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| [1] | IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT |
| [2] | No. 98-3614 |
| [3] | 2000.C07.0042134 <http://www.versuslaw.com> |
| [4] | March 27, 2000 |
| [5] | MELINDA ERICKSON, PLAINTIFF-APPELLEE, UNITED STATES OF AMERICA, INTERVENOR, v. BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES FOR NORTHEASTERN ILLINOIS UNIVERSITY, DEFENDANT-APPELLANT. |
| [6] | Appeal from the United States District Court for the Northern District
of Illinois, Eastern Division. No. 95 C 2541--John A. Nordberg, Judge. |
| [7] | Before Eschbach, Easterbrook, and Diane P. Wood, Circuit Judges. |
| [8] | The opinion of the court was delivered by: Easterbrook, Circuit Judge. |
| [9] | Argued April 27, 1999 |
| [10] | We must decide whether Title I of the Americans with Disabilities Act,
42 U.S.C. sec.sec. 12111-17, is an exercise of power under sec.5 of the
Fourteenth Amendment, which confers authority "to enforce, by appropriate
legislation, the provisions of this article." Defendant in this suit
is an arm of Illinois and therefore one of the United States for purposes
of the Eleventh Amendment. Congress has power under the Commerce Clause
to adopt the ADA's rules, but given the Eleventh Amendment a statute that
rests only on the Commerce Clause can not authorize private suits against
states in federal court. Seminole Tribe v. Florida, 517 U.S. 44 (1996).
But if sec.5 bestows power to adopt the ADA, then private litigation is
compatible with the Eleventh Amendment. Fitzpatrick v. Bitzer, 427 U.S.
445 (1976). |
| [11] | Melinda Erickson worked for five years in the College of Business and
Management at Northeastern Illinois University, rising from secretary to
"program associate." She contends that the University failed to
accommodate her efforts to have children. Medical care for her infertility
was physically demanding and had side effects. Both the treatment and the
circumstances that gave rise to it were emotionally draining. Erickson often
did not come to work and was late on days when she did appear. She was fired
after she became distraught and stayed home for six working days. Erickson
does not contend that the attendance requirements were designed to discriminate
against persons with disabilities. Instead she argues that the University
should have tolerated absences and tardiness that it would not have condoned
from a healthy employee. Invoking the Eleventh Amendment, the University
filed a motion to dismiss, which the district court denied. 1998 U.S. Dist.
Lexis 15779 (N.D. Ill. Oct. 1, 1998). The University's interlocutory appeal
is within our jurisdiction, see Seminole Tribe, 517 U.S. at 52, even though
the University does not assert sovereign immunity with respect to Erickson's
claim under the Pregnancy Discrimination Act, 42 U.S.C. sec.2000e(k). Scott
v. Lacy, 811 F.2d 1153 (7th Cir. 1987). Cf. Wisconsin Department of Corrections
v. Schacht, 524 U.S. 381 (1998). The United States intervened as a party
in this court to defend the ADA's constitutionality. See 28 U.S.C. sec.2403(a). |
| [12] | Three times during the last four Terms, the Supreme Court has addressed
the extent of legislative power under sec.5. Kimel v. Florida Board of Regents,
120 S. Ct. 631 (2000); Florida Prepaid Post-secondary Education Expense
Board v. College Savings Bank, 527 U.S. 627 (1999); Boerne v. Flores, 521
U.S. 507 (1997). Thrice it has stressed that the language of sec.5, which
gives Congress the power to "enforce" the Fourteenth Amendment,
must be taken seriously. Statutes that create new rights, or expand old
rights beyond the Fourteenth Amendment's bounds, do not "enforce"
that amendment. |
| [13] | Boerne dealt with the Religious Freedom Restoration Act of 1993 (RFRA),
42 U.S.C. sec.sec. 2000bb to 2000bb-4, a response to Employment Division
v. Smith, 494 U.S. 872 (1990). Smith had held that the Free Exercise Clause
of the First Amendment never requires accommodation of religiously inspired
practices, so that laws neutral with respect to religion are valid. The
RFRA, by contrast, obliged states to accommodate practices associated with
religion. The Court held that an accommodation requirement could not be
thought to "enforce" a constitutional norm that does not require
accommodation. Florida Prepaid held that Congress may not use sec.5 to abrogate
state sovereign immunity on the ground that statutory rights are "property"
under the Fourteenth Amendment. Kimel held that sec.5 does not support the
Age Discrimination in Employment Act, 29 U.S.C. sec.sec. 621-34, because
although the ADEA forbids consideration of an employee's age unless age
is a "bona fide occupational qualification reasonably necessary to
the normal operation of the particular business", sec.623(f)(1), the
Constitution's own requirement is considerably more lenient. The Equal Protection
Clause permits a state to consider a person's age unless age lacks a rational
relationship to the state's objective. Most consideration of age in employment
therefore is constitutional; but under the ADEA most consideration of age
is forbidden; Kimel therefore held that the ADEA sets up an independent
rule and does not "enforce" the Constitution's rule. |
| [14] | Twenty-three days before the Supreme Court decided Boerne, we held in
Crawford v. Indiana Department of Corrections, 115 F.3d 481, 487 (7th Cir.
1997), that sec.5 supports Title II of the ADA, which deals with public
services. Our opinion analogized the ADA to the ADEA and observed that the
latter statute had been applied to states in private litigation. Kimel shows
that if our analogy to the ADEA is precise, then Crawford is no longer authoritative;
Florida Prepaid and Boerne likewise call for a fresh look at the subject.
Elsewhere a great deal of ink has been spilled on this question. After Boerne
but before Kimel, panels of five appellate courts held that sec.5 supplies
the necessary legislative power, though there was one squarely contrary
holding by a court en banc. Compare Muller v. Costello, 187 F.3d 298 (2d
Cir. 1999); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998); Clark
v. California, 123 F.3d 1267 (9th Cir. 1997); Martin v. Kansas, 190 F.3d
1120 (10th Cir. 1999); and Kimel v. Florida Board of Regents, 139 F.3d 1426,
1433, 1441-44 (11th Cir. 1998), with Alsbrook v. Maumelle, 184 F.3d 999
(8th Cir. 1999) (en banc). The fourth circuit is internally divided. Although
Amos v. Maryland Department of Public Safety, 178 F.3d 212 (4th Cir. 1999)
(rehearing en banc granted Dec. 28, 1999), holds that private ADA litigation
may proceed against state prisons, Brown v. North Carolina Division of Motor
Vehicles, 166 F.3d 698 (4th Cir. 1999), held that a regulation, based on
the ADA, requiring the state's Division of Motor Vehicles to accommodate
disabled drivers, is unconstitutional. Recently a divided panel of the ninth
circuit disagreed with Brown. See Dare v. California Department of Motor
Vehicles, 191 F.3d 1167 (9th Cir. 1999). The Supreme Court's opinion in
Kimel calls all of these decisions into question, and we think it best to
analyze the subject afresh rather than to rehash pre-Kimel conclusions in
and out of this circuit. Believing that the Supreme Court would tackle the
issue before July, the second circuit declined to reconsider Muller in light
of Kimel. See Kilcullen v. New York State Department of Labor, 2000 U.S.
App. Lexis 2714 (2d Cir. Feb. 24, 2000). But settlements have dashed that
hope; we therefore undertake independent consideration. |
| [15] | Whether Congress has authorized federal litigation against states is our
initial question. Kimel answered yes for the ADEA, see 120 S. Ct. at 640-42,
and the same answer is appropriate for the ADA. By incorporating 42 U.S.C.
sec.2000e, the ADA defines persons, and thus employers, to include units
of government. 42 U.S.C. sec.12111(5)(A), (7). Fitzpatrick held that sec.2000e
is a sufficiently clear statement. Section 12202 adds that "[a] State
shall not be immune under the eleventh amendment to the Constitution of
the United States from an action in Federal or State court of competent
jurisdiction for a violation of this chapter." Finally, just in case
there were doubt, sec.12101(b)(4) invokes all possible sources of authority
to enact the ADA, "including the power to enforce the fourteenth amendment". |
| [16] | On the question whether a statute such as the ADA enforces the Fourteenth
Amendment, Kimel establishes two principal propositions. First, because
the rational-basis test applies to age discrimination, almost all of the
ADEA's requirements stand apart from the Constitution's rule. Most age discrimination
is rational, and therefore constitutional, yet the Act forbids it. The ADEA
therefore does not "enforce" the Fourteenth Amendment. 120 S.
Ct. at 645-48. Second, there is no need for prophylactic rules to catch
evasions of the rational-basis test by state governments. Congress did not
find that such a problem exists, and there is no evidence of one. The ADEA
therefore cannot be understood as enforcement legislation. 120 S. Ct. at
648-50. Both of these propositions are true of the ADA as well--indeed,
the ADA is harder to conceive as "enforcement" of the Fourteenth
Amendment than is the ADEA. Under the ADEA employers must ignore age but
are free to act on the basis of attributes such as strength, mental acuity,
and salary that are related to age. Hazen Paper Co. v. Biggins, 507 U.S.
604 (1993). In other words, the ADEA forbids disparate treatment but not
disparate impact. EEOC v. Francis W. Parker School, 41 F.3d 1073, 1077 (7th
Cir. 1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir.
1994). Likewise with the Constitution and most other employment-discrimination
laws. E.g., Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994)
(the Pregnancy Discrimination Act does not require accommodation). Title
I of the ADA, by contrast, requires employers to consider and to accommodate
disabilities, and in the process extends beyond the anti-discrimination
principle. 42 U.S.C. sec.12112(b)(5)(A), (6) (defining failure to accommodate,
and criteria with disparate impacts, as "discrimination"). (Some
other titles of the ADA are less expansive. See Doe v. Mutual of Omaha Insurance
Co., 179 F.3d 557 (7th Cir. 1999). Our concern in this case is Title I,
and unelaborated references to "the ADA" are to Title I.) |
| [17] | A rational-basis test applies to distinctions on the ground of disability,
just as to distinctions on the ground of age. Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 439-42 (1985); Heller v. Doe, 509 U.S. 312,
319-21 (1993); United States v. Harris, 197 F.3d 870, 873-76 (7th Cir. 1999).
Consideration of an employee's disabilities is proper, so far as the Constitution
is concerned. See Cleburne, 473 U.S. at 444 ("governmental consideration
of those differences in the vast majority of situations is not only legitimate
but also desirable"). Consider this from the perspective of a university
such as our defendant. A would-be professor who is not in the top 1% of
the population in mental acuity is not apt to be a good teacher and scholar.
Likewise it is rational for a university to favor someone with good vision
over someone who requires the assistance of a reader. The sighted person
can master more of the academic literature (reading is much faster than
listening), improving his chance to be a productive scholar, and also is
less expensive (because the university need not pay for the reader). An
academic institution that prefers to use a given budget to hire a sighted
scholar plus a graduate teaching assistant, rather than a blind scholar
plus a reader, has complied with its constitutional obligation to avoid
irrational action. But it has not complied with the ADA, which requires
accommodation at any cost less than "undue hardship". 42 U.S.C.
sec.12112(b) (5)(A), sec.12111(10). How the "undue hardship" defense
under the ADA compares with the "bona fide occupational qualification"
defense under the ADEA is an interesting question, but not one we need pursue:
both statutes presumptively forbid consideration of attributes that the
Constitution permits states to consider, and then (like the RFRA) require
the state to carry a burden of persuasion in order to take the characteristic
into account. As in Kimel, the fact that the law has made adverse action
based on a characteristic "prima facie unlawful" shows the extent
of its departure from the Constitution's own rule. 120 S. Ct. at 647. Like
the ADEA, the ADA "prohibits very little conduct likely to be held
unconstitutional," id. at 648. |
| [18] | The ADA's main target is an employer's rational consideration of disabilities.
Rational discrimination by definition does not violate a constitutional
provision that condemns only irrational distinctions based on disabilities.
Congress has ample power under the Commerce Clause to forbid rational discrimination,
which may bear especially heavily on a class of persons who suffer from
diminished human (and often financial) capital. But to say that in devising
these new rules Congress is just "enforcing" a substantive command
present in sec.1 of the Fourteenth Amendment since 1868 would be a legal
fiction. Boerne, Florida Prepaid, and Kimel hold that fictions do not support
legislation under sec.5. |
| [19] | One way to distinguish the ADA from the ADEA would be to emphasize a remark
in Kimel that "[o]ld age . . . does not define a discrete and insular
minority because all persons, if they live out their normal life spans,
will experience it." 120 S. Ct. at 645. The argument would continue
that many disabilities are immutable; few people born blind acquire vision
later. We do not read the Court's observation in Kimel as distinguishing
among characteristics that are subject to rational-basis review; instead
the Court offered the observation as one reason why earlier cases had applied
the rational-basis test to age. Because Cleburne held that the rational-basis
test likewise governs disabilities, the reasoning behind that opinion need
not come back into consideration. We know from Cleburne that rational distinctions
based on disabilities comport with the Constitution. What is more, many
disabilities come and go, or progress with time. Beethoven did not become
deaf, or Milton blind, until middle age. Erickson's medical problem affected
her for a number of years but not for a lifetime (if only because medical
treatment may have succeeded, or because after menopause it would have lost
significance). One can imagine an argument under sec.5 for a federal law
dealing with discrimination against persons with life-long disabilities,
but the ADA is not such a law--not only because it extends beyond permanently
disabled persons, but also because "discrimination" as the ADA
defines it, see sec.12112(b), has little in common with "discrimination"
in constitutional law. |
| [20] | To see this, consider the role of intent. When a state law or practice
does not expressly concern a particular characteristic (such as race, sex,
age, or disability), but has a disparate impact on persons with that characteristic,
the plaintiff in constitutional litigation must establish that the state
intends to discriminate on the basis of that characteristic. See, e.g.,
Personnel Administrator v. Feeney, 442 U.S. 256 (1979) (sex); Washington
v. Davis, 426 U.S. 229 (1976) (race). Things are otherwise under the ADA,
which not only demands accommodation (which forces the employer to consider,
rather than ignore, disabilities) but also prohibits any rule or practice
that has a disparate impact, unless the rule is "job-related for the
position in question and is consistent with business necessity". 42
U.S.C. sec.12112(b)(6). See Washington v. Indiana High School Athletic Ass'n,
181 F.3d 840 (7th Cir. 1999) (under the ADA the plaintiff need not show
that the governmental body intended to discriminate on account of disability).
Cases such as Feeney and Davis hold that the Equal Protection Clause does
not forbid laws and practices that have a disparate impact; but the ADA
does forbid them. |
| [21] | By requiring that employers accommodate rather than disregard disabilities,
the ADA is a cousin to the RFRA. Smith held that demands for accommodation
and claims of disparate impact have no constitutional footing under the
Free Exercise Clause; it takes express or intentional discrimination to
violate that provision. See also Church of the Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520 (1993). Congress then enacted the RFRA, which requires
every unit of government to justify any law or practice that burdens a person's
exercise of religion, "even if the burden results from a rule of general
applicability". 42 U.S.C. sec.2000bb-1(a). This requires a state to
accommodate religiously motivated behavior unless it can show a "compelling"
reason for neutrality between religious and secular conduct. Boerne responded
that Congress may not redefine the constitutional rule under the rubric
of "enforcement." |
| [22] | What the RFRA did for religion, the ADA does for disabilities. In neither
situation does the Constitution forbid neutral laws or practices that create
disparate impacts; in neither situation does the Constitution require accommodation.
Both the RFRA and the ADA replace the Constitution's approach with a prohibition
of disparate impact and jettison neutrality in favor of accommodation. The
RFRA's demand for a "compelling governmental interest", 42 U.S.C.
sec.2000bb-1(b)(1), made it harder for a government to prevail than do the
ADA's requirements (job-relatedness, business necessity, and undue hardship),
but there is a countervailing difference that makes the ADA the more adventuresome.
The Free Exercise Clause forbids all intentional discrimination against
religious practices; the Equal Protection Clause has no similar rule about
disabilities. Rational discrimination against persons with disabilities
is constitutionally permissible in a way that rational discrimination against
religious practices is not. This makes the ADA harder than the RFRA to justify
under sec.5, for "[i]t is precisely in a close case that the independent
judgment of Congress on a constitutional question should make a difference."
Michael W. McConnell, Institutions and Interpretation: A Critique of City
of Boerne v. Flores, 111 Harv. L. Rev. 153, 155 (1997). See also Stephen
L. Carter, The Morgan "Power" and the Forced Reconsideration of
Constitutional Decisions, 53 U. Chi. L. Rev. 819 (1986). Some of the Justices
and several careful scholars believe that the rule of decision in the RFRA
is the Constitution's own. See Boerne, 521 U.S. at 544 (O'Connor, J., dissenting),
565 (Souter, J., dissenting). Others who support the majority position in
Smith acknowledge that the question is difficult. See generally Symposium,
Reflections on City of Boerne v. Flores, 39 William & Mary L. Rev. 597
(1998). But no one believes that the Equal Protection Clause establishes
the disparate-impact and mandatory-accommodation rules found in the ADA.
The statute is outside the boundaries of constitutional discourse in a way
that the RFRA was not. If the RFRA and the ADEA exceed the sec.5 power,
then so does the ADA--at least to the extent it extends beyond remedies
for irrational discrimination. |
| [23] | Well, then, can the ADA be sustained as reasonable prophylactic legislation?
Because the ADA requires accommodation, forbids practices with disparate
impact, and disregards the employer's intent, it is harder than the ADEA
to characterize as a remedial measure. The ADEA was a real anti-discrimination
law; unless age was held against the employee, there was no violation. The
ADA goes beyond the anti-discrimination principle, a step that requires
reason to think that only by going to these lengths is it possible to implement
the core constitutional rule. Yet just as for the ADEA, Congress did not
find that states have adopted clever devices that conceal irrational discrimination.
The legislative findings in 42 U.S.C. sec.12101 contain not a word about
state governments. Congress did find that persons with disabilities have
been discriminated against; it found the same in the ADEA for age. What
it did not find is that the practices labeled "discrimination"
are irrational (as that term works under the Equal Protection Clause) or
that states are major offenders--a critical inquiry not only under Kimel
but also under Florida Prepaid. Instead, Congress used the word "discrimination"
in sec.12101, and Committees of Congress used that word in the legislative
history, to refer to any disadvantage that accompanies a disability. For
example, the statement in H.R. Rep. No. 101-485(II), 101st Cong. 2d Sess.
37 (1990), that "inconsistent treatment of people with disabilities
by different State or local government agencies is both inequitable and
illogical for a society committed to full access for people with disabilities"
means only that different public bodies treated persons differently, because
the Rehabilitation Act applied to some persons but not others; it does not
mean that either treatment was unconstitutional. "Inconsistent"
is not a synonym for irrational--especially not when it was a federal statute
that induced the inconsistency on which the Committee remarked. |
| [24] | Just as in Kimel, legislative statements about discrimination consist
"almost entirely of isolated sentences clipped from floor debates and
legislative reports." 120 S. Ct. at 649. These snippets use the word
"discrimination" in a way that fails to distinguish between rational
distinctions (which the Constitution allows) and irrational ones (which
it forbids). The sort of findings that would permit adoption of the ADA
as a precautionary measure, after the fashion of the Voting Rights Act,
see South Carolina v. Katzenbach, 383 U.S. 301 (1966), must establish that
states have been able to disguise forbidden discrimination as the permissible
kind. Nothing in the legislative findings, or the debates preceding the
ADA's adoption, shows (or even asserts) that state governments engaged in
deception that prevented victims of irrational discrimination from obtaining
a remedy. Findings underlying Title VII were more substantial, and because
employers frequently disguised their resort to racial criteria it is easier
to justify the disparate-impact features of Title VII as remedial measures.
In re Employment Discrimination Litigation, 198 F.3d 1305 (11th Cir. 1999),
concludes accordingly that sec.5 supports the disparate-impact rules under
Title VII, as well as the disparate-treatment rules addressed in Fitzpatrick
v. Bitzer. We leave that question for another day and hold only that the
background of the ADA does not meet the standards that Boerne and Kimel
set for using sec.5 to enact prophylactic legislation. |
| [25] | From all of this it follows that the ADA does not "enforce"
the Fourteenth Amendment, and from Seminole Tribe it follows that the Eleventh
Amendment and associated principles of sovereign immunity block private
litigation against states in federal court. But Northeastern Illinois University
must understand the limits of this holding. The ADA is valid legislation,
which both private and public actors must follow. Even if the Supreme Court
should overrule Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528 (1985), and return to the view of National League of Cities v.
Usery, 426 U.S. 833, 852 (1976), that laws resting only on the Commerce
Clause cannot "directly displace the States' freedom to structure integral
operations in areas of traditional governmental functions," the University
still would be bound by the ADA, for running a university is no more a core
governmental function than is running a railroad. See United Transportation
Union v. Long Island R.R., 455 U.S. 678 (1982). Like most railroads, most
universities in the United States are private. All our holding means is
that private litigation to enforce the ADA may not proceed in federal court.
Erickson may repair to Illinois court--for although states may implement
a blanket rule of sovereign immunity, see Alden v. Maine, 527 U.S. 706 (1999),
Illinois has not done this. Having opened its courts to claims based on
state law, including its own prohibition of disability discrimination by
units of state government, see 775 ILCS 5/1-102, 5/2-101(B)(1)(c), Illinois
may not exclude claims based on federal law. Howlett v. Rose, 496 U.S. 356,
367-75 (1990); FERC v. Mississippi, 456 U.S. 742, 759-69 (1982); Testa v.
Katt, 330 U.S. 386 (1947). Moreover, the United States may enforce the ADA
against the University and other state actors through federal litigation.
West Virginia v. United States, 479 U.S. 305, 311 n.4 (1987). But Erickson
has not enlisted the United States as her champion (its intervention was
for the purpose of defending Erickson's right to sue in her own name), so
this suit belongs in state court. Reversed |
| [26] | Diane P. Wood, Circuit Judge, dissenting. The Americans with Disabilities
Act, or ADA, 42 U.S.C. sec. 12111 et seq., stands at the intersection of
two lines of cases that address Congress's power under section 5 of the
Fourteenth Amendment to abrogate the Eleventh Amendment immunity of the
states. Laws that fall within the section 5 power may abrogate the States'
Eleventh Amendment immunity from suit, if Congress has made its intent to
abrogate "unmistakably clear" in the language of the statute.
See City of Boerne v. Flores, 521 U.S. 507 (1997); Atascadero State Hospital
v. Scanlon, 473 U.S. 234, 242 (1985). When the question has been whether
Title VII of the Civil Rights Act represents a valid use of Congress's power
under section 5, courts have answered in the affirmative. See, e.g., Fitzpatrick
v. Bitzer, 427 U.S. 445, 456-57 (1976); In re Employment Discrimination
Litigation Against State of Alabama, 198 F.3d 1305, 1324 (11th Cir. 1999)
(finding that disparate impact analysis is a valid prophylactic measure
and thus that this aspect of Title VII, equally with the disparate treatment
branch, is a valid exercise of section 5 power). |
| [27] | On the other hand, the Supreme Court has recently ruled that the Age Discrimination
in Employment Act, or ADEA, 29 U.S.C. sec. 621-34, exceeded Congress's section
5 powers and thus could not as a matter of law override the State's Eleventh
Amendment immunity. Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000).
The question before us today, as the majority recognizes, is which line
of authority to apply to yet another statute, the ADA. This is plainly a
delicate and difficult issue, as the Supreme Court itself appeared to have
signaled when it granted certiorari in Florida Dept. of Corrections v. Dickson,
120 S.Ct. 976 (2000), and in Alsbrook v. Arkansas, 120 S.Ct. 1003 (2000),
two cases presenting precisely the problem before us now. The Court dismissed
those two petitions under S.Ct. Rule 46.1, and so it will not be considering
the issue during the present Term. See Dickson, No. 98-829, 2000 WL 215674
(U.S., Feb. 23, 2000), and Alsbrook, No. 99-423, 2000 WL 230234 (U.S., Mar.
1, 2000). We must therefore decide this case without the prospect of immediate
guidance from Washington. For the reasons I explain below, I conclude that
Title I of the ADA falls within Congress's section 5 powers under the principles
the Court has articulated. I would therefore find that Erickson is entitled
to bring her ADA suit against Northeastern Illinois University consistently
with the Eleventh Amendment, and I respectfully dissent. |
| [28] | I. |
| [29] | Although the literal language of the Eleventh Amendment addresses only
the question of the extent of the judicial power of the United States (which
"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," U.S. Const. amend.
XI), the Supreme Court has held in a recent line of decisions that the meaning
of this part of the Constitution is not limited to the precise words of
the text. Instead, the Eleventh Amendment reflects the structural fact that
each state is a sovereign entity within the federal system, and as such,
each state enjoys sovereign immunity from suit except insofar as its immunity
has legitimately been curtailed. See Seminole Tribe v. Florida, 517 U.S.
44, 54 (1996); Alden v. Maine, 119 S.Ct. 2240, 2253-54 (1999); Florida Prepaid
Post-secondary Education Expense Board v. College Savings Bank, 119 S.Ct.
2199, 2204 (1999). |
| [30] | There are a number of ways in which sovereign immunity can be overcome
consistently with the law: the state might consent to suit; to much the
same effect, it might choose to waive its sovereign immunity; or Congress
might enact legislation that abrogates the state's immunity.*fn1
Only the last of those options is relevant here. Abrogation is constitutionally
possible only in narrow circumstances. First, Congress must make its intent
to abrogate "unmistakably clear" in the language of the statute.
See Kimel, 120 S.Ct. at 640 (citing Dellmuth v. Muth, 491 U.S. 223, 228
(1989), and quoting from Atascadero, 473 U.S. at 242). Second, it must act
pursuant to a valid grant of constitutional power. Kimel, 120 S.Ct. at 642;
City of Boerne, 521 U.S. 507, 519; Green v. Mansour, 474 U.S. 64, 68 (1985).
Here, everyone agrees that the only source of congressional power at issue
is section 5 of the Fourteenth Amendment. Cf. Florida Prepaid, 119 S.Ct.
at 2205. |
| [31] | In Kimel, the Court found that the ADEA satisfied the "clear statement"
requirement for abrogation. 120 S.Ct. at 640-42. The majority finds, and
I agree, that the same is true of the ADA. Unlike the majority, however,
I also conclude that Congress legitimately used its power under section
5 of the Fourteenth Amendment when it made the ADA applicable to the states. |
| [32] | As I have already noted, we know that Title VII represents a valid exercise
of Congress's section 5 power to abrogate the Eleventh Amendment immunity
of the states, but the ADEA does not. The Kimel Court made the latter finding
because, following City of Boerne, it concluded that the ADEA was a measure
that went beyond either enforcement of the Fourteenth Amendment or valid
prophylactic measures designed to prevent violations of the Constitution.
See Kimel, 120 S.Ct. at 645, 648-49. In Florida Prepaid, the Court explained
the difference between valid efforts to exercise section 5 powers and those
that go beyond the constitutional limits as follows: |
| [33] | While the line between measures that remedy or prevent unconstitutional
actions and measures that make a substantive change in the governing law
is not easy to discern, and Congress must have wide latitude in determining
where it lies, the distinction exists and must be observed. There must be
a congruence and proportionality between the injury to be prevented or remedied
and the means adopted to that end. 119 S.Ct. at 2205 (quoting from City
of Boerne, 521 U.S. at 519-20). |
| [34] | While the majority appears to concede that Kimel should guide our decision
with respect to the ADA, its reading of Kimel overlooks important qualifications
on that decision. The majority sees Kimel as a case holding that virtually
all discrimination that is subject to rational basis review for equal protection
clause purposes is outside the scope of Congress's section 5 powers. Ante,
at 5. I find no hint of this in Kimel; to the contrary, after recognizing
that age discrimination is subject to rational basis review, the Court took
pains to analyze the ADEA in detail before finding that it cannot be sustained
against the states as a valid exercise of the section 5 powers. That analysis
would have been entirely beside the point if the mere fact of rational basis
review was enough to decide the case. Furthermore, the majority here, in
rejecting the idea that the accommodation provisions of the ADA could be
sustained under section 5 (ante at 7) ignores the express holding of Kimel
that "we have never held that section 5 precludes Congress from enacting
reasonably prophylactic legislation." 120 S.Ct. at 648. Last, the majority
appears to hold that virtually all antidiscrimination statutes that focus
on disparate impact, rather than intentional disparate treatment, exceed
Congress's section 5 powers. In so doing, it has created a square conflict
with the Eleventh Circuit's decision in Employment Discrimination, supra,
198 F.3d at 1324. |
| [35] | Kimel provides the analytical approach for assessing whether a statute
addressing discrimination is a valid exercise of the section 5 power. Looking
at both the legislative record and the language of the pertinent statute,
the Kimel Court first asked whether the substantive requirements of the
statute were proportionate to any unconstitutional conduct that the statute
could have targeted. 120 S.Ct. at 645. It looked to earlier decisions that
had considered the constitutional implications of age discrimination and
found it significant that all had upheld age distinctions against constitutional
challenges. See Gregory v. Ashcroft, 501 U.S. 452 (1991); Vance v. Bradley,
440 U.S. 93 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S.
307 (1976) (per curiam). Second, it consulted the legislative record to
see if it revealed either (1) a pattern of age discrimination committed
by the states or (2) "any discrimination whatsoever that rose to the
level of constitutional violation." 120 S.Ct. at 648-50. Finding neither
element present, the Court concluded that Congress did not in the ADEA validly
abrogate the states' sovereign immunity. |
| [36] | Following this roadmap, one can see that the ADA differs critically from
the ADEA in the areas the Supreme Court deemed significant. The first question
concerns the level of constitutional protection the Supreme Court has recognized
in prior cases for persons with disabilities. With that standard in mind,
the next question is whether the ADA represents a proportionate response
to the likelihood of constitutional violations. |
| [37] | The leading case on the equal protection dimensions of disability discrimination
is City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).
Although, as the majority observes, the Court ultimately decided that rational
basis review was proper for the ordinance in that case, the majority finds
the Court's reasoning to be irrelevant, ante at 6. The majority also pays
no heed to the fact that the Court struck down the Cleburne ordinance because
it unconstitutionally discriminated against the mentally retarded (clearly
illustrating that legislation prohibiting discrimination with respect to
a category that receives rational basis review might indeed be enforcing
the Constitution). I cannot dismiss either aspect of Cleburne so readily. |
| [38] | The specific question before the Court in Cleburne was whether a local
ordinance that required a special use permit for a home for the mentally
retarded, but that imposed no such requirement for many similar uses, violated
the equal protection rights of the mentally disabled. The Court held that
mental retardation should not be treated as a "quasi-suspect classification"
for equal protection purposes, but it nevertheless found that the ordinance
failed rational basis scrutiny, because the permit requirement "rest[ed]
on an irrational prejudice against the mentally retarded . . . ." Cleburne,
473 U.S. at 450.*fn2
In coming to that conclusion, the Court subjected the city's proffered reasons
in defense of the ordinance to careful scrutiny, even while it avoided introducing
undue rigidity into its analysis by using terms like "suspect"
or "quasi-suspect" classifications--terms which the Court later
pointed out had sometimes given rise to the erroneous notion that scrutiny
that was strict in theory was often fatal in fact. See Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 237 (1995). |
| [39] | Both the rationale of Cleburne and the nature of disability discrimination
itself, as outlined in the congressional findings and legislative history
of the ADA, highlight important differences between disability and age as
bases for differential treatment, and they reveal, contrary to the majority's
surprising suggestion, that the ADA is indeed a statute designed to prohibit
irrational discrimination. |
| [40] | As the Kimel Court observed, older persons "have not been subjected
to a history of purposeful unequal treatment." 120 S.Ct. at 645 (citing
Murgia, 427 U.S. at 313, quoting San Antonio Independent School Dist. v.
Rodriguez, 411 U.S. 1, 28 (1973)). In contrast, Congress found in the ADA
that disabled persons have been "subjected to a history of purposeful
unequal treatment," "in such critical areas as employment, housing,
public accommodations, education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public services."
42 U.S.C. sec. 12101. Second, harking back to the well known idea in United
States v. Carolene Products, 304 U.S. 144, 152-53 n.4 (1938), in no meaningful
sense of the term can the elderly be regarded as a "discrete and insular
minorit[y]"; to the contrary, as Kimel notes, "all persons, if
they live out their normal life spans, will experience [old age]."
120 S.Ct. at 645. This is a strong reason to believe that the normal political
processes are adequate to protect the interests of the elderly and that
they will not be singled out for unconstitutionally discriminatory treatment. |
| [41] | The disabled stand in a distinctly different position. Not everyone is
or will become disabled. And the fact that some disabilities arise later
in life and some do not persist for a lifetime does not make them the equivalent
of the inexorable aging process. The point is that Congress found that those
who are disabled will suffer during the time they are disabled from the
same invidious discrimination that has haunted racial minorities and women.
The ADA reflects Congress's finding that society has the ability to, and
has historically, "tended to isolate and segregate individuals with
disabilities." 42 U.S.C. sec. 12101. |
| [42] | There are other reasons as well to conclude that the ADA is a permissible
exercise of Congress's section 5 power. Apart from the salient differences
between age and disability as bases for categorization, the two statutes
fare quite differently under the proportionality analysis required by Boerne
and Kimel. The broad sweep of the ADEA caused the Supreme Court to find
that it was not a proportional response to the problem of age discrimination.
The ADEA prohibits all employment discrimination on the basis of age against
persons in the protected class (those above the age of 40). 29 U.S.C. sec.
623(a)(1). The only tempering of this rule appears in the statutory rules
allowing an employer to justify age-based distinctions if it shows either
a substantial basis for believing that all or nearly all employees above
a given age lack the qualifications required for the position or that reliance
on the age classification is necessary because individual testing for qualifications
is highly impractical. Kimel, 120 S.Ct. at 647 (citing Western Air Lines
v. Criswell, 472 U.S. 400, 422 (1985)). The EEOC's implementing regulations,
as well as cases decided under the ADEA, make it clear that these exceptions
were intended to be narrow ones. See 29 C.F.R. sec. 1625.6(a); see also
Western Air Lines, 472 U.S. at 422. |
| [43] | The ADA adopts a more nuanced approach to the problem of disability discrimination.
An employer is entitled to treat a disabled person differently--indeed,
even to deny employment to the person on that basis--if there are no reasonable
accommodations that will permit the individual to do the job and she cannot
handle the job without accommodations. 42 U.S.C. sec. 12113. See, e.g.,
Stewart v. County of Brown, 86 F.3d 107, 112 (7th Cir. 1996); Pond v. Michelin
North America, Inc., 183 F.3d 592, 596 (7th Cir. 1999); Sieberns v. Wal-Mart
Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997). Thus, while an employer
discriminating on the basis of age must demonstrate that it would be "highly
impractical" not to do so, an employer making distinctions on the basis
of disability need only show that "reasonable steps" of accommodation,
such as modifying work schedules, training materials, facilities, or policies,
will not work. See 42 U.S.C. sec.sec. 12113, 12111. The incorporation of
a reasonableness standard in the duty to accommodate, which itself modifies
the duty not to discriminate on the basis of disability, is essentially
a legislative incorporation of the proportionality test required under the
Constitution. It also illustrates, contrary to the majority's suggestion,
that the duty to accommodate is not a command to give "special"
treatment; instead, it spells out the way that discrimination is to be avoided.
I would therefore find that the ADA meets the first part of the Kimel analysis. |
| [44] | The second question under Kimel requires us to consider whether the legislative
record reveals either a pattern of age discrimination committed by the states
or "any discrimination whatsoever that [rises] to the level of constitutional
violation." 120 S.Ct. at 649. Here, although the evidence is stronger
on the second point than the first, the record shows both kinds of disability
discrimination. |
| [45] | With respect to the first question (i.e. legislative findings pertaining
specifically to state behavior), the legislative record is admittedly sparse.
Nevertheless, the House Report notes that "inconsistent treatment of
people with disabilities by different state or local government agencies
is both inequitable and illogical." H.R. Rep. No. 101-485 (II). More
importantly, the express congressional findings with respect to pervasive
discrimination address many areas that are controlled to a significant degree
by state and local governments. For example, Congress identified discrimination
in education as a particular problem. See 42 U.S.C. sec. 12101(3). Education
in this country is overwhelmingly an enterprise of state and local government.*fn3
Another sector singled out in the statute was health services, see 42 U.S.C.
sec. 12101(3), in which state and local governments also play a powerful
role.*fn4
The story is similar for transportation, which is also mentioned in sec.
12101(3).*fn5
Congress's specific attention to sectors with such a substantial state and
local governmental presence indicates that it knew that government action
at the state level was an important part of the problem it was addressing. |
| [46] | The other evidence the Kimel Court found lacking for the ADEA--a record
of discrimination that reveals constitutional violations--is present in
abundance for the ADA. It would be hard to imagine greater scrutiny than
Congress gave to the harm caused by disability discrimination when it passed
the ADA. Its findings explain in painstaking detail the extent of the evil.
See 42 U.S.C. sec. 12101.*fn6
We give congressional findings substantial deference, because Congress "is
far better equipped than the judiciary to amass and evaluate the vast amounts
of data bearing upon legislative questions." Turner Broadcasting Systems
v. F.C.C., 520 U.S. 180, 195 (1997). This is the legislative task the Supreme
Court contemplated in Cleburne, where it held that the way disabled people
are "to be treated under the law 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." Cleburne,
473 U.S. at 442-43. |
| [47] | The ADA's legislative findings distinguish the ADA from both the ADEA
and RFRA, the statute before the Court in City of Boerne. Like the ADEA
and unlike the ADA, Congress did not make findings in the RFRA about the
seriousness or scope of discrimination against religious persons. See 42
U.S.C. sec.sec. 2000bb to 2000bb-4. As I have already noted, in the ADEA
Congress never identified "any discrimination whatsoever that rose
to the level of constitutional violation." Kimel, 120 S.Ct. at 649.
The only evidence the Kimel Court found showing the harm at which the ADEA
was aimed was a few "isolated sentences clipped from floor debates
and legislative reports." Id. When formulating the ADA, in contrast,
Congress compiled an immense legislative record. It examined all this evidence
and found that "[t]he severity and pervasiveness of discrimination
against people with disabilities [was] well documented." H.R. 101-485
(II). This factor therefore points toward a conclusion that the legislative
basis for a valid exercise of Congress's section 5 powers is present for
the ADA, even though it was not for the ADEA or RFRA. |
| [48] | Before leaving this subject, it is important to note that the majority
has elevated a single point in the legislative history to dispositive significance:
the absence of a statement somewhere to the effect that "we are passing
this law because we need to correct discrimination on the basis of disability
committed by the states." I see nothing in Kimel that gives such primacy
to this single point. Combining the explicit coverage of sectors in which
the states are the principal actors, with the deliberate decision of Congress
to make the states subject to the statute, and finally with the enormous
legislative record documenting the depth of the problem of disability discrimination,
I find the second part of the Kimel approach to be satisfied for the ADA. |
| [49] | II. |
| [50] | Given its conclusion about the Eleventh Amendment, the majority does not
reach the last question that was presented in this case, which was whether
the analysis that applies to an Eleventh Amendment argument directed at
the general prohibition in the ADA against discrimination is different from
the analysis appropriate to the accommodation provisions of the Act. Because
I would reject the general Eleventh Amendment defense, I add a brief word
on this point. In my view, because the accommodation duty and the duty to
avoid discrimination are nothing more than two sides of the same coin, the
answer is no. |
| [51] | The ADA defines discrimination to include "not making 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] covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such
covered entity." 42 U.S.C. sec. 12112(b)(5)(A). The Act also provides
that an employer may defend against a charge of discrimination by showing
that its goals require discrimination--that they "cannot be accomplished
by reasonable accommodation." 42 U.S.C. sec. 12113(a). |
| [52] | The University argues that this statutory accommodation process is unconstitutional
under Printz v. United States, 521 U.S. 898 (1997), because it violates
the Tenth Amendment by forcing state officials to administer a federal regulatory
scheme. In my view, however, the Printz model has no bearing on the question
before us. The flaws the Court identified in Printz included the act of
conscripting state officials to administer a federal program, the effective
reallocation of duties from the branches of the federal government to which
the Constitution assigned them to the state officials, and the conferral
of policy-making authority on the state officials without adequate guidance.
The Printz Court found that forcing the state to implement this type of
regulatory system violated the principles of separation of powers and dual
sovereignty. Id. at 922, 932, 930. |
| [53] | The ADA does not establish anything like the regulatory scheme for handguns
at issue in Printz. The ADA is instead a straightforward law prohibiting
discrimination on the part of all employers, private and governmental alike,
and defining the way the prohibition must be implemented. It provides the
employers with precise definitions to follow: a reasonable accommodation
is one tailored to the discrimination issue before the employer, which does
not "impose an undue hardship on the operation [of the employer's business]."
42 U.S.C. sec. 12112(b)(5)(A). Unlike the regulatory system before the Printz
Court, the ADA does not confer any special powers on employers in general
or on state employers in particular. Employers are not administering a federal
benefit by providing a reasonable accommodation; they are refraining from
discrimination and to some degree taking preventative measures. There is
no duty to accommodate that is separate from the general obligation to avoid
discrimination against the disabled. |
| [54] | It bears repeating that, for this purpose, state employers stand in exactly
the same position as private employers. As this court held in Travis v.
Reno, 163 F.3d 1000, 1004-05 (7th Cir. 1998), federal law may pervasively
regulate states as market participants; the anti-commandeering law of Printz
only comes into play when the federal government calls on the states to
use their sovereign powers to implement a federal regulatory program. In
Travis, which came to the result later endorsed by the Supreme Court in
Reno v. Condon, supra, we concluded that the Drivers Privacy Protection
Act (DPPA) did not violate the Tenth Amendment. The DPPA requires disclosure
of certain records by the state, and so necessarily forces the state to
come up with a system of determining which records should be disclosed,
as well as how best to disclose them. The system was found constitutional
because it affects states in their role as owners of databases, not in their
role as governments. Condon, 120 S.Ct. at 672; Travis, 163 F.3d at 1004. |
| [55] | Though the ADA forces the states to comply with a federal regulation,
it affects the states in their role as employers, not in their role as governments.
Federal regulations of states acting as employers have been upheld in the
past. In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.
528 (1985), the Court held that state employers may be forced to follow
the federal Fair Labor Standards Act's wage and hour rules. Nothing in the
recent line of Eleventh Amendment decisions undermines that rule. To the
contrary, in Alden v. Maine the Court went out of its way to reaffirm that
"[t]he constitutional privilege of a State to assert its sovereign
immunity in its own courts does not confer upon the State a concomitant
right to disregard the Constitution or valid federal law." 119 S.Ct.
at 2266. Instead, the Court assumed that the states would ordinarily live
up to their duties under federal law as a matter of good faith, and it noted
that enforcement of federal obligations by the federal government remains
permissible under the constitutional design. Id. at 2267. The fact of dual
sovereignty does not, therefore, carry with it any implication that states
are allowed to disregard or to frustrate valid federal programs. See City
of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999). |
| [56] | By defining discrimination in part as not making reasonable accommodations
to disabled employees, the ADA does impose costs on employers, including
the states. Employers must affirmatively act to alter any practices they
have in place that discriminate against the disabled. Of course, this makes
a great deal of sense. Just because an employer has a discriminatory practice,
such as maintaining steep stairways or only offering breaks at wide intervals
and therefore not allowing diabetics to take their medication, does not
mean that the employer should be able to continue such a discriminatory
practice without violating the ADA, any more than an employer's refusal
in the past to construct a women's restroom would justify a refusal to hire
female employees. The ADA allows an employer to adjust the workplace environment
on a case-by-case basis, adopting only those changes that are reasonably
necessary to refrain from discriminating against the disabled individual
or individuals in question. |
| [57] | The ADA hardly broke new ground when it incorporated this type of affirmative
duty. The Equal Protection Clause often requires states to take affirmative
measures to eliminate or prevent discriminatory systems. For example, states
with racially discriminatory reapportionment plans must redraw their congressional
districts. See, e.g., Shaw v. Reno, 509 U.S. 630, 652 (1993) (holding that
the state's reapportionment plan might violate the Equal Protection Clause).
The logic of the University's argument here would, if taken to its limits,
call into question every affirmative injunction a court has ever entered
to prevent threatened future violations of the constitutional guarantee
of equal protection of the laws. Nothing in the Supreme Court decisions
on which the University relies even hints at such a radical result. Similarly,
the First Amendment guarantee of the right of free exercise of religion
carries with it an implied duty on the part of the state to make reasonable
adjustments. See, e.g., Sherbert v. Verner, 374 U.S. 398, 403-04 (1963);
Wisconsin v. Yoder, 406 U.S. 205, 231 (1972); Church of the Lukumi Babalu
Aye v. City of Hialeah, 508 U.S. 520, 546 (1993); Zorach v. Clauson, 343
U.S. 306, 313-14 (1952). Boerne does not overrule these direct constitutional
rulings. |
| [58] | Last, as I indicated above, I do not read any of the Supreme Court's recent
decisions as overruling prior rulings that have upheld congressional legislation
prohibiting measures with a discriminatory impact as valid exercises of
the section 5 power. As the Eleventh Circuit explained in Employment Discrimination,
"disparate impact analysis was designed as a 'prophylactic' measure."
198 F.3d at 1321 (citing Connecticut v. Teal, 457 U.S. 440, 449 (1982),
Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975), and Griggs v. Duke
Power Co., 401 U.S. 424, 435 (1971)). The Eleventh Circuit went on to explain
that even though, in a disparate impact case, "the plaintiff is never
explicitly required to demonstrate discriminatory motive, a genuine finding
of disparate impact can be highly probative of the employer's motive since
a racial 'imbalance is often a telltale sign of purposeful discrimination.'"
Id. (citing International Brotherhood of Teamsters v. United States, 431
U.S. 324, 339-40 n.20 (1977)). It found from this that the disparate impact
provisions of Title VII are preventive rules that have the necessary congruence
between the means used and the constitutional violation to be addressed
(intentional discrimination). Id. at 1322. Nothing in Kimel comes close
to suggesting that the Court was overruling this long line of its own authority,
upon which the Eleventh Circuit carefully relied, and I am not prepared
to take that step in the present case. |
| [59] | For all these reasons, I therefore respectfully dissent from the majority's
conclusion that the Eleventh Amendment bars Erickson's suit against Northeastern
University. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [60] | *fn1
The extent of the protection from suit that results from a finding of sovereign
immunity is also an important question, because, at least in certain contexts,
sovereign immunity is qualified rather than absolute. See, e.g., the Foreign
Sovereign Immunities Act, 28 U.S.C. sec.sec. 1602, 1605. Despite the exchange
between the majority and dissenters in College Savings Bank v. Florida Prepaid
Post-secondary Educ. Expense Bd., 119 S.Ct. 2219, 2230-31, 2235-37 (1999),
on the significance of market participation for sovereign immunity purposes,
there remains some tension in the Supreme Court's cases on this point. See
Reno v. Condon, 120 S.Ct. 666 (2000) (finding the Driver's Privacy Protection
Act to be a valid exercise of Congress's Commerce Clause power, and non-violative
of state sovereignty under both the Tenth and Eleventh Amendments, because
it regulated the state's market activities); California v. Deep Sea Research,
523 U.S. 491, 506-07 (1998) (finding that, in determining whether sovereign
immunity applies to states, the Court looks at whether sovereign immunity
would apply to the federal government, because "this Court has recognized
a correlation between sovereign immunity principles applicable to States
and the Federal government," and at whether sovereign immunity would
apply to a foreign government). Although I recognize that the Supreme Court
may ultimately have more to say on the subject, I am assuming here, consistently
with College Savings and Kimel, that the commercial character of the operation
of a state university system is not enough to qualify the state's Eleventh
Amendment immunity. |
| [61] | *fn2
This implies a more exacting test for rationality than the majority finds
in Cleburne, ante at 6-7. The majority goes on to advance the astonishing
propositions that it would be rational for a university to conclude that
anyone not in the top 1% of the population is not apt to be a good teacher
and scholar, or that it would be rational to refuse to hire a blind professor
because she could not master material as fast as her sighted colleagues.
Such a view flies in the face of evidence about the accomplishments of the
visually impaired; it assumes rationality in the process of choosing who
exactly falls within the top 1% of the population; and it illustrates exactly
the kind of stereotyped thinking that the ADA was designed to combat. |
| [62] | *fn3
A 1995 study by the Department of Education showed that 90% of elementary
and secondary education in the United States is public--only 10% of students
are enrolled in private schools. See . |
| [63] | *fn4
Together, state and local governments were responsible for 12.7% of the
United States' health expenditures in 1998, while private individuals and
corporations were responsible for only 54% of those costs. See |
| [64] | *fn5
Government as a whole paid about 50% of transportation costs in the United
States in 1996, with state and local governments covering about 60% of those
costs, or 34.5% of the total. See . |
| [65] | *fn6
Congress found that: (1) some 43,000,000 Americans have one or more physical
or mental disabilities, and this number is increasing as the population
as a whole is growing older; (2) 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; (3) discrimination against
individuals with disabilities persists in such critical areas as employment,
housing, public accommodations, education, transportation, communication,
recreation, institutionalization, health services, voting, and access to
public services; (4) unlike individuals who have experienced discrimination
on the basis of race, color, sex, national origin, religion, or age, individuals
who have experienced discrimination on the basis of disability have often
had no legal recourse to redress such discrimination; (5) individuals with
disabilities continually encounter various forms of discrimination, including
outright intentional exclusion, the discriminatory effects of architectural,
transportation, and communication barriers, overprotective rules and policies,
failure to make modifications to existing facilities and practices, exclusionary
qualification standards and criteria, segregation, and relegation to lesser
services, programs, activities, benefits, jobs, or other opportunities;
(6) census data, national polls, and other studies have documented that
people with disabilities, as a group, occupy an inferior status in our society,
and are severely disadvantaged socially, vocationally, economically, and
educationally; (7) individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and limitations, subjected
to a history of purposeful unequal treatment, and relegated to a position
of political powerlessness in our society, based on characteristics that
are beyond the control of such individuals and resulting from stereotypic
assumptions not truly indicative of the individual ability of such individuals
to participate in, and contribute to, society; (8) the Nation's proper goals
regarding individuals with disabilities are to assure equality of opportunity,
full participation, independent living, and economic self-sufficiency for
such individuals, and (9) the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with disabilities the opportunity
to compete on an equal basis and to pursue those opportunities for which
our free society is justifiably famous, and costs the United States billions
of dollars in unnecessary expenses resulting from dependency and nonproductivity.
42 U.S.C. sec. 12101. |
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