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<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Memo with Tennessee v Lane
including the case July 18 2012</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><?xml:namespace prefix = o ns =
"urn:schemas-microsoft-com:office:office" /><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">To whom it may concern:</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">People with disabilities have the
right to access the state and local courts in a meaningful way. Yet our courts
for the most part are not accessible to people who use wheelchairs or those with
sensory disabilities including the blind.</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">This is shown clearly in Richard
Bernstein’s suit against Cadillac Place as the courts are a component there.</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In addition the effective
communications requirements of the blind in the ADA and 504 are routinely denied
and in documented fashion to blind folks in the Michigan Administrative Hearing
System run by Michael Zimmer who has assumed non-delegable authorities as the
Designated State Agency for the blind illegally and who unilaterally ripped up
the role of the commission for the blind board under PA 260 to make final agency
determinations for the State Licensing Agency.</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">These are fundamental and
documented violations of the constitutional rights of individuals and the class
to “due process and equal protection under the law” granted to all citizens
under Article V of the 14<SUP>th</SUP> Amendment and granted to people with
disabilities including the blind through the ADA and Section 504 of the
Rehabilitation Act of 1973.</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In other words MAHS is not immune
somehow from the ADA, 504 or this United States Supreme Court decision though
Mr. Zimmer seems to think he is above the law:</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">(As do all our state and local
courts and quasi-judicial bodies)</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Joe</P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><SPAN
style="mso-spacerun: yes"> </SPAN><o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">2004 WL 1085482
(U.S.)<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">TENNESSEE, PETITIONER
<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">v.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">GEORGE LANE et al.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">No. 02-1667<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">United States Supreme
Court.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Argued January 13,
2004<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Decided May 17,
2004<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Syllabus [FN*]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN* The syllabus constitutes no
part of the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader. See United States v. Detroit Timber
& Lumber Co., 200 U. S. 321, 337.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Respondent paraplegics filed this
action for damages and equitable relief, alleging that Tennessee and a number of
its counties had denied them physical access to that State's courts in violation
of Title II of the Americans with Disabilities Act of 1990 (ADA), which
provides: '[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation or denied the benefits of the
services, programs or activities of a public entity,' 42 U. S. C. §12132. After
the District Court denied the State's motion to dismiss on Eleventh Amendment
immunity grounds, the Sixth Circuit held the appeal in abeyance pending Board of
Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356. This Court later ruled in
Garrett that the Eleventh Amendment bars private money damages actions for state
violations of ADA Title I, which prohibits employment discrimination against the
disabled. The en banc Sixth Circuit then issued its Popovich decision, in which
it interpreted Garrett to bar private ADA suits against States based on equal
protection principles, but not those relying on due process, and therefore
permitted a Title II damages action to proceed despite the State's immunity
claim. Thereafter, a Sixth Circuit panel affirmed the dismissal denial in this
case, explaining that respondents' claims were not barred because they were
based on due process principles. In response to a rehearing petition arguing
that Popovich did not control because respondents' complaint did not allege due
process violations, the panel filed an amended opinion, explaining that due
process protects the right of access to the courts, and that the evidence before
Congress when it enacted Title II established, inter alia, that physical
barriers in courthouses and courtrooms have had the effect of denying disabled
people the opportunity for such access.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Held: As it applies to the class
of cases implicating the fundamental right of access to the courts, Title II
constitutes a valid exercise of Congress' authority under §5 of the Fourteenth
Amendment to enforce that Amendment's substantive guarantees. Pp.
4-23.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">(a) Determining whether Congress
has constitutionally abrogated a State's Eleventh Amendment immunity requires
resolution of two predicate questions: (1) whether Congress unequivocally
expressed its intent to abrogate; and (2), if so, whether it acted pursuant to a
valid grant of constitutional authority. Kimel v. Florida Bd. of Regents, 528 U.
S. 62, 73. The first question is easily answered here, since the ADA
specifically provides for abrogation. See §12202. With regard to the second
question, Congress can abrogate state sovereign immunity pursuant to a valid
exercise of its power under §5 of the Fourteenth Amendment. E.g., Fitzpatrick v.
Bitzer, 427 U. S. 445, 456. That power is not, however, unlimited. While
Congress must have a wide berth in devising appropriate remedial and
preventative measures for unconstitutional actions, those measures may not work
a 'substantive change in the governing law.' City of Boerne v. Flores, 521 U. S.
507, 519. In Boerne, the Court set forth the test for distinguishing between
permissible remedial legislation and unconstitutional substantive redefinition:
Section 5 legislation is valid if it exhibits 'a congruence and proportionality'
between an injury and the means adopted to prevent or remedy it. Id., at 520.
Applying the Boerne test in Garrett, the Court concluded that ADA Title I was
not a valid exercise of Congress' §5 power because the historical record and the
statute's broad sweep suggested that Title I's true aim was not so much
enforcement, but an attempt to 'rewrite' this Court's Fourteenth Amendment
jurisprudence. 531 U. S., at 372-374. In view of significant differences between
Titles I and II, however, Garrett left open the question whether Title II is a
valid exercise of Congress' §5 power, id., at 360, n. 1. Pp.
5-10.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">(b) Title II is a valid exercise
of Congress' §5 enforcement power. Pp. 11- 23.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">(1) The Boerne inquiry's first
step requires identification of the constitutional rights Congress sought to
enforce when it enacted Title II. Garrett, 531 U. S., at 365. Like Title I,
Title II seeks to enforce the Fourteenth Amendment's prohibition on irrational
disability discrimination, Garrett, 531 U. S., at 366. But it also seeks to
enforce a variety of other basic constitutional guarantees, including some, like
the right of access to the courts here at issue, infringements of which are
subject to heightened judicial scrutiny. See, e.g., Dunn v. Blumstein, 405 U. S.
330, 336-337. Whether Title II validly enforces such constitutional rights is a
question that 'must be judged with reference to the historical experience which
it reflects.' E.g., South Carolina v. Katzenbach, 383 U. S. 301, 308. Congress
enacted Title II against a backdrop of pervasive unequal treatment of persons
with disabilities in the administration of state services and programs,
including systematic deprivations of fundamental rights. The historical
experience that Title II reflects is also documented in the decisions of this
and other courts, which have identified unconstitutional treatment of disabled
persons by state agencies in a variety of public programs and services. With
respect to the particular services at issue, Congress learned that many
individuals, in many States, were being excluded from courthouses and court
proceedings by reason of their disabilities. A Civil Rights Commission report
before Congress showed that some 76% of public services and programs housed in
state-owned buildings were inaccessible to and unusable by such persons.
Congress also heard testimony from those persons describing the physical
inaccessibility of local courthouses. And its appointed task force heard
numerous examples of their exclusion from state judicial services and programs,
including failure to make courtrooms accessible to witnesses with physical
disabilities. The sheer volume of such evidence far exceeds the record in last
Term's Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 728-733, in
which the Court approved the family-care leave provision of the Family and
Medical Leave Act of 1993 as valid §5 legislation. Congress' finding in the ADA
that 'discrimination against individuals with disabilities persists in such
critical areas as ... access to public services,' §12101(a)(3), together with
the extensive record of disability discrimination that underlies it, makes clear
that inadequate provision of public services and access to public facilities was
an appropriate subject for prophylactic legislation. Pp. 11-18.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">(2) Title II is an appropriate
response to this history and pattern of unequal treatment. Unquestionably, it is
valid §5 legislation as it applies to the class of cases implicating the
accessibility of judicial services. Congress' chosen remedy for the pattern of
exclusion and discrimination at issue, Title II's requirement of program
accessibility, is congruent and proportional to its object of enforcing the
right of access to the courts. The long history of unequal treatment of disabled
persons in the administration of judicial services has persisted despite several
state and federal legislative efforts to remedy the problem. Faced with
considerable evidence of the shortcomings of these previous efforts, Congress
was justified in concluding that the difficult and intractable problem of
disability discrimination warranted added prophylactic measures. Hibbs, 538 U.
S., at 737. The remedy Congress chose is nevertheless a limited one. Recognizing
that failure to accommodate persons with disabilities will often have the same
practical effect as outright exclusion, Congress required the States to take
reasonable measures to remove architectural and other barriers to accessibility.
§12132. But Title II does not require States to employ any and all means to make
judicial services accessible or to compromise essential eligibility criteria for
public programs. It requires only 'reasonable modifications' that would not
fundamentally alter the nature of the service provided, and only when the
individual seeking modification is otherwise eligible for the service. Ibid.
Title II's implementing regulations make clear that the reasonable modification
requirement can be satisfied in various ways, including less costly measures
than structural changes. This duty to accommodate is perfectly consistent with
the well-established due process principle that, within the limits of
practicability, a State must afford to all individuals a meaningful opportunity
to be heard in its courts. Boddie, 401 U. S., at 379. A number of affirmative
obligations flow from this principle. Cases such as Boddie, Griffin v. Illinois,
351 U. S. 12, and Gideon v. Wainwright, 372 U. S. 335, make clear that ordinary
considerations of cost and convenience alone cannot justify a State's failure to
provide individuals with a meaningful right of access to the courts. Judged
against this backdrop, Title II's affirmative obligation to accommodate is a
reasonable prophylactic measure, reasonably targeted to a legitimate end. Pp.
18-23.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">315 F. 3d 680,
affirmed.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">STEVENS, J., delivered the
opinion of the Court, in which O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ.,
joined. SOUTER, J., filed a concurring opinion, in which GINSBURG, J., joined.
GINSBURG, J., filed a concurring opinion, in which SOUTER and BREYER, JJ.,
joined. REHNQUIST, C. J., filed a dissenting opinion, in which KENNEDY and
THOMAS, JJ., joined. SCALIA, J., and THOMAS, J., filed dissenting
opinions.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">JUSTICE STEVENS delivered the
opinion of the Court.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Title II of the Americans with
Disabilities Act of 1990 (ADA or Act), 104 Stat. 337, 42 U. S. C. §§12131-12165,
provides that 'no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of
the services, programs or activities of a public entity, or be subjected to
discrimination by any such entity.' §12132. The question presented in this case
is whether Title II exceeds Congress' power under §5 of the Fourteenth
Amendment.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In August 1998, respondents
George Lane and Beverly Jones filed this action against the State of Tennessee
and a number of Tennessee counties, alleging past and ongoing violations of
Title II. Respondents, both of whom are paraplegics who use wheelchairs for
mobility, claimed that they were denied access to, and the services of, the
state court system by reason of their disabilities. Lane alleged that he was
compelled to appear to answer a set of criminal charges on the second floor of a
county courthouse that had no elevator. At his first appearance, Lane crawled up
two flights of stairs to get to the courtroom. When Lane returned to the
courthouse for a hearing, he refused to crawl again or to be carried by officers
to the courtroom; he consequently was arrested and jailed for failure to appear.
Jones, a certified court reporter, alleged that she has not been able to gain
access to a number of county courthouses, and, as a result, has lost both work
and an opportunity to participate in the judicial process. Respondents sought
damages and equitable relief.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The State moved to dismiss the
suit on the ground that it was barred by the Eleventh Amendment. The District
Court denied the motion without opinion, and the State appealed. [FN1] The
United States intervened to defend Title II's abrogation of the States' Eleventh
Amendment immunity. On April 28, 2000, after the appeal had been briefed and
argued, the Court of Appeals for the Sixth Circuit entered an order holding the
case in abeyance pending our decision in Board of Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356 (2001).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In Garrett, we concluded that the
Eleventh Amendment bars private suits seeking money damages for state violations
of Title I of the ADA. We left open, however, the question whether the Eleventh
Amendment permits suits for money damages under Title II. Id., at 360, n. 1.
Following the Garrett decision, the Court of Appeals, sitting en banc, heard
argument in a Title II suit brought by a hearing-impaired litigant who sought
money damages for the State's failure to accommodate his disability in a child
custody proceeding. Popovich v. Cuyahoga County Court, 276 F. 3d 808 (CA6 2002).
A divided court permitted the suit to proceed despite the State's assertion of
Eleventh Amendment immunity. The majority interpreted Garrett to bar private ADA
suits against States based on equal protection principles, but not those that
rely on due process principles. 276 F. 3d, at 811-816. The minority concluded
that Congress had not validly abrogated the States' Eleventh Amendment immunity
for any Title II claims, id., at 821, while the concurring opinion concluded
that Title II validly abrogated state sovereign immunity with respect to both
equal protection and due process claims, id., at 818.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Following the en banc decision in
Popovich, a panel of the Court of Appeals entered an order affirming the
District Court's denial of the State's motion to dismiss in this case. Judgt.
order reported at 40 Fed. Appx. 911 (CA6 2002). The order explained that
respondents' claims were not barred because they were based on due process
principles. In response to a petition for rehearing arguing that Popovich was
not controlling because the complaint did not allege due process violations, the
panel filed an amended opinion. It explained that the Due Process Clause
protects the right of access to the courts, and that the evidence before
Congress when it enacted Title II 'established that physical barriers in
government buildings, including courthouses and in the courtrooms themselves,
have had the effect of denying disabled people the opportunity to access vital
services and to exercise fundamental rights guaranteed by the Due Process
Clause.' 315 F. 3d 680, 682 (CA6 2003). Moreover, that 'record demonstrated that
public entities' failure to accommodate the needs of qualified persons with
disabilities may result directly from unconstitutional animus and impermissible
stereotypes.' Id., at 683. The panel did not, however, categorically reject the
State's submission. It instead noted that the case presented difficult questions
that 'cannot be clarified absent a factual record,' and remanded for further
proceedings. Ibid. We granted certiorari, 539 U. S. 941 (2003), and now
affirm.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">II<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The ADA was passed by large
majorities in both Houses of Congress after decades of deliberation and
investigation into the need for comprehensive legislation to address
discrimination against persons with disabilities. In the years immediately
preceding the ADA's enactment, Congress held 13 hearings and created a special
task force that gathered evidence from every State in the Union. The conclusions
Congress drew from this evidence are set forth in the task force and Committee
Reports, described in lengthy legislative hearings, and summarized in the
preamble to the statute. [FN2] Central among these conclusions was Congress'
finding that <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">'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.' 42 U. S. C.
§12101(a)(7).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Invoking 'the sweep of
congressional authority, including the power to enforce the fourteenth amendment
and to regulate commerce,' the ADA is designed 'to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.' §§12101(b)(1), (b)(4). It forbids discrimination
against persons with disabilities in three major areas of public life:
employment, which is covered by Title I of the statute; public services,
programs, and activities, which are the subject of Title II; and public
accommodations, which are covered by Title III.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Title II, §§12131-12134,
prohibits any public entity from discriminating against 'qualified' persons with
disabilities in the provision or operation of public services, programs, or
activities. The Act defines the term 'public entity' to include state and local
governments, as well as their agencies and instrumentalities. §12131(1). Persons
with disabilities are 'qualified' if they, 'with or without reasonable
modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids
and services, mee[t] the essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public
entity.' §12131(2). Title II's enforcement provision incorporates by reference
§505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U. S. C.
§794a, which authorizes private citizens to bring suits for money damages. 42 U.
S. C. §12133.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">III<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The Eleventh Amendment renders
the States immune from 'any suit in law or equity, commenced or prosecuted ...
by Citizens of another State, or by Citizens or Subjects of any Foreign State.'
Even though the Amendment 'by its terms ... applies only to suits against a
State by citizens of another State,' our cases have repeatedly held that this
immunity also applies to unconsented suits brought by a State's own citizens.
Garrett, 531 U. S., at 363; Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72-73
(2000). Our cases have also held that Congress may abrogate the State's Eleventh
Amendment immunity. To determine whether it has done so in any given case, we
'must resolve two predicate questions: first, whether Congress unequivocally
expressed its intent to abrogate that immunity; and second, if it did, whether
Congress acted pursuant to a valid grant of constitutional authority.' Id., at
73.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The first question is easily
answered in this case. The Act specifically provides: '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.' 42 U. S. C. §12202. As in Garrett, see 531 U. S., at
363-364, no party disputes the adequacy of that expression of Congress' intent
to abrogate the States' Eleventh Amendment immunity. The question, then, is
whether Congress had the power to give effect to its intent.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In Fitzpatrick v. Bitzer, 427 U.
S. 445 (1976), we held that Congress can abrogate a State's sovereign immunity
when it does so pursuant to a valid exercise of its power under §5 of the
Fourteenth Amendment to enforce the substantive guarantees of that Amendment.
Id., at 456. This enforcement power, as we have often acknowledged, is a 'broad
power indeed.' Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 732 (1982),
citing Ex parte Virginia, 100 U. S. 339, 346 (1880). [FN3] It includes 'the
authority both to remedy and to deter violation of rights guaranteed [by the
Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct,
including that which is not itself forbidden by the Amendment's text.' Kimel,
528 U. S., at 81. We have thus repeatedly affirmed that 'Congress may enact
so-called prophylactic legislation that proscribes facially constitutional
conduct, in order to prevent and deter unconstitutional conduct.' Nevada Dept.
of Human Resources v. Hibbs, 538 U. S. 721, 727-728 (2003). See also City of
Boerne v. Flores, 521 U. S. 507, 518 (1997). [FN4] The most recent affirmation
of the breadth of Congress' §5 power came in Hibbs, in which we considered
whether a male state employee could recover money damages against the State for
its failure to comply with the family-care leave provision of the Family and
Medical Leave Act of 1993 (FMLA), 107 Stat. 6, 29 U. S. C. §2601 et seq. We
upheld the FMLA as a valid exercise of Congress' §5 power to combat
unconstitutional sex discrimination, even though there was no suggestion that
the State's leave policy was adopted or applied with a discriminatory purpose
that would render it unconstitutional under the rule of Personnel Administrator
of Mass. v. Feeney, 442 U. S. 256 (1979). When Congress seeks to remedy or
prevent unconstitutional discrimination, §5 authorizes it to enact prophylactic
legislation proscribing practices that are discriminatory in effect, if not in
intent, to carry out the basic objectives of the Equal Protection
Clause.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Congress' §5 power is not,
however, unlimited. While Congress must have a wide berth in devising
appropriate remedial and preventative measures for unconstitutional actions,
those measures may not work a 'substantive change in the governing law.' Boerne,
521 U. S., at 519. In Boerne, we recognized that the line between remedial
legislation and substantive redefinition is 'not easy to discern,' and that
'Congress must have wide latitude in determining where it lies.' Id., at
519-520. But we also confirmed that 'the distinction exists and must be
observed,' and set forth a test for so observing it: Section 5 legislation is
valid if it exhibits 'a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.' Id., at
520.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In Boerne, we held that Congress
had exceeded its §5 authority when it enacted the Religious Freedom Restoration
Act of 1993 (RFRA). We began by noting that Congress enacted RFRA 'in direct
response' to our decision in Employment Div., Dept. of Human Resources of Ore.
v. Smith, 494 U. S. 872 (1990), for the stated purpose of 'restor[ing]' a
constitutional rule that Smith had rejected. 521 U. S., at 512, 515 (internal
quotation marks omitted). Though the respondent attempted to defend the statute
as a reasonable means of enforcing the Free Exercise Clause as interpreted in
Smith, we concluded that RFRA was 'so out of proportion' to that objective that
it could be understood only as an attempt to work a 'substantive change in
constitutional protections.' Id., at 529, 532. Indeed, that was the very purpose
of the law.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">This Court further defined the
contours of Boerne's 'congruence and proportionality' test in Florida Prepaid
Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999). At
issue in that case was the validity of the Patent and Plant Variety Protection
Remedy Clarification Act (hereinafter Patent Remedy Act), a statutory amendment
Congress enacted in the wake of our decision in Atascadero State Hospital v.
Scanlon, 473 U. S. 234 (1985), to clarify its intent to abrogate state sovereign
immunity from patent infringement suits. Florida Prepaid, 527 U. S., at 631-632.
Noting the virtually complete absence of a history of unconstitutional patent
infringement on the part of the States, as well as the Act's expansive coverage,
the Court concluded that the Patent Remedy Act's apparent aim was to serve the
Article I concerns of 'provid[ing] a uniform remedy for patent infringement and
... plac [ing] States on the same footing as private parties under that regime,'
and not to enforce the guarantees of the Fourteenth Amendment. Id., at 647-648.
See also Kimel, 528 U. S. 62 (finding that the Age Discrimination in Employment
Act exceeded Congress' §5 powers under Boerne); United States v. Morrison, 529
U. S. 598 (2000) (Violence Against Women Act).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Applying the Boerne test in
Garrett, we concluded that Title I of the ADA was not a valid exercise of
Congress' §5 power to enforce the Fourteenth Amendment's prohibition on
unconstitutional disability discrimination in public employment. As in Florida
Prepaid, we concluded Congress' exercise of its prophylactic §5 power was
unsupported by a relevant history and pattern of constitutional violations. 531
U. S., at 368, 374. Although the dissent pointed out that Congress had before it
a great deal of evidence of discrimination by the States against persons with
disabilities, id., at 379 (BREYER, J., dissenting), the Court's opinion noted
that the 'overwhelming majority' of that evidence related to 'the provision of
public services and public accommodations, which areas are addressed in Titles
II and III,' rather than Title I, id., at 371, n. 7. We also noted that neither
the ADA's legislative findings nor its legislative history reflected a concern
that the States had been engaging in a pattern of unconstitutional employment
discrimination. We emphasized that the House and Senate Committee Reports on the
ADA focused on ' 'discrimination [in] ... employment in the private sector,' '
and made no mention of discrimination in public employment. Id., at 371-372
(quoting S. Rep. No. 101-116, p. 6 (1989), and H. R. Rep. No. 101-485, pt. 2, p.
28 (1990)) (emphasis in Garrett). Finally, we concluded that Title I's broad
remedial scheme was insufficiently targeted to remedy or prevent
unconstitutional discrimination in public employment. Taken together, the
historical record and the broad sweep of the statute suggested that Title I's
true aim was not so much to enforce the Fourteenth Amendment's prohibitions
against disability discrimination in public employment as it was to 'rewrite'
this Court's Fourteenth Amendment jurisprudence. 531 U. S., at
372-374.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In view of the significant
differences between Titles I and II, however, Garrett left open the question
whether Title II is a valid exercise of Congress' §5 enforcement power. It is to
that question that we now turn.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">IV<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The first step of the Boerne
inquiry requires us to identify the constitutional right or rights that Congress
sought to enforce when it enacted Title II. Garrett, 531 U. S., at 365. In
Garrett we identified Title I's purpose as enforcement of the Fourteenth
Amendment's command that 'all persons similarly situated should be treated
alike.' Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985). As
we observed, classifications based on disability violate that constitutional
command if they lack a rational relationship to a legitimate governmental
purpose. Garrett, 531 U. S., at 366 (citing Cleburne, 473 U. S., at
446).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Title II, like Title I, seeks to
enforce this prohibition on irrational disability discrimination. But it also
seeks to enforce a variety of other basic constitutional guarantees,
infringements of which are subject to more searching judicial review. See, e.g.,
Dunn v. Blumstein, 405 U. S. 330, 336- 337 (1972); Shapiro v. Thompson, 394 U.
S. 618, 634 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541
(1942). These rights include some, like the right of access to the courts at
issue in this case, that are protected by the Due Process Clause of the
Fourteenth Amendment. The Due Process Clause and the Confrontation Clause of the
Sixth Amendment, as applied to the States via the Fourteenth Amendment, both
guarantee to a criminal defendant such as respondent Lane the 'right to be
present at all stages of the trial where his absence might frustrate the
fairness of the proceedings.' Faretta v. California, 422 U. S. 806, 819, n. 15
(1975). The Due Process Clause also requires the States to afford certain civil
litigants a 'meaningful opportunity to be heard' by removing obstacles to their
full participation in judicial proceedings. Boddie v. Connecticut, 401 U. S.
371, 379 (1971); M. L. B. v. S. L. J., 519 U. S. 102 (1996). We have held that
the Sixth Amendment guarantees to criminal defendants the right to trial by a
jury composed of a fair cross section of the community, noting that the
exclusion of 'identifiable segments playing major roles in the community cannot
be squared with the constitutional concept of jury trial.' Taylor v. Louisiana,
419 U. S. 522, 530 (1975). And, finally, we have recognized that members of the
public have a right of access to criminal proceedings secured by the First
Amendment. Press--Enterprise Co. v. Superior Court of Cal., County of Riverside,
478 U. S. 1, 8-15 (1986).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Whether Title II validly enforces
these constitutional rights is a question that 'must be judged with reference to
the historical experience which it reflects.' South Carolina v. Katzenbach, 383
U. S. 301, 308 (1966). See also Florida Prepaid, 527 U. S., at 639-640; Boerne,
521 U. S., at 530. While §5 authorizes Congress to enact reasonably prophylactic
remedial legislation, the appropriateness of the remedy depends on the gravity
of the harm it seeks to prevent. 'Difficult and intractable problems often
require powerful remedies,' Kimel, 528 U. S., at 88, but it is also true that
'[s]trong measures appropriate to address one harm may be an unwarranted
response to another, lesser one,' Boerne, 521 U. S., at 530.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">It is not difficult to perceive
the harm that Title II is designed to address. Congress enacted Title II against
a backdrop of pervasive unequal treatment in the administration of state
services and programs, including systematic deprivations of fundamental rights.
For example, '[a]s of 1979, most States ... categorically disqualified 'idiots'
from voting, without regard to individual capacity.' [FN5] The majority of these
laws remain on the books, [FN6] and have been the subject of legal challenge as
recently as 2001. [FN7] Similarly, a number of States have prohibited and
continue to prohibit persons with disabilities from engaging in activities such
as marrying [FN8] and serving as jurors. [FN9] The historical experience that
Title II reflects is also documented in this Court's cases, which have
identified unconstitutional treatment of disabled persons by state agencies in a
variety of settings, including unjustified commitment, e.g., Jackson v. Indiana,
406 U. S. 715 (1972); the abuse and neglect of persons committed to state mental
health hospitals, Youngberg v. Romeo, 457 U. S. 307 (1982); [FN10] and
irrational discrimination in zoning decisions, Cleburne v. Cleburne Living
Center, Inc., 473 U. S. 432 (1985). The decisions of other courts, too, document
a pattern of unequal treatment in the adminis- tration of a wide range of public
services, programs, and activities, including the penal system, [FN11] public
education, [FN12] and voting. [FN13] Notably, these decisions also demonstrate a
pattern of unconstitutional treatment in the administration of justice.
[FN14]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">This pattern of disability
discrimination persisted despite several federal and state legislative efforts
to address it. In the deliberations that led up to the enactment of the ADA,
Congress identified important shortcomings in existing laws that rendered them
'inadequate to address the pervasive problems of discrimination that people with
disabilities are facing.' S. Rep. No. 101- 116, at 18. See also H. R. Rep. No.
101-485, pt. 2, at 47. [FN15] It also uncovered further evidence of those
shortcomings, in the form of hundreds of examples of unequal treatment of
persons with disabilities by States and their political subdivisions. See
Garrett, 531 U. S., at 379 (BREYER, J., dissenting). See also id., at 391 (App.
C to opinion of BREYER, J., dissenting). As the Court's opinion in Garrett
observed, the 'overwhelming majority' of these examples concerned discrimination
in the administration of public programs and services. Id., at 371, n. 7;
Government's Lodging in Garrett, O. T. 2000, No. 99-1240 (available in Clerk of
Court's case file).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">With respect to the particular
services at issue in this case, Congress learned that many individuals, in many
States across the country, were being excluded from courthouses and court
proceedings by reason of their disabilities. A report before Congress showed
that some 76% of public services and programs housed in state-owned buildings
were inaccessible to and unusable by persons with disabilities, even taking into
account the possibility that the services and programs might be restructured or
relocated to other parts of the buildings. U. S. Civil Rights Commission,
Accommodating the Spectrum of Individual Abilities 39 (1983). Congress itself
heard testimony from persons with disabilities who described the physical
inaccessibility of local courthouses. Oversight Hearing on H. R. 4468 before the
House Subcommittee on Select Education of the Committee on Education and Labor,
100th Cong., 2d Sess., 40-41, 48 (1988). And its appointed task force heard
numerous examples of the exclusion of persons with disabilities from state
judicial services and programs, including exclusion of persons with visual
impairments and hearing impairments from jury service, failure of state and
local governments to provide interpretive services for the hearing impaired,
failure to permit the testimony of adults with developmental disabilities in
abuse cases, and failure to make courtrooms accessible to witnesses with
physical disabilities. Government's Lodging in Garrett, O. T. 2000, No. 99-1240.
See also Task Force on the Rights and Empowerment of Americans with
Disabilities, From ADA to Empowerment (Oct. 12, 1990). [FN16]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Given the sheer volume of
evidence demonstrating the nature and extent of unconstitutional discrimination
against persons with disabilities in the provision of public services, the
dissent's contention that the record is insufficient to justify Congress'
exercise of its prophylactic power is puzzling, to say the least. Just last Term
in Hibbs, we approved the family- care leave provision of the FMLA as valid §5
legislation based primarily on evidence of disparate provision of parenting
leave, little of which concerned unconstitutional state conduct. 538 U. S., at
728-733. [FN17] We explained that because the FMLA was targeted at sex-based
classifications, which are subject to a heightened standard of judicial
scrutiny, 'it was easier for Congress to show a pattern of state constitutional
violations' than in Garrett or Kimel, both of which concerned legislation that
targeted classifications subject to rational-basis review. 538 U. S., at
735-737. Title II is aimed at the enforcement of a variety of basic rights,
including the right of access to the courts at issue in this case, that call for
a standard of judicial review at least as searching, and in some cases more
searching, than the standard that applies to sex-based classifications. And in
any event, the record of constitutional violations in this case--including
judicial findings of unconstitutional state action, and statistical,
legislative, and anecdotal evidence of the widespread exclusion of persons with
disabilities from the enjoyment of public services--far exceeds the record in
Hibbs.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The conclusion that Congress drew
from this body of evidence is set forth in the text of the ADA itself:
'[D]iscrimination against individuals with disabilities persists in such
critical areas as ... education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public services.'
42 U. S. C. §12101(a)(3) (emphasis added). This finding, together with the
extensive record of disability discrimination that underlies it, makes clear
beyond peradventure that inadequate provision of public services and access to
public facilities was an appropriate subject for prophylactic
legislation.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">V<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The only question that remains is
whether Title II is an appropriate response to this history and pattern of
unequal treatment. At the outset, we must determine the scope of that inquiry.
Title II--unlike RFRA, the Patent Remedy Act, and the other statutes we have
reviewed for validity under §5--reaches a wide array of official conduct in an
effort to enforce an equally wide array of constitutional guarantees. Petitioner
urges us both to examine the broad range of Title II's applications all at once,
and to treat that breadth as a mark of the law's invalidity. According to
petitioner, the fact that Title II applies not only to public education and
voting-booth access but also to seating at state-owned hockey rinks indicates
that Title II is not appropriately tailored to serve its objectives. But nothing
in our case law requires us to consider Title II, with its wide variety of
applications, as an undifferentiated whole. [FN18] Whatever might be said about
Title II's other applications, the question presented in this case is not
whether Congress can validly subject the States to private suits for money
damages for failing to provide reasonable access to hockey rinks, or even to
voting booths, but whether Congress had the power under §5 to enforce the
constitutional right of access to the courts. Because we find that Title II
unquestionably is valid §5 legislation as it applies to the class of cases
implicating the accessibility of judicial services, we need go no further. See
United States v. Raines, 362 U. S. 17, 26 (1960). [FN19]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Congress' chosen remedy for the
pattern of exclusion and discrimination described above, Title II's requirement
of program accessibility, is congruent and proportional to its object of
enforcing the right of access to the courts. The unequal treatment of disabled
persons in the administration of judicial services has a long history, and has
persisted despite several legislative efforts to remedy the problem of
disability discrimination. Faced with considerable evidence of the shortcomings
of previous legislative responses, Congress was justified in concluding that
this 'difficult and intractable proble[m]' warranted 'added prophylactic
measures in response.' Hibbs, 538 U. S., at 737 (internal quotation marks
omitted).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The remedy Congress chose is
nevertheless a limited one. Recognizing that failure to accommodate persons with
disabilities will often have the same practical effect as outright exclusion,
Congress required the States to take reasonable measures to remove architectural
and other barriers to accessibility. 42 U. S. C. §12131(2). But Title II does
not require States to employ any and all means to make judicial services
accessible to persons with disabilities, and it does not require States to
compromise their essential eligibility criteria for public programs. It requires
only 'reasonable modifications' that would not fundamentally alter the nature of
the service provided, and only when the individual seeking modification is
otherwise eligible for the service. Ibid. As Title II's implementing regulations
make clear, the reasonable modification requirement can be satisfied in a number
of ways. In the case of facilities built or altered after 1992, the regulations
require compliance with specific architectural accessibility standards. 28 CFR
§35.151 (2003). But in the case of older facilities, for which structural change
is likely to be more difficult, a public entity may comply with Title II by
adopting a variety of less costly measures, including relocating services to
alternative, accessible sites and assigning aides to assist persons with
disabilities in accessing services. §35.150(b)(1). Only if these measures are
ineffective in achieving accessibility is the public entity required to make
reasonable structural changes. Ibid. And in no event is the entity required to
undertake measures that would impose an undue financial or administrative
burden, threaten historic preservation interests, or effect a fundamental
alteration in the nature of the service. §§35.150(a)(2), (a)(3).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">This duty to accommodate is
perfectly consistent with the well-established due process principle that,
'within the limits of practicability, a State must afford to all individuals a
meaningful opportunity to be heard' in its courts. Boddie, 401 U. S., at 379
(internal quotation marks and citation omitted). [FN20] Our cases have
recognized a number of affirmative obligations that flow from this principle:
the duty to waive filing fees in certain family-law and criminal cases, [FN21]
the duty to provide transcripts to criminal defendants seeking review of their
convictions, [FN22] and the duty to provide counsel to certain criminal
defendants. [FN23] Each of these cases makes clear that ordinary considerations
of cost and convenience alone cannot justify a State's failure to provide
individuals with a meaningful right of access to the courts. Judged against this
backdrop, Title II's affirmative obligation to accommodate persons with
disabilities in the administration of justice cannot be said to be 'so out of
proportion to a supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent, unconstitutional behavior.'
Boerne, 521 U. S., at 532; Kimel, 528 U. S., at 86. [FN24] It is, rather, a
reasonable prophylactic measure, reasonably targeted to a legitimate
end.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">For these reasons, we conclude
that Title II, as it applies to the class of cases implicating the fundamental
right of access to the courts, constitutes a valid exercise of Congress' §5
authority to enforce the guarantees of the Fourteenth Amendment. The judgment of
the Court of Appeals is therefore affirmed.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">It is so ordered.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN1. In Puerto Rico Aqueduct and
Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993), we held that
'States and state entities that claim to <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">be 'arms of the State' may take
advantage of the collateral order doctrine to appeal a district court order
denying a claim of Eleventh Amendment immunity.' Id., at 147.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN2. See 42 U. S. C. §12101; Task
Force on the Rights and Empowerment of Americans with Disabilities, From ADA to
Empowerment 16 (Oct. 12, 1990); S. Rep. No. 101-116 (1989); H. R. Rep. No.
101-485 (1990); H. R. Conf. Rep. No. 101-558 (1990); H. R. Conf. Rep. No.
101-596 (1990); cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S.
356, 389-390 (2001) (App. A to opinion of BREYER, J., dissenting) (listing
congressional hearings).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN3. In Ex parte Virginia, we
described the breadth of Congress' §5 power as follows: <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">'Whatever legislation is
appropriate, that is, adapted to carry out the objects the amendments have in
view, whatever tends to enforce submission to the prohibitions they contain, and
to secure to all persons the enjoyment of perfect equality of civil rights and
the equal protection of the laws against State denial or invasion, if not
prohibited, is brought within the domain of congressional power.' 100 U. S., at
345-346. See also City of Boerne v. Flores, 521 U. S. 507, 517-518
(1997).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN4. In Boerne, we observed:
<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">'Legislation which deters or
remedies constitutional violations can fall within the sweep of Congress'
enforcement power even if in the process it prohibits conduct which is not
itself unconstitutional and intrudes into ' legislative spheres of autonomy
previously reserved to the States.' Fitzpatrick v. Bitzer, 427 U. S. 445, 455
(1976). For example, the Court upheld a suspension of literacy tests and similar
voting requirements under Congress' parallel power to enforce the provisions of
the Fifteenth Amendment, see U. S. Const., Amdt. 15, §2, as a measure to combat
racial discrimination in voting, South Carolina v. Katzenbach, 383 U. S. 301,
308 (1966), despite the facial constitutionality of the tests under Lassiter v.
Northampton County Bd. of Elections, 360 U. S. 45 (1959). We have also concluded
that other measures protecting voting rights are within Congress' power to
enforce the Fourteenth and Fifteenth Amendments, despite the burdens those
measures placed on the States. South Carolina v. Katzenbach, supra (upholding
several provisions of the Voting Rights Act of 1965); Katzenbach v. Morgan, [384
U. S. 641 (1966)] (upholding ban on literacy tests that prohibited certain
people schooled in Puerto Rico from voting); Oregon v. Mitchell, 400 U. S. 112
(1970) (upholding 5-year nationwide ban on literacy tests and similar voting
requirements for registering to vote); City of Rome v. United States, 446 U. S.
156, 161 (1980) (upholding 7-year <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">extension of the Voting Rights
Act's requirement that certain jurisdictions preclear any change to a '
'standard, practice, or procedure with respect to voting' '); see also James
Everard's Breweries v. Day, 265 U. S. 545 (1924) (upholding ban on medical
prescription of intoxicating malt liquors as appropriate to enforce Eighteenth
Amendment ban on manufacture, sale, or transportation of intoxicating liquors
for beverage purposes).' Id., at 518.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN5. Cleburne v. Cleburne Living
Center, Inc., 473 U. S. 432, 464, and n. 14 (1985) (Marshall, J., concurring in
judgment in part and dissenting in part) (citing Note, Mental Disability and the
Right to Vote, 88 Yale L. J. 1644 (1979)).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN6. See Schriner, Ochs, &
Shields, Democratic Dilemmas: Notes on the ADA and Voting Rights of People with
Cognitive and Emotional Impairments, 21 Berkeley J. Emp. & Lab. L. 437,
456-472 tbl. II (2000) (listing state laws concerning the voting rights of
persons with mental disabilities).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN7. See Doe v. Rowe, 156 F.
Supp. 2d 35 (Me. 2001).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN8. E.g., D. C. Code §46-403
(West 2001) (declaring illegal and void the <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">marriage of 'an idiot or of a
person adjudged to be a lunatic'); Ky. Rev. Stat. Ann. §402.990(2) (West 1992
Cumulative Service) (criminalizing the marriage of persons with mental
disabilities); Tenn. Code Ann. §36-3-109 (1996) (forbidding the issuance of a
marriage license to 'imbecile[s]').<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN9. E.g., Mich. Comp. Laws Ann.
§729.204 (West 2002) (persons selected for inclusion on jury list may not be
'infirm or decrepit'); Tenn. Code Ann. §22-2-304(c) (1994) (authorizing judges
to excuse 'mentally and physically disabled' persons from jury
service).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN10. The undisputed findings of
fact in Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981),
provide another example of such mistreatment. See id., at 7 ('Conditions at
Pennhurst are not only dangerous, with the residents often physically abused or
drugged by staff members, but also inadequate for the 'habilitation' of the
retarded').<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN11. E.g., LaFaut v. Smith, 834
F. 2d 389, 394 (CA4 1987) (paraplegic inmate unable to access toilet
facilities); Schmidt v. Odell, 64 F. Supp. 2d 1014 (Kan. 1999) (double amputee
forced to crawl around the floor of jail). See also, e.g., Key v. Grayson, 179
F. 3d 996 (CA6 1999) (deaf inmate denied access to sex offender therapy program
allegedly required as <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">precondition for
parole).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN12. E.g., New York State Assn.
for Retarded Children, Inc. v. Carey, 466 F. Supp. 487, 504 (EDNY 1979)
(segregation of mentally retarded students with hepatitis B); Mills v. Board of
Ed. of District of Columbia, 348 F. Supp. 866 (DC 1972) (exclusion of mentally
retarded students from public school system). See also, e.g., Robertson v.
Granite City Community Unit School District No. 9, 684 F. Supp. 1002 (SD Ill.
1988) (elementary-school student with AIDS excluded from attending regular
education classes or participating in extracurricular activities); Thomas v.
Atascadero Unified School District, 662 F. Supp. 376 (CD Cal. 1986)
(kindergarten student with AIDS excluded from class).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN13. E.g., Doe v. Rowe, 156 F.
Supp. 2d 35 (Me. 2001) (disenfranchisement of persons under guardianship by
reason of mental illness). See also, e.g., New York ex rel. Spitzer v. County of
Delaware, 82 F. Supp. 2d 12 (NDNY 2000) (mobility-impaired voters unable to
access county polling places).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN14. E.g., Ferrell v. Estelle,
568 F. 2d 1128, 1132-1133 (CA5) (deaf criminal defendant denied interpretive
services), opinion withdrawn as <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">moot, 573 F. 2d 867 (1978); State
v. Schaim, 65 Ohio St. 3d 51, 64, 600 N. E. 2d 661, 672 (1992) (same); People v.
Rivera, 125 Misc. 2d 516, 528, 480 N. Y. S. 2d 426, 434 (Sup. Ct. 1984) (same).
See also, e.g., Layton v. Elder, 143 F. 3d 469, 470-472 (CA8 1998)
(mobility-impaired litigant excluded from a county quorum court session held on
the second floor of an inaccessible courthouse); Matthews v. Jefferson, 29 F.
Supp. 2d 525, 533- 534 (WD Ark. 1998) (wheelchair-bound litigant had to be
carried to the second floor of an inaccessible courthouse, from which he was
unable to leave to use restroom facilities or obtain a meal, and no arrangements
were made to carry him downstairs at the end of the day); Pomerantz v. County of
Los Angeles, 674 F. 2d 1288, 1289 (CA9 1982) (blind persons categorically
excluded from jury service); Galloway v. Superior Court of District of Columbia,
816 F. Supp. 12 (DC 1993) (same); DeLong v. Brumbaugh, 703 F. Supp. 399, 405 (WD
Pa. 1989) (deaf individual excluded from jury service); People v. Green, 561 N.
Y. S. 2d 130, 133 (Cty. Ct. 1990) (prosecutor exercised peremptory strike
against prospective juror solely because she was hearing
impaired).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN15. For a comprehensive
discussion of the shortcomings of state disability discrimination statutes, see
Colker & Milani, The Post-Garrett World: Insufficient State Protection
against Disability Discrimination, 53 <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Ala. L. Rev. 1075
(2002).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN16. THE CHIEF JUSTICE dismisses
as 'irrelevant' the portions of this evidence that concern the conduct of
nonstate governments. Post, at 5-6 (dissenting opinion). This argument rests on
the mistaken premise that a valid exercise of Congress' §5 power must always be
predicated solely on evidence of constitutional violations by the States
themselves. To operate on that premise in this case would be particularly
inappropriate because this case concerns the provision of judicial services, an
area in which local governments are typically treated as 'arm[s] of the State'
for Eleventh Amendment purposes, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S.
274, 280 (1977), and thus enjoy precisely the same immunity from unconsented
suit as the States. See, e.g., Callahan v. Philadelphia, 207 F. 3d 668, 670-674
(CA3 2000) (municipal court is an 'arm of the State' entitled to Eleventh
Amendment immunity); Kelly v. Municipal Courts, 97 F. 3d 902, 907-908 (CA7 1996)
(same); Franceschi v. Schwartz, 57 F. 3d 828, 831 (CA9 1995) (same). Cf.
Garrett, 531 U. S., at 368-369. <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In any event, our cases have
recognized that evidence of constitutional violations on the part of nonstate
governmental actors is relevant to the §5 inquiry. To be sure, evidence of
constitutional violations by the States themselves is particularly important
when, as in Florida Prepaid <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Postsecondary Ed. Expense Bd. v.
College Savings Bank, 527 U. S. 627 (1999), Kimel v. Florida Bd. of Regents, 528
U. S. 62 (2000), and Garrett, the sole purpose of reliance on §5 is to place the
States on equal footing with private actors with respect to their amenability to
suit. But much of the evidence in South Carolina v. Katzenbach, 383 U. S., at
312-315, to which THE CHIEF JUSTICE favorably refers, post, at 11, involved the
conduct of county and city officials, rather than the States. Moreover, what THE
CHIEF JUSTICE calls an 'extensive legislative record documenting States' gender
discrimination in employment leave policies' in Nevada Dept. of Human Resources
v. Hibbs, 538 U. S. 721 (2003), post, at 11, in fact contained little specific
evidence of a pattern of unconstitutional discrimination on the part of the
States. Indeed, the evidence before the Congress that enacted the FMLA related
primarily to the practices of private-sector employers and the Federal
Government. See Hibbs, 538 U. S., at 730-735. See also id., at 745-750 (KENNEDY,
J., dissenting).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN17. Specifically, we relied on
(1) a Senate Report citation to a Bureau of Labor Statistics survey revealing
disparities in private-sector provision of parenting leave to men and women; (2)
submissions from two sources at a hearing on the Parental and Medical Leave Act
of 1986, a predecessor bill to the FMLA, that public-sector parental leave
polices <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">' 'diffe[r] little' ' from
private-sector policies; (3) evidence that 15 States provided women up to one
year of extended maternity leave, while only 4 States provided for similarly
extended paternity leave; and (4) a House Report's quotation of a study that
found that failure to implement uniform standards for parenting leave would '
'leav[e] Federal employees open to discretionary and possibly unequal
treatment,' ' H. R. Rep. No. 103-8, pt. 2, p. 11 (1993). Hibbs, 538 U. S., at
728-733.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN18. Contrary to THE CHIEF
JUSTICE, post, at 15, neither Garrett nor Florida Prepaid lends support to the
proposition that the Boerne test requires courts in all cases to 'measur[e] the
full breadth of the statute or relevant provision that Congress enacted against
the scope of the constitutional right it purported to enforce.' In fact, the
decision in Garrett, which severed Title I of the ADA from Title II for purposes
of the §5 inquiry, demonstrates that courts need not examine 'the full breadth
of the statute' all at once. Moreover, Garrett and Florida Prepaid, like all of
our other recent §5 cases, concerned legislation that narrowly targeted the
enforcement of a single constitutional right; for that reason, neither speaks to
the issue presented in this case. <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Nor is THE CHIEF JUSTICE's
approach compelled by the nature of the Boerne inquiry. The answer to the
question Boerne asks--whether a piece of <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">legislation attempts
substantively to redefine a constitutional guarantee-- logically focuses on the
manner in which the legislation operates to enforce that particular guarantee.
It is unclear what, if anything, examining Title II's application to hockey
rinks or voting booths can tell us about whether Title II substantively
redefines the right of access to the courts.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN19. In Raines, a State subject
to suit under the Civil Rights Act of 1957 contended that the law exceeded
Congress' power to enforce the Fifteenth Amendment because it prohibited 'any
person,' and not just state actors, from interfering with voting rights. We
rejected that argument, concluding that 'if the complaint here called for an
application of the statute clearly constitutional under the Fifteenth Amendment,
that should have been an end to the question of constitutionality.' 362 U. S.,
at 24- 25.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN20. Because this case
implicates the right of access to the courts, we need not consider whether Title
II's duty to accommodate exceeds what the Constitution requires in the class of
cases that implicate only Cleburne's prohibition on irrational discrimination.
See Garrett, 531 U. S., at 372.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN21. Boddie v. Connecticut, 401
U. S. 371 (1971) (divorce filing fee); M. L. B. v. S. L. J., 519 U. S. 102
(1996) (record fee in parental rights termination action); Smith v. Bennett, 365
U. S. 708 (1961) (filing fee for habeas petitions); Burns v. Ohio, 360 U. S. 252
(1959) (filing fee for direct appeal in criminal case).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN22. Griffin v. Illinois, 351 U.
S. 12 (1956).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN23. Gideon v. Wainwright, 372
U. S. 335 (1963) (trial counsel for persons charged with felony offenses);
Douglas v. California, 372 U. S. 353 (1963) (counsel for direct appeals as of
right).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN24. THE CHIEF JUSTICE contends
that Title II cannot be understood as remedial legislation because it 'subjects
a State to liability for failing to make a vast array of special accommodations,
without regard for whether the failure to accommodate results in a
constitutional wrong.' Post, at 17 (emphasis in original). But as we have often
acknowledged, Congress 'is not confined to the enactment of legislation that
merely parrots the precise wording of the Fourteenth Amendment,' and may
prohibit 'a somewhat broader swath of conduct, including that which is not
itself forbidden by the Amendment's text.' Kimel, 528 U. S., at 81. Cf. Hibbs,
538 U. S. 721 <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">(upholding the FMLA as valid
remedial legislation without regard to whether failure to provide the
statutorily mandated 12 weeks' leave results in a violation of the Fourteenth
Amendment).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">JUSTICE SOUTER, with whom JUSTICE
GINSBURG joins, concurring.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I join the Court's opinion
subject to the same caveats about the Court's recent cases on the Eleventh
Amendment and §5 of the Fourteenth that I noted in Nevada Dept. of Human
Resources v. Hibbs, 538 U. S. 721, 740 (2003) (SOUTER, J.,
concurring).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Although I concur in the Court's
approach applying the congruence-and- proportionality criteria to Title II of
the Americans with Disabilities Act of 1990 as a guarantee of access to courts
and related rights, I note that if the Court engaged in a more expansive enquiry
as THE CHIEF JUSTICE suggests, post, at 15 (dissenting opinion), the evidence to
be considered would underscore the appropriateness of action under §5 to address
the situation of disabled individuals before the courts, for that evidence would
show that the judiciary itself has endorsed the basis for some of the very
discrimination subject to congressional remedy under §5. Buck v. Bell, 274 U. S.
200 (1927), was not grudging in sustaining the constitutionality of the
once-pervasive practice of involuntarily sterilizing those with mental
disabilities. See id., at 207 ('It is better for all the world, if instead of
waiting to execute degenerate offspring for crime, or to let them starve for
their imbecility, society can prevent those who are manifestly unfit from
continuing their kind... . Three generations of imbeciles are enough'). Laws
compelling sterilization were often accompanied by others indiscriminately
requiring institutionalization, and prohibiting certain individuals with
disabilities from marrying, from voting, from attending public schools, and even
from appearing in public. One administrative action along these lines was
judicially sustained in part as a justified precaution against the very sight of
a child with cerebral palsy, lest he 'produc[e] a depressing and nauseating
effect' upon others. State ex rel. Beattie v. Board of Ed. of Antigo, 169 Wis.
231, 232, 172 N. W. 153 (1919) (approving his exclusion from public school).
[FN1]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Many of these laws were enacted
to implement the quondam science of eugenics, which peaked in the 1920's, yet
the statutes and their judicial vindications sat on the books long after
eugenics lapsed into discredit. [FN2] See U. S. Civil Rights Commission,
Accommodating the Spectrum of Individual Abilities 19- 20 (1983). Quite apart
from the fateful inspiration behind them, one pervasive fault of these
provisions was their failure to reflect the 'amount of flexibility and freedom'
required to deal with 'the wide variation in the abilities and needs' of people
with disabilities. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 445
(1985). Instead, like other invidious discrimination, they classified people
without regard to individual capacities, and by that lack of regard did great
harm. In sustaining the application of Title II today, the Court takes a welcome
step away from the judiciary's prior endorsement of blunt instruments imposing
legal handicaps.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN1. See generally Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 463-464 (1985) (Marshall, J.,
concurring in judgment in part and dissenting in part); Burgdorf & Burgdorf,
A History of Unequal Treatment, 15 Santa Clara Law. 855 (1975); Brief for United
States 17-19.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN2. As the majority opinion
shows, some of them persist to this day, ante, at 12-14, to say nothing of their
lingering effects on society.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">JUSTICE GINSBURG, with whom
JUSTICE SOUTER and JUSTICE BREYER join, concurring.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">For the reasons stated by the
Court, and mindful of Congress' objective in enacting the Americans with
Disabilities Act--the elimination or reduction of physical and social structures
that impede people with some present, past, or perceived impairments from
contributing, according to their talents, to our Nation's social, economic, and
civic life--I join the Court's opinion.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The Americans with Disabilities
Act of 1990 (ADA or Act), 42 U. S. C. §§12101- 12213, is a measure expected to
advance equal-citizenship stature for persons with disabilities. See Bagenstos,
Subordination, Stigma, and 'Disability,' 86 Va. L. Rev. 397, 471 (2000) (ADA
aims both to 'guarante[e] a baseline of equal citizenship by protecting against
stigma and systematic exclusion from public and private opportunities, and [to]
protec[t] society against the loss of valuable talents'). As the Court's opinion
relates, see ante, at 5, the Act comprises three parts, prohibiting
discrimination in employment (Title I), public services, programs, and
activities (Title II), and public accommodations (Title III). This case concerns
Title II, which controls the conduct of administrators of public
undertakings.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Including individuals with
disabilities among people who count in composing 'We the People,' Congress
understood in shaping the ADA, would sometimes require not blindfolded equality,
but responsiveness to difference; not indifference, but accommodation. Central
to the Act's primary objective, Congress extended the statute's range to reach
all government activities, §12132 (Title II), and required 'reasonable
modifications to [public actors'] rules, policies, or practices,'
§§12131(2)-12132 (Title II). See also §12112(b)(5) (defining discrimination to
include the failure to provide 'reasonable accommodations') (Title I);
§12182(b)(2)(A)(ii) (requiring 'reasonable modifications in [public
accommodations'] policies, practices, or procedures') (Title III); Bagenstos,
supra, at 435 (ADA supporters sought 'to eliminate the practices that combine
with physical and mental conditions to create what we call 'disability.' The
society-wide universal access rules serve this function on the macro level, and
the requirements of individualized accommodation and modification fill in the
gaps on the micro level.' (footnote omitted)).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In Olmstead v. L. C., 527 U. S.
581 (1999), this Court responded with fidelity to the ADA's accommodation theme
when it held a State accountable for failing to provide community residential
placements for people with disabilities. The State argued in Olmstead that it
had acted impartially, for it provided no community placements for individuals
without disabilities. Id., at 598. Congress, the Court observed, advanced in the
ADA 'a more comprehensive view of the concept of discrimination,' ibid., one
that embraced failures to provide 'reasonable accommodations,' id., at 601. The
Court today is similarly faithful to the Act's demand for reasonable
accommodation to secure access and avoid exclusion.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Legislation calling upon all
government actors to respect the dignity of individuals with disabilities is
entirely compatible with our Constitution's commitment to federalism, properly
conceived. It seems to me not conducive to a harmonious federal system to
require Congress, before it exercises authority under §5 of the Fourteenth
Amendment, essentially to indict each State for disregarding the
equal-citizenship stature of persons with disabilities. But see post, at 11
(SCALIA, J., dissenting) ('Congress may impose prophylactic §5 legislation only
upon those particular States in which there has been an identified history of
relevant constitutional violations.'); Nevada Dept. of Human Resources v. Hibbs,
538 U. S. 721, 743 (2003) (SCALIA, J., dissenting) (to be controlled by §5
legislation, State 'can demand that it be shown to have been acting in violation
of the Fourteenth Amendment' (emphasis in original)). Members of Congress are
understandably reluctant to condemn their own States as constitutional
violators, complicit in maintaining the isolated and unequal status of persons
with disabilities. I would not disarm a National Legislature for resisting an
adversarial approach to lawmaking better suited to the courtroom.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">As the Court's opinion documents,
see ante, at 12-18, Congress considered a body of evidence showing that in
diverse parts of our Nation, and at various levels of government, persons with
disabilities encounter access barriers to public facilities and services. That
record, the Court rightly holds, at least as it bears on access to courts,
sufficed to warrant the barrier-lowering, dignity-respecting national solution
the People's representatives in Congress elected to order.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">CHIEF JUSTICE REHNQUIST, with
whom JUSTICE KENNEDY and JUSTICE THOMAS join, dissenting.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In Board of Trustees of Univ. of
Ala. v. Garrett, 531 U. S. 356 (2001), we held that Congress did not validly
abrogate States' Eleventh Amendment immunity when it enacted Title I of the
Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. §§12111-12117. Today,
the Court concludes that Title II of that Act, §§12131-12165, does validly
abrogate that immunity, at least insofar 'as it applies to the class of cases
implicating the fundamental right of access to the courts.' Ante, at 19. Because
today's decision is irreconcilable with Garrett and the well-established
principles it embodies, I dissent.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The Eleventh Amendment bars
private lawsuits in federal court against an unconsenting State. E.g., Nevada
Dept. of Human Resources v. Hibbs, 538 U. S. 721, 726 (2003); Garrett, supra, at
363; Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73 (2000). Congress may
overcome States' sovereign immunity and authorize such suits only if it
unmistakably expresses its intent to do so, and only if it 'acts pursuant to a
valid exercise of its power under §5 of the Fourteenth Amendment.' Hibbs, supra,
at 726. While the Court correctly holds that Congress satisfied the first
prerequisite, ante, at 6, I disagree with its conclusion that Title II is valid
§5 enforcement legislation.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Section 5 of the Fourteenth
Amendment grants Congress the authority 'to enforce, by appropriate
legislation,' the familiar substantive guarantees contained in §1 of that
Amendment. U. S. Const., Amdt. 14, §1 ('No State shall ... 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'). Congress' power to
enact 'appropriate' enforcement legislation is not limited to 'mere legislative
repetition' of this Court's Fourteenth Amendment jurisprudence. Garrett, supra,
at 365. Congress may 'remedy' and 'deter' state violations of constitutional
rights by 'prohibiting a somewhat broader swath of conduct, including that which
is not itself forbidden by the Amendment's text.' Hibbs, 538 U. S., at 727
(internal quotation marks omitted). Such 'prophylactic' legislation, however,
'must be an appropriate remedy for identified constitutional violations, not 'an
attempt to substantively redefine the States' legal obligations.' ' Id., at
727-728 (quoting Kimel, supra, at 88); City of Boerne v. Flores, 521 U. S. 507,
525 (1997) (enforcement power is 'corrective or preventive, not definitional').
To ensure that Congress does not usurp this Court's responsibility to define the
meaning of the Fourteenth Amendment, valid §5 legislation must exhibit '
'congruence and proportionality between the injury to be prevented or remedied
and the means adopted to that end.' ' Hibbs, supra, at 728 (quoting City of
Boerne, supra, at 520). While the Court today pays lipservice to the 'congruence
and proportionality' test, see ante, at 8, it applies it in a manner
inconsistent with our recent precedents.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In Garrett, we conducted the
three-step inquiry first enunciated in City of Boerne to determine whether Title
I of the ADA satisfied the congruence-and- proportionality test. A faithful
application of that test to Title II reveals that it too ' 'substantively
redefine[s],' ' rather than permissibly enforces, the rights protected by the
Fourteenth Amendment. Hibbs, supra, at 728.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The first step is to 'identify
with some precision the scope of the constitutional right at issue.' Garrett,
supra, at 365. This task was easy in Garrett, Hibbs, Kimel, and City of Boerne
because the statutes in those cases sought to enforce only one constitutional
right. In Garrett, for example, the statute addressed the equal protection right
of disabled persons to be free from unconstitutional employment discrimination.
Garrett, supra, at 365. See also Hibbs, supra, at 728 ('The [Family and Medical
Leave Act of 1993 (FMLA)] aims to protect the right to be free from gender-based
discrimination in the workplace'); Kimel, supra, at 83 (right to be free from
unconstitutional age discrimination in employment); City of Boerne, supra, at
529 (right of free exercise of religion). The scope of that right, we explained,
is quite limited; indeed, the Equal Protection Clause permits a State to
classify on the basis of disability so long as it has a rational basis for doing
so. Garrett, supra, at 366-368 (discussing Cleburne v. Cleburne Living Center,
Inc., 473 U. S. 432 (1985)); see also ante, at 11.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In this case, the task of
identifying the scope of the relevant constitutional protection is more
difficult because Title II purports to enforce a panoply of constitutional
rights of disabled persons: not only the equal protection right against
irrational discrimination, but also certain rights protected by the Due Process
Clause. Ante, at 11-12. However, because the Court ultimately upholds Title II
'as it applies to the class of cases implicating the fundamental right of access
to the courts,' ante, at 19, the proper inquiry focuses on the scope of those
due process rights. The Court cites four access-to-the-courts rights that Title
II purportedly enforces: (1) the right of the criminal defendant to be present
at all critical stages of the trial, Faretta v. California, 422 U. S. 806, 819
(1975); (2) the right of litigants to have a 'meaningful opportunity to be
heard' in judicial proceedings, Boddie v. Connecticut, 401 U. S. 371, 379
(1971); (3) the right of the criminal defendant to trial by a jury composed of a
fair cross section of the commun- ity, Taylor v. Louisiana, 419 U. S. 522, 530
(1975); and (4) the public right of access to criminal proceedings,
Press--Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S.
1, 8-15 (1986). Ante, at 11-12.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Having traced the 'metes and
bounds' of the constitutional rights at issue, the next step in the
congruence-and-proportionality inquiry requires us to examine whether Congress
'identified a history and pattern' of violations of these constitutional rights
by the States with respect to the disabled. Garrett, 531 U. S., at 368. This
step is crucial to determining whether Title II is a legitimate attempt to
remedy or prevent actual constitutional violations by the States or an
illegitimate attempt to rewrite the constitutional provisions it purports to
enforce. Indeed, 'Congress' §5 power is appropriately exercised only in response
to state transgressions.' Ibid. (emphasis added). But the majority identifies
nothing in the legislative record that shows Congress was responding to
widespread violations of the due process rights of disabled
persons.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Rather than limiting its
discussion of constitutional violations to the due process rights on which it
ultimately relies, the majority sets out on a wide- ranging account of societal
discrimination against the disabled. Ante, at 12- 15. This digression recounts
historical discrimination against the disabled through institutionalization
laws, restrictions on marriage, voting, and public education, conditions in
mental hospitals, and various other forms of unequal treatment in the
administration of public programs and services. Some of this evidence would be
relevant if the Court were considering the constitutionality of the statute as a
whole; but the Court rejects that approach in favor of a narrower 'as-applied'
inquiry. [FN1] We discounted much the same type of outdated, generalized
evidence in Garrett as unsupportive of Title I's ban on employment
discrimination. 531 U. S., at 368-372; see also City of Boerne, 521 U. S., at
530 (noting that the 'legislative record lacks ... modern instances of ...
religious bigotry'). The evidence here is likewise irrelevant to Title II's
purported enforcement of Due Process access-to-the-courts rights.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Even if it were proper to
consider this broader category of evidence, much of it does not concern
unconstitutional action by the States. The bulk of the Court's evidence concerns
discrimination by nonstate governments, rather than the States themselves. [FN2]
We have repeatedly held that such evidence is irrelevant to the inquiry whether
Congress has validly abrogated Eleventh Amendment immunity, a privilege enjoyed
only by the sovereign States. Garrett, supra, at 368-369; Florida Prepaid
Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 640
(1999); Kimel, 528 U. S., at 89. Moreover, the majority today cites the same
congressional task force evidence we rejected in Garrett. Ante, at 15 (citing
Garrett, supra, at 379 (BREYER, J., dissenting), and 531 U. S., at 391-424 (App.
C to opinion of BREYER, J., dissenting) (chronicling instances of 'unequal
treatment' in the 'administration of public programs')). As in Garrett, this
'unexamined, anecdotal' evidence does not suffice. 531 U. S., at 370. Most of
the brief anecdotes do not involve States at all, and those that do are not
sufficiently detailed to determine whether the instances of 'unequal treatment'
were irrational, and thus unconstitutional under our decision in Cleburne.
Garrett, supra, at 370-371. Therefore, even outside the 'access to the courts'
context, the Court identifies few, if any, constitutional violations perpetrated
by the States against disabled persons. [FN3]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">With respect to the due process
'access to the courts' rights on which the Court ultimately relies, Congress'
failure to identify a pattern of actual constitutional violations by the States
is even more striking. Indeed, there is nothing in the legislative record or
statutory findings to indicate that disabled persons were systematically denied
the right to be present at criminal trials, denied the meaningful opportunity to
be heard in civil cases, unconstitutionally excluded from jury service, or
denied the right to attend criminal trials. [FN4]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The Court's attempt to disguise
the lack of congressional documentation with a few citations to judicial
decisions cannot retroactively provide support for Title II, and in any event,
fails on its own terms. See, e.g., Garrett, 531 U. S., at 368 ('[W]e examine
whether Congress identified a history and pattern' of constitutional
violations); ibid. ('[t]he legislative record ... fails to show that Congress
did in fact identify a pattern' of constitutional violations) (emphases added).
Indeed, because this type of constitutional violation occurs in connection with
litigation, it is particularly telling that the majority is able to identify
only two reported cases finding that a disabled person's federal constitutional
rights were violated. [FN5] See ante, at 14, n. 14 (citing Ferrell v. Estelle,
568 F. 2d 1128, 1132-1133 (CA5), opinion withdrawn as moot, 573 F. 2d 867
(1978); People v. Rivera, 125 Misc. 2d 516, 528, 480 N. Y. S. 2d 426, 434 (Sup.
Ct. 1984)). [FN6]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Lacking any real evidence that
Congress was responding to actual due process violations, the majority relies
primarily on three items to justify its decision: (1) a 1983 U. S. Civil Rights
Commission Report showing that 76% of 'public services and programs housed in
state-owned buildings were inaccessible' to persons with disabilities, ante, at
15-16; (2) testimony before a House subcommittee regarding the 'physical
inaccessibility' of local courthouses, ante, at 16; and (3) evidence submitted
to Congress' designated ADA task force that purportedly contains 'numerous
examples of the exclusion of persons with disabilities from state judicial
services and programs.' Ibid.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">On closer examination, however,
the Civil Rights Commission's finding consists of a single conclusory sentence
in its report, and it is far from clear that its finding even includes
courthouses. The House subcommittee report, for its part, contains the testimony
of two witnesses, neither of whom reported being denied the right to be present
at constitutionally protected court proceedings. [FN7] Indeed, the witnesses'
testimony, like the U. S. Civil Rights Commission Report, concerns only physical
barriers to access, and does not address whether States either provided means to
overcome those barriers or alternative locations for proceedings involving
disabled persons. Cf., n. 4, supra (describing alternative means of access
offered to respondent Lane).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Based on the majority's
description, ante, at 16, the report of the ADA Task Force on the Rights and
Empowerment of Americans with Disabilities sounds promising. But the report
itself says nothing about any disabled person being denied access to court. The
Court thus apparently relies solely on a general citation to the Government's
Lodging in Garrett, O. T. 2000, No. 99-1240 which, amidst thousands of pages,
contains only a few anecdotal handwritten reports of physically inaccessible
courthouses, again with no mention of whether States provided alternate means of
access. This evidence, moreover, was submitted not to Congress, but only to the
task force, which itself made no findings regarding disabled persons' access to
judicial proceedings. Cf. Garrett, 531 U. S., at 370-371 (rejecting anecdotal
task force evidence for similar reasons). As we noted in Garrett, 'had Congress
truly understood this [task force] 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.' Id., at 371. Yet neither the
legislative findings, nor even the Committee Reports, contain a single mention
of the seemingly vital topic of access to the courts. [FN8] Cf. ibid.; Florida
Prepaid, 527 U. S., at 641 (observing that Senate Report on Patent and Plant
Variety Protection Remedy Clarification Act (Patent Remedy Act) 'contains no
evidence that unremedied patent infringement by States had become a problem of
national import'). To the contrary, the Senate Report on the ADA observed that
'[a]ll states currently mandate accessibility in newly constructed state-owned
public buildings.' S. Rep. No. 101-116, p. 92 (1989).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Even if the anecdotal evidence
and conclusory statements relied on by the majority could be properly
considered, the mere existence of an architecturally 'inaccessible'
courthouse--i.e., one a disabled person cannot utilize without assistance--does
not state a constitutional violation. A violation of due process occurs only
when a person is actually denied the constitutional right to access a given
judicial proceeding. We have never held that a person has a constitutional right
to make his way into a courtroom without any external assistance. Indeed, the
fact that the State may need to assist an individual to attend a hearing has no
bearing on whether the individual successfully exercises his due process right
to be present at the proceeding. Nor does an 'inaccessible' courthouse violate
the Equal Protection Clause, unless it is irrational for the State not to alter
the courthouse to make it 'accessible.' But financial considerations almost
always furnish a rational basis for a State to decline to make those
alterations. See Garrett, 531 U. S., at 372 (noting that it would be
constitutional for an employer to 'conserve scarce financial resources' by
hiring employees who can use existing facilities rather than making the
facilities accessible to disabled employees). Thus, evidence regarding
inaccessible courthouses, because it is not evidence of constitutional
violations, provides no basis to abrogate States' sovereign
immunity.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The near-total lack of actual
constitutional violations in the congressional record is reminiscent of Garrett,
wherein we found that the same type of minimal anecdotal evidence 'f[e]ll far
short of even suggesting the pattern of unconstitutional [state action] on which
§5 legislation must be based.' Id., at 370. See also Kimel, 528 U. S., at 91
('Congress' failure to uncover any significant pattern of unconstitutional
discrimination here confirms that Congress had no reason to believe that broad
prophylactic legislation was necessary'); Florida Prepaid, supra, at 645 ('The
legislative record thus suggests that the Patent Remedy Act did not respond to a
history of 'widespread and persisting deprivation of constitutional rights' of
the sort Congress has faced in enacting proper prophylactic §5 legislation'
(quoting City of Boerne, 521 U. S., at 526)).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The barren record here should
likewise be fatal to the majority's holding that Title II is valid legislation
enforcing due process rights that involve access to the courts. This conclusion
gains even more support when Title II's nonexistent record of constitutional
violations is compared with legislation that we have sustained as valid §5
enforcement legislation. See, e.g., Hibbs, 538 U. S., at 729-732 (tracing the
extensive legislative record documenting States' gender discrimination in
employment leave policies); South Carolina v. Katzenbach, 383 U. S. 301, 312-313
(1966) (same with respect to racial discrimination in voting rights).
Accordingly, Title II can only be understood as a congressional attempt to
'rewrite the Fourteenth Amendment law laid down by this Court,' rather than a
legitimate effort to remedy or prevent state violations of that Amendment.
Garrett, supra, at 374. [FN9]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The third step of our
congruence-and-proportionality inquiry removes any doubt as to whether Title II
is valid §5 legislation. At this stage, we ask whether the rights and remedies
created by Title II are congruent and proportional to the constitutional rights
it purports to enforce and the record of constitutional violations adduced by
Congress. Hibbs, supra, at 737-739; Garrett, supra, at 372-373.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Title II provides that 'no
qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by
any such entity.' 42 U. S. C. §12132. A disabled person is considered
'qualified' if he 'meets the essential eligibility requirements' for the receipt
of the entity's services or participation in the entity's programs, 'with or
without reasonable modifications to rules, policies, or practices, the removal
of architectural, communication, or transportation barriers, or the provision of
auxiliary aids and services.' §12131(2) (emphasis added). The ADA's findings
make clear that Congress believed it was attacking 'discrimination' in all areas
of public services, as well as the 'discriminatory effect' of 'architectural,
transportation, and communication barriers.' §§12101(a)(3), (a)(5). In sum,
Title II requires, on pain of money damages, special accommodations for disabled
persons in virtually every interaction they have with the State.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">'Despite subjecting States to
this expansive liability,' the broad terms of Title II 'd[o] nothing to limit
the coverage of the Act to cases involving arguable constitutional violations.'
Florida Prepaid, 527 U. S., at 646. By requiring special accommodation and the
elimination of programs that have a disparate impact on the disabled, Title II
prohibits far more state conduct than does the equal protection ban on
irrational discrimination. We invalidated Title I's similar requirements in
Garrett, observing that '[i]f special accommodations for the disabled are to be
required, they have to come from positive law and not through the Equal
Protection Clause.' 531 U. S., at 368; id., at 372-373 (contrasting Title I's
reasonable accommodation and disparate impact provisions with the Fourteenth
Amendment's requirements). Title II fails for the same reason. Like Title I,
Title II may be laudable public policy, but it cannot be seriously disputed that
it is also an attempt to legislatively 'redefine the States' legal obligations'
under the Fourteenth Amendment. Kimel, 528 U. S., at 88.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The majority, however, claims
that Title II also vindicates fundamental rights protected by the Due Process
Clause--in addition to access to the courts--that are subject to heightened
Fourteenth Amendment scrutiny. Ante, at 11 (citing Dunn v. Blumstein, 405 U. S.
330, 336-337 (1972) (voting); Shapiro v. Thompson, 394 U. S. 618, 634 (1969)
(right to move to a new jurisdiction); Skinner v. Oklahoma ex rel. Williamson,
316 U. S. 535, 541 (1942) (marriage and procreation)). But Title II is not
tailored to provide prophylactic protection of these rights; instead, it applies
to any service, program, or activity provided by any entity. Its provisions
affect transportation, health, education, and recreation programs, among many
others, all of which are accorded only rational-basis scrutiny under the Equal
Protection Clause. A requirement of accommodation for the disabled at a
state-owned amusement park or sports stadium, for example, bears no permissible
prophylactic relationship to enabling disabled persons to exercise their
fundamental constitutional rights. Thus, as with Title I in Garrett, the Patent
Remedy Act in Florida Prepaid, the Age Discrimination in Employment Act of 1967
in Kimel, and the RFRA in City of Boerne, all of which we invalidated as
attempts to substantively redefine the Fourteenth Amendment, it is unlikely
'that many of the [state actions] affected by [Title II] ha[ve] any likelihood
of being unconstitutional.' City of Boerne, supra, at 532. Viewed as a whole,
then, there is little doubt that Title II of the ADA does not validly abrogate
state sovereign immunity. [FN10]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The majority concludes that Title
II's massive overbreadth can be cured by considering the statute only 'as it
applies to the class of cases implicating the accessibility of judicial
services.' Ante, at 20 (citing United States v. Raines, 362 U. S. 17, 26
(1960)). I have grave doubts about importing an 'as applied' approach into the
§5 context. While the majority is of course correct that this Court normally
only considers the application of a statute to a particular case, the proper
inquiry under City of Boerne and its progeny is somewhat different. In applying
the congruence-and-proportionality test, we ask whether Congress has attempted
to statutorily redefine the constitutional rights protected by the Fourteenth
Amendment. This question can only be answered by measuring the breadth of a
statute's coverage against the scope of the constitutional rights it purports to
enforce and the record of violations it purports to remedy.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In conducting its as-applied
analysis, however, the majority posits a hypothetical statute, never enacted by
Congress, that applies only to courthouses. The effect is to rig the
congruence-and-proportionality test by artificially constricting the scope of
the statute to closely mirror a recognized constitutional right. But Title II is
not susceptible of being carved up in this manner; it applies indiscriminately
to all 'services,' 'programs,' or 'activities' of any 'public entity.' Thus, the
majority's approach is not really an assessment of whether Title II is
'appropriate legislation' at all, U. S. Const., Amdt. 14, §5 (emphasis added),
but a test of whether the Court can conceive of a hypothetical statute narrowly
tailored enough to constitute valid prophylactic legislation.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Our §5 precedents do not support
this as-applied approach. In each case, we measured the full breadth of the
statute or relevant provision that Congress enacted against the scope of the
constitutional right it purported to enforce. If we had arbitrarily constricted
the scope of the statutes to match the scope of a core constitutional right,
those cases might have come out differently. In Garrett, for example, Title I
might have been upheld 'as applied' to irrational employment discrimination; or
in Florida Prepaid, the Patent Remedy Act might have been upheld 'as applied' to
intentional, uncompensated patent infringements. It is thus not surprising that
the only authority cited by the majority is Raines, supra, a case decided long
before we enunciated the congruence-and-proportionality test.
[FN11]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I fear that the Court's adoption
of an as-applied approach eliminates any incentive for Congress to craft §5
legislation for the purpose of remedying or deterring actual constitutional
violations. Congress can now simply rely on the courts to sort out which
hypothetical applications of an undifferentiated statute, such as Title II, may
be enforced against the States. All the while, States will be subjected to
substantial litigation in a piecemeal attempt to vindicate their Eleventh
Amendment rights. The majority's as-applied approach simply cannot be squared
with either our recent precedent or the proper role of the
Judiciary.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Even in the limited
courthouse-access context, Title II does not properly abrogate state sovereign
immunity. As demonstrated in depth above, Congress utterly failed to identify
any evidence that disabled persons were denied constitutionally protected access
to judicial proceedings. Without this predicate showing, Title II, even if we
were to hypothesize that it applies only to courthouses, cannot be viewed as a
congruent and proportional response to state constitutional violations. Garrett,
531 U. S., at 368 ('Congress' §5 authority is appropriately exercised only in
response to state transgressions').<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Moreover, even in the
courthouse-access context, Title II requires substantially more than the Due
Process Clause. Title II subjects States to private lawsuits if, inter alia,
they fail to make 'reasonable modifications' to fa- cilities, such as removing
'architectural ... barriers.' 42 U. S., C. §§12131(2), 12132. Yet the statute is
not limited to occasions when the failure to modify results, or will likely
result, in an actual due process violation--i.e., the inability of a disabled
person to participate in a judicial proceeding. Indeed, liability is triggered
if an inaccessible building results in a disabled person being 'subjected to
discrimination'--a term that presumably encompasses any sort of inconvenience in
accessing the facility, for whatever purpose. §12132.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The majority's reliance on Boddie
v. Connecticut, 401 U. S. 371 (1971), and other cases in which we held that due
process requires the State to waive filing fees for indigent litigants, is
unavailing. While these cases support the principle that the State must remove
financial requirements that in fact prevent an individual from exercising his
constitutional rights, they certainly do not support a statute that subjects a
State to liability for failing to make a vast array of special accommodations,
without regard for whether the failure to accommodate results in a
constitutional wrong.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">In this respect, Title II is
analogous to the Patent Remedy Act at issue in Florida Prepaid. That statute
subjected States to monetary liability for any act of patent infringement. 527
U. S., at 646-647. Thus, 'Congress did nothing to limit' the Act's coverage 'to
cases involving arguable [Due Process] violations,' such as when the
infringement was nonnegligent or uncompensated. Ibid. Similarly here, Congress
has authorized private damages suits against a State for merely maintaining a
courthouse that is not readily accessible to the disabled, without regard to
whether a disabled person's due process rights are ever violated. Accordingly,
even as applied to the 'access to the courts' context, Title II's
'indiscriminate scope offends [the congruence-and- proportionality] principle,'
particularly in light of the lack of record evidence showing that inaccessible
courthouses cause actual Due Process violations. Id., at 647.
[FN12]<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">For the foregoing reasons, I
respectfully dissent.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN1. For further discussion of
the propriety of this approach, see infra, at 14-15.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN2. E.g., ante, at 13 (citing
Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985) (irrational
discrimination by city zoning board)); ante, at 14, n. 12 (citing New York ex
rel. Spitzer v. County of Delaware, 82 F. Supp. 2d 12 (NDNY 2000) (ADA lawsuit
brought by State against a county)); ante, at 13-14, n. 11 (citing four cases
concerning local school boards' unconstitutional actions); ante, at 14, n. 13
(citing one case involving conditions in federal prison and another involving a
county jail inmate); ante, at 15 (referring to 'hundreds of examples of unequal
treatment ... by States and their political subdivisions' (emphasis
added)).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN3. The majority obscures this
fact by repeatedly referring to congressional findings of 'discrimination' and
'unequal treatment.' Of course, generic findings of discrimination and unequal
treatment vel non are insufficient to show a pattern of constitutional
violations where <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">rational-basis scrutiny applies.
Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 370
(2001).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN4. Certainly, respondents Lane
and Jones were not denied these constitutional rights. The majority admits that
Lane was able to attend the initial hearing of his criminal trial. Ante, at 1.
Lane was arrested for failing to appear at his second hearing only after he
refused assistance from officers dispatched by the court to help him to the
courtroom. Ante, at 2. The court conducted a preliminary hearing in the
first-floor library to accommodate Lane's disability, App. to Pet. for Cert. 16,
and later offered to move all further proceedings in the case to a
handicapped-accessible courthouse in a nearby town. In light of these facts, it
can hardly be said that the State violated Lane's right to be present at his
trial; indeed, it made affirmative attempts to secure that right. Respondent
Jones, a disabled court reporter, does not seriously contend that she suffered a
constitutional injury.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN5. As two JUSTICES noted in
Garrett, if the States were violating the Due Process rights of disabled
...persons, 'one would have expected to find in decisions of the courts ...
extensive litigation and discussion of the <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">constitutional violations.' 531
U. S., at 376 (KENNEDY, J., joined by O'CONNOR, J., concurring).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN6. The balance of the Court's
citations refer to cases arising after enactment of the ADA or do not contain
findings of federal constitutional violations. Ante, at 14-15, n. 14 (citing
Layton v. Elder, 143 F. 3d 469 (CA8 1998) (post-ADA case finding ADA violations
only); Matthews v. Jefferson, 29 F. Supp. 2d 525 (WD Ark. 1998) (same); Galloway
v. Superior Court, 816 F. Supp. 12 (DC 1993) (same); State v. Schaim, 65 Ohio
St. 3d 51, 600 N. E. 2d 661 (1992) (remanded for hearing on constitutional
issue); People v. Green, 561 N. Y. S. 2d 130 (County Ct. 1990) (finding
violation of state constitution only); DeLong v. Brumbaugh, 703 F. Supp. 399 (WD
Pa. 1989) (statute upheld against facial constitutional challenge;
Rehabilitation Act of 1973 violations only); Pomerantz v. Los Angeles County,
674 F. 2d 1288 (CA9 1982) (Rehabilitation Act of 1973 claim; challenged
jury-service statute later amended)). Accordingly, they offer no support
whatsoever for the notion that Title II is a valid response to documented
constitutional violations.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN7. Oversight Hearing on H. R.
4468 before the House Subcommittee on <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Select Education of the Committee
on Education and Labor, 100th Cong., 2d Sess., 40-41 (1988) (statement of Emeka
Nwojke) (explaining that he encountered difficulties appearing in court due to
physical characteristics of the courthouse and courtroom and the rudeness of
court employees); id., at 48 (statement of Ellen Telker) (blind attorney
'know[s] of at least one courthouse in New Haven where the elevators do not have
tactile markings').<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN8. The majority rather
peculiarly points to Congress' finding that ' 'discrimination against
individuals with disabilities persists in such critical areas as access to
public services' ' as evidence that Congress sought to vindicate the Due Process
rights of disabled persons. Ante, at 18 (quoting 42 U. S. C. §12101(a)(3)
(emphasis added by the Court)). However, one does not usually refer to the right
to attend a judicial proceeding as 'access to [a] public servic[e].' Given the
lack of any concern over courthouse accessibility issues in the legislative
history, it is highly unlikely that this legislative finding obliquely refers to
state violations of the due process rights of disabled persons to attend
judicial proceedings.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN9. The Court correctly explains
that ' 'it [i]s easier for Congress to <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">show a pattern of state
constitutional violations' ' when it targets state action that triggers a higher
level of constitutional scrutiny. Ante, at 18 (quoting Nevada Dept. of Human
Resources v. Hibbs, 538 U. S. 721, 736 (2003)). However, this Court's precedents
attest that Congress may not dispense with the required showing altogether
simply because it purports to enforce due process rights. See Florida Prepaid
Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 645-646
(1999) (invalidating Patent Remedy Act, which purported to enforce the Due
Process Clause, because Congress failed to identify a record of constitutional
violations); City of Boerne v. Flores, 521 U. S. 507, 530-531 (1997) (same with
respect to Religious Freedom Restoration Act of 1993 (RFRA)). As the foregoing
discussion demonstrates, that is precisely what the Court has sanctioned here.
Because the record is utterly devoid of proof that Congress was responding to
state violations of due process access-to-the-courts rights, this case is
controlled by Florida Prepaid and City of Boerne, rather than
Hibbs.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN10. Title II's all-encompassing
approach to regulating public services contrasts starkly with the more closely
tailored laws we have upheld as legitimate prophylactic §5 legislation. In
Hibbs, for example, the FMLA <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">was 'narrowly targeted' to remedy
widespread gender discrimination in the availability of family leave. 538 U. S.,
at 738-739 (distinguishing City of Boerne, Kimel v. Florida Bd. of Regents, 528
U. S. 62 (2000), and Garrett on this ground). Similarly, in cases involving
enforcement of the Fifteenth Amendment, we upheld 'limited remedial scheme[s]'
that were narrowly tailored to address massive evidence of discrimination in
voting. Garrett, 531 U. S., at 373 (discussing South Carolina v. Katzenbach, 383
U. S. 301 (1966)). Unlike these statutes, Title II's 'indiscriminate scope ...
is particularly incongruous in light of the scant support for the predicate
unconstitutional conduct that Congress intended to remedy.' Florida Prepaid, 527
U. S., at 647.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN11. Raines is inapposite in any
event. The Court there considered the constitutionality of the Civil Rights Act
of 1957--a statute designed to enforce the Fifteenth Amendment--whose narrowly
tailored substantive provisions could 'unquestionably' be applied to state
actors (like the respondents therein). 362 U. S., at 25, 26. The only question
presented was whether the statute was facially invalid because it might be read
to constrain nonstate actors as well. Id., at 20. The Court upheld the statute
as applied to respondents and declined to entertain the facial <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">challenge. Id., at 24-26. The
situation in this case is much different: The very question presented is whether
Title II's indiscriminate substantive provisions can constitutionally be applied
to the petitioner State. Raines thus provides no support for avoiding this
question by conjuring up an imaginary statute with substantive provisions that
might pass the congruence-and-proportionality test.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN12. The majority's invocation
of Hibbs to justify Title II's overbreadth is unpersuasive. See ante, at 22, n.
24. The Hibbs Court concluded that 'in light of the evidence before Congress'
the FMLA's 12-week family-leave provision was necessary to 'achiev[e] Congress'
remedial object.' 538 U. S, at 748. The Court found that the legislative record
included not only evidence of state constitutional violations, but evidence that
a provision merely enforcing the Equal Protection Clause would actually
perpetuate the gender stereotypes Congress sought to eradicate because employers
could simply eliminate family leave entirely. Ibid. Without comparable evidence
of constitutional violations and the necessity of prophylactic measures, the
Court has no basis on which to uphold Title II's special-accommodation
requirements.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">JUSTICE SCALIA,
dissenting.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Section 5 of the Fourteenth
Amendment provides that Congress 'shall have power to enforce, by appropriate
legislation, the provisions' of that Amendment-- including, of course, the
Amendment's Equal Protection and Due Process Clauses. In Katzenbach v. Morgan,
384 U. S. 641 (1966), we decided that Congress could, under this provision,
forbid English literacy tests for Puerto Rican voters in New York State who met
certain educational criteria. Though those tests were not themselves in
violation of the Fourteenth Amendment, we held that §5 authorizes prophylactic
legislation--that is, 'legislation that proscribes facially constitutional
conduct,' Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 728 (2003),
when Congress determines such proscription is desirable ' 'to make the
amendments fully effective,' ' Morgan, supra, at 648 (quoting Ex parte Virginia,
100 U. S. 339, 345 (1880)). We said that 'the measure of what constitutes
'appropriate legislation' under §5 of the Fourteenth Amendment' is the flexible
'necessary and proper' standard of McCulloch v. Maryland, 4 Wheat. 316, 342, 421
(1819). Morgan, 384 U. S., at 651. We described §5 as 'a positive grant of
legislative power authorizing Congress to exercise its discretion in determining
whether and what legislation is needed to secure the guarantees of the
Fourteenth Amendment.' Ibid.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The Morgan opinion followed close
upon our decision in South Carolina v. Katzenbach, 383 U. S. 301 (1966), which
had upheld prophylactic application of the similarly worded 'enforce' provision
of the Fifteenth Amendment (§2) to challenged provisions of the Voting Rights
Act of 1965. But the Fourteenth Amendment, unlike the Fifteenth, is not limited
to denial of the franchise and not limited to the denial of other rights on the
basis of race. In City of Boerne v. Flores, 521 U. S. 507 (1997), we confronted
Congress's inevitable expansion of the Fourteenth Amendment, as interpreted in
Morgan, beyond the field of racial discrimination. [FN1] There Congress had
sought, in the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.
S. C. §2000bb et seq., to impose upon the States an interpretation of the First
Amendment's Free Exercise Clause that this Court had explicitly rejected. To
avoid placing in congressional hands effective power to rewrite the Bill of
Rights through the medium of §5, we formulated the 'congruence and
proportionality' test for determining what legislation is 'appropriate.' When
Congress enacts prophylactic legislation, we said, there must be
'proportionality or congruence between the means adopted and the legitimate end
to be achieved.' 521 U. S., at 533.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I joined the Court's opinion in
Boerne with some misgiving. I have generally rejected tests based on such
malleable standards as 'proportionality,' because they have a way of turning
into vehicles for the implementation of individual judges' policy preferences.
See, e.g., Ewing v. California, 538 U. S. 11, 31- 32 (2003) (SCALIA, J.,
concurring in judgment) (declining to apply a 'proportionality' test to the
Eighth Amendment's ban on cruel and unusual punishment); Stenberg v. Carhart,
530 U. S. 914, 954-956 (2000) (SCALIA, J., dissenting) (declining to apply the
'undue burden' standard of Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833 (1992)); BMW of North America, Inc. v. Gore, 517 U. S. 559, 599 (1996)
(SCALIA, J., dissenting) (declining to apply a 'reasonableness' test to punitive
damages under the Due Process Clause). Even so, I signed on to the 'congruence
and proportionality' test in Boerne, and adhered to it in later cases: Florida
Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627
(1999), where we held that the provisions of the Patent and Plant Variety
Protection Remedy Clarification Act, 35 U. S. C. §§271(h), 296(a), were ' 'so
out of proportion to a supposed remedial or preventive object that [they] cannot
be understood as responsive to, or designed to prevent, unconstitutional
behavior,' ' 527 U. S., at 646 (quoting Boerne, supra, at 532); Kimel v. Florida
Bd. of Regents, 528 U. S. 62 (2000), where we held that the Age Discrimination
in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. §621 et seq.
(1994 ed. and Supp. III), imposed on state and local governments requirements
'disproportionate to any unconstitutional conduct that conceivably could be
targeted by the Act,' 528 U. S., at 83; United States v. Morrison, 529 U. S. 598
(2000), where we held that a provision of the Violence Against Women Act, 42 U.
S. C. §13981, lacked congruence and proportionality because it was 'not aimed at
proscribing discrimination by officials which the Fourteenth Amendment might not
itself proscribe,' 529 U. S., at 626; and Board of Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356 (2001), where we said that Title I of the Americans with
Disabilities Act of 1990 (ADA), 104 Stat. 330, 42 U. S. C. §§12111-12117, raised
'the same sort of concerns as to congruence and proportionality as were found in
City of Boerne,' 531 U. S., at 372.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">But these cases were soon
followed by Nevada Dept. of Human Resources v. Hibbs, in which the Court held
that the Family and Medical Leave Act of 1993, 107 Stat. 9, 29 U. S. C. §2612 et
seq., which required States to provide their employees up to 12 work weeks of
unpaid leave (for various purposes) annually, was 'congruent and proportional to
its remedial object [of preventing sex discrimination], and can be understood as
responsive to, or designed to prevent, unconstitutional behavior.' 538 U. S., at
740 (internal quotation marks omitted). I joined JUSTICE KENNEDY's dissent,
which established (conclusively, I thought) that Congress had identified no
unconstitutional state action to which the statute could conceivably be a
proportional response. And now we have today's decision, holding that Title II
of the ADA is congruent and proportional to the remediation of constitutional
violations, in the face of what seems to me a compelling demonstration of the
opposite by THE CHIEF JUSTICE's dissent.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I yield to the lessons of
experience. The 'congruence and proportionality' standard, like all such flabby
tests, is a standing invitation to judicial arbitrariness and policy-driven
decisionmaking. Worse still, it casts this Court in the role of Congress's
taskmaster. Under it, the courts (and ultimately this Court) must regularly
check Congress's homework to make sure that it has identified sufficient
constitutional violations to make its remedy congruent and proportional. As a
general matter, we are ill advised to adopt or adhere to constitutional rules
that bring us into constant conflict with a coequal branch of Government. And
when conflict is unavoidable, we should not come to do battle with the United
States Congress armed only with a test ('congruence and proportionality') that
has no demonstrable basis in the text of the Constitution and cannot objectively
be shown to have been met or failed. As I wrote for the Court in an earlier
case, 'low walls and vague distinctions will not be judicially defensible in the
heat of interbranch conflict.' Plaut v. Spendthrift Farm, Inc., 514 U. S. 211,
239 (1995).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I would replace 'congruence and
proportionality' with another test--one that provides a clear, enforceable
limitation supported by the text of §5. Section 5 grants Congress the power 'to
enforce, by appropriate legislation,' the other provisions of the Fourteenth
Amendment. U. S. Const., Amdt. 14 (emphasis added). Morgan notwithstanding, one
does not, within any normal meaning of the term, 'enforce' a prohibition by
issuing a still broader prohibition directed to the same end. One does not, for
example, 'enforce' a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour
speed limit--even though that is indeed directed to the same end of automotive
safety and will undoubtedly result in many fewer violations of the
55-mile-per-hour limit. And one does not 'enforce' the right of access to the
courts at issue in this case, see ante, at 19, by requiring that disabled
persons be provided access to all of the 'services, programs, or activities'
furnished or conducted by the State, 42 U. S. C. §12132. That is simply not what
the power to enforce means--or ever meant. The 1860 edition of Noah Webster's
American Dictionary of the English Language, current when the Fourteenth
Amendment was adopted, defined 'enforce' as: 'To put in execution; to cause to
take effect; as, to enforce the laws.' Id., at 396. See also J. Worcester,
Dictionary of the English Language 484 (1860) ('To put in force; to cause to be
applied or executed; as, 'To enforce a law' '). Nothing in §5 allows Congress to
go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or
'remedy' conduct that does not itself violate any provision of the Fourteenth
Amendment. So-called 'prophylactic legislation' is reinforcement rather than
enforcement.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Morgan asserted that this
commonsense interpretation 'would confine the legislative power . . . to the
insignificant role of abrogating only those state laws that the judicial branch
was prepared to adjudge unconstitutional, or of merely informing the judgment of
the judiciary by particularizing the ' majestic generalities' of §1 of the
Amendment.' 384 U. S., at 648-649. That is not so. One must remember 'that in
1866 the lower federal courts had no general jurisdiction of cases alleging a
deprivation of rights secured by the Constitution.' R. Berger, Government By
Judiciary 147 (2d ed. 1997). If, just after the Fourteenth Amendment was
ratified, a State had enacted a law imposing racially discriminatory literacy
tests (different questions for different races) a citizen prejudiced by such a
test would have had no means of asserting his constitutional right to be free of
it. Section 5 authorizes Congress to create a cause of action through which the
citizen may vindicate his Fourteenth Amendment rights. One of the first pieces
of legislation passed under Congress's §5 power was the Ku Klux Klan Act of
April 20, 1871, 17 Stat. 13, entitled 'An Act to enforce the Provisions of the
Fourteenth Amendment to the Constitution of the United States, and for other
Purposes.' Section 1 of that Act, later codified as Rev. Stat. §1979, 42 U. S.
C. §1983, authorized a cause of action against 'any person who, under color of
any law, statute, ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person within the jurisdiction of the
United States to the deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States.' 17 Stat. 13. Section 5 would
also authorize measures that do not restrict the States' substantive scope of
action but impose requirements directly related to the facilitation of
'enforcement'-- for example, reporting requirements that would enable violations
of the Fourteenth Amendment to be identified. [FN2] But what §5 does not
authorize is so-called 'prophylactic' measures, prohibiting primary conduct that
is itself not forbidden by the Fourteenth Amendment.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">The major impediment to the
approach I have suggested is stare decisis. A lot of water has gone under the
bridge since Morgan, and many important and well- accepted measures, such as the
Voting Rights Act, assume the validity of Morgan and South Carolina. As Prof.
Archibald Cox put it in his Supreme Court Foreword: 'The etymological meaning of
section 5 may favor the narrower reading. Literally, 'to enforce' means to
compel performance of the obligations imposed; but the linguistic argument lost
much of its force once the South Carolina and Morgan cases decided that the
power to enforce embraces any measure appropriate to effectuating the
performance of the state's constitutional duty.' Foreword: Constitutional
Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev. 91, 110-111
(1966).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">However, South Carolina and
Morgan, all of our later cases except Hibbs that give an expansive meaning to
'enforce' in §5 of the Fourteenth Amendment, and all of our earlier cases that
even suggest such an expansive meaning in dicta, involved congressional measures
that were directed exclusively against, or were used in the particular case to
remedy, racial discrimination. See Oregon v. Mitchell, 400 U. S. 112 (1970) (see
discussion infra); Ex parte Virginia, 100 U. S. 339 (1880) (dictum in a case
involving a statute that imposed criminal penalties for officials' racial
discrimination in jury selection); Strauder v. West Virginia, 100 U. S. 303,
311-312 (1880) (dictum in a case involving a statute that permitted removal to
federal court of a black man's claim that his jury had been selected in a
racially discriminatory manner); Virginia v. Rives, 100 U. S. 313, 318 (1880)
(dictum in a racial discrimination case involving the same statute). See also
City of Rome v. United States, 446 U. S. 156, 173-178 (1980) (upholding as valid
legislation under §2 of the Fifteenth Amendment the most sweeping provisions of
the Voting Rights Act of 1965); Jones v. Alfred H. Mayer Co., 392 U. S. 409,
439-441 (1968) (upholding a law, 42 U. S. C. §1982, banning public or private
racial discrimination in the sale and rental of prop- erty as appropriate
legislation under §2 of the Thirteenth Amendment).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Giving §5 more expansive scope
with regard to measures directed against racial discrimination by the States
accords to practices that are distinctively violative of the principal purpose
of the Fourteenth Amendment a priority of attention that this Court envisioned
from the beginning, and that has repeatedly been reflected in our opinions. In
the Slaughter-House Cases, 16 Wall. 36, 81 (1873), the Court's first
confrontation with the Fourteenth Amendment, we said the following with respect
to the Equal Protection Clause: <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">'We doubt very much whether any
action of a State not directed by way of discrimination against the negroes as a
class, or on account of their race, will ever be held to come within the purview
of this provision. It is so clearly a provision for that race and that
emergency, that a strong case would be necessary for its application to any
other.' <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Racial discrimination was the
practice at issue in the early cases (cited in Morgan) that gave such an
expansive description of the effects of §5. See 384 U. S., at 648 (citing Ex
parte Virginia); 384 U. S., at 651 (citing Strauder v. West Virginia, and
Virginia v. Rives). [FN3] In those early days, bear in mind, the guarantee of
equal protection had not been extended beyond race to sex, age, and the many
other categories it now covers. Also still to be developed were the
incorporation doctrine (which holds that the Fourteenth Amendment incorporates
and applies against the States the Bill of Rights, see Duncan v. Louisiana, 391
U. S. 145, 147-148 (1968)) and the doctrine of so- called 'substantive due
process' (which holds that the Fourteenth Amendment's Due Process Clause
protects unenumerated liberties, see generally Lawrence v. Texas, 539 U. S. 558
(2003); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)).
Thus, the Fourteenth Amendment did not include the many guarantees that it now
provides. In such a seemingly limited context, it did not appear to be a massive
expansion of congressional power to interpret §5 broadly. Broad interpretation
was particularly appropriate with regard to racial discrimination, since that
was the principal evil against which the Equal Protection Clause was directed,
and the principal constitutional prohibition that some of the States stubbornly
ignored. The former is still true, and the latter remained true at least as late
as Morgan.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">When congressional regulation has
not been targeted at racial discrimination, we have given narrower scope to §5.
In Oregon v. Mitchell, 400 U. S. 112 (1970), the Court upheld, under §2 of the
Fifteenth Amendment, that provision of the Voting Rights Act Amendments of 1970,
84 Stat. 314, which barred literacy tests and similar voter-eligibility
requirements--classic tools of the racial discrimination in voting that the
Fifteenth Amendment forbids; but found to be beyond the §5 power of the
Fourteenth Amendment the provision that lowered the voting age from 21 to 18 in
state elections. See 400 U. S., at 124-130 (opinion of Black, J.); id., at
153-154 (Harlan, J., concurring in part and dissenting in part); id., at 293-296
(Stewart, J., joined by Burger, C. J., and Blackmun, J., concurring in part and
dissenting in part). A third provision, which forbade States from disqualifying
voters by reason of residency requirements, was also upheld--but only a minority
of the Justices believed that §5 was adequate authority. Justice Black's opinion
in that case described exactly the line I am drawing here, suggesting that
Congress's enforcement power is broadest when directed 'to the goal of
eliminating discrimination on account of race.' Id., at 130. And of course the
results reached in Boerne, Florida Prepaid, Kimel, Morrison, and Garrett are
consistent with the narrower compass afforded congressional regulation that does
not protect against or prevent racial discrimination.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Thus, principally for reasons of
stare decisis, I shall henceforth apply the permissive McCulloch standard to
congressional measures designed to remedy racial discrimination by the States. I
would not, however, abandon the requirement that Congress may impose
prophylactic §5 legislation only upon those particular States in which there has
been an identified history of relevant constitutional violations. See Hibbs, 538
U. S., at 741-743 (SCALIA, J., dissenting); Morrison, 529 U. S., at 626-627;
Morgan, 384 U. S., at 666- 667, 669, 670-671 (Harlan, J., dissenting). [FN4] I
would also adhere to the requirement that the prophylactic remedy predicated
upon such state violations must be directed against the States or state actors
rather than the public at large. See Morrison, supra, at 625-626. And I would
not, of course, permit any congressional measures that violate other provisions
of the Constitution. When those requirements have been met, however, I shall
leave it to Congress, under constraints no tighter than those of the Necessary
and Proper Clause, to decide what measures are appropriate under §5 to prevent
or remedy racial discrimination by the States.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I shall also not subject to
'congruence and proportionality' analysis congressional action under §5 that is
not directed to racial discrimination. Rather, I shall give full effect to that
action when it consists of 'enforcement' of the provisions of the Fourteenth
Amendment, within the broad but not unlimited meaning of that term I have
described above. When it goes beyond enforcement to prophylaxis, however, I
shall consider it ultra vires. The present legislation is plainly of the latter
sort.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">* * *<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Requiring access for disabled
persons to all public buildings cannot remotely be considered a means of
'enforcing' the Fourteenth Amendment. The considerations of long accepted
practice and of policy that sanctioned such distortion of language where state
racial discrimination is at issue do not apply in this field of social policy
far removed from the principal object of the Civil War Amendments. 'The
seductive plausibility of single steps in a chain of evolutionary development of
a legal rule is often not perceived until a third, fourth, or fifth 'logical'
extension occurs. Each step, when taken, appeared a reasonable step in relation
to that which preceded it, although the aggregate or end result is one that
would never have been seriously considered in the first instance. This kind of
gestative propensity calls for the 'line drawing' familiar in the judicial, as
in the legislative process: 'thus far but not beyond.' ' United States v. 12
200--ft. Reels of Super 8MM. Film, 413 U. S. 123, 127 (1973) (Burger, C. J., for
the Court) (footnote omitted). It is past time to draw a line limiting the
uncontrolled spread of a well-intentioned textual distortion. For these reasons,
I respectfully dissent from the judgment of the Court.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN1. Congress had previously
attempted such an extension in the Voting Rights Act Amendments of 1970, 84
Stat. 318, which sought to lower the voting age in state elections from 21 to
18. This extension was rejected, but in three separate opinions, none of which
commanded a majority of the Court. See infra, at 10.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN2. Professor Tribe's treatise
gives some examples of such measures that <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">facilitate enforcement in the
context of the Fifteenth Amendment: <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">'The Civil Rights Act of 1957, 71
Stat. 634, authorized the Attorney General to seek injunctions against
interference with the right to vote on racial grounds. The Civil Rights Act of
1960, 74 Stat. 86, permitted joinder of states as parties defendant, gave the
Attorney General access to local voting records, and authorized courts to
register voters in areas of systemic discrimination. The Civil Rights Act of
1964, 78 Stat. 241, expedited the hearing of voting cases before three-judge
courts . . . .' L. Tribe, American Constitutional Law 931, n. 5 (3d ed.
2000).<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN3. A later case cited in
Morgan, James Everard's Breweries v. Day, 265 U. S. 545, 558-563 (1924), applied
the more flexible standard of McCulloch v. Maryland, 4 Wheat. 316 (1819), to the
Eighteenth Amendment, which, in §1, forbade the 'the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or
the exportation thereof from the United States . . . for beverage purposes' and
provided, in §2, that 'Congress and the several States shall have concurrent
power to enforce this article by appropriate legislation.' Congress had
provided, in the Supplemental Prohibition Act of 1921, §2, 42 Stat. 222, that
'only spirituous and vinous liquor may be prescribed for medicinal purposes.'
<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">That was challenged as
unconstitutional because it went beyond the regulation of intoxicating liquors
for beverage purposes, and hence beyond 'enforcement.' In an opinion citing none
of the Thirteenth, Fourteenth, and Fifteenth Amendment cases discussed in text,
the Court held that the McCulloch v. Maryland test applied. Unlike what is at
issue here, that case did not involve a power to control the States in respects
not otherwise permitted by the Constitution. The only consequence of the Federal
Government's going beyond 'enforcement' narrowly defined was its arguable
incursion upon powers left to the States--which is essentially the same issue
that McCulloch addressed.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">FN4. Dicta in one of our earlier
cases seemed to suggest that even nonprophylactic provisions could not be
adopted under §5 except in response to a State's constitutional violations:
<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">'When the State has been guilty
of no violation of [the Fourteenth Amendment's] provisions; when it has not made
or enforced any law abridging the privileges or immunities of citizens of the
United States; when no one of its departments has deprived any person of life,
liberty, or property without due process of law, or denied to any person within
its jurisdiction the equal protection of the laws; when, on the contrary, the
laws of the <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">State, as enacted by its
legislative, and construed by its judicial, and administered by its executive
departments, recognize and protect the rights of all persons, the amendment
imposes no duty and confers no power upon Congress.' United States v. Harris,
106 U. S. 629, 639 (1883). <o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I do not see the textual basis
for this interpretation.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">JUSTICE THOMAS,
dissenting.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">I join THE CHIEF JUSTICE's
dissent. I agree that Title II of the Americans with Disabilities Act of 1990
cannot be a congruent and proportional remedy to the States' alleged practice of
denying disabled persons access to the courts. Not only did Congress fail to
identify any evidence of such a practice when it enacted the ADA, ante, at 6,
10, Title II regulates far more than the provision of access to the courts,
ante, at 15-16. Because I joined the dissent in Nevada Dept. of Human Resources
v. Hibbs, 538 U. S. 721 (2003), and continue to believe that Hibbs was wrongly
decided, I write separately only to disavow any reliance on Hibbs in reaching
this conclusion.<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">2004477048<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">U.S., 2004<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">TENNESSEE v. LANE<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">END OF DOCUMENT<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt">Copr. (C) West 2004 No Claim to
Orig. U.S. Govt. Works<o:p></o:p></P>
<P class=MsoNormal style="MARGIN: 0in 0in 0pt"><o:p> </o:p></P>
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