Nos. 04-1203 and 04-1236
IN THE

Supreme Court of the United States
————
UNITED STATES,
Petitioner,
v.
STATE OF GEORGIA, et al.,
Respondents.
————
TONY GOODMAN,
Petitioner,
v.
STATE OF GEORGIA, et al.,
Respondents.
————
On Writs of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
————
BRIEF FOR ADAPT; AMERICAN ACADEMY OF PSYCHIATRY
AND THE LAW; AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION OF GEORGIA;
AMERICAN COUNCIL OF THE BLIND; AMERICAN DIABETES
ASSOCIATION; AMERICAN PSYCHIATRIC ASSOCIATION;
CENTER FOR HIV LAW AND POLICY; CITIZENS UNITED FOR
REHABILITATION OF ERRANTS; HUMAN RIGHTS WATCH;
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.;
THE LEGAL AID SOCIETY OF NEW YORK CITY;
NATIONAL ASSOCIATION FOR RIGHTS PROTECTION
AND ADVOCACY; NATIONAL ASSOCIATION OF THE
DEAF; NATIONAL HEALTH LAW PROGRAM; NATIONAL
MULTIPLE SCLEROSIS SOCIETY; NATIONAL SPINAL
CORD INJURY ASSOCIATION; PRISON LEGAL NEWS;
SOUTHERN POVERTY LAW CENTER AS
AMICI CURIAE IN SUPPORT OF PETITIONERS

————

July 29, 2005

PAUL M. SMITH *
MARK R. HEILBRUN
HEATHER M. TREW
JENNER & BLOCK LLP
601 Thirteenth Street, NW
Washington, DC 20005
(202) 639-6000

* Counsel of Record

Counsel for Amici

[Additional Counsel Listed on Inside Cover]
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001

STEPHEN F. GOLD
125 South Ninth Street
Suite 700
Philadelphia, PA 19107
(215) 627-7225
Counsel for ADAPT
ELIZABETH ALEXANDER
DAVID C. FATHI
915 Fifteenth Street, NW
7th Floor
Washington, DC 20005
(202) 457-0800
Counsel for American Civil
Liberties Union
BRIAN DIMMICK
1701 N. Beauregard Street
Alexandra, VA 22311
(800) 342-2383
Counsel for American Diabetes
Association
JAMES ROSS
350 Fifth Avenue
34th Floor
New York, NY 10118
(212) 290-4700
Counsel for Human Rights
Watch
JONATHAN GIVNER
JENNIFER SINTON
120 Wall Street
15th Floor
New York, NY 10005
(212) 809-8585
Counsel for Lambda Legal
Defense and Education
Fund, Inc.

RICHARD TARANTO
FARR & TARANTO
Suite 800
1220 Nineteenth Street, NW
Washington, DC 20036
(202) 775-0184
Counsel for American Academy
of Psychiatry and the Law;
Counsel for American
Psychiatric Association
GERALD WEBER
70 Fairlie Street, Suite 340
Atlanta, GA 30303
(404) 523-5398
Counsel for American Civil
Liberties Union of Georgia
CATHERINE HANSSENS
306 W. 38th Street, Suite 601
New York, NY 10018
(212) 564-4738
Counsel for Center for HIV
Law and Policy
STEVE BANKS
JOHN BOSTON
BETSY GINSBERG
Pr
i
s
one
r
s
’Ri
g
h
t
sPr
o
j
e
c
t
199 Water Street
New York, NY 10038
(212) 577-3300
Counsel for The Legal Aid
Society of New York City

KELBY BRICK
814 Thayer Avenue
Silver Spring, MD 20910
(301) 587-1788

SUSAN STEFAN
246 Walnut Street
Newton, MA 02460

Counsel for National
Association of the Deaf

Counsel for National
Association for Rights
Protection and Advocacy

JANE PERKINS
SARAH SOMMERS
211 N. Columbia Street
Chapel Hill, NC 27514
(919) 968-6308

LEONARD ZANDROW
6701 Democracy Boulevard
Suite 300-9
Bethesda, MD 20817
(301) 214-4006

Counsel for National Health
Law Program

Counsel for National Spinal
Cord Injury Association

RHONDA BROWNSTEIN
400 Washington Avenue
Montgomery, AL 36104
(334) 956-8200
Counsel for Southern Poverty
Law Center

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.................................................. ii
INTEREST OF AMICI...........................................................1
STATEMENT ........................................................................8
SUMMARY OF ARGUMENT..............................................8
ARGUMENT .........................................................................9
I. THERE IS AN EXTENSIVE HISTORY OF
UNCONSTITUTIONAL
DISCRIMINATION
AGAINST PRISONERS WITH DISABILITIES......9
A. Evidence in the Legislative History .....................9
B. Evidence in the Public Record ...........................11
1. Prisoners with Mobility Impairments...........12
2. Prisoners with Physical Illnesses..................14
3. Prisoners with Mental Illness .......................18
4. Prisoners with Vision and Hearing
Impairments..................................................20
II. PROPHYLACTIC LEGISLATION IS AN
APPROPRIATE RESPONSE TO PERSISTENT
DISCRIMINATION AGAINST PRISONERS
WITH DISABILITIES. ............................................22
CONCLUSION ....................................................................30

ii
TABLE OF AUTHORITIES
CASES
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001)............ 21
Austin v. Pennsylvania Department of Corrections,
876 F. Supp. 1437 (E.D. Pa. 1995) ................................ 17
Beckford v. Irvin, 49 F. Supp. 2d 170 (W.D.N.Y.
1999) .............................................................................. 13
Board of Trustees of the University of Alabama
Garrett, 531 U.S. 356 (2001) ........... 11, 20, 21, 24, 28, 29
Bonner v. Arizona Department of Corrections, 714
F. Supp. 420 (D. Ariz. 1989).......................................... 22
Bragdon v. Abbott, 524 U.S. 624 (1998)........................... 14
Carty v. Farrelly, 957 F. Supp. 727 (D.V.I. 1997) ........... 19
Casey v. Lewis, 834 F. Supp. 1477 (D. Ariz. 1993).... 17, 18
City of Boerne v. Flores, 521 U.S. 507 (1997) ................. 23
Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y.
1995) .............................................................................. 21
Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal.
1995) .............................................................................. 19
Crawford v. Indiana Dep’t of Corrections, 115
F.3d 481 (7th Cir. 1997)................................................. 23
Cummings v. Roberts, 628 F.2d 1065 (8th Cir.
1980) .............................................................................. 14
Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y.
1988) .............................................................................. 17
Estelle v. Gamble, 429 U.S. 97 (1976).............................. 29
Freeman v. Berry, No. C 87-0259-L(A), 1994 WL
760820 (W.D. Ky. July 20, 1994).................................. 17

iii
Howard v. City of Columbus, 521 S.E.2d 51 (Ga.
Ct. App. 1999)................................................................ 15
Hunt v. Uphoff, 199 F.3d 1220 (10th Cir. 1999)............... 15
Inmates of Occoquan v. Barry, 717 F. Supp. 854
(D.D.C. 1989)................................................................. 19
Johnson v. Hardin County, 908 F.2d 1280 (6th Cir.
1990) .............................................................................. 13
Kiman v. New Hampshire Department of
Corrections, 301 F.3d 13 (1st Cir. 2002),
withdrawn on other grounds, 310 F.3d 785 (1st
Cir. 2002) ....................................................................... 15
Kimel v. Florida Board of Regents, 528 U.S. 62
(2000) ....................................................................... 25, 27
Koehl v. Dalsheim, 85 F.3d 86 (2d Cir. 1996) .................. 22
LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) ........... 12, 29
Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th
Cir. 1989) ....................................................................... 13
Leatherwood v. Campbell, No. CV-02-BE-2812-W
(N.D. Ala. June 3, 2004), http://www.schr.org/
prisonsjails/press%20releases/Magistrate%20Rep
ort%20Recommendation.pdf ........................................ 18
Love v. McBride, 896 F. Supp. 808 (N.D. Ind.
1995), aff’d sub nom. Love v. Westville
Correctional Center, 103 F.3d 558 (7th Cir.
1996) .............................................................................. 13
Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal.
1995) .............................................................................. 19
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ............. 28
Nevada Department of Human Resources v. Hibbs,
538 U.S. 721 (2003) ........................... 9, 23, 25, 27, 29, 30

iv
Newman v. Alabama, 349 F. Supp. 278 (D. Ala.
1972), aff’d in relevant part, 503 F.2d 1320 (5th
Cir. 1974) ................................................................. 12, 19
Nolley v. County of Erie, 776 F. Supp. 715
(W.D.N.Y. 1991)...................................................... 16, 17
Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986) ............ 13
Pennsylvania Department of Corrections v. Yeskey,
524 U.S. 206 (1998) ................................................. 10, 28
Plata v. Davis, 329 F.3d 1101 (9th Cir. 2003) .................. 18
Roop v. Squadrito, 70 F. Supp. 2d 868 (N.D. Ind.
1999) .............................................................................. 17
Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980),
aff’d in relevant part, 679 F.2d 1115 (5th Cir.
1982) .................................................................. 14, 20, 24
School Board of Nassau County v. Arline, 480 U.S.
273 (1987) ................................................................ 14, 15
Simmons v. Cook, 154 F.3d 805 (8th Cir. 1998) ............... 12
South Carolina v. Katzenbach, 383 U.S. 301
(1966) ................................................................. 25, 28, 30
Tennessee v. Lane, 541 U.S. 509 (2004).................... passim
Turner Broadcasting System, Inc. v. FCC, 520 U.S.
180 (1997) ................................................................ 23, 28
Vitek v. Jones, 445 U.S. 480 (1980) .................................. 19
Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993) ........... 12
Yarbaugh v. Roach, 736 F. Supp. 318 (D.D.C.
1990) .............................................................................. 13
STATUTES AND REGULATIONS
42 U.S.C. § 12101, et seq........................................... passim

v
42 U.S.C. § 12101(a)(7) .................................................... 27
42 U.S.C. § 12101(a)(9) .................................................... 27
42 U.S.C. § 12141, et seq.................................................. 22
Civil Rights of Institutionalized Persons Act, 42
U.S.C. § 1997 et seq., Pub. L. No. 96-247, 94
Stat. 349 (1980).................................................... 9, 25, 26
28 C.F.R. § 35.104(Disability)(1)(ii) ................................ 14
29 C.F.R. § 1630.1(c)(1) ................................................... 14
Mich. Comp. Laws § 37.1301(b) ..................................... 27
LEGISLATIVE MATERIAL
S. Rep. No. 101-116 (1989) ................ 10, 11, 16, 25, 26, 30
S. Rep. No. 95-1056 (1978) .......................................... 9, 25
H.R. Rep. No. 95-1058 (1978) ...................................... 9, 27
H.R. Rep. No. 101-485(II) (1990), reprinted in
1990 U.S.C.C.A.N. 303 ............................... 10, 11, 16, 26
Americans with Disabilities Act of 1989: Hearings
on S.933 Before the Subcomm. on the
Handicapped of the S. Comm. on Labor &
Human Res., 101st Cong. (1989) ................................... 26
Civil Rights for Institutionalized Persons: Hearings
on H.R. 2439 and H.R. 5791 Before the
Subcomm. on Courts, Civil Liberties, and the
Admin. of Justice of the H. Comm. on the
Judiciary, 95th Cong. (1977) ......................................... 27
Civil Rights of Institutionalized Persons: Hearings
on S. 1393 Before the Subcomm. on the
Constitution of the S. Comm. on the Judiciary,
95th Cong. (1977) .......................................................... 27

vi
Employment Discrim. Against Cancer Victims &
the Handicapped: Hearing on H.R. 370 and H.R.
1294 Before the Subcomm. on Employment
Opportunities of the H. Comm. on Educ. &
Labor, 99th Cong. (1985) .............................................. 26
136 Cong. Rec. S9680 (daily ed. July 13, 1990)............... 16
MISCELLANEOUS
Cal. Att’y Gen., Comm’n on Disability, Final
Report (Dec. 1989)......................................................... 11
Anne-Marie Cusac, “The Judge Gave Me Ten
Years. He Didn’t Sentence Me to Death”:
Inmates with HIV deprived of proper care, The
Progressive, July 2000 ................................................... 18
Lawrence O. Gostin et al., AIDS Litigation Project:
A National Survey of Federal, State, & Local
Cases Before Courts and Human Rights
Commissions (1990)....................................................... 18
Theodore M. Hammett et al., U.S. Dep’t of Justice,
1996-1997 Update: HIV/AIDS, STD’s, and TB in
Correctional Facilities (July 1999)................................ 18
Reynolds Holding, State Prisons Settle Disability
Bias Lawsuit, S.F. Chron., Aug. 12, 1998...................... 20
Human Rights Watch, Ill-Equipped: U.S. Prisons
and Offenders with Mental Illness (2003).................19-20
Michael Mushlin, Rights of Prisoners (2d ed. 1993
& Supp. 2001) ................................................................ 29
U.S. Comm’n on Civil Rights, Accommodating the
Spectrum of Individual Abilities (1983) ......................... 10
Paul von Zielbauer, As Health Care in Jails Goes
Private, 10 Days Can Be a Death Sentence, N.Y.
Times, Feb. 27, 2005...................................................... 15

INTEREST OF AMICI1
Amici are nineteen professional organizations, civil
liberties groups, prison-rights projects, and organizations that
focus on improving the lives of individuals with disabilities,
all of which recognize the essential role that Title II of the
Americans with Disabilities Act (“ADA”) plays in
ameliorating the long history of state discrimination against
prisoners with disabilities.
ADAPT is a national organization composed primarily of
persons with severe physical disabilities, including persons
with spina bifida, cerebral palsy, muscular dystrophy, spinal
cord injuries, multiple sclerosis, quadriplegia, paraplegia,
head and brain injuries, poliomyelitis, amyotrophic lateral
sclerosis, sensory disabilities, and cognitive, mental and
developmental disabilities. ADAPT has a long history and
record of enforcing the civil rights of people with
disabilities. ADAPT participated in the political and
legislative process to pass the 1990 Americans With
Disabilities Act, 42 U.S.C. § 12101 et seq.
The American Academy of Psychiatry and The Law was
founded in 1969 and has approximately 2000 members. It is
devoted to issues at the intersection of psychiatry and the law
and has participated as amicus in several cases in this Court.
The American Civil Liberties Union (“ACLU”) is a
nationwide, nonprofit, nonpartisan organization with more
than 400,000 members, dedicated to the principles of liberty
and equality embodied in the Constitution and this nation’s
1

The parties have consented to the submission of this brief. Their letters
of consent have been lodged with the Clerk of this Court. None of the
parties authored this brief in whole or in part, and no one other than amici
or their counsel contributed money or services to the preparation or
submission of this brief.

2
civil rights laws. Consistent with that mission, the National
Prison Project of the ACLU Foundation was established in
1972 to protect and promote the civil and constitutional
rights of prisoners. The American Civil Liberties Union of
Georgia is one of the ACLU’s state affiliates.
The American Council of the Blind (“ACB”) is a national
nonprofit, consumer organization of the blind, with seventy
affiliates and members in all fifty states. Its mission is to
improve the quality of life, equality of opportunity, and
independence for all persons who are blind. To that end,
ACB seeks to educate policy makers about the needs and
capabilities of people who are blind, and to assist individuals
and organizations wishing to advocate for programs and
policies that meet the needs of people who are blind, or
visually impaired. ACB members were very involved in the
efforts that led to the passage of the ADA. Therefore, we are
very disturbed about the legal challenges to its
constitutionality which have been raised in recent years. We
are especially concerned that state governments are
increasingly taking up the cause of those who would weaken
the ADA’s effectiveness. We urge this Court to give careful
consideration to the implications of such challenges for the
rights and welfare of people with disabilities who live and
work within those states.
The American Diabetes Association (“ADA”) is the
nation’s leading nonprofit health organization providing
diabetes research, information and advocacy. The mission of
the organization is to prevent and cure diabetes, and to
improve the lives of all people affected by diabetes. As part
of its mission, ADA advocates for the rights of people with
diabetes and supports strong public policies and laws to
protect persons with diabetes against discrimination. ADA

3
has approximately 435,000 general members and nearly
18,000 health care professional members.
The American Psychiatric Association, with approximately
40,000 members, is the Nation’s largest organization of
physicians specializing in psychiatry. It has participated in
numerous cases in this Court, including Olmstead v. L.C. ex
rel. Zimring, 527 U.S. 581 (1999). Its members have a
strong interest in the constitutionality of the ADA as it bars
government entities’ discrimination against persons with
disabilities, including persons with mental illnesses or
disabilities.
The Center for HIV Law and Policy, an independent
project of the National Center for Civic Innovation, is the
country’s first legal and policy resource bank and strategy
center for advocates addressing HIV discrimination and the
legal needs of those living with HIV. The central mission of
the Center is to advance the just treatment of people affected
by HIV by working to coordinate, improve and expand HIV
advocacy and law reform efforts on their behalf, and to make
this advocacy more responsive to their unaddressed needs.
The availability of the ADA’s remedies to state-sponsored
disability-based discrimination is particularly important to
people with HIV, who continue to suffer irrational, disparate
treatment often inspired by fear of their disease, particularly
in state correctional facilities that chronically have denied
them essential services, access to basic programs afforded
other inmates, and life-saving medical treatment.
Citizens United for Rehabilitation of Errants (“CURE”)
is a national prison reform organization with approximately
15,000 members, mostly comprised of prisoners and their
families. Many of these prisoners have physical and mental
disabilities. CURE’s primary goals are (1) to limit the use
prison to only those for whom it is absolutely necessary; and

4
(2) to advocate for the provision of rehabilitative
opportunities to help prisoners improve their lives.
Human Rights Watch is a non-profit organization
established in 1978 that investigates and reports on violations
of fundamental human rights in over 70 countries worldwide,
with the goal of securing the respect of these rights for all
persons. It is the largest international human rights
organization based in the United States. By exposing and
calling attention to human rights abuses committed by state
and non-state actors, Human Rights Watch seeks to bring
international public opinion to bear upon offending
governments and others and thus bring pressure on them to
end abusive practices. In the United States, Human Rights
Watch has addressed a range of human rights issues,
including U.S. prison conditions. Human Rights Watch has
filed amicus briefs before various bodies, including U.S.
courts and international tribunals. The treatment of men and
women incarcerated in U.S. jails and prisons has been a
longstanding priority of Human Rights Watch, and is the
subject of numerous Human Rights Watch reports.
Lambda Legal Defense and Education Fund, Inc.
(“Lambda Legal”) is a national non-profit organization
committed to achieving full recognition of the civil rights of
lesbians, gay men, bisexuals, transgender people and those
with HIV through impact litigation, education and public
policy work. Founded in 1973, Lambda Legal is the oldest
and largest legal organization addressing these concerns.
Since 1983, when it filed the nation’s first AIDS
discrimination case, Lambda Legal has appeared as counsel
or amicus curiae in scores of cases in state and federal courts
on behalf of people living with HIV or other disabilities.

5
The Legal Aid Society of New York City is a private
organization that has provided free legal assistance to
indigent persons in New York City for more than 125 years.
Through its Prisoners’ Rights Project, the Society seeks to
ensure that prisoners are afforded full protection of their
constitutional and statutory rights. The Society advocates on
behalf of prisoners in New York City jails and New York
state prisons, and where necessary conducts class action
litigation on prison conditions, including litigation on behalf
of prisoners with physical and mental disabilities.
The National Association for Rights Protection and
Advocacy (“NARPA”) includes recipients of mental health
and developmental disabilities services; lay, professional, and
self-advocates; family members; service providers; disability
rights attorneys; and teachers at schools of law, social work,
and public policy. It is dedicated to promoting the preferred
options of people who have been labeled mentally disabled.
Established in 1880, the National Association of the Deaf
(“NAD”) is the nation’s oldest and largest consumer-based,
nonprofit organization promoting, protecting, and preserving
the civil rights and quality of life of 28 million deaf and hard
of hearing Americans. As a national federation of state
association, organizational and corporate affiliates, the
advocacy work of the NAD encompasses a broad spectrum
of areas including, but not limited to, accessibility, education,
employment, health care, mental health, rehabilitation,
technology, telecommunications, and transportation. The
NAD is committed to ensuring that deaf and hard of hearing
individuals in the United States have equal access to the
facilities and services of, and an equal opportunity to
participate in all programs and activities of state and local
governments, including prisons and correctional facilities.
Removal of communication barriers by providing reasonable

6
accommodations, including auxiliary aids and services, is
necessary to ensure access by individuals with sensory
disabilities. The NAD is a private, nonprofit, non-stock,
membership organization incorporated in the District of
Columbia. The NAD has no parent corporation.
For more than thirty-five years, the National Health Law
Program (“NHeLP”) has engaged in legal and policy
analysis on behalf of low income and working poor people,
people with disabilities, the elderly, and children. NHeLP
has provided legal representation and conducted research and
policy analysis on issues affecting the health status and
health access of these groups. As such, NHeLP has worked
with the ADA, and the program’s work and our clients will
be significantly affected by the Court’s decision in this case.
The National Multiple Sclerosis Society is dedicated to
ending the devastating effects of multiple sclerosis. The
Society supports more MS research and serves more people
with MS than any national voluntary MS organization in the
world. Through its 50-state network of chapters, the Society
funds research, furthers education, advocates for people with
disabilities, and provides a variety of empowering programs
for approximately 400,000 Americans who have MS and
their families. The Society believes that every individual has
the fundamental right to lead a full, productive life via the
support of laws that promote equality of opportunity for all
citizens. The ADA has proven to be a major advancement in
the public awareness of disability rights and has prompted
substantial improvements in local disability regulations. The
Society’s participation here reflects its commitment to the
right of every American to be free from discrimination and
lack of independence under law.
The National Spinal Cord Injury Association is the
nation’s oldest and largest civilian organization dedicated to

7
helping the hundreds of thousands of Americans coping with
the results of spinal cord injury and disease. Our mission is
to enable people with spinal cord injuries and diseases to
achieve their highest level of independence, health, and
personal fulfillment by providing resources, services, and
peer support. The ADA is a critical tool in helping
individuals achieve those goals.
Prison Legal News (“PLN”) is non-profit organization that
advocates nationally on behalf of those imprisoned in
American detention facilities. PLN publishes a magazine by
the same name to educate its readers and the general public
about the use of the civil justice system for the vindication of
fundamental human and civil rights.
Founded in 1971 and located in Montgomery, Alabama,
the Southern Poverty Law Center has litigated numerous
civil rights cases on behalf of minorities, women, people with
disabilities, and other victims of discrimination. Many of the
Center’s class actions have attacked unconscionable
conditions of confinement in state prisons. Although the
Center’s work is concentrated in the South, its attorneys
appear in courts throughout the country to ensure that all
people receive equal and just treatment under federal and
state law.
Many of amici have witnessed the extent of abuses
against these prisoners as they have either litigated on their
behalf or have worked to identify flaws in, and recommend
solutions to, various penal systems’ mistreatment of
prisoners with disabilities.
Based on their intimate
familiarity with unconstitutional discrimination against
prisoners with disabilities and their review of pertinent
legislative history and judicial decisions, amici maintain that
Title II of the ADA was a congruent and proportional
response to what is, and continues to be, a pattern and

8
practice of unconstitutional discrimination in the prison
context.
STATEMENT
This case involves a paraplegic state prisoner who was
denied minimally decent and equal treatment as a direct
result of his disability. The details are set forth in
Petitioner’s brief and need not be repeated here. It bears
emphasis, however, that this kind of story is not an unusual
one. To the contrary, persons with disabilities in state
custody have been regularly discriminated against in ways
that violate the Constitution. That reality was brought to
Congress’s attention when it enacted the ADA. This
extensive empirical record of unconstitutional discrimination
establishes that Title II of the ADA is a congruent and
proportional response to state discrimination against
prisoners with disabilities.
SUMMARY OF ARGUMENT
The gross and indefensible mistreatment alleged by
Petitioner is no isolated incident. As the extensive legislative
history and public record reflect, state prisons routinely
discriminate against inmates with disabilities in violation of
their basic constitutional rights. Such prisoners depend on
state officials to meet their basic needs but often find
themselves discriminatorily denied essential protection and
services.
Congress, in determining the necessity of the ADA, was
aware of the extensive record of state deprivations of the
constitutional rights of incarcerated Americans with a broad
range of physical and mental disabilities. To address this
class of cases, among others, Congress expressly invoked the
full sweep of its power to enforce the Fourteenth Amendment
when it enacted Title II of the ADA, which was presented to
the President only after Congress integrated decades of

9
analysis and experience, including repeated ineffective
attempts to remedy states’ systematic deprivation of rights
guaranteed to the disabled by the Fourteenth Amendment and
other constitutional provisions.
Based on this pattern of unconstitutional discrimination
against prisoners with disabilities, a faithful application of
Tennessee v. Lane, 541 U.S. 509 (2004), and Nevada
Department of Human Resources v. Hibbs, 538 U.S. 721
(2003), leads to the conclusion that Title II — as applied to
prisoners with disabilities — permissibly enforces, rather
than substantively redefines, the rights protected by the
Fourteenth Amendment’s Due Process and Equal Protection
Clauses, and the First and Eighth Amendments, as applied to
the states through the Fourteenth Amendment. Indeed, there
exists a far more compelling historical predicate for
abrogation of sovereign immunity vis-à-vis state
discrimination against prisoners with disabilities than existed
in Lane, or in Hibbs before it. Accompanied by the strong
presumption of statutory validity, this historical record is
dispositive in the case now before the Court.
ARGUMENT
I. THERE IS AN EXTENSIVE HISTORY OF
UNCONSTITUTIONAL
DISCRIMINATION
AGAINST PRISONERS WITH DISABILITIES.
A. Evidence in the Legislative History
The legislative history of the ADA indicates that
Congress was concerned with unconstitutional discrimination
by states against prisoners with disabilities.2 The House and
2

As demonstrated by the legislative history of the earlier Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (1980), Congress
was well aware of the prevalence of state unconstitutional discrimination
against prison inmates in general. See H.R. Rep. No. 95-1058, at 22 &
n.54 (1978); S. Rep. No. 95-1056, at 16 (1978) (“[T]he basic

10
Senate Subcommittees “conclude[d] that there exists a
compelling need to establish a clear and comprehensive
Federal prohibition of discrimination on the basis of
disability.” S. Rep. No. 101-116, at 5 (1989); H.R. Rep. No.
101-485(II), at 28 (1990), reprinted in 1990 U.S.C.C.A.N.
303, 310. The Subcommittees, in explaining the “need” for
the ADA, relied on a U.S. Commission on Civil Rights report
that identified discrimination in prisons as one of the “major
social and legal mechanisms, practices, and settings in which
handicap discrimination arises.” U.S. Comm’n on Civil
Rights, Accommodating the Spectrum of Individual Abilities,
App. A at 165 (1983) (hereinafter “USCCR Rep.”); see also
S. Rep. No. 101-116, at 6; H.R. Rep. No. 101-485(II), at 28,
reprinted in 1990 U.S.C.C.A.N. at 310 (citing USCCR Rep.
at App. A at 168 (listing, inter alia, the “[i]nadequate
treatment and rehabilitation programs in penal and juvenile
facilities[,] [i]nadequate ability to deal with physically
handicapped accused persons and convicts (e.g., accessible
jail cells and toilet facilities) [and] [a]buse of handicapped
persons by other inmates”)).
The ADA’s legislative history contains other references
to discrimination against inmates with disabilities. S. Rep.
No. 101-116, at 8; H.R. Rep. NO. 101-485(II), at 31,
reprinted in 1990 U.S.C.C.A.N. at 312 (“The [USCCR]
recently concluded, with respect to people with disabilities,
that: ‘Despite some improvements . . . [discrimination]
persists in such critical areas as . . . institutionalization . . . .’”
(quoting USCCR Rep. at 159; alteration in original)); see
Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211-12
(1998)
(holding
that
Congress’s
reference
to
constitutional and Federal statutory rights of institutionalized persons are
being violated on such a systematic and widespread basis to warrant the
attention of the Federal Government.” (quoting testimony of Drew S.
Days, III, Assistant Att’y Gen. )).

11
institutionalization “can be thought to include penal
institutions”). In hearings leading to the enactment of the
ADA, Congress received extensive testimony regarding
disability discrimination against inmates in state prisons.
See, e.g., S. Rep. No. 101-116, at 6; H.R. Rep. No. 101485(II), at 28, reprinted in 1990 U.S.C.C.A.N. at 310 (citing
USCCR Rep., App. A at 168); Cal. Att’y Gen., Comm’n on
Disability, Final Report 103 (Dec. 1989) (“[A] parole agent
sent a man who uses a wheelchair back to prison since he did
not show up for his appointments even though he explained
that he could not make the appointments because he was
unable to get accessible transportation.”).
Moreover, a congressionally designated Task Force
submitted to Congress several thousand documents
evidencing discrimination and segregation in the provision of
public services, including in the treatment of persons with
disabilities in prisons and jails. See Board of Tr. of the Univ.
of Ala. v. Garrett, 531 U.S. 356, 391-424 (2001) (App. C to
Justice Breyer’s dissent); id. at 393 (“jail failed to provide
person with disability medical treatment” (quoting Alaska at
55)); id. at 405 (“deaf people arrested and held in jail
overnight without explanation because of failure to provide
interpretive services” (quoting Illinois at 572)); id. at 409
(“public libraries, state prison, and other state offices lacked”
telecommunications for the deaf (quoting Maryland at 787));
id. at 414 (“prisoners with developmental disabilities
subjected to longer terms and abused by other prisoners in
state correctional system” (quoting New Mexico at 1091));
id. at 415 (“police arrested and jailed deaf person without
providing interpretive services” (quoting North Carolina at
1161)).
B. Evidence in the Public Record
In addition to the explicit legislative record of
unconstitutional discrimination by states against prisoners

12
with disabilities, there is overwhelming evidence in the
public record of a history of state violations of the
constitutional rights of inmates in four specific contexts:
Mobility Impairments, Physical Illnesses, Mental Illness, and
Vision and Hearing Impairments.
1. Prisoners with Mobility Impairments
Eighth Amendment jurisprudence is replete with
examples of states violating the basic constitutional rights of
prisoners with mobility impairments. Indeed, prison officials
frequently fail to attend to the basic life needs of prisoners
with mobility impairments. See, e.g., LaFaut v. Smith, 834
F.2d 389, 393-94 (4th Cir. 1987) (finding “deliberate
indifference” on the part of prison officials in failing to
provide rehabilitation therapy and toilet facilities to a
paralyzed inmate who was required to drag his body across
the floor to use the commode, which was not adequate to
support him). As one court put it, the frequent denial of basic
elements of adequate medical treatment for prisoners with
mobility impairments “illustrate[s] the pervasive and gross
neglect of prisoners’ medical needs” in violation of the
Eighth Amendment. Newman v. Alabama, 349 F. Supp. 278,
284 (D. Ala. 1972), aff’d in relevant part, 503 F.2d 1320 (5th
Cir. 1974); see id. at 285 (finding systemic constitutional
violations of prisoners’ rights in the Alabama prison system
including the death of a quadriplegic inmate, who spent many
months in the hospital confined to a bed, leading to bedsores,
which developed maggots from lack of care “until the stench
pervaded the entire ward”).
Other examples are legion. See, e.g., Simmons v. Cook,
154 F.3d 805, 808 (8th Cir. 1998) (concluding that prison
officials were deliberately indifferent to needs of paraplegic
prisoner, whose food tray slot was wheelchair-inaccessible,
and who could not use toilet); Weeks v. Chaboudy, 984 F.2d
185, 187 (6th Cir. 1993) (finding violation of Eighth

13
Amendment where paralyzed inmate was not permitted a
wheelchair in his cell, not permitted to shower, and denied
admission to the prison infirmary); Leach v. Shelby County
Sheriff, 891 F.2d 1241, 1243 (6th Cir. 1989) (finding a policy
or custom of deliberate indifference to serious medical needs
of paraplegic inmates; evidence showed that, “[d]espite his
medical need for cleanliness, [an inmate] was not bathed for
several days,” “was forced to remain for long periods of time
in his own urine due to inadequate catheter supplies and was
given inadequate aid for his bowel training needs despite his
repeated requests for help”); Parrish v. Johnson, 800 F.2d
600, 603, 605 (6th Cir. 1986) (prison guard repeatedly
assaulted paraplegic inmates with knife, forced them to sit in
own feces, and taunted them with remarks like “crippled
bastard” and “[you] should be dead”); Beckford v. Irvin, 49
F. Supp. 2d 170, 180 (W.D.N.Y. 1999) (finding Eighth
Amendment violation where plaintiff was regularly deprived
of his wheelchair for extended periods of time, unable to
shower, and could not use a cup to attempt to bathe by taking
water from his cell toilet or drinking fountain); Yarbaugh v.
Roach, 736 F. Supp. 318, 320 (D.D.C. 1990) (finding
violation of Eighth Amendment where prisoner debilitated by
multiple sclerosis failed to receive adequate medical care for
nearly a year).
Inmates with disabilities have also been denied
accommodations such as wheelchairs or crutches, without
which they are unable to perambulate and participate in
prison programs, thus depriving the prisoners of fundamental
constitutional liberties. See, e.g., Love v. McBride, 896 F.
Supp. 808, 809-10 (N.D. Ind. 1995), aff’d sub nom. Love v.
Westville Corr. Ctr., 103 F.3d 558, 559 (7th Cir. 1996)
(quadriplegic denied use of prison’s facilities, unable to
participate in substance abuse education, church or transition
programs available to inmate population); Johnson v. Hardin
County, 908 F.2d 1280, 1283-84 (6th Cir. 1990) (holding

14
jailers’ refusal to provide crutches to inmate violated Eighth
Amendment); Cummings v. Roberts, 628 F.2d 1065, 1068
(8th Cir. 1980) (holding jailer’s denial of a wheelchair to a
prisoner supports claim for cruel and unusual punishment);
Ruiz v. Estelle, 503 F. Supp. 1265, 1340-44 (S.D. Tex. 1980)
(finding inmates with mobility impairments denied access to
virtually all programs and activities available to general
population and concluding that the “total picture of
physically handicapped inmates in TDC is one marked by the
extreme indifference and inflexibility of prison officials”),
aff’d in relevant part, 679 F.2d 1115 (5th Cir. 1982); see also
id. at 1346 (opining that “only minor accommodations”
would have avoided these constitutional difficulties, but that
the state’s “failure to make those minor adjustments
needlessly subjects physically-handicapped prisoners to cruel
and unusual punishment”). The number, magnitude and
similarity of these cases — indicting the “care” prison
officials provide — underscores the seriousness and
pervasiveness of the ill-treatment of prisoners with mobility
impairments.
2. Prisoners with Physical Illnesses
Diseases, both communicable and non-communicable,
are considered disabilities under federal law. School Bd. of
Nassau County v. Arline, 480 U.S. 273, 284-86 (1987)
(finding that teacher with susceptibility to tuberculosis
qualified for protection under § 504 of the Rehabilitation Act
of 1973);3 see 28 C.F.R. § 35.104(Disability)(1)(ii) (defining
“physical or mental impairment” under ADA to include
“contagious and noncontagious diseases and conditions”).
3

The ADA is interpreted consistent with and guided by the Rehabilitation
Act. See Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998) (concluding
that 42 U.S.C. § 12201(a) “requires us to construe the ADA to grant at
least as much protection as provided by the regulations implementing the
Rehabilitation Act”); 29 C.F.R. § 1630.1(c)(1).

15
This Court previously recognized that Congress’s passage of
laws prohibiting discrimination against individuals with
disabilities reflected an understanding of the extensive
history of discrimination against those with contagious
illnesses. Arline, 480 U.S. at 284-85 (“The [Rehabilitation]
Act is carefully structured to replace such reflexive reactions
to actual or perceived handicaps with actions based on
reasoned and medically sound judgments[.]”); see also id. at
284-86 & nn.11-15 (discussing Congress’s concern with
irrational discrimination against those with diseases).
The case law makes clear that Congress had ample basis
for concluding that state prisons were discriminating against
prisoners with various illnesses.4 For example, prisoners
who suffer from non-communicable, chronic conditions often
suffer significant harm and disparate levels of restrictiveness
as a consequence of denial of care and accommodations
required by their disability. In one case, a state prisoner with
Lou Gehrig’s disease alleged that he was denied a cane
needed for walking, a chair needed for showers, and a
suitable toilet, as well as being improperly handcuffed.
Kiman v. N.H. Dep’t of Corr., 301 F.3d 13, 15-16 (1st Cir.
2002), withdrawn on other grounds, 310 F.3d 785 (1st Cir.
2002); see also Hunt v. Uphoff, 199 F.3d 1220 (10th Cir.
1999) (finding violation of Eighth Amendment where inmate
with diabetes was denied insulin, resulting in a heart attack
and subsequent bypass surgery, resulting in his death from
acute blockage of coronary artery graft); cf. Howard v. City
of Columbus, 521 S.E.2d 51 (Ga. Ct. App. 1999) (finding
4

Accounts of discrimination against prisoners with physical illnesses
have also been reported extensively in the news media. See, e.g., Paul
von Zielbauer, As Health Care in Jails Goes Private, 10 Days Can Be A
Death Sentence, N.Y. Times, Feb. 27, 2005, at 1 (describing denial of
basic health care and treatment protocols to inmates with physical
illnesses, resulting in deaths of inmate with Parkinson’s disease and
inmate suffering from heart attack).

16
case appropriate for trial where inmate died of diabetesrelated complications after officials failed to identify his
diabetes, failed to provide any treatment or special diet to
control his diabetes, and failed to adequately treat him when
his high blood glucose levels caused him to become visibly
ill).
Communicable diseases present another major challenge.
The failure of prison officials to acknowledge and respond to
inmates’ serious medical conditions can result in forms of
discrimination that not only violate the Eighth Amendment
but implicate the ADA. For example, prison officials have
engaged in a pattern of discrimination against prisoners who
have HIV.5
In one typical case, a former prisoner brought suit
challenging the prison’s public identification of her HIVpositive status, its automatic segregation of HIV-positive
inmates, and the denial of access to the law library and
religious services based on HIV-positive status. Nolley v.
County of Erie, 776 F. Supp. 715, 717-18 (W.D.N.Y. 1991).
The court concluded that the prison’s policy of identifying all
HIV-positive prisoners by placing red stickers on their
5

Congress, in enacting the ADA, focused on HIV as an area of disability
discrimination in need of a federal remedy. See S. Rep. No. 101-116, at
8; H.R. Rep. No. 101-485(II), at 31, reprinted in 1990 U.S.C.C.A.N. at
313 (“[T]he Commission concluded that discrimination against
individuals with HIV infection is widespread and has serious
repercussions for both the individual who experiences it and for this
nation’s efforts to control the epidemic.”) (Hearing Before the H.
Subcomm. on Select Educ. and S. Subcomm. on the Handicapped, 100th
Cong. 40 (1988) (summarizing testimony of Adm. James Watkins,
former chairperson of the President’s Comm’n on the H.I.V. Epidemic));
136 Cong. Rec. S9680, 9681 (daily ed. July 13, 1990) (statement of Sen.
Kennedy) (“The ADA marks an important and compassionate step in this
Nation’s response to the HIV epidemic. The ADA will improve the
quality of life for persons confronting AIDS.”).

17
“documents and personal items” was “not reasonably related
to legitimate penological interests” and a violation of the
constitutional right to privacy. Id. at 732-33. The court also
found that the prison’s “policy of automatically segregating
known HIV[-positive] inmates” without any review
transgressed both the prisoner’s constitutional right to
privacy, id. at 734-36, and her due process rights. Id. at 738.
Finally, the court held that the prison’s denial of access to the
law library violated the HIV-positive prisoner’s right of
access to the courts, id. at 741, and its denial of access to
religious services abridged the inmate’s First Amendment
rights. Id. at 741-42.
Other courts have found similar constitutional violations
by states against HIV-positive prisoners. See, e.g., Casey v.
Lewis, 834 F. Supp. 1477, 1488-91 & nn.109 & 123 (D. Ariz.
1993) (finding constitutional violations by prison system, in
part, because of the treatment of HIV-positive prisoners);
Freeman v. Berry, Civ. A No. C. 87-0259-L(A), 1994 WL
760820, at *2-*3 (W.D. Ky. July 20, 1994) (denying motion
to alter judgment against state correctional official who was
found to be deliberately indifferent, in violation of HIVpositive prisoner’s constitutional rights, for refusing to
transfer prisoner to ensure his safety); cf. Roop v. Squadrito,
70 F. Supp. 2d 868, 876-77 (N.D. Ind. 1999) (finding
genuine issue of material fact existed regarding HIV-positive
prisoner’s claim for unconstitutional conditions of
confinement); Doe v. Coughlin, 697 F. Supp. 1234, 1243
(N.D.N.Y. 1988) (preliminarily enjoining prison from
involuntarily transferring HIV-positive prisoners).
In addition to adverse judgments, states have settled — or
entered into consent decrees regarding — numerous suits by
HIV-positive prisoners alleging constitutional violations.
See, e.g., Austin v. Pa. Dep’t of Corr., 876 F. Supp. 1437,
1453-54 (E.D. Pa. 1995) (approving class action settlement

18
between inmates and state prison system, which, inter alia,
eliminated “unlawful discrimination against HIV-infected
individuals” regarding work assignments and privacy of
medical information); see also Plata v. Davis, 329 F.3d 1101,
1103 (9th Cir. 2003) (discussing the underlying settlement of
original claims by female prisoners, including a sub-class of
HIV-positive prisoners, who alleged violations of their
constitutional rights); Leatherwood v. Campbell, No. CV-02BE-2812-W
(N.D.
Ala.
June
2,
2004),
http://www.schr.org/prisonsjails/press%20releases/Magistrat
e%20Report%20Recommendation.pdf (approving settlement
of class action brought by HIV-positive inmates against state
correctional facility alleging violations of constitutional
rights). See generally Anne-Marie Cusac, “The Judge Gave
Me Ten Years. He Didn’t Sentence Me to Death”: Inmates
With HIV Deprived of Proper Care, The Progressive, July
2000, at 22 (citing numerous cases brought by HIV-positive
prisoners and relief granted by courts); Lawrence O. Gostin
et al., AIDS Litigation Project: A National Survey of Federal,
State, & Local Cases Before Courts and Human Rights
Commissions 135-54 (1990) (listing cases); Theodore M.
Hammett, et al., U.S. Dep’t of Justice, 1996-1997 Update:
HIV/AIDS, STD’s, and TB in Correctional Facilities at 93-97
(July 1999) (listing cases).
In sum, as these examples illustrate, Congress had an
ample basis for concluding that prisoners with disabilities
caused by various diseases had been subjected to harmful and
discriminatory treatment.
3. Prisoners with Mental Illness
Prisons have frequently failed to accommodate the needs
of prisoners with mental illness and frequently deny them
basic and essential medical care, often leading to their
exclusion from opportunities available to other prisoners.
See, e.g., Casey, 834 F. Supp. at 1550 (“The Court finds the

19
treatment of seriously mentally ill inmates to be appalling . . .
. The Court considers this treatment of any human being to
be inexcusable and cruel and unusual punishment in violation
of the eighth amendment of the Constitution;” “[r]ather than
providing treatment . . . [the prison] punishes these inmates
by locking them down in small, bare segregation cells for
their actions that are the result of their mental illnesses.”).
Viewing only a small sample of the multitude of relevant
cases is sufficient to reveal the extent of state discrimination
against mentally ill prisoners. See, e.g., Vitek v. Jones, 445
U.S. 480, 492-96 (1980) (affirming district court’s
conclusion that the state’s policy of involuntarily transferring
prisoners to mental health facilities implicated a liberty
interest under the due process clause); Carty v. Farrelly, 957
F. Supp. 727, 738 (D.V.I. 1997) (“[I]nmates who
demonstrate unusual behavior indicative of mental illness are
not hospitalized for diagnosis; rather, they are sometimes
separated into separate cell clusters or locked down into
solitary confinement.”); Madrid v. Gomez, 889 F. Supp.
1146, 1255-59 (N.D. Cal. 1995) (prisoner with mental illness
who smeared feces was placed in scalding water until his
skin peeled off and hung in large clumps around his legs);
Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995)
(remedying excessive use of physical restraints with
prisoners with mental illness); Inmates of Occoquan v. Barry,
717 F. Supp. 854, 863-64, 867 (D.D.C. 1989) (mentally ill
inmates housed in cell block used for administrative and
punitive segregation, where they were “locked in their cells
for 23 hours a day with no social contact and . . . receive[d]
no treatment except for medication”); Newman v. Alabama,
349 F. Supp. at 284 (prisoners with mental illness who acted
violently were “removed to lockup cells . . . not equipped
with restraints or padding . . . where they [were left]
unattended”); see generally Human Rights Watch, IllEquipped: U.S. Prisons and Offenders with Mental Illness

20
34-37, 46-48 (2003) (collecting cases describing unique and
systemic abuse of prisoners with mental illness by prisons).
The problem also extends to the population of prisoners
with mental retardation and other developmental disabilities.
For example, California “admitted violating the [ADA] and
the U.S. Constitution’s ban on cruel and unusual punishment,
and agreed to create special programs for the estimated 5,000
prisoners with mental retardation, autism, cerebral palsy and
other developmental disabilities.” Reynolds Holding, State
Prisons Settle Disability Bias Lawsuit, S.F. Chron., Aug. 12,
1998, at A20; see also id. (noting numerous instances of
abuse of inmates with developmental disabilities by guards
and other prisoners).
Similarly, in Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.
Tex. 1980), the court found the Texas Department of
Corrections (“TDC”) “failed to meet its constitutional
obligation to provide minimally adequate conditions of
incarceration for mentally retarded inmates.” Ruiz, 503 F.
Supp. at 1346. Of significance to the court was the fact that
TDC refused to provide counsel or counsel substitute to
assist mentally retarded inmates during disciplinary hearings.
Id. at 1344. These prisoners with mental disabilities had an
“inherent inclination to plead guilty” and they “serve[d]
longer sentences than [other] inmates.” Id. The TDC’s
systematic denial of counsel was found to violate the due
process clause. Id. at 1346 (citing Wolff v. McDonnell, 418
U.S. 539, 570 (1974)).
4. Prisoners
with
Impairments

Vision

and

Hearing

States frequently violate the constitutional rights of
prisoners with vision and hearing disabilities and Congress
was undoubtedly aware of the plight of these inmates. See
Garrett, 531 U.S. at 405 (Appendix C to Justice Breyer’s
dissent) (“deaf people arrested and held in jail overnight

21
without explanation because of failure to provide interpretive
services” (quoting Illinois at 572)); id. at 409 (“public
libraries, state prisons, and other state offices lacked
[telecommunications for the deaf]” (quoting Maryland at
787)); id. at 415 (“police arrested and jailed deaf person
without providing interpretive services” (quoting North
Carolina at 1161)).
In Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y.
1995), a class of deaf and hearing-impaired inmates brought
suit against the state prison system. The court found that the
prison’s refusal to provide reasonable accommodations
violated the Constitution. Id. at 1032-34. The court granted
summary judgment to the class and held the prison in
violation of the due process clause of the Fourteenth
Amendment because of the prison’s failure to provide
interpreters for disciplinary proceedings, educational
programs and essential communications with physicians. Id.
at 1032-34, 1041-44, 1048-51. The court also found that the
prison was deliberately indifferent, and, thus, in violation of
the Eighth Amendment, in light of the prison’s “systematic”
refusal to enable hearing-impaired inmates to communicate
with medical personnel. Id. at 1032-34, 1042-43; see also id.
at 1049 (concluding the prison’s “systematic pattern of
inadequacy of treatment . . . caus[ed] class members
unwarranted suffering”). Finally, the court held that the
prison transgressed the Equal Protection Clause of the
Fourteenth Amendment by excluding hearing-impaired
female inmates from the few available assistive services. Id.
at 1043-44, 1051.
Numerous other courts have found that state prisons
discriminated against inmates with hearing and vision
disabilities in violation of the United States Constitution.
See, e.g., Armstrong v. Davis, 275 F.3d 849, 858 (9th Cir.
2001) (affirming district court’s system-wide injunction

22
against California prison system based on the district court’s
holding that the state’s parole and parole revocation hearings
were “not in substantial compliance with the ADA or the
Rehabilitation Act, and that it routinely denied plaintiffs their
rights under the Due Process Clause of the United States
Constitution”); Koehl v. Dalsheim, 85 F.3d 86, 88-89 (2d Cir.
1996) (reversing district court and holding that inmate
properly stated a claim for violation of the Eighth
Amendment when prison deprived inmate of medicallyprescribed glasses); Bonner v. Ariz. Dep’t of Corr., 714 F.
Supp. 420, 426 (D. Ariz. 1989) (holding that inmate “has a
due process liberty interest in the presence of a qualified sign
language interpreter at all stages in the prison’s disciplinary
procedure”).
II.

PROPHYLACTIC LEGISLATION IS AN
APPROPRIATE RESPONSE TO PERSISTENT
DISCRIMINATION AGAINST PRISONERS
WITH DISABILITIES.

In Tennessee v. Lane, 541 U.S. 509 (2004), this Court
explained that Title II of the ADA, 42 U.S.C. §§ 12101,
12141, et seq., responds to a history of unequal treatment in,
inter alia, the “administration of . . . the penal system.” 541
U.S. at 525. Yet the Eleventh Circuit has misapplied this
Court’s Eleventh Amendment jurisprudence and declared
Title II of the ADA unconstitutional and unenforceable in the
prison administration context. The lower court’s ruling is
incompatible with the historical record of state discrimination
against prisoners with disabilities compiled by Congress
before enactment of the ADA.6 The disregard of this
6

See Lane, 541 U.S. at 516 (“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

23
historical record is an affront to Congress’s power to enforce
the Fourteenth Amendment and protect against pervasive and
enduring state constitutional violations.7
Consistent with the provisions of the Fourteenth
Amendment, “Congress may enact so-called prophylactic
legislation that proscribes facially constitutional conduct, in
order to prevent and deter unconstitutional conduct.” Nevada
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727-28 (2003);
see also City of Boerne v. Flores, 521 U.S. 507, 518 (1997).
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.”); see generally Crawford
v. Ind. Dep’t of Corr., 115 F.3d 481, 486 (7th Cir. 1997) (Posner,
C.J.) (“The Americans with Disabilities Act was cast in terms not of
subsidizing an interest group but of eliminating a form of discrimination
that Congress considered unfair and even odious. The Act assimilates the
disabled to groups that by reason of sex, age, race, religion, nationality, or
ethnic origin are believed to be victims of discrimination. Rights against
discrimination are among the few rights that prisoners do not park at the
prison gates.”) (citations omitted; emphasis added).
7

Congress’s enforcement power, as this Court has often acknowledged, is
a “broad power indeed.” Lane, 541 U.S. at 518 (citing Mississippi Univ.
for Women v. Hogan, 458 U.S. 718, 732 (1982)); see also id. at 518 n.3
(“‘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.’”) (quoting Ex parte Virginia,
100 U.S. 339, 345-46 (1880)); City of Boerne v. Flores, 521 U.S. 507,
517-18 (1997). This Court’s precedent “‘accord[s] substantial deference
to the predictive judgments of Congress,’” and the “sole obligation” of
reviewing courts “is ‘to assure that, in formulating its judgments,
Congress has drawn reasonable inferences based on substantial
evidence.’” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)
(“Turner II”) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
665-66 (1994) (“Turner I”)).

24
To uphold Section 5 legislation, this Court must: (1)
“identify with some precision the scope of the constitutional
right at issue[,]” Garrett, 531 U.S. at 365; (2) “examine
whether Congress identified a history and pattern of
unconstitutional” conduct by states regarding that
constitutional right, id. at 368; and (3) evaluate whether
Congress’s remedy is appropriate — that is, whether the
remedy is congruent and proportional to the history and
pattern of discrimination. Lane, 541 U.S. at 530.
First, regarding the scope of the constitutional right at
issue, Title II as applied to prisoners with disabilities clearly
“seeks to enforce a variety of other basic constitutional
guarantees.” Lane, 541 U.S. at 522-23. Indeed, state
discrimination against prisoners with disabilities implicates a
panoply of constitutional rights, including not just the Equal
Protection Clause of the Fourteenth Amendment’s ban on
irrational disability discrimination, but also the Due Process
Clause and the First and Eighth Amendments, as applied to
the states through the Fourteenth Amendment.
Second, there can be no doubt that Congress identified a
pattern of discrimination against prisoners with disabilities.
Moreover, for the reasons just explained and consistent with
the access to judicial services rights implicated in Lane, 541
U.S. at 532-33, such discrimination is more likely to
implicate constitutional rights in the prison context than in
almost any other, because states have affirmative
constitutional obligations toward those they hold in custody.8

8

See, e.g., Ruiz v. Estelle, 503 F. Supp. at 1344-46 (finding that the Texas
Department of Corrections “failed to meet its constitutional obligation to
provide minimally adequate conditions of incarceration for mentally
retarded inmates,” in part, because the state refused to provide counsel or
counsel substitute to assist mentally retarded inmates during disciplinary
hearings).

25
Third, Title II is an appropriate remedial response to this
history of discrimination in light of the extensive history of
state infringement of the constitutional rights of prisoners
In responding to this pattern of
with disabilities.9
discrimination, Congress, as in Lane and South Carolina v.
Katzenbach, 383 U.S. 301 (1966), confronted a “[d]ifficult
and intractable problem,” where previous legislative attempts
had failed,10 thus justifying added prophylactic measures in
response. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88
(2000); see also Lane, 541 U.S. at 531; Hibbs, 538 U.S. at
737 (upholding the FMLA as valid remedial legislation
without regard to whether the failure to provide the
statutorily mandated 12 weeks of leave violated the
Fourteenth Amendment). That prophylactic remedy was
designed to make it more practical for persons like
vulnerable state prisoners to assert their rights. Not only
does it authorize attorneys fees to prevailing parties, but it
also eliminated the difficult burden of establishing the
9

In Lane, this Court broadly considered the full range of constitutional
rights and Title II remedies at issue, framing its analysis in terms of the
broad “class of cases implicating the accessibility of judicial services.”
541 U.S. at 531. The Court’s expansive review was appropriate because
Congress necessarily responds not to the isolated claims of individual
litigants, but to broad patterns of unconstitutional conduct by government
officials. Accordingly, in this case it is appropriate to assess Title II’s
constitutionality as applied to the entire class of cases implicating, in this
Court’s words, “the administration of . . . the penal system.” Id. at 525,
530-31.
10

See S. Rep. No. 101-116, at 18 (section of report entitled “Current
Federal and State Laws are Inadequate”); see also Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. Pub. L. No. 96247, 94 Stat. 349 (1980) (providing Attorney General the discretion to
enforce the constitutional rights of inmates, but not creating a private
right of action or imposing a reasonable accommodation requirement); S.
Rep. No. 95-1056 at 17-18 (1978) (citing “unique inability of prisoners to
assert their rights” and “inadequacy of legal services”).

26
requisite state of mind of the defendant — a burden that has
often prevented successful assertion of valid constitutional
claims.
Just as past federal solutions were unavailing, Congress
also found that state laws were “inadequate to address the
pervasive problems of discrimination that people with
disabilities are facing.” H.R. Rep. No. 101-485(II), at 47,
reprinted in 1990 U.S.C.C.A.N. at 329; see also S. Rep. No.
101-116, at 6 (1989) (“Discrimination still persists in such
critical areas as . . . public services.”); S. Rep. No. 101-116 at
18 (section of report entitled “Current Federal and State
Laws are Inadequate”); H.R. Rep. No. 101-485(II), at 48,
reprinted in 1990 U.S.C.C.A.N. at 330 (50 State Governors’
Committees “report[ed] that existing State laws do not
adequately counter . . . discrimination”). Among other
things, Congress found that states — like their federal
counterparts — failed to provide for private rights of action
and compensatory damages, effectively leaving many victims
of discrimination without available remedies.11 For example,
in enacting the Civil Rights of Institutionalized Persons Act,
42 U.S.C. § 1997, Congress cited “the possible conflicts of
interest which State and other public officials appear to have

11

See Americans with Disabilities Act of 1989: Hearings on S. 933
Before the Subcomm. on the Handicapped of the Comm. on Labor &
Human Res., 101st Cong. 386-94 (1989) (statement of the Nat’l Coal. for
Cancer Survivorship); Employment Discrim. Against Cancer Victims &
the Handicapped: Hearing on H.R. 370 & H.R. 1294 Before the
Subcomm. on Employment Opportunities of the H. Comm. on Educ. &
Labor, 99th Cong. 62 (1985) (statement of Rep. Moakley) (“[O]ne-fourth
of the states have no protection for the handicapped. Additionally, even
those states with laws differ greatly in their regulations.”) (ten-state
survey showing gaps in coverage of laws).

27
in relation to institutionalized persons.” H.R. Rep. No. 951058, at 7-8 (1978).12
In addressing the enduring problem of disability
discrimination, Congress concluded that states were in many
respects responsible for the “history of purposeful unequal
treatment” and participants in “the continuing existence of
unfair and unnecessary discrimination and prejudice” against
individuals with disabilities, 42 U.S.C. §§ 12101(a)(7) & (9),
and those conclusions are “entitled to much deference.”
Kimel, 528 U.S. at 81 (quotation marks omitted). As with
state laws against gender discrimination that neither
eliminated that continuing bias nor in any way weakened the
rationale for subjecting states to federal prohibitions, see
Hibbs, 538 U.S. at 729-37, Congress was likewise entirely
justified in concluding that state laws against disability
discrimination in state prisons had been wholly ineffective in
combating the lingering effects of prior official
discrimination and, of greater significance, in altering
violative state behavior.13

12

See also Civil Rights of Institutionalized Persons: Hearings on H.R.
2439 and H.R. 5791 Before the Subcomm. on Courts, Civil Liberties, and
the Admin. of Justice of the H. Comm. on the Judiciary, 95th Cong. 29395 (1977) (statement of Drew S. Days, III, Assistant Att’y Gen.); Civil
Rights of Institutionalized Persons: Hearings on S. 1393 Before the
Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th
Cong. 31 (1977) (statement of Drew S. Days, III, Assistant Att’y Gen.)
(providing examples from prisons of severe lack of adequate medical care
resulting in critical injury and death, constitutionally inadequate
conditions of confinement and acute physical abuse and criminal acts).

13

It is not insignificant that states also remain free to, and have,
indiscriminately removed prisoners from the protection of their disability
discrimination statutes. See, e.g., Mich. Comp. Laws § 37.1301(b).

28
In addition to the legislative history itself,14 the
substantial class of judicial decisions involving state
unconstitutional discrimination against inmates with
disabilities evinces the need for Congress’s chosen remedy.
See, e.g., Lane, 541 U.S. at 525 & n.11 (citing cases that
“document a pattern of unequal treatment in the
administration of . . . the penal system”); Garrett, 531 U.S. at
391-424 (App. C to Justice Breyer’s dissent) (citing excerpts
from task force’s examples of discrimination); Yeskey, 524
U.S. at 211-12 (noting that the ADA’s findings about
“discrimination ‘in such critical areas as . . .
institutionalization,’ can be thought to include penal
institutions”) (alteration in original; citation omitted).
Importantly, the extensive historical record includes
numerous claims, like Petitioner’s, asserting fundamental
constitutional rights including: (i) the denial of access to
religious services, law libraries, telephone and mail services,
medical treatment, and rehabilitation, recreation, and work
programs; (ii) the unconstitutional imposition (as in
Petitioner’s case) of disparate terms of confinement and
restraint solely because of the individuals’ disabilities; and
(iii) the infliction of degrading, inhumane, and life14

The Court need not limit its review to the specific legislative record,
although that record is replete with examples of unconstitutional state
conduct in the areas encompassed by Title II and considered here. See
Lane, 541 U.S. at 522-33 (relying on, inter alia, legislative history,
statutes and judicial decisions); see also Turner II, 520 U.S. at 195
(examining evidence outside the legislative record to evaluate Congress’s
exercise of legislative power); Miles v. Apex Marine Corp., 498 U.S. 19,
32 (1990) (courts should presume that Congress is aware of relevant legal
precedents when it enacts remedial legislation). See generally
Katzenbach, 383 U.S. at 330 (“In identifying past evils,” for which
Section 5 legislation is appropriate, “Congress obviously may avail itself
of information from any probative source,” including the “information
and expertise that Congress acquires in the consideration and enactment
of earlier legislation”).

29
threatening conditions on prisoners with disabilities
nationwide. Those claims arise under the First and Eighth
Amendments, as applied to the states through the Fourteenth
Amendment, and the Fourteenth Amendment’s Due Process
and Equal Protection Clauses. It is notable that in the years
between this Court’s decision in Estelle v. Gamble, 429 U.S.
97 (1976), and Title II’s enactment, federal courts found
numerous constitutional violations that overlap with Title II
as it is applied to prisons.15 These representative cases —
and those discussed in Part I, supra — exemplify just the sort
of “confirming judicial documentation” absent from Title I.
Garrett, 531 U.S. at 376 (Kennedy, J., concurring).

15

The Constitution forbids state prisons to act with deliberate
indifference to the medical needs of prisoners. Estelle v. Gamble, 429
U.S. 97, 104-06 (1976). This practice can subject prisoners with
disabilities to multiple punishments: in addition to their sentence, they
suffer unnecessary pain, loss of dignity, and, in some cases, a shortened
lifespan. At the time Title II was enacted, however, state prisons
nevertheless continued to abuse prisoners with disabilities, denying them
these fundamental constitutional protections. See, e.g., LaFaut, 834 F.2d
at 393-94 (deliberate indifference where paraplegic inmate was not
provided convenient wheelchair-accessible toilet and was not provided
adequate rehabilitation therapy during incarceration); Michael Mushlin,
Rights of Prisoners § 3.15, at 167 n.199 (2d ed. 1993 & Supp. 2001)
(collecting cases); see also supra Part I (discussing cases). While
certainly not all constitutional claims by sick or injured inmates will be
covered by Title II, it is nonetheless exceedingly difficult for inmates to
satisfy the subjective element of the deliberate indifference standard —
making prophylactic legislation inherently appropriate. See Hibbs, 538
U.S. at 736 (Congress justified in concluding that perceptions based on
stereotype “lead to subtle discrimination that may be difficult to detect on
a case-by-case basis”); see also Lane, 541 U.S. at 520 (“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”).

30
In sum, the historical record in the instant case is
significantly stronger than that justifying the appropriate
application of Title II in Lane, and is far more robust than
that in Hibbs. Accordingly, Title II of the ADA is a
congruent and proportional response to state discrimination
against inmates with disabilities. In fact, considering the vast
historical evidence of these violations in the prison
administration context, Title II accommodation seems at the
very least reasonably tailored to provide the states with a
practical method to avoid liability for constitutional
violations in certain cases, notwithstanding the differences in
proof underlying a Title II claim.
As Hibbs makes clear, once Congress identifies a
predicate of unconstitutional conduct that it seeks to remedy,
Congress has flexibility in fashioning the remedy. See
Hibbs, 538 U.S. at 734 n.10, 736-40. Congress’s Section 5
enforcement authority means nothing if it does not involve
the power to ensure that constitutional violations are not left
without a remedy. See, e.g., id. at 735-36; Katzenbach, 383
U.S. at 314-15. Congress properly chose a comprehensive
remedial solution to this historical dilemma because to do
otherwise would simply have placed disability rights in the
same political vortex that for years proved utterly ineffective.
See S. Rep. NO. 101-116 at 13 (like “throwing an 11-foot
rope to a drowning man 20 feet offshore and then
proclaiming you are going more than halfway.” (quoting
Harold Russell, testifying for President’s Comm. on
Employment of People with Disabilities)).
The Court should not hesitate to uphold Congress’s
power to protect the constitutional rights of persons with
disabilities in the prison context.
CONCLUSION
The judgment below should be reversed.

Respectfully submitted,
PAUL M. SMITH
Counsel of Record
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