case, is stark. Congressional enactment of the ADA represents its judgment that there should be a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U. S. C. §12101(b)(1). Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne.9 Section 5 does not so broadly enlarge congressional authority. The judgment of the Court of Appeals is therefore

    Reversed.


    BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, et al., PETITIONERS v.
    PATRICIA GARRETT et al.

    on writ of certiorari to the united states court of
    appeals for the eleventh circuit

    [February 21, 2001]


         Justice Kennedy, with whom Justice O'Connor joins, concurring.

         Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature. There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will.

         One of the undoubted achievements of statutes designed to assist those with impairments is that citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. The law works this way because the law can be a teacher. So I do not doubt that the Americans with Disabilities Act of 1990 will be a milestone on the path to a more decent, tolerant, progressive society.

         It is a question of quite a different order, however, to say that the States in their official capacities, the States as governmental entities, must be held in violation of the Constitution on the assumption that they embody the misconceived or malicious perceptions of some of their citizens. It is a most serious charge to say a State has engaged in a pattern or practice designed to deny its citizens the equal protection of the laws, particularly where the accusation is based not on hostility but instead on the failure to act or the omission to remedy. States can, and do, stand apart from the citizenry. States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand. The failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause. See Washington v. Davis, 426 U. S. 229 (1976).

         For the reasons explained by the Court, an equal protection violation has not been shown with respect to the several States in this case. If the States had been transgressing the Fourteenth Amendment by their mistreatment or lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the courts of the United States extensive litigation and discussion of the constitutional violations. This confirming judicial documentation does not exist. That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation.

         It must be noted, moreover, that what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether the States can be subjected to liability in suits brought not by the Federal Government (to which the States have consented, see Alden v. Maine, 527 U. S. 706, 755 (1999)), but by private persons seeking to collect moneys from the state treasury without the consent of the State. The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity. That predicate, for reasons discussed here and in the decision of the Court, has not been established. With these observations, I join the Court's opinion.


    BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, et al., PETITIONERS v.
    PATRICIA GARRETT et al.

    on writ of certiorari to the united states court of
    appeals for the eleventh circuit

    [February 21, 2001]


         Justice Breyer, with whom Justice Stevens, Justice Souter and Justice Ginsburg join, dissenting.

         Reviewing the congressional record as if it were an administrative agency record, the Court holds the statutory provision before us, 42 U. S. C. §12202, unconstitutional. The Court concludes that Congress assembled insufficient evidence of unconstitutional discrimination, ante, at 12, that Congress improperly attempted to "re-write" the law we established in Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), ante, at 16, and that the law is not sufficiently tailored to address unconstitutional discrimination, ante, at 14-15.

         Section 5, however, grants Congress the "power to enforce, by appropriate legislation" the Fourteenth Amendment's equal protection guarantee. U. S. Const., Amdt. 14, §5. As the Court recognizes, state discrimination in employment against persons with disabilities might " `run afoul of the Equal Protection Clause' " where there is no " `rational relationship between the disparity of treatment and some legitimate governmental purpose.' " Ante, at 8 (quoting Heller v. Doe, 509 U. S. 312, 320 (1993)). See also Cleburne v. Cleburne Living Center, Inc., supra, at 440 (stating that the Court will sustain a classification if it is "rationally related to a legitimate state interest"). In my view, Congress reasonably could have concluded that the remedy before us constitutes an "appropriate" way to enforce this basic equal protection requirement. And that is all the Constitution requires.

    I

         The Court says that its primary problem with this statutory provision is one of legislative evidence. It says that "Congress assembled only ...  minimal evidence of unconstitutional state discrimination in employment." Ante, at 12. In fact, Congress compiled a vast legislative record documenting " `massive, society-wide discrimination' " against persons with disabilities. S. Rep. No. 101-116, pp. 8-9 (1989) (quoting testimony of Justin Dart, chairperson of the Task Force on the Rights and Empowerment of Americans with Disabilities). In addition to the information presented at 13 congressional hearings (see Appendix A, infra), and its own prior experience gathered over 40 years during which it contemplated and enacted considerable similar legislation (see Appendix B, infra), Congress created a special task force to assess the need for comprehensive legislation. That task force held hearings in every State, attended by more than 30,000 people, including thousands who had experienced discrimination first hand. See From ADA to Empowerment, Task Force on the Rights and Empowerment of Americans with Disabilities, 16 (Oct. 12, 1990) (hereinafter Task Force Report). The task force hearings, Congress' own hearings, and an analysis of "census data, national polls, and other studies" led Congress to conclude that "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally." 42 U. S. C. §12101(a)(6). As to employment, Congress found that "[t]wo-thirds of all disabled Americans between the age of 16 and 64 [were] not working at all," even though a large majority wanted to, and were able to, work productively. S. Rep. No. 101-116, at 9. And Congress found that this discrimination flowed in significant part from "stereotypic assumptions" as well as "purposeful unequal treatment." 42 U. S. C. §12101(a)(7).

         The powerful evidence of discriminatory treatment throughout society in general, including discrimination by private persons and local governments, implicates state governments as well, for state agencies form part of that same larger society. There is no particular reason to believe that they are immune from the "stereotypic assumptions" and pattern of "purposeful unequal treatment" that Congress found prevalent. The Court claims that it "make[s] no sense" to take into consideration constitutional violations committed by local governments. Ante, at 71. But the substantive obligation that the Equal Protection Clause creates applies to state and local governmental entities alike. E.g., Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). Local governments often work closely with, and under the supervision of, state officials, and in general, state and local government employers are similarly situated. Nor is determining whether an apparently "local" entity is entitled to Eleventh Amendment immunity as simple as the majority suggests--it often requires a " `detailed examination of the relevant provisions of [state] law.' " Regents of Univ. of Cal. v. Doe, 519 U. S. 425, 430, n. 6 (1997) (quoting Moor v. County of Alameda, 411 U. S. 693, 719-721 (1973)).

         In any event, there is no need to rest solely upon evidence of discrimination by local governments or general societal discrimination. There are roughly 300 examples of discrimination by state governments themselves in the legislative record. See, e.g., Appendix C, infra. I fail to see how this evidence "fall[s] far short of even suggesting the pattern of unconstitutional discrimination on which §5 legislation must be based." Ante, at 12.

         The congressionally appointed task force collected numerous specific examples, provided by persons with disabilities themselves, of adverse, disparate treatment by state officials. They reveal, not what the Court describes as "half a dozen" instances of discrimination, ante, at 11, but hundreds of instances of adverse treatment at the hands of state officials--instances in which a person with a disability found it impossible to obtain a state job, to retain state employment, to use the public transportation that was readily available to others in order to get to work, or to obtain a public education, which is often a prerequisite to obtaining employment. State-imposed barriers also frequently made it difficult or impossible for people to vote, to enter a public building, to access important government services, such as calling for emergency assistance, and to find a place to live due to a pattern of irrational zoning decisions similar to the discrimination that we held unconstitutional in Cleburne, 473 U. S., at 448. See Appendix C, infra.

         As the Court notes, those who presented instances of discrimination rarely provided additional, independent evidence sufficient to prove in court that, in each instance, the discrimination they suffered lacked justification from a judicial standpoint. Ante, at 12 (stating that instances of discrimination are "described out of context"). Perhaps this explains the Court's view that there is "minimal evidence of unconstitutional state discrimination." Ibid. But a legislature is not a court of law. And Congress, unlike courts, must, and does, routinely draw general conclusions--for example, of likely motive or of likely relationship to legitimate need--from anecdotal and opinion-based evidence of this kind, particularly when the evidence lacks strong refutation. See Task Force Report 16, 20 (task force "met many times with significant representatives of groups opposed to [the] ADA," and as to the general public, although the task force received "about 2,000 letters" in support of the ADA, there was only "one letter in opposition"); S. Rep. No. 101-116, at 10 (summarizing testimony that many reasonable accommodations cost "less than $50," and the expense of others, such as hiring employees who can interpret for the deaf, is "frequently exaggerated"). In reviewing §5 legislation, we have never required the sort of extensive investigation of each piece of evidence that the Court appears to contemplate. Compare ante, at 12-13, with Katzenbach v. Morgan, 384 U. S. 641, 652-656 (1966) (asking whether Congress' likely conclusions were reasonable, not whether there was adequate evidentiary support in the record). Nor has the Court traditionally required Congress to make findings as to state discrimination, or to break down the record evidence, category by category. Compare ante, at 13 (noting statements in two congressional Reports that mentioned state discrimination in public services and transportation but not in employment), with Morgan, supra, at 654 (considering what Congress "might" have concluded); 384 U. S., at 652 (holding that likely discrimination against Puerto Ricans in areas other than voting supported statute abolishing literacy test as qualification for voting).

         Regardless, Congress expressly found substantial unjustified discrimination against persons with disabilities. 42 U. S. C. §12101(9) (finding a pattern of "unnecessary discrimination and prejudice" that "costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity" (emphasis added)). See also 2 Legislative History of the Americans with Disabilities Act (Leg. Hist.) (Committee Print compiled for the House Committee on Education and Labor), Ser. No. 102-B, p. 1620 (1990) (testimony of Arlene B. Mayerson) (describing "unjustifiable and discriminatory loss of job opportunities"); id., at 1623 (citing study showing " `strong evidence that employers' fears of low performance among disabled workers are unjustified' "). Moreover, it found that such discrimination typically reflects "stereotypic assumptions" or "purposeful unequal treatment." 42 U. S. C. §12101(7). See also 2 Leg. Hist. 1622 (testimony of Arlene B. Mayerson) ("Outmoded stereotypes whether manifested in medical or other job `requirements' that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified"). In making these findings, Congress followed our decision in Cleburne, which established that not only discrimination against persons with disabilities that rests upon "a bare ... desire to harm a politically unpopular group," 473 U. S., at 447 (quoting Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973) (omission in Cleburne)), violates the Fourteenth Amendment, but also discrimination that rests solely upon "negative attitude[s]," "fea[r]," 473 U. S., at 448, or "irrational prejudice," id., at 450. Adverse treatment that rests upon such motives is unjustified discrimination in Cleburne's terms.

         The evidence in the legislative record bears out Congress' finding that the adverse treatment of persons with disabilities was often arbitrary or invidious in this sense, and thus unjustified. For example, one study that was before Congress revealed that "most ... governmental agencies in [one State] discriminated in hiring against job applicants for an average period of five years after treatment for cancer," based in part on coworkers' misguided belief that "cancer is contagious." 2 Leg. Hist. 1619-1620 (testimony of Arlene B. Mayerson). A school inexplicably refused to exempt a deaf teacher, who taught at a school for the deaf, from a "listening skills" requirement. Government's Lodging 1503. A State refused to hire a blind employee as director of an agency for the blind--even though he was the most qualified applicant. Id., at 974. Certain state agencies apparently had general policies against hiring or promoting persons with disabilities. Id., at 1159, 1577. A zoo turned away children with Downs Syndrome "because [the zookeeper] feared they would upset the chimpanzees." S. Rep. No. 101-116, at 7. There were reports of numerous zoning decisions based upon "negative attitudes" or "fear," Cleburne, supra, at 448, such as a zoning board that denied a permit for an obviously pretextual reason after hearing arguments that a facility would house " `deviants' " who needed " `room to roam,' " Government's Lodging 1068. A complete listing of the hundreds of examples of discrimination by state and local governments that were submitted to the task force is set forth in Appendix C, infra. Congress could have reasonably believed that these examples represented signs of a widespread problem of unconstitutional discrimination.

    II

         The Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice Kennedy's empirical conclusion--which rejects that of Congress--rests heavily upon his failure to find "extensive litigation and discussion of constitutional violations," in "the courts of the United States." Ante, at 2 (Kennedy, J., concurring) (emphasis added). And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification." Ante, at 9 (internal quotation marks omitted). Or as Justice Brandeis, writing for the Court, put the matter many years ago, " `if any state of facts reasonably can be conceived that would sustain' " challenged legislation, then " `there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing . . . that the action is arbitrary.' " Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185 (1935) (quoting Borden's Farm Products Co. v. Baldwin, 293 U. S. 194, 209 (1934)). Imposing this special "burden" upon Congress, the Court fails to find in the legislative record sufficient indication that Congress has "negative[d]" the presumption that state action is rationally related to a legitimate objective. Ante, at 9.

         The problem with the Court's approach is that neither the "burden of proof" that favors States nor any other rule of restraint applicable to judges applies to Congress when it exercises its §5 power. "Limitations stemming from the nature of the judicial process ... have no application to Congress." Oregon v. Mitchell, 400 U. S. 112, 248 (1970) (Brennan, White, and Marshall, JJ., concurring in part and dissenting in part). Rational-basis review--with its presumptions favoring constitutionality--is "a paradigm of judicial restraint." FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) (emphasis added). And the Congress of the United States is not a lower court.

         Indeed, the Court in Cleburne drew this very institutional distinction. We emphasized that "courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices." 473 U. S., at 441. Our invocation of judicial deference and respect for Congress was based on the fact that "[§]5 of the [Fourteenth] Amendment empowers Congress to enforce [the equal protection] mandate." Id., at 439 (emphasis added). Indeed, we made clear that the absence of a contrary congressional finding was critical to our decision to apply mere rational-basis review to disability discrimination claims--a "congressional direction" to apply a more stringent standard would have been "controlling." Ibid. See also Washington v. Davis, 426 U. S. 229, 248 (1976) (refusing to invalidate a law based on the Equal Protection Clause because a disparate impact standard "should await legislative prescription"). Cf. Mitchell, supra, at 284 (Stewart, J., concurring in part and dissenting in part) ("Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records"). In short, the Court's claim that "to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne," ante, at 16, is repudiated by Cleburne itself.

         There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its §5 authority, to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. Cf. Cleburne, supra, at 442-443 (addressing the problems of the "large and diversified group" of persons with disabilities "is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary"). Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have first-hand experience with discrimination and related issues.

         Moreover, unlike judges, Members of Congress are elected. When the Court has applied the majority's burden of proof rule, it has explained that we, i.e., the courts, do not " `sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.' " Heller, 509 U. S., at 319 (quoting New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam)). To apply a rule designed to restrict courts as if it restricted Congress' legislative power is to stand the underlying principle--a principle of judicial restraint--on its head. But without the use of this burden of proof rule or some other unusually stringent standard of review, it is difficult to see how the Court can find the legislative record here inadequate. Read with a reasonably favorable eye, the record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment. And Congress could have found, in a significant number of instances, that this treatment violated the substantive principles of justification--shorn of their judicial-restraint-related presumptions--that this Court recognized in Cleburne.

    III

         The Court argues in the alternative that the statute's damage remedy is not "congruent" with and "proportional" to the equal protection problem that Congress found. Ante, at 14 (citing City of Boerne v. Flores, 521 U. S. 507, 520 (1997)). The Court suggests that the Act's "reasonable accommodation" requirement, 42 U. S. C. §12112(b)(5)(A), and disparate impact standard, §12112(b)(3)(A), "far excee[d] what is constitutionally required." Ante, at 14. But we have upheld disparate impact standards in contexts where they were not "constitutionally required." Compare Griggs v. Duke Power Co., 401 U. S. 424, 432 (1971), with Washington, supra, at 239, and City of Rome v. United States, 446 U. S. 156, 172-173 (1980), with Mobile v. Bolden, 446 U. S. 55, 62 (1980) (plurality opinion).

         And what is wrong with a remedy that, in response to unreasonable employer behavior, requires an employer to make accommodations that are reasonable? Of course, what is "reasonable" in the statutory sense and what is "unreasonable" in the constitutional sense might differ. In other words, the requirement may exceed what is necessary to avoid a constitutional violation. But it is just that power--the power to require more than the minimum- that §5 grants to Congress, as this Court has repeatedly confirmed. As long ago as 1880, the Court wrote that §5 "brought within the domain of congressional power" whatever "tends to enforce submission" to its "prohibitions" and "to secure to all persons ... the equal protection of the laws." Ex parte Virginia, 100 U. S. 339, 346 (1880). More recently, the Court added that §5's "draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, §8, cl. 18." Morgan, 384 U. S., at 650 (citing McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)).

         In keeping with these principles, the Court has said that "[i]t is not for us to review the congressional resolution of "the various conflicting considerations--the risk or pervasiveness of the discrimination in governmental services ... , the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected." 384 U. S., at 653. "It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did." Ibid. See also South Carolina v. Katzenbach, 383 U. S. 301, 324 (1966) (interpreting the similarly worded enforcement Clause of the Fifteenth Amendment to permit Congress to use "any rational means to effectuate the constitutional prohibition"). Nothing in the words "reasonable accommodation" suggests that the requirement has no "tend[ency] to enforce" the Equal Protection Clause, Ex parte Virginia, supra, at 346, that it is an irrational way to achieve the objective, Katzenbach, 383 U. S., at 324, that it would fall outside the scope of the Necessary and Proper Clause, Morgan, supra, at 650, or that it somehow otherwise exceeds the bounds of the "appropriate," U. S. Const., Amdt. 14, §5.

         The Court's more recent cases have professed to follow the longstanding principle of deference to Congress. See Kimel v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) ("Congress' §5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment." Rather, Congress can prohibit a "somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text"); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999) (" `Congress must have wide latitude' ") (quoting City of Boerne, supra, at 519-520); City of Boerne, 521 U. S., at 528 (reaffirming Morgan); 521 U. S., at 536 (Congress' "conclusions are entitled to much deference"). And even today, the Court purports to apply, not to depart from, these standards. Ante, at 7. But the Court's analysis and ultimate conclusion deprive its declarations of practical significance. The Court `sounds the word of promise to the ear but breaks it to the hope.'

    IV

         The Court's harsh review of Congress' use of its §5 power is reminiscent of the similar (now-discredited) limitation that it once imposed upon Congress' Commerce Clause power. Compare Carter v. Carter Coal Co., 298 U. S. 238 (1936), with United States v. Darby, 312 U. S. 100, 123 (1941) (rejecting Carter Coal's rationale). I could understand the legal basis for such review were we judging a statute that discriminated against those of a particular race or gender, see United States v. Virginia, 518 U. S. 515 (1996), or a statute that threatened a basic constitutionally protected liberty such as free speech, see Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); see also Post & Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L. J. 441, 477 (2000) (stating that the Court's recent review of §5 legislation appears to approach strict scrutiny); 1 L. Tribe, American Constitutional Law §5-16, p. 959 (3d ed. 2000) (same). The legislation before us, however, does not discriminate against anyone, nor does it pose any threat to basic liberty. And it is difficult to understand why the Court, which applies "minimum `rational-basis' review" to statutes that burden persons with disabilities, ante, at 7-8, subjects to far stricter scrutiny a statute that seeks to help those same individuals.

         I recognize nonetheless that this statute imposes a burden upon States in that it removes their Eleventh Amendment protection from suit, thereby subjecting them to potential monetary liability. Rules for interpreting §5 that would provide States with special protection, however, run counter to the very object of the Fourteenth Amendment. By its terms, that Amendment prohibits States from denying their citizens equal protection of the laws. U. S. Const., Amdt. 14, §1. Hence "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments `by appropriate legislation.' Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome, 446 U. S., at 179. See also Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976); Ex parte Virginia, supra, at 345.      And, ironically, the greater the obstacle the Eleventh Amendment poses to the creation by Congress of the kind of remedy at issue here--the decentralized remedy of private damage actions--the more Congress, seeking to cure important national problems, such as the problem of disability discrimination before us, will have to rely on more uniform remedies, such as federal standards and court injunctions, 42 U. S. C. §12188(a)(2), which are sometimes draconian and typically more intrusive. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 704-705 (1999) (Breyer, J., dissenting). Cf. ante, at 15, n. 8. For these reasons, I doubt that today's decision serves any constitutionally based federalism interest.

         The Court, through its evidentiary demands, its non-deferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress. Morgan, 384 U. S., at 648, n. 7 (The "sponsors and supporters of the [Fourteenth] Amendment were primarily interested in augmenting the power of Congress"). Its decision saps §5 of independent force, effectively "confin[ing] the legislative power ... to the insignificant role of abrogating only those state laws that the judicial branch [is] prepared to adjudge unconstitutional." Id., at 648-649. Whether the Commerce Clause does or does not enable Congress to enact this provision, see, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100-185 (1996) (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting); College Savings Bank, supra, at 699-700 (Breyer, J., dissenting), in my view, §5 gives Congress the necessary authority.


         For the reasons stated, I respectfully dissent.

    APPENDIX A TO OPINION OF BREYER, J.

    Congressional hearings on the Americans with Disabilities Act

    Americans with Disabilities Act of 1989: Hearings on H. R. 2273 before the House Committee on the Judiciary and the Subcommittee on Civil and Constitutional Rights, 101st Cong., 1st Sess. (1989).

    Americans with Disabilities Act: Hearing on H. R. 2273 and S. 933 before the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990).

    Americans with Disabilities Act: Hearings on H. R. 2273 before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation, 101st Cong., 1st Sess. (1990).

    Americans with Disabilities: Telecommunications Relay Services, Hearing on Title V of H. R. 2273 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990).

    Americans with Disabilities Act of 1989: Hearing on H. R. 2273 before the Subcommittee on Select Education of the House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).

    Field Hearing on Americans with Disabilities Act: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).


    Hearing on H. R. 2273, The Americans with Disabilities Act of 1989: Joint Hearing before the Subcommittee on Select Education and Employment Opportunities of the House Committee on Education and Labor, 101st Cong., 1st Sess. (July 18 & Sept. 13, 1989) (two hearings)

    Oversight Hearing on H. R. 4498, Americans with Disabilities Act of 1988: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989)

    Americans with Disabilities Act: Hearing before the House Committee on Small Business, 101st Cong., 2d Sess. (1990); Americans with Disabilities Act of 1989: Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess. (1989) (May 1989 Hearings).


    Americans with Disabilities Act of 1988: Joint Hearing on S. 2345 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Human Resources and the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).

    APPENDIX B TO OPINION OF BREYER, J.

    Disability discrimination laws enacted by Congress prior to the Americans with Disabilities Act

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

    Architectural Barriers Act of 1968, 42 U. S. C. §4151 et seq.

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

    Education of the Handicapped Act, Pub. L. 91-230, Title VI, 84 Stat. 175 (reenacted in 1990 as the Individuals with Disabilities Education Act, 20 U. S. C. §1400 et seq.)

    Developmental Disabilities Assistance and Bill of Rights Act, 42 U. S. C. §6000 et seq.

    Voting Accessibility for the Elderly and Handicapped Act, 42 U. S. C. §1973ee et seq.

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


    Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U. S. C. §10801

    Fair Housing Amendments of 1988, 42 U. S. C. §3604.

    APPENDIX C TO OPINION OF BREYER, J.

    Submissions made by individuals to the Task Force on Rights and Empowerment of Americans with Disabilities. See the Government's Lodging (available in Clerk of Court's case file).

    ALABAMA

    Page No.

    00002     discrimination against the mentally ill in city zoning process

    00003     inaccessible exercise equipment at University of Alabama

    00004     school failed to train teachers how to work with students with learning disabilities

    00005     courts failed to provide interpretive services for deaf people

    00006     lack of accessible police and court services for deaf people

    00007     inaccessible public transportation

    00008     child denied public education because of cerebral palsy

    00009     inaccessible public transportation, which prevented persons with disabilities from getting to work

    00010     inaccessible public buildings and services; inaccessible transportation

    00011     inaccessible public schools; inaccessible public transportation


    00013     inaccessible public schools; inaccessible public transportation

    00014     failure to enforce building codes requiring access for persons with disabilities

    00015     inaccessible courthouse

    00017     lack of instructions for use of voting machine by blind people; inaccessible restrooms in newly renovated State House

    00021     inaccessible public transportation

    00023     inaccessible public transportation

    00024     failure to enforce state and local laws protecting persons with disabilities

    00025     schools failed to provide an adequate education for children with disabilities

    00026     inaccessible public transportation

    00027     man denied vocational rehabilitation services based on his cerebral palsy; inaccessible public transportation

    00031     vocational rehabilitation agency failed to provide services for schizophrenics; zoning discrimination against group homes

    00032     school failed to provide an adequate education

    00033     school failed to provide an adequate education

    ALASKA

    Page No.

    00038     school placed child with cerebral palsy in special education classes

    00041     inaccessible restrooms in state legislature information office

    00042     inaccessible areas at new Alaska Performing Arts Center

    00044     inaccessible public transportation, which prevented persons with disabilities from getting to work

    00046     lack of curb cuts in sidewalks near apartment building for persons with disabilities

    00048     child erroneously placed in special education classes

    00049     inaccessible new performing arts center

    00050     Alaska Psychiatric Institute failed to provide interpretive services for deaf patients

    00052     state and local agencies disregarded laws requiring accessibility

    00055     jail failed to provide person with disability medical treatment

    00056     inaccessible government buildings in Seward

    00057     inaccessible public transportation

    00058     city failed to train employees how to communicate with people with hearing impairments

    00059     segregated seating and inaccessibility at new performing arts center

    00061     inaccessibility of State Ferry Columbia and Alaska Railroad; denial of job interview because person was in a wheelchair

    00062     inaccessible new performing arts center

    00063     person using a respirator denied access to Alaska State Division of Medical Assistance

    00065     inaccessible city hall

    00067     school district retaliated against teacher for asking to be assigned to an accessible classroom

    00069     inaccessible public transportation

    00070     lack of curb cuts; inaccessible public transportation

    00071     state agencies failed to provide interpretive services for deaf people

    00072     department of motor vehicles failed to provide interpretive services

    00073     inaccessibility of Seward City Hall and other state and local buildings

    00075     state university failed to assist in covering expense of interpretive services for deaf graduate student

    00076     inaccessible public buildings

    00077     inaccessible public school

    ARIZONA

    Page No.

    00090     survey showing inaccessibility problems in city of Phoenix's public services

    00110     inaccessible public transportation

    00112     inaccessible restrooms at state recreation areas

    00116     department of motor vehicles failed to provide visual signs or other assistance for people with hearing impairments

    00117     person with disability denied police officer job

    00119     Arizona Department of Economic Security took 3½ to 4 years to fix unsafe van lift

    00121     county paratransit refused to provide transportation to college

    00124     department of motor vehicles placed restrictions on driver's license because of deafness

    00125     teacher with hearing impairment denied numerous jobs

    00127     department of motor vehicles failed to assist deaf people

    00129     inaccessible entrance, restroom, water fountain, and office at building leased by State

    00130     woman injured trying to use inaccessible restroom at roadside rest stop; lack of curb cuts

    00131     inaccessible social service agencies

    ARKANSAS

    Page No.

    00136     public school failed to enforce accommodations for student

    00138     public school teacher refused to allow student with disability to use authorized calculator

    00139     state university failed to inform student with hearing impairment about activities and rules

    00140     lack of curb cuts

    00141     inaccessible public transportation

    00143     inaccessible office area at public housing for persons with disabilities

    00144     inaccessible public transportation

    00145     inaccessible state office of human services; state agencies failed to hire persons with disabilities

    00146     failure to enforce handicapped parking law

    00147     school erroneously placed child with mobility impairment in special education classes

    00149     public schools failed to provide interpretive services for deaf people

    00150     inaccessible public transportation

    00153     person with disability forced to resign employment because of architectural barriers

    00154     public school held meetings and conferences at inaccessible locations

    00155     physical barriers prevented citizens from voting

    00156     rehabilitation services failed to assist people with all kinds of disabilities

    00159     inaccessible city and county buildings

    00161     human services office relocated to inaccessible building

    00163     lack of curb cuts

    CALIFORNIA

    Page No.

    00166     inaccessible public recreation sites

    00168     California Relay System failed to provide telephone access to other States for deaf people

    00180     public transit failed to provide visual signs for deaf people

    00181     inaccessible public transportation

    00202     California Children's Services refused to help with cost of caring for child with head injury at home

    00206     inaccessible county buildings

    00208     deaf people denied access to state agencies that lacked TDD's

    00210     deaf people denied access to state agencies that lacked TDD's

    00211     public transit failed to provide visual signs for deaf people

    00212     public transit failed to provide visual signs for deaf people

    00213     limited out-of-state telephone relay services

    00214     inaccessible public transportation limited access to community college

    00215     inaccessible public transportation

    00218     deaf people denied access to state agencies that lacked TDD's

    00219     state mental health services failed to provide access for deaf people

    00220     government failed to provide interpretive services for deaf people

    00221     inaccessible public transportation; lack of curb cuts

    00222     inaccessible public transportation

    00223     inaccessible airport; inaccessible public transportation

    00224     California Relay Service failed to enable deaf people to make interstate calls

    00225     California Relay Service failed to enable deaf people to make interstate calls

    00226     inaccessible public transportation; inaccessible restrooms in public buildings

    00227     University of California attempted to terminate employees with disabilities for taking medical leave

    00231     state agencies failed to provide TDD's

    00232     person denied opportunity to serve on jury because county failed to provide interpretive services for deaf people

    00236     public school district failed to provide TTD for deaf parents

    00237     California Relay Service failed to enable deaf people to make interstate calls

    00240     lack of curb cuts; inaccessible public transportation

    00241     inaccessible public transportation

    00244     inaccessible public transportation

    00245     California Civil Service Exam held at high school with inaccessible restrooms

    00246     inaccessible restrooms in county administration building; lack of curb cuts

    00247     inaccessible public transportation prevented persons with disabilities from getting to work; States failed to enforce laws requiring accessibility

    00248     inaccessible public transportation

    00249     California Relay Service failed to enable deaf people to make interstate calls

    00250     inaccessible public transportation

    00252     inaccessible public transportation

    00253     inaccessible public transportation

    00254     inaccessible county courthouse; street signals too fast for safe crossing by wheelchair

    00255     public functions failed to provide interpretive services for deaf people

    00258     deaf people denied access to state agencies that lacked TDD's

    00261     California Basic Educational Skills Test discriminated against deaf adults who wanted to become teachers of deaf students

    00262     department of motor vehicles required doctors to report patients with seizure disorders and revoked such patients' licenses, but did not require reporting of other conditions that could cause erratic driving

    COLORADO

    Page No.

    00266     person in wheelchair passed by five bus drivers, all of whom claimed that lifts were broken

    00267     lack of curb cuts and ramps; inaccessible public transportation

    00268     inaccessible public transportation

    00269     inaccessible public transportation

    00270     persons with disabilities placed in segregated public housing

    00271     inaccessible public transportation

    00272     lack of curb cuts forced person in wheelchair to use street

    00273     inaccessible county courthouse

    00274     inaccessible public transportation

    00275     inaccessible public transportation in small cities; public schools failed to assist students with disabilities

    00276     inaccessible public transportation; inaccessible public facilities and recreation sites

    00277     political parties held caucuses at inaccessible private home

    00280     children with developmental disabilities required to attend segregated schools

    00281     public school system refused to transfer student with disabilities from special to regular school until she brought suit

    00283     vocational rehabilitation agency refused to take referrals from psychiatric halfway house; person denied driver's license in Virginia because of mental illness

    CONNECTICUT

    Page No.

    00285     public school inaccessible to parent with disability

    00289     state university denied renewal of contract for graduate assistantship because of age and disability

    DELAWARE

    Page No.

    00301     inaccessible public high school; inaccessible public transportation

    00302     inaccessible public schools; inaccessible public transportation

    00303     inaccessible voting machines; inadequate handicapped parking

    00308     man with physical disability spent 45 minutes crawling into polling place because it was inaccessible to wheelchairs

    00310     inaccessible public transportation; public ceremony held at inaccessible building

    00314     failure to enforce laws requiring handicapped parking spaces, which were usually occupied by police cars

    00315     high percentage of children with disabilities placed in segregated schools

    00317     restrictive zoning limited reintegration of institutionalized people into community

    00319     inaccessible voting system

    00323     inaccessible public transportation

    00325     inaccessible public transportation made person with disability late for work; inaccessible library and other public buildings

    00329     State refused to fund services for people with mental illness

    00330     state transit system provided special vouchers for persons with physical disabilities, but not for mentally ill

    00331     state criminal justice system failed to provide psychiatric treatment

    00333     State kept child with schizophrenia in Delaware State Hospital because it lacked services for people who could be released

    00335     state labor department's restrictive policies prevented persons with disabilities from applying for employment

    00336     failure to enforce laws requiring handicapped parking spaces, which were usually occupied by police cars

    00337     public transportation refused to transport person carrying oxygen

    00338     staff and patients at Delaware State Hospital sexually abused women patients

    00343     inaccessible public transportation

    00345     state police interrogated deaf citizens without providing interpretive services

    00347     vocational high school sought to transfer student back to special segregated school

    GEORGIA

    Page No.

    00362     public colleges failed to provide assistance for students with learning disabilities

    00365     University of Georgia students with disabilities faced architectural barriers, inaccessible public transportation, lack of housing, and failure to enforce handicapped parking laws

    00366     inaccessible classrooms at University of Georgia

    00367     University of Georgia located its office of handicapped services in inaccessible second floor office

    00370     University of Georgia charged students with learning disabilities $600 per quarter for services that other students with disabilities received at no cost

    00371     Learning Disability Adult Clinic at University of Georgia charged unreasonable fees

    00372     inaccessible public transportation

    00374     traffic court failed to provide interpretive services for deaf person

    HAWAII

    Page No.

    00444     inaccessible public transportation

    00446     inaccessible public transportation

    00448     state university failed to enforce handicapped parking laws

    00451     state employee in wheelchair forced to resign job because frequently unable to get to office due to broken elevator in state building; State Commission on the Handicapped refused employee's request for reasonable accommodation

    00452     state university failed to provide blind student with timely or adequate books on tape for coursework; lack of signs or information for blind people using public transit

    00455     person with disability denied opportunity to testify because department of labor held hearing in an inaccessible room

    00456     state employment agency refused to provide interpretive services for deaf people

    00457     public school put three-year-old deaf child in same class as fourth graders

    00458     quadriplegic person who had California driver's license denied license by Hawaii

    00460     state government office refused to interview persons with emotional disorder or history of alcoholism

    00461     inaccessible state buildings

    00462     person with mobility impairment denied serious consideration for state job due to unreliability of accessible public transportation

    00463     inaccessible public transportation prevented person with disability from getting to work; inaccessible public buildings

    00464     lack of curb cuts forced person in wheelchair to use street

    00467     elevators in public buildings not marked for blind people; bus drivers failed to announce stops for blind people

    00468     inaccessible public transportation; bus drivers harassed mentally retarded passengers

    00469     inaccessible public transportation

    00472     state mental health system had restrictive institutional policies

    00473     state social service employees placed limits on opportunities for persons with disabilities based on stereotypical assumptions

    00474     lack of curb cuts and ramps

    00475     inaccessible public transportation

    00476     inaccessible public transportation

    00477     inaccessible public library

    00479     denial of certain licenses to persons with mental disabilities

    00480     inaccessible restroom in state park; lack of curb cuts

    00484     state and local government meetings failed to provide interpretive services for deaf people

    00485     students with disabilities unable to participate in school interscholastic sports

    00486     blind people prevented from traveling outside State because quarantine laws permitted no exemption for their guide dogs

    00487     state mental health services unavailable for deaf people due to failure to train staff

    00488     inaccessible public transportation; inaccessible city and county buildings

    00490     handi-van refused service to person paralyzed from waist down

    00491     inaccessible public transportation

    00492     state agencies failed to monitor conditions in community residential facilities for persons with disabilities

    00494     inaccessible public transportation

    00495     inaccessible public transportation

    00496     inadequate assistance for deaf person at court appearance

    IDAHO

    Page No.

    00502     inaccessible public transportation

    00505     inaccessible public transportation

    00506     adult victims of abuse with developmental disabilities denied equal rights to testify in court

    00507     inaccessible public recreation activities

    00508     inaccessible public transportation

    00509     lack of curb cuts

    00510     inaccessible public transportation

    00511     city and county failed to provide assistance for deaf people at public meetings

    00514     inaccessible public transportation

    00515     public school failed to provide adequate assistance for students with disabilities

    00516     inaccessible public transportation

    00517     public defenders' offices and public meetings failed to provide interpretive services for deaf people; police harassed persons with disabilities who appeared to be intoxicated

    00518     vocational rehabilitation agency lacked TTY service

    00521     government agencies lacked staff to assist people with head injuries

    00522     inaccessible public transportation

    00523     inaccessible public transportation

    00524     inaccessible public transportation; inaccessible public buildings

    00528     limited access at new county courthouse, library, and city hall

    00531     school district refused to hire licensed teacher because of speech impediment

    00533     public school failed to provide assistance for deaf student

    00537     public school failed to provide interpretive services for deaf student

    00540     Idaho lacked statewide telephone relay service for deaf people

    00541     department of employment and department of health and welfare lacked telephone access for deaf people

    00543     inaccessible restrooms at public high school; student in wheelchair denied admission to regular classes

    ILLINOIS

    Page No.

    00546     state system for providing ballots to people unable to enter polling place and special bus service caused long wait outside in cold weather

    00548     schools that mainstream deaf children refused to hire deaf teacher

    00553     government failed to provide interpretive services for deaf people at public hearing on school budget

    00554     lack of curb cuts; inaccessible public transportation

    00559     department of rehabilitation limited services to persons with disabilities by threatening placement in nursing home

    00569     police stations lacked TTY service

    00572     deaf people arrested and held in jail overnight without explanation because of failure to provide interpretive services

    00573     inaccessible polling place

    00574     inaccessible public schools prevented attendance at PTA meetings

    00575     inaccessible public transportation

    00576     inaccessible public transportation

    00578     lack of curb cuts and ramps for wheelchairs

    00579     most state housing agencies lacked telecommunications devices or interpretive services for deaf people

    00581     state and local government agencies lacked telecommunications devices for deaf people

    00583     emergency medical, police, and fire services lacked TDD's or personnel trained to receive TDD calls

    00585     inaccessible public pools; inaccessible restrooms in municipal building

    00586     inaccessible public transportation

    00587     inaccessible polling place

    00588     inaccessible polling place

    00589     inaccessible public transportation

    00590     inaccessible public transportation

    00591     inaccessible library

    00592     inaccessible voting system

    00594     inaccessible polling place

    00595     lack of curb cuts

    00596     inaccessible public transportation

    00597     inaccessible public transportation

    00600     inaccessible public transportation

    00603     inaccessible public transportation

    00605     lack of curb cuts; inaccessible public buildings; inaccessible public transportation; inaccessible polling place

    INDIANA

    Page No.

    00608     state vocational rehabilitation agency refused to help person     it classified as severely disabled

    00609     for five years, state vocational rehabilitation agency failed to provide assistance

    00612     inadequate curb cuts

    00613     inaccessible public transportation

    00616     inaccessible public transportation

    00618     inadequate curb cuts

    00619     inaccessible public transportation; inaccessible public facilities

    00621     inaccessible public transportation

    00622     government agencies failed to provide interpretive services and TTY/TDD's for deaf people

    00629     deaf counselors discouraged from applying for jobs as rehabilitation counselors for deaf people

    00637     staff at state psychiatric facilities abused and physically dragged patients

    00644     person with disability dismissed as director of deaf unit at Central State Hospital

    00651     public meetings held at inaccessible locations

    00653     inaccessible polling place

    00655     state counselors failed to provide rehabilitation assistance to person with head injury

    IOWA

    Page No.

    00659     person dismissed as city bus operator after seeking treatment for mental illness

    00664     state commission failed to supply necessary equipment for deaf and blind employee

    00665     high school limited opportunities for mentally retarded student to be integrated

    KANSAS

    Page No.

    00670     Kansas Commission of Civil Rights denied legally blind person job as investigator because of limited ability to drive and refused to allow accommodation that would have permitted use of public transportation

    00673     police failed to provide interpretive services after arresting deaf man

    00676     Kansas Department of Transportation fired person because she had epilepsy

    00679     state investigator failed to examine employment discrimination claims

    00685     inaccessible public transportation

    00695     county failed to assist mentally ill with housing and vocational opportunities

    00696     damaged sidewalks and poor street lighting posed risk to persons with disabilities

    00704     inaccessible city-owned arena

    KENTUCKY

    Page No.

    00706     bus driver bypassed person standing at stop with guide dog

    00709     inaccessible public transportation

    00712     department of employment services failed to make reasonable accommodations for persons with disabilities

    00717     lack of curb cuts; inaccessible public transportation

    00720     inaccessible public transportation

    00723     state employment service refused to place person in wheelchair

    00724     inaccessible public buildings

    00729     public library, police department, and state university library lacked personnel trained to use TTY devices

    00731     state university failed to provide assistance to parttime teacher with a disability

    00732     State prevented deaf teachers from teaching deaf students by requiring courses such as music education

    00733     inaccessible public transportation

    00736     inaccessible public transportation

    00740     Kentucky School for the Deaf preferred hiring hearing teachers rather than deaf teachers

    LOUISIANA

    Page No.

    00743     inaccessible housing for graduate students at Louisiana State University

    00745     inaccessible public transportation

    00748     police assumed person with coordination problems was drunk

    00751     inaccessible public transportation

    00752     vocational rehabilitation program failed to provide services for person with head injury

    00753     inaccessible public transportation prevented persons with disabilities from getting to work

    00758     inaccessible voting machine

    00759     Louisiana Sheriffs Pension and Relief Fund denied membership to person with disability

    00773     inaccessible public transportation; lack of curb cuts

    00776     inaccessible buildings at Louisiana State University

    MAINE

    Page No.

    00778     inadequate sidewalk ramps; failure to enforce handicapped parking laws

    00780     failure to enforce state regulations requiring accessibility in public buildings

    00782     town refused request for interpretive services for deaf people at town meeting

    MARYLAND

    Page No.

    00785     public transportation unsafe for persons with disabilities

    00787     public libraries, state prison and other state offices lacked TDD's

    00788     department of human relations failed to provide interpretive services for deaf people and did not answer TTY calls

    00789     vocational rehabilitation counselors failed to help deaf people find jobs

    00797     inaccessible public transportation

    00798     state hospital refused to provide interpretive services for deaf people

    MASSACHUSETTS

    Page No.

    00808     Office for Children refused to license blind person as day care assistant

    00812     inaccessible courthouse

    00813     inaccessible restrooms in state building and state armory

    00816     state college threatened to terminate employee because of blindness

    00829     Massachusetts Adoption Exchange refused to let family with mother who had muscular dystrophy adopt child

    00835     department of vocational rehabilitation hired able-bodied person instead of qualified person in wheelchair

    MICHIGAN

    Page No.

    00920     person denied admission to University of Michigan Medical School because of speech impediment

    00921     inaccessible state university campuses

    00922     65 percent of voting precincts in Detroit inaccessible

    00923     buses with lifts often failed to stop for people in wheelchairs or their lifts did not work

    00924     state employee threatened with discipline for serving on and attending meetings of Equal Employment Opportunity Commission advisory committee

    00925     state university stadium lacked accessible restrooms, water fountains, and telephones

    00926     inaccessible public transportation

    00928     school system failed to hire teachers who could communicate with deaf students

    00932     state university denied interpretive services to part-time deaf student

    00933     public transportation refused to serve persons in wheelchairs; public agency refused to provide interpretive services for deaf people

    00939     state university had transportation system for students with disabilities but not for faculty and staff

    00947     state university lacked adequate curb ramps

    00950     state denied driver's license to person with epilepsy

    00958     inaccessible public recreation facilities

    00960     inaccessible government buildings

    00961     state university denied sabbatical proposal of faculty member with disability

    00963     Michigan Rehabilitation Services placed people in inappropriate positions

    00964     Michigan Rehabilitation Services failed to accommodate mentally ill persons

    00968     inaccessible public transportation

    00969     man with disability forced to use girls' restroom at state job

    00970     person with disability terminated from county job and banned from future county employment

    MINNESOTA

    Page No.

    00974     person with disability and score of 100 was finalist for job as director of agency for the blind, but able-bodied person with score of 70 was hired

    00980     person with cerebral palsy humiliated at interview for job with state department of education

    MISSISSIPPI

    Page No.

    00853     inaccessible public transportation

    00855     inaccessible beaches, pools, and parks

    00984     inaccessible classrooms and library at Mississippi School for the Deaf

    00985     no state agency to provide or coordinate community service programs for deaf adults

    00986     inaccessible classrooms at Mississippi School for the Deaf

    00987     public programs failed to provide interpretive services for deaf people; government failed to post caution signs warning drivers of deaf children

    00988     inaccessible polling places and voting booths

    00989     inaccessible public buildings

    00990     courts refused to pay for qualified interpretive services for deaf people

    00992     inaccessible state university building

    00993     teacher denied position at public elementary school because of need for braces and a cane to walk

    00994     lack of curb cuts; inaccessible public school rooms; inaccessible public transportation

    00996     inaccessible department of motor vehicles

    00997     inaccessible public transportation; inaccessible public facilities

    00998     inaccessible courthouses

    00999     state university instructor refused to teach blind person

    01000     inaccessible public transportation

    01001     inaccessible polling place; city employee required to go outside to get to restroom

    MISSOURI

    Page No.

    01003     lack of curb cuts

    01004     inaccessible restrooms in public buildings; lack of curb cuts

    01006     public schools segregated children with disabilities; inaccessible school buildings

    01009     inaccessible public transportation and public buildings such as post offices, libraries, schools, and polling places

    01010     state university tried to discourage blind person's chosen field of study

    01013     inaccessible public transportation

    01015     courthouse failed to provide amplified sound system in courtrooms

    MONTANA

    Page No.

    01017     inadequate curb cuts

    01022     inadequate curb cuts in downtown area

    01023     state agencies refused to make reasonable accommodations to paraplegics seeking employment

    01024     inaccessible polling place

    01026     person in wheelchair forced to vote in street

    01027     inaccessible polling place

    NEBRASKA

    Page No.

    01029     government failed to provide interpretive services for deaf people serving on juries, commissions, and committees

    01031     local school district failed to provide interpretive services for deaf child

    01034     inaccessible entrance at office of county assistance

    NEVADA

    Page No.

    01038     local government failed to provide assistance for people with head injuries

    01043     inaccessible government buildings and public facilities

    01044     person with disability denied access to public transportation because it took too long to get on and off bus

    01046     community college refused to provide interpretive services for deaf people

    01050     city ordinance prevented mentally ill from living in residential areas

    01051     inaccessible public transportation; inadequate curb cuts and ramps

    01053     failure to enforce handicapped parking laws

    01054     lack of sidewalk and crosswalk accommodations for persons in     wheelchairs

    NEW HAMPSHIRE

    Page No.

    01057     state agency failed to assist persons with head injuries despite availability of state surplus funds

    01061     vocational rehabilitation counselor tried to cut off funds and assistance to person with disability

    NEW JERSEY

    Page No.

    01067     commission for the blind and visually impaired demoted visually impaired person

    01068     zoning commission denied permission to open home for persons with head injuries

    01069     architectural barriers on Cumberland County College campus

    01072     inadequate curb cuts

    NEW MEXICO

    Page No.

    01080     state university denied entry into school of social work to blind person but admitted partially sighted person with lower grades

    01083     New Mexico lacked statewide TDD relay service

    01091     prisoners with developmental disabilities subjected to longer terms and abused by other prisoners in state correctional system

    01092     inaccessible public transportation

    01095     University of New Mexico failed to provide assistance for blind student

    01097     city and county government offices lacked TDD's

    01098     University of New Mexico hospital failed to provide interpretive services for deaf patients

    01099     University of New Mexico failed to provide interpretive services for deaf students

    01100     inaccessible buildings on University of New Mexico campus

    NEW YORK

    Page No.

    01109     state agencies failed to hire persons with disabilities

    01114     custodian in public high school denied request of person with disability to use locked elevator

    01119     at state legislature, person in wheelchair had to wait 45 minutes to use freight elevator

    01129     public village meetings held in second floor meeting room with no elevator; many polling places inaccessible

    01130     lack of curb cuts; failure to enforce handicapped parking laws

    01134     inaccessible state parks and public beaches

    NORTH CAROLINA

    Page No.

    01144     public elementary school initially denied admission and then charged extra fee for child with Down's Syndrome to attend afterschool day care program

    01155     blind people told not to participate in regular public parks and recreation programs

    01158     state agencies, other than services for the blind and vocational rehabilitation, employed few persons with disabilities

    01161     police arrested and jailed deaf person without providing interpretive services

    NORTH DAKOTA

    Page No.

    01170     person with disability denied access to driver's license exam because held in inaccessible room

    01172     inaccessible polling places

    01175     lack of curb cuts; failure to enforce handicapped parking laws; inaccessible polling places; inaccessible city government meetings

    01178     failure to enforce handicapped parking laws

    01183     inaccessible polling places; inaccessible state and local government buildings

    01185     government agencies failed to enforce policies regarding hiring persons with disabilities; inaccessible polling places; inaccessible public buildings

    01186     state and local government failed to hire persons with disabilities; inaccessible polling places

    01187     failure to enforce handicapped parking laws

    01196     person with head-injury disability denied consideration for position of election polls inspector

    OHIO

    Page No.

    01215     city failed to trim trees regularly, which posed a hazard to blind people

    01216     inaccessible state, county, and city buildings

    01218     inaccessible social service agency offices; inaccessible public transportation

    01221     vocational rehabilitation agency denied assistance to person with disability

    01224     rehabilitation services agency failed to assist paranoid schizophrenic

    01229     vocational rehabilitation agency discouraged person with disability from being a nurse

    01230     persons with disabilities denied jobs because of inaccessible public transportation

    01231     blind person denied driver's license though legally eligible

    01234     inaccessible public transportation; lack of curb cuts

    01235     public paratransit system often left passengers stranded

    01236     vocational rehabilitation agency steered person with mental disability to menial job, despite his Ph. D. degree

    01239     police failed to provide interpretive services for deaf person who was arrested

    01241     Cleveland State University lacked wheelchair ramps

    01242     inaccessible public transportation

    OKLAHOMA

    Page No.

    01251     Tulsa Housing Authority failed to communicate with and provide information to tenants with disabilities

    01258     state employment office lacked TDD or workers with interpretive skills; state university paid deaf employees less than hearing employees; state agencies made no effort to hire deaf applicants

    01265     police officer pointed gun at person with disability who could not get out of car quickly

    01266     inaccessible public transportation

    01269     person with speech impediment denied numerous state jobs

    01271     inaccessible restrooms at city parks

    01275     state government held meeting at hotel with inaccessible restrooms

    01278     person in wheelchair worked at polling place with inaccessible restrooms

    01280     inaccessible polling places

    01286     qualified blind person who offered to provide own driver denied job as state social worker

    OREGON

    Page No.

    01370     blind people unable to access printed material from state government

    01375     school system barred child with cerebral palsy from physical education class and gave her cleaning job instead

    01377     person with two college degrees and extensive professional experience turned down for appro-
    priate state government jobs and advised to seek entry-level jobs because of his disability

    01378     commission for the handicapped lacked funds to enforce laws

    PENNSYLVANIA

    Page No.

    01391     public library had restrictive policy regarding issuance of library cards to residents of group homes

    01397     government failed to provide interpretive services for deaf people at school budget hearing

    01399     inaccessible public transportation

    01407     inaccessible polling places

    01408     inaccessible public transportation

    01409     inaccessible polling places

    01410     inaccessible polling place

    01413     inaccessible public transportation; lack of curb cuts

    01421     inaccessible public library

    01423     inaccessible automatic ticket dispensers on Pennsylvania Turnpike

    01425     bus drivers refused to transport person in wheelchair

    01427     inaccessible county offices

    01429     lack of curb cuts

    01430     GED programs offered at inaccessible public schools; bus drivers unwilling or unable to use wheelchair lifts

    01432     child unable to enroll in first grade because of inaccessible classroom

    01434     lack of curb cuts; inaccessible public transportation

    01435     lack of curb cuts in rural areas

    01436     inaccessible polling place

    01439     unsafe curb cuts

    01441     inaccessible state office building

    SOUTH CAROLINA

    Page No.

    01454     government failed to provide 911 emergency service for deaf people

    01457     state and local agencies, library, and police and fire departments lacked TDD's; government failed to provide interpretive services for deaf people at meetings

    SOUTH DAKOTA

    Page No.

    01466     school district failed to provide adequate services to child with disability

    01467     traffic light and fire hydrant placed where they posed obstacle to blind pedestrians and those in wheelchairs who needed to use curb cuts

    01469     inaccessible polling places

    01470     inaccessible public transportation

    01472     State failed to hire persons with disabilities without giving a reason

    01475     criminal court failed to provide interpretive services for deaf people

    01476     state university denied blind student opportunity to practice teach as required for teaching certificate

    TEXAS

    Page No.

    01483     poles obstructed sidewalks; lack of curb cuts; inaccessible public transportation

    01503     state teachers' exam required deaf teachers who wanted to teach deaf children to pass section on speech assessment and listening

    01514     medical examination required for renewal of driver's license despite unblemished 20-year driving record

    01520     inadequate handicapped parking spaces

    01521     state vocational rehabilitation agency refused to assist college student who chose to major in political science

    01522     employee of county human services agency denied handicapped parking place

    01526     failure to enforce handicapped parking laws

    01527     inaccessible state university transportation system

    01529     denial of driver's licenses or accommodations to take driver's test

    01531     inaccessible buildings at state university

    01536     state hospital sought to discharge mentally ill boy with HIV

    01540     special transit system refused to transport man with mental retardation though he could not use regular bus

    01542     deaf man not permitted to take state cosmetology exam with assistance from interpreter

    01543     blind man not permitted to take state chiropractic exam because he could not read x-rays alone

    01549     deaf instructors unable to pass state teachers' exam for teachers of deaf students that assessed speech and language skills

    01551     inadequate handicapped parking and enforcement

    UTAH

    Page No.

    01554     state rehabilitation service had never hired deaf counselor or administrator

    01556     child denied admission to public school because first-grade teacher refused to teach him

    01563     public school failed to implement state review panel findings regarding accommodation for child with disability

    01576     state office for persons with disabilities failed to hire such persons; inaccessible public transportation

    01577     state government denied persons with disabilities upper level management jobs

    01580     rehabilitation services agency discriminated against employee with reading disability

    01581     qualified blind teacher denied job and told that school needed teacher who could also coach football, but school hired sighted person who was     not a coach

    01584     inaccessible public transportation

    01586     inaccessible government office

    01587     public school teacher refused to give child with learning disability his grades and said he did not belong in public school

    01592     Utah denied mainstream education to child with Down's Syndrome, though child had been mainstreamed in another State

    01595     person with disability involuntarily hospitalized and abused by state university hospital

    01613     inaccessible public high school facilities

    VERMONT

    Page No.

    01634     zoning board denied use permit for community mental health center

    VIRGINIA

    Page No.

    01642     student with learning disability misclassified as mentally retarded and deemed ineligible to take drama class at public school

    01646     inaccessible buildings at state school for blind and deaf youth

    01647     failure to enforce handicapped parking laws

    01654     inaccessible restrooms in government buildings; failure to enforce handicapped parking laws

    01656     state programs for persons with disabilities failed to communicate with deaf people

    01660     lack of state institutional care to rehabilitate people with head injuries

    01663     inaccessible traffic court

    01664     inaccessible public transportation

    01667     lack of curb cuts

    01668     inaccessible public transportation prevented persons with disabilities from voting

    01671     state and local government failed to provide interpretive services for deaf people at meetings

    01674     lack of curb cuts outside county courthouse

    01675     deaf people denied access to 911 emergency services

    01676     inaccessible courthouse

    01677     inaccessible public transportation

    01678     lack of curb cuts and ramp for access to courthouse

    01679     inaccessible county courthouse

    01680     inaccessible courthouse and library

    01682     inaccessible high school

    01683     lack of curb cuts at city's main intersection

    01684     person in wheelchair received ticket for obstructing street traffic even though sidewalks not accessible

    01686     inaccessible transportation on state university campus

    WASHINGTON

    Page No.

    01690     deaf people required to pay for interpretive services in court

    01692     state government's lack of TDD deterred deaf people from applying for employment

    01694     government office lacked TDD and interpretive services for deaf people

    01696     state human rights commission lacked staff to pursue case of discrimination against blind person

    01706     community college failed to provide interpretive services for deaf students or to assist students with disabilities in other ways

    01716     local sheriff 's department discontinued TDD

    01717     inaccessible restroom at state ferry terminal

    WEST VIRGINIA

    Page No.

    01742     inaccessible public transportation

    01745     sheriff denied person with disability use of elevator in courthouse

    01746     law enforcement agencies lacked ability to communicate with deaf people

    WISCONSIN

    Page No.

    01752     public school recreation program refused to provide interpretive services for deaf child

    01755     state university hospital and sheriff 's office failed to provide TDD's or trained personnel

    01756     inaccessible polling places

    01767     person with disabilities denied admission to graduate study at state university

    01758     inaccessible city hall

    01759     state offices lacked TDD's and failed to provide material in braille or on tape

    01760     department of motor vehicles revoked person with diabetes' driver's license despite doctor's report

    01761     inaccessible public transportation; lack of curb cuts or ramps

    01766     department of motor vehicles tried to revoke license of person who used hand controls in car

    01767     inaccessible polling places

    01771     blind and deaf people denied equal access to jury service

    WYOMING

    Page No.

    01773     State lacked telephone relay system for deaf people

    01775     inaccessible state buildings

    01777     department of motor vehicles denied driver's license to person with epilepsy

    01780     inaccessible buildings at state university

    01781     zoning board denied permit for group home for persons with disabilities

    01786     person in wheelchair denied marriage license because courthouse was inaccessible



    FOOTNOTES


    Footnote 1

     Respondents' complaints in the United States District Court alleged violations of both Title I and Title II of the ADA, and petitioners' "Question Presented" can be read to apply to both sections. See Brief for Petitioners i; Brief for United States I. Though the briefs of the parties discuss both sections in their constitutional arguments, no party has briefed the question whether Title II of the ADA, dealing with the "services, programs, or activities of a public entity," 42 U. S. C. §12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e.g., Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion") (internal quotation marks omitted). The Courts of Appeals are divided on this issue, compare Zimmerman v. Oregon Dept. of Justice, 170 F. 3d 1169 (CA9 1999), with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F. 3d 816 (CA11 1998). We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under §5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question. To the extent the Court granted certiorari on the question whether respondents may sue their state employers for damages under Title II of the ADA, see this Court's Rule 24.1(a), that portion of the writ is dismissed as improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).


    Footnote 2

     Garrett raised other claims, but those are not presently before the Court.


    Footnote 3

     It is clear that Congress intended to invoke §5 as one of its bases for enacting the ADA. See 42 U. S. C. §12101(b)(4).


    Footnote 4

     Applying the basic principles of rationality review, Cleburne struck down the city ordinance in question. 473 U. S., at 447-450. The Court's reasoning was that the city's purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects. Although the group home for the mentally retarded was required to obtain a special use permit, apartment houses, other multiple-family dwellings, retirement homes, nursing homes, sanitariums, hospitals, boarding houses, fraternity and sorority houses, and dormitories were not subject to the ordinance. See ibid.


    Footnote 5

     It is worth noting that by the time that Congress enacted the ADA in 1990, every State in the Union had enacted such measures. At least one Member of Congress remarked that "this is probably one of the few times where the States are so far out in front of the Federal Government, it's not funny." Hearing on Discrimination Against Cancer Victims and the Handicapped before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, 100th Cong., 1st Sess., 5 (1987). A number of these provisions, however, did not go as far as the ADA did in requiring accommodation.


    Footnote 6

     The record does show that some States, adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell, 274 U. S. 200 (1927). But there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.


    Footnote 7

      Only a small fraction of the anecdotes Justice Breyer identifies in his Appendix C relate to state discrimination against the disabled in employment. At most, somewhere around 50 of these allegations describe conduct that could conceivably amount to constitutional violations by the States, and most of them are so general and brief that no firm conclusion can be drawn. The overwhelming majority of these accounts pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA.


    Footnote 8

     Section 2 of the Fifteenth Amendment is virtually identical to §5 of the Fourteenth Amendment.


    Footnote 9

     Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U. S. 123 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. See n. 5, supra.

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