OCTOBER TERM, 1998
Syllabus
OLMSTEAD, COMMISSIONER, GEORGIA DEPARTMENT OF HUMAN RESOURCES,
ET AL.
V. L.
C., BY ZIMRING, GUARDIAN AD LITEM AND
NEXT FRIEND, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 98-536. Argued April 21, 1999-Decided June 22, 1999
In the Americans with Disabilities Act of 1990 (ADA), Congress
described the isolation and segregation of individuals with
disabilities as a serious and pervasive form of discrimination. 42
U. S. C. §§ 12101(a)(2), (5). Title II of the ADA, which proscribes
discrimination in the provision of public services, specifies,
inter alia, that no qualified individual with a disability
shall, "by reason of such disability," be excluded from
participation in, or be denied the benefits of, a public entity's
services, programs, or activities. § 12132. Congress instructed the
Attorney General to issue regulations implementing Title II's
discrimination proscription. See § 12134(a). One such regulation,
known as the "integration regulation," requires a "public entity
[to] administer ... programs ... in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities." 28 CFR § 35.130(d). A further prescription, here
called the "reasonable-modifications regulation," requires public
entities to "make reasonable modifications" to avoid
"discrimination on the basis of disability," but does not require
measures that would "fundamentally alter" the nature of the
entity's programs. § 35.130(b)(7).
Respondents L. C. and E. W. are mentally retarded women; L. C.
has also been diagnosed with schizophrenia, and E. W., with a
personality disorder. Both women were voluntarily admitted to
Georgia Regional Hospital at Atlanta (GRH), where they were
confined for treatment in a psychiatric unit. Although their
treatment professionals eventually concluded that each of the women
could be cared for appropriately in a community-based program, the
women remained institutionalized at GRH. Seeking placement in
community care, L. C. filed this suit against petitioner state
officials (collectively, the State) under 42 U. S. C. § 1983 and
Title II. She alleged that the State violated Title II in failing
to place her in a community-based program once her treating
professionals determined that such placement was appropriate. E. W.
intervened, stating an identical claim. The District Court granted
partial summary judgment for the women, ordering their
582
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placement in an appropriate community-based treatment program.
The court rejected the State's argument that inadequate funding,
not discrimination against L. C. and E. W. "by reason of [their]
disabilit[ies]," accounted for their retention at GRH. Under Title
II, the court concluded, unnecessary institutional segregation
constitutes discrimination
per se, which cannot be justified
by a lack of funding. The court also rejected the State's defense
that requiring immediate transfers in such cases would
"fundamentally alter" the State's programs. The Eleventh Circuit
affirmed the District Court's judgment, but remanded for
reassessment of the State's cost-based defense. The District Court
had left virtually no room for such a defense. The appeals court
read the statute and regulations to allow the defense, but only in
tightly limited circumstances. Accordingly, the Eleventh Circuit
instructed the District Court to consider, as a key factor, whether
the additional cost for treatment of L. C. and E. W. in
community-based care would be unreasonable given the demands of the
State's mental health budget.
Held: The judgment is affirmed in part and vacated in
part, and the case is remanded.
138 F.3d
893, affirmed in part, vacated in part, and remanded.
JUSTICE GINSBURG delivered the opinion of the Court with respect
to Parts I, II, and III-A, concluding that, under Title II of the
ADA, States are required to place persons with mental disabilities
in community settings rather than in institutions when the State's
treatment professionals have determined that community placement is
appropriate, the transfer from institutional care to a less
restrictive setting is not opposed by the affected individual, and
the placement can be reasonably accommodated, taking into account
the resources available to the State and the needs of others with
mental disabilities. Pp. 596-603.
(a) The integration and reasonable-modifications regulations
issued by the Attorney General rest on two key determinations: (1)
Unjustified placement or retention of persons in institutions
severely limits their exposure to the outside community, and
therefore constitutes a form of discrimination based on disability
prohibited by Title II, and (2) qualifying their obligation to
avoid unjustified isolation of individuals with disabilities,
States can resist modifications that would fundamentally alter the
nature of their services and programs. The Eleventh Circuit
essentially upheld the Attorney General's construction of the ADA.
This Court affirms the Court of Appeals decision in substantial
part. Pp. 596-597.
(b) Undue institutionalization qualifies as discrimination "by
reason of ... disability." The Department of Justice has
consistently advocated that it does. Because the Department is the
agency directed
583
by Congress to issue Title II regulations, its views warrant
respect. This Court need not inquire whether the degree of
deference described in
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 844, is in
order; the well-reasoned views of the agencies implementing a
statute constitute a body of experience and informed judgment to
which courts and litigants may properly resort for guidance.
E.
g., Bragdon v.
Abbott, 524 U. S. 624, 642.
According to the State, L. C. and E. W. encountered no
discrimination "by reason of" their disabilities because they were
not denied community placement on account of those disabilities,
nor were they subjected to "discrimination," for they identified no
comparison class of similarly situated individuals given
preferential treatment. In rejecting these positions, the Court
recognizes that Congress had a more comprehensive view of the
concept of discrimination advanced in the ADA. The ADA stepped up
earlier efforts in the Developmentally Disabled Assistance and Bill
of Rights Act and the Rehabilitation Act of 1973 to secure
opportunities for people with developmental disabilities to enjoy
the benefits of community living. The ADA both requires all public
entities to refrain from discrimination, see § 12132, and
specifically identifies unjustified "segregation" of persons with
disabilities as a "for[m] of discrimination," see §§ 12101(a)(2),
12101(a)(5). The identification of unjustified segregation as
discrimination reflects two evident judgments: Institutional
placement of persons who can handle and benefit from community
settings perpetuates unwarranted assumptions that persons so
isolated are incapable or unworthy of participating in community
life, cf.,
e. g., Allen v.
Wright, 468 U. S. 737, 755; and
institutional confinement severely diminishes individuals' everyday
life activities. Dissimilar treatment correspondingly exists in
this key respect: In order to receive needed medical services,
persons with mental disabilities must, because of those
disabilities, relinquish participation in community life they could
enjoy given reasonable accommodations, while persons without mental
disabilities can receive the medical services they need without
similar sacrifice. The State correctly uses the past tense to frame
its argument that, despite Congress' ADA findings, the Medicaid
statute "reflected" a congressional policy preference for
institutional treatment over treatment in the community. Since
1981, Medicaid has in fact provided funding for state-run home and
community-based care through a waiver program. This Court
emphasizes that nothing in the ADA or its implementing regulations
condones termination of institutional settings for persons unable
to handle or benefit from community settings. Nor is there any
federal requirement that community-based treatment be imposed on
patients who do not desire it. In this case, however, it is not
genuinely disputed that L. C. and E. W. are individuals "quali-
584
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fied" for noninstitutional care: The State's own professionals
determined that community-based treatment would be appropriate for
L. C. and
JUSTICE GINSBURG, joined by JUSTICE O'CONNOR, JUSTICE SOUTER,
and JUSTICE BREYER, concluded in Part III-B that the State's
responsibility, once it provides community-based treatment to
qualified persons with disabilities, is not boundless. The
reasonable-modifications regulation speaks of "reasonable
modifications" to avoid discrimination, and allows States to resist
modifications that entail a "fundamenta[l] alter[ation]" of the
States' services and programs. If, as the Eleventh Circuit
indicated, the expense entailed in placing one or two people in a
community-based treatment program is properly measured for
reasonableness against the State's entire mental health budget, it
is unlikely that a State, relying on the fundamental-alteration
defense, could ever prevail. Sensibly construed, the
fundamental-alteration component of the reasonable-modifications
regulation would allow the State to show that, in the allocation of
available resources, immediate relief for the plaintiffs would be
inequitable, given the responsibility the State has undertaken for
the care and treatment of a large and diverse population of persons
with mental disabilities. The ADA is not reasonably read to impel
States to phase out institutions, placing patients in need of close
care at risk. Nor is it the ADA's mission to drive States to move
institutionalized patients into an inappropriate setting, such as a
homeless shelter, a placement the State proposed, then retracted,
for E. W. Some individuals, like L. C. and E. W. in prior years,
may need institutional care from time to time to stabilize acute
psychiatric symptoms. For others, no placement outside the
institution may ever be appropriate. To maintain a range of
facilities and to administer services with an even hand, the State
must have more leeway than the courts below understood the
fundamental-alteration defense to allow. If, for example, the State
were to demonstrate that it had a comprehensive, effectively
working plan for placing qualified persons with mental disabilities
in less restrictive settings, and a waiting list that moved at a
reasonable pace not controlled by the State's endeavors to keep its
institutions fully populated, the reasonable-modifications standard
would be met. In such circumstances, a court would have no warrant
effectively to order displacement of persons at the top of the
community-based treatment waiting list by individuals lower down
who commenced civil actions. The case is remanded for further
consideration of the appropriate relief, given the range of the
State's facilities for the care of persons with diverse mental
disabilities, and its obligation to administer services with an
even hand. Pp. 603-606.
585
JUSTICE STEVENS would affirm the judgment of the Court of
Appeals, but because there are not five votes for that disposition,
joined the Court's judgment and Parts I, II, and III-A of its
opinion. Pp.607-608.
JUSTICE KENNEDY concluded that the case must be remanded for a
determination of the questions the Court poses and for a
determination whether respondents can show a violation of 42 U. S.
C. § 12132's ban on discrimination based on the summary judgment
materials on file or any further pleadings and materials properly
allowed. On the ordinary interpretation and meaning of the term,
one who alleges discrimination must show that she received
differential treatment vis-a-vis members of a different group on
the basis of a statutorily described characteristic. Thus,
respondents could demonstrate discrimination by showing that
Georgia (i) provides treatment to individuals suffering from
medical problems of comparable seriousness, (ii) as a general
matter, does so in the most integrated setting appropriate for the
treatment of those problems (taking medical and other practical
considerations into account), but (iii) without adequate
justification, fails to do so for a group of mentally disabled
persons (treating them instead in separate, locked institutional
facilities). This inquiry would not be simple. Comparisons of
different medical conditions and the corresponding treatment
regimens might be difficult, as would be assessments of the degree
of integration of various settings in which medical treatment is
offered. Thus far, respondents have identified no class of
similarly situated individuals, let alone shown them to have been
given preferential treatment. Without additional information, the
Court cannot address the issue in the way the statute demands. As a
consequence, the partial summary judgment granted respondents ought
not to be sustained. In addition, it was error in the earlier
proceedings to restrict the relevance and force of the State's
evidence regarding the comparative costs of treatment. The State is
entitled to wide discretion in adopting its own systems of cost
analysis, and, if it chooses, to allocate health care resources
based on fixed and overhead costs for whole institutions and
programs. The lower courts should determine in the first instance
whether a statutory violation is sufficiently alleged and supported
in respondents' summary judgment materials and, if not, whether
they should be given leave to replead and to introduce evidence and
argument along the lines suggested. Pp. 611-615.
GINSBURG, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and III -A,
in which STEVENS, O'CONNOR, SOUTER, and BREYER, JJ., joined, and an
opin-
586
ion with respect to Part III-B, in which O'CONNOR, SOUTER, and
BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in
part and concurring in the judgment,
post, p. 607. KENNEDY,
J., filed an opinion concurring in the judgment, in which BREYER,
J., joined as to Part I,
post, p. 608. THOMAS, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J.,
joined,
post, p. 615.
Beverly Patricia Downing, Senior Assistant Attorney
General of Georgia, argued the cause for petitioners. With her on
the briefs were
Thurbert E. Baker, Attorney General,
Kathleen M. Pacious, Deputy Attorney General,
Jefferson
James Davis, Special Assistant Attorney General, and
Jeffrey s.
Sutton.
Michael H. Gottesman argued the cause for
respondents.
With him on the brief were Steven D. Caley, Susan C. Jamieson,
and David A. Webster.
Irving L. Gornstein argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Waxman, Acting Assistant Attorney General Lee,
Deputy Solicitor General Underwood, Jessica Dunsay Silver, and
Gregory B. Friel.
*
*Briefs of
amici curiae urging reversal were filed for
the State of Nevada et al. by
Frankie Sue Del Papa, Attorney
General of Nevada, and
Anne B. Cathcart, Special Assistant
Attorney General,
Mike Moore, Attorney General of
Mississippi, and
Robert E. Sanders, Assistant Attorney
General,
John Cornyn, Attorney General of Texas,
Andy
Taylor, First Assistant Attorney General,
Linda S.
Eads, Deputy Attorney General, and
Gregory S.
Coleman, Solicitor General, and by the Attorneys General for
their respective States as follows:
Ken L. Salazar of
Colorado,
Jeffrey A. M odisett of Indiana,
Margery S.
Bronster of Hawaii,
Richard P. I eyoub of Louisiana,
Thomas F.
Reilly of Massachusetts,
Joseph P.
Mazurek of Montana,
Charles M. Condon of South Carolina,
Paul G.
Summers of Tennessee,
Christine O.
Gregoire of Washington, and
Gay Woodhouse of Wyoming;
and for the National Conference of State Legislatures et al. by
Richard Ruda and
James I. Crowley.
Briefs of
amici curiae urging affirmance were filed for
the American Association on Mental Retardation et al. by
Alan M.
Wiseman, Timothy K. Armstrong, and
Ira A. Burnim; for
the American Civil Liberties Union et al. by
Laurie Webb
Daniel and
Steven R. Shapiro; for the American
587
JUSTICE GINSBURG announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II, and
III-A, and an opinion with respect to Part III-B, in which JUSTICE
O'CONNOR, JUSTICE SOUTER, and JUSTICE BREYER join.
This case concerns the proper construction of the
antidiscrimination provision contained in the public services
portion (Title II) of the Americans with Disabilities Act of 1990
(ADA), 104 Stat. 337, 42 U. S. C. § 12132. Specifically, we
confront the question whether the proscription of discrimination
may require placement of persons with mental disabilities in
community settings rather than in institutions. The answer, we
hold, is a qualified yes. Such action is in order when the State's
treatment professionals have determined that community placement is
appropriate, the transfer from institutional care to a less
restrictive setting is not opposed by the affected individual, and
the placement can be reasonably accommodated, taking into account
the resources available to the State and the needs of others with
mental disabilities. In so ruling, we affirm the decision of the
Eleventh Circuit in substantial part. We remand the case, however,
for further consideration of the appropriate relief, given the
range of facilities the State maintains for the care and treatment
of persons with diverse mental disabilities, and its obligation to
administer services with an even hand.
Psychiatric Association et al. by
Richard G.
Taranto; for 58 Former State Commissioners and Directors of
Mental Health and Developmental Disabilities et al. by
Neil V.
McKittrick; for the National Council on Disability by
Robert
L. Burgdorf, Jr.; for the National Mental Health Consumers'
Self-Help Clearinghouse et al. by
Loralyn McKinley; for Dick
Thornburgh et al. by
Mr. Thornburgh, pro se, James E. Day,
and
David R. Fine; for People First of Georgia et al. by
Thomas K. Gilhool; and for the Voice of the Retarded et al.
by
William J. Burke and
Tamie Hopp.
Stephen F.
Gold filed a brief for ADAPT et al. as
amici curiae.
588
I
This case, as it comes to us, presents no constitutional
question. The complaints filed by plaintiffs-respondents L. C. and
E. W. did include such an issue; L. C. and E. W. alleged that
defendants-petitioners, Georgia health care officials, failed to
afford them minimally adequate care and freedom from undue
restraint, in violation of their rights under the Due Process
Clause of the Fourteenth Amendment. See Complaint ~~ 87-91;
Intervenor's Complaint ~~ 30-34. But neither the District Court nor
the Court of Appeals reached those Fourteenth Amendment claims. See
Civ. No. 1:95-cv-1210-MHS (ND Ga., Mar. 26,1997), pp. 5-6, 11-13,
App. to Pet. for Cert. 34a-35a, 40a-41a;
138
F.3d 893, 895, and n. 3 (CAll 1998). Instead, the courts below
resolved the case solely on statutory grounds. Our review is
similarly confined. Cf.
Cleburne v.
Cleburne Living
Center, Inc., 473
U. S. 432, 450 (1985) (Texas city's requirement of special use
permit for operation of group home for mentally retarded, when
other care and multiple-dwelling facilities were freely permitted,
lacked rational basis and therefore violated Equal Protection
Clause of Fourteenth Amendment). Mindful that it is a statute we
are construing, we set out first the legislative and regulatory
prescriptions on which the case turns.
In the opening provisions of the ADA, Congress stated findings
applicable to the statute in all its parts. Most relevant to this
case, Congress determined that
"(2) historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such
forms of discrimination against individuals with disabilities
continue to be a serious and pervasive social problem;
"(3) discrimination against individuals with disabilities
persists in such critical areas as ... institutionalization ...
;
589
"(5) individuals with disabilities continually encounter various
forms of discrimination, including outright intentional exclusion,
... failure to make modifications to existing facilities and
practices, ... [and] segregation .... " 42 U. S. C. §§ 12101(a)(2),
(3), (5).1
Congress then set forth prohibitions against discrimination in
employment (Title I, §§ 12111-12117), public services furnished by
governmental entities (Title II, §§ 12131-12165), and public
accommodations provided by private entities (Title III, §§
12181-12189). The statute as a whole is intended "to provide a
clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." §
12101(b)(1).2
This case concerns Title II, the public services portion of the
ADA.3 The provision of Title II centrally at issue reads:
"Subject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such
1 The ADA, enacted in 1990, is the Federal Government's most
recent and extensive endeavor to address discrimination against
persons with disabilities. Earlier legislative efforts included the
Rehabilitation Act of 1973, 87 Stat. 355, 29 U. S. C. § 701
et
seq. (1976 ed.), and the Developmentally Disabled Assistance
and Bill of Rights Act, 89 Stat. 486, 42 U. S. C. § 6001
et
seq. (1976 ed.), enacted in 1975. In the ADA, Congress for the
first time referred expressly to "segregation" of persons with
disabilities as a "for[m] of discrimination," and to discrimination
that persists in the area of "institutionalization." §§
12101(a)(2), (3), (5).
2 The ADA defines "disability," "with respect to an individual,"
as
"(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment." §
12102(2).
There is no dispute that L. C. and E. W. are disabled within the
meaning of the ADA.
3 In addition to the provisions set out in Part A governing
public services generally, see §§ 12131-12134, Title II contains in
Part B a host of provisions governing public transportation
services, see §§ 12141-12165.
590
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." §
201, as set forth in 42 U. S. C. § 12132.
Title II's definition section states that "public entity"
includes "any State or local government," and "any department,
agency, [or] special purpose district." §§ 12131(1)(A), (B). The
same section defines "qualified individual with a disability"
as
"an individual with a disability who, 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, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity." § 12131(2).
On redress for violations of § 12132's discrimination
prohibition, Congress referred to remedies available under § 505 of
the Rehabilitation Act of 1973, 92 Stat. 2982, 29 U. S. C. § 794a.
See § 203, as set forth in 42 U. S. C. § 12133 ("The remedies,
procedures, and rights set forth in [§ 505 of the Rehabilitation
Act] shall be the remedies, procedures, and rights this subchapter
provides to any person alleging discrimination on the basis of
disability in violation of section 12132 of this title.").4
4 Section 505 of the Rehabilitation Act incorporates the
remedies, rights, and procedures set forth in Title VI of the Civil
Rights Act of 1964 for violations of § 504 of the Rehabilitation
Act. See 29 U. S. C. § 794a(a)(2). Title VI, in turn, directs each
federal department authorized to extend financial assistance to any
department or agency of a State to issue rules and regulations
consistent with achievement of the objectives of the statute
authorizing financial assistance. See 78 Stat. 252, 42 U. S. C. §
2000d-1. Compliance with such requirements may be effected by the
termination or denial of federal funds, or "by any other means
authorized by law."
Ibid. Remedies both at law and in equity
are available for violations of the statute. See §
2000d-7(a)(2).
591
Congress instructed the Attorney General to issue regulations
implementing provisions of Title II, including § 12132's
discrimination proscription. See § 204, as set forth in § 12134(a)
("[T]he Attorney General shall promulgate regulations in an
accessible format that implement this part.").5 The Attorney
General's regulations, Congress further directed, "shall be
consistent with this chapter and with the coordination regulations
... applicable to recipients of Federal financial assistance under
[§ 504 of the Rehabilitation Act]." § 204, as set forth in 42 U. S.
C. § 12134(b). One of the § 504 regulations requires recipients of
federal funds to "administer programs and activities in the most
integrated
5 Congress directed the Secretary of Transportation to issue
regulations implementing the portion of Title II concerning public
transportation. See 42 U. S. C. §§ 12143(b), 12149, 12164. As
stated in the regulations, a person alleging discrimination on the
basis of disability in violation of Title II may seek to enforce
its provisions by commencing a private lawsuit, or by filing a
complaint with (a) a federal agency that provides funding to the
public entity that is the subject of the complaint, (b) the
Department of Justice for referral to an appropriate agency, or (c)
one of eight federal agencies responsible for investigating
complaints arising under Title II: the Department of Agriculture,
the Department of Education, the Department of Health and Human
Services, the Department of Housing and Urban Development, the
Department of the Interior, the Department of Justice, the
Department of Labor, and the Department of Transportation. See 28
CFR §§ 35.170(c), 35.172(b), 35.190(b) (1998).
The ADA contains several other provisions allocating regulatory
and enforcement responsibility. Congress instructed the Equal
Employment Opportunity Commission (EEOC) to issue regulations
implementing Title I, see 42 U. S. C. § 12116; the EEOC, the
Attorney General, and persons alleging discrimination on the basis
of disability in violation of Title I may enforce its provisions,
see § 12117(a). Congress similarly instructed the Secretary of
Transportation and the Attorney General to issue regulations
implementing provisions of Title III, see §§ 12186(a)(1), (b); the
Attorney General and persons alleging discrimination on the basis
of disability in violation of Title III may enforce its provisions,
see §§ 12188(a)(1), (b). Each federal agency responsible for ADA
implementation may render technical assistance to affected
individuals and institutions with respect to provisions of the ADA
for which the agency has responsibility. See § 12206(c)(1).
592
setting appropriate to the needs of qualified handicapped
persons." 28 CFR § 41.51(d) (1998).
As Congress instructed, the Attorney General issued Title II
regulations, see 28 CFR pt. 35 (1998), including one modeled on the
§ 504 regulation just quoted; called the "integration regulation,"
it reads:
"A public entity shall administer services, programs, and
activities in the most integrated setting appropriate to the needs
of qualified individuals with disabilities." 28 CFR § 35.130(d)
(1998).
The preamble to the Attorney General's Title II regulations
defines "the most integrated setting appropriate to the needs of
qualified individuals with disabilities" to mean "a setting that
enables individuals with disabilities to interact with non-disabled
persons to the fullest extent possible." 28 CFR pt. 35, App. A, p.
450 (1998). Another regulation requires public entities to "make
reasonable modifications" to avoid "discrimination on the basis of
disability," unless those modifications would entail a
"fundamenta[l] alter[ation]"; called here the
"reasonable-modifications regulation," it provides:
"A public entity shall make reasonable modifications in
policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the service,
program, or activity." 28 CFR § 35.130(b)(7) (1998).
We recite these regulations with the caveat that we do not here
determine their validity. While the parties differ on the proper
construction and enforcement of the regulations, we do not
understand petitioners to challenge the regulatory formulations
themselves as outside the congressional authorization. See Brief
for Petitioners 16-17, 36, 40-41;
593
Reply Brief 15-16 (challenging the Attorney General's
interpretation of the integration regulation).
II
With the key legislative provisions in full view, we summarize
the facts underlying this dispute. Respondents L. C. and E. W. are
mentally retarded women; L. C. has also been diagnosed with
schizophrenia, and E. W. with a personality disorder. Both women
have a history of treatment in institutional settings. In May 1992,
L. C. was voluntarily admitted to Georgia Regional Hospital at
Atlanta (GRH), where she was confined for treatment in a
psychiatric unit. By May 1993, her psychiatric condition had
stabilized, and L. C.'s treatment team at GRH agreed that her needs
could be met appropriately in one of the community-based programs
the State supported. Despite this evaluation, L. C. remained
institutionalized until February 1996, when the State placed her in
a community-based treatment program.
E. W. was voluntarily admitted to GRH in February 1995; like L.
C., E. W. was confined for treatment in a psychiatric unit.
In March 1995, GRH sought to discharge E. W. to a homeless shelter,
but abandoned that plan after her attorney filed an administrative
complaint. By 1996, E. W.'s treating psychiatrist concluded that
she could be treated appropriately in a community-based setting.
She nonetheless remained institutionalized until a few months after
the District Court issued its judgment in this case in 1997.
In May 1995, when she was still institutionalized at GRH, L. C.
filed suit in the United States District Court for the Northern
District of Georgia, challenging her continued confinement in a
segregated environment. Her complaint invoked 42 U. S. C. § 1983
and provisions of the ADA, §§ 12131-12134, and named as defendants,
now petitioners, the Commissioner of the Georgia Department of
Human Resources, the Superintendent of GRH, and the Executive
Director of the Fulton County Regional Board (collectively,
594
the State). L. C. alleged that the State's failure to place her
in a community-based program, once her treating professionals
determined that such placement was appropriate, violated,
inter
alia, Title II of the ADA. L. C.'s pleading requested, among
other things, that the State place her in a community care
residential program, and that she receive treatment with the
ultimate goal of integrating her into the mainstream of society. E.
W. intervened in the action, stating an identical claim.6
The District Court granted partial summary judgment in favor of
L. C. and E. W. See App. to Pet. for Cert. 31a-42a. The court held
that the State's failure to place L. C. and E. W. in an appropriate
community-based treatment program violated Title II of the ADA. See
id., at 39a, 41a. In so ruling, the court rejected the
State's argument that inadequate funding, not discrimination
against L. C. and E. W. "by reason of" their disabilities,
accounted for their retention at GRH. Under Title II, the court
concluded, "unnecessary institutional segregation of the disabled
constitutes discrimination
per se, which cannot be justified
by a lack of funding."
Id., at 37a.
In addition to contending that L. C. and E. W. had not shown
discrimination "by reason of [their] disabilit[ies]," the State
resisted court intervention on the ground that requiring immediate
transfers in cases of this order would "fundamentally alter" the
State's activity. The State reasserted that it was already using
all available funds to provide services to other persons with
disabilities. See
id., at 38a. Re-
6 L. C. and E. W. are currently receiving treatment in
community-based programs. Nevertheless, the case is not moot. As
the District Court and Court of Appeals explained, in view of the
multiple institutional placements L. C. and E. W. have experienced,
the controversy they brought to court is "capable of repetition,
yet evading review." No. 1:95-cv-1210MHS (ND Ga., Mar. 26, 1997),
p. 6, App. to Pet. for Cert. 35a (internal quotation marks
omitted); see
138 F.3d
893, 895, n. 2 (CAll 1998) (citing
Honig v.
Doe,
484 U. S. 305,
318-323 (1988), and
Vitek v.
Jones, 445 U. S. 480, 486-487
(1980)).
595
jecting the State's "fundamental alteration" defense, the court
observed that existing state programs provided community-based
treatment of the kind for which L. C. and E. W. qualified, and that
the State could "provide services to plaintiffs in the community at
considerably
less cost than is required to maintain them in
an institution."
Id., at 39a.
The Court of Appeals for the Eleventh Circuit affirmed the
judgment of the District Court, but remanded for reassessment of
the State's cost-based defense. See 138 F. 3d, at 905. As the
appeals court read the statute and regulations:
When "a disabled individual's treating professionals find that a
community-based placement is appropriate for that individual, the
ADA imposes a duty to provide treatment in a community setting-the
most integrated setting appropriate to that patient's needs";
"[w]here there is no such finding [by the treating professionals],
nothing in the ADA requires the deinstitutionalization of thee]
patient."
Id., at 902.
The Court of Appeals recognized that the State's duty to provide
integrated services "is not absolute"; under the Attorney General's
Title II regulation, "reasonable modifications" were required of
the State, but fundamental alterations were not demanded.
I
d., at 904. The appeals court thought it clear, however, that
"Congress wanted to permit a cost defense only in the most limited
of circumstances."
Id., at 902. In conclusion, the court
stated that a cost justification would fail "[u]nless the State can
prove that requiring it to [expend additional funds in order to
provide L. C. and E. W. with integrated services] would be so
unreasonable given the demands of the State's mental health budget
that it would fundamentally alter the service [the State]
provides."
Id., at 905. Because it appeared that the
District Court had entirely ruled out a "lack of funding"
justification, see App. to Pet. for Cert. 37a, the appeals court
remanded, repeating that the District Court should consider, among
other things, "whether the additional expenditures necessary to
treat L. C. and E. W. in community-based care would be
unreason-
596
able given the demands of the State's mental health budget." 138
F. 3d, at 905.7
We granted certiorari in view of the importance of the question
presented to the States and affected individuals. See 525 U. S.
1054 (1998).8
III
Endeavoring to carry out Congress' instruction to issue
regulations implementing Title II, the Attorney General, in the
integration and reasonable-modifications regulations, see
supra, at 591-592, made two key determinations. The first
concerned the scope of the ADA's discrimination proscription, 42 U.
S. C. § 12132; the second concerned the obligation of the States to
counter discrimination. As to the first, the Attorney General
concluded that unjustified placement or retention of persons in
institutions, severely limiting their exposure to the outside
community, constitutes a form of discrimination based on disability
prohibited by Title II. See 28 CFR § 35.130(d) (1998) ("A public
entity shall administer services ... in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities."); Brief for United States as
Amicus Curiae in
Helen L. v.
DiDario, No. 94-1243
(CA3 1994),
pp. 8, 15-16 (unnecessary segregation of persons with disabilities
constitutes a form of discrimination prohibited by the ADA and the
integration
7 After this Court granted certiorari, the District Court issued
a decision on remand rejecting the State's fundamental-alteration
defense. See 1:95-cv-1210-MHS (ND Ga., Jan. 29,1999), p. 1. The
court concluded that the annual cost to the State of providing
community-based treatment to L. C. and E. W. was not unreasonable
in relation to the State's overall mental health budget. See
id., at 5. In reaching that judgment, the District Court
first declared "irrelevant" the potential impact of its decision
beyond L. C. and E. W. 1:95-cv-121O-MHS (ND Ga., Oct. 20, 1998), p.
3, App. 177. The District Court's decision on remand is now pending
appeal before the Eleventh Circuit.
8Twenty-two States and the Territory of Guam joined a brief
urging that certiorari be granted. Ten of those States joined a
brief in support of petitioners on the merits.
597
regulation). Regarding the States' obligation to avoid
unjustified isolation of individuals with disabilities, the
Attorney General provided that States could resist modifications
that "would fundamentally alter the nature of the service, program,
or activity." 28 CFR § 35.130(b)(7) (1998).
The Court of Appeals essentially upheld the Attorney General's
construction of the ADA. As just recounted, see
supra, at
595-596, the appeals court ruled that the unjustified
institutionalization of persons with mental disabilities violated
Title II; the court then remanded with instructions to measure the
cost of caring for L. C. and E. W. in a community-based facility
against the State's mental health budget.
We affirm the Court of Appeals' decision in substantial part.
Unjustified isolation, we hold, is properly regarded as
discrimination based on disability. But we recognize, as well, the
States' need to maintain a range of facilities for the care and
treatment of persons with diverse mental disabilities, and the
States' obligation to administer services with an even hand.
Accordingly, we further hold that the Court of Appeals' remand
instruction was unduly restrictive. In evaluating a State's
fundamental-alteration defense, the District Court must consider,
in view of the resources available to the State, not only the cost
of providing community-based care to the litigants, but also the
range of services the State provides others with mental
disabilities, and the State's obligation to mete out those services
equitably.
A
We examine first whether, as the Eleventh Circuit held, undue
institutionalization qualifies as discrimination "by reason of ...
disability." The Department of Justice has consistently advocated
that it does.9 Because the Department
9 See Brief for United States in
Halderman v.
Pennhurst State School and Hospital, Nos.
78-1490,78-1564,78-1602
(CA3 1978), p. 45
("[I]nstitutionalization result[ing] in separation of mentally
retarded persons for no
598
is the agency directed by Congress to issue regulations
implementing Title II, see
supra, at 591-592, its views
warrant respect. We need not inquire whether the degree of
deference described in
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 844
(1984), is in order; "[i]t is enough to observe that the
well-reasoned views of the agencies implementing a statute
'constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance.'"
Bragdon v.
Abbott, 524 U. S. 624, 642 (1998) (quoting
Skidmore v.
Swift &
Co., 323 U. S. 134, 139-140
(1944)).
The State argues that L. C. and E. W. encountered no
discrimination "by reason of" their disabilities because they were
not denied community placement on account of those disabilities.
See Brief for Petitioners 20. Nor were they subjected to
"discrimination," the State contends, because "'discrimination'
necessarily requires uneven treatment of similarly situated
individuals," and L. C. and E. W. had identified no comparison
class, i.
e., no similarly situated individuals given
preferential treatment.
Id., at 21. We are satisfied that
Congress had a more comprehensive view of the concept of
discrimination advanced in the ADA.lO
permissible reason ... is 'discrimination,' and a violation of
Section 504 [of the Rehabilitation Act] if it is supported by
federal funds."); Brief for United States in
Halderman v.
Pennhurst State School and Hospital, Nos. 78-1490, 78-1564,
78-1602
(CA3 1981), p. 27 ("Pennsylvania violates Section
504 by indiscriminately subjecting handicapped persons to [an
institution] without first making an individual reasoned
professional judgment as to the appropriate placement for each such
person among all available alternatives."); Brief for United States
as
Amicus Curiae in
Helen L. v.
DiDario, No.
94-1243
(CA3 1994), p. 7 ("Both the Section 504 coordination
regulations and the rest of the ADA make clear that the unnecessary
segregation of individuals with disabilities in the provision of
public services is itself a form of discrimination within the
meaning of those statutes.");
id., at 8-16.
10 The dissent is driven by the notion that "this Court has
never endorsed an interpretation of the term 'discrimination' that
encompassed disparate treatment among members of the
same
protected class,"
post, at 616 (opinion of THOMAS, J.), that
"[o]ur decisions construing various
599
The ADA stepped up earlier measures to secure opportunities for
people with developmental disabilities to enjoy the benefits of
community living. The Developmentally Disabled Assistance and Bill
of Rights Act, a 1975 measure, stated in aspirational terms that
"[t]he treatment, services, and habilitation for a person with
developmental disabilities ...
should be provided in the
setting that is least restrictive of the person's personal
liberty." 89 Stat. 502, 42 U. S. C. § 6010(2) (1976 ed.) (emphasis
added); see also
Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1, 24 (1981) (concluding that the §
6010 provisions "were intended to be hortatory, not mandatory"). In
a related legislative endeavor, the Rehabilitation Act of 1973,
Congress used mandatory language to proscribe discrimination
against persons with disabilities. See 87 Stat. 394, as amended, 29
U. S. C. § 794 (1976 ed.) ("No otherwise qualified individual with
a disability in the United States ...
shall, solely by
reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal fi-
statutory prohibitions against 'discrimination' have not wavered
from this path,"
post, at 616, and that "a plaintiff cannot
prove 'discrimination' by demonstrating that one member of a
particular protected group has been favored over another member of
that same group,"
post, at 618. The dissent is incorrect as
a matter of precedent and logic. See
O'Connor v.
Consolidated Coin Caterers Corp., 517 U. S. 308,312 (1996)
(The Age Discrimination in Employment Act of 1967 "does not ban
discrimination against employees because they are aged 40 or older;
it bans discrimination against employees because of their age, but
limits the protected class to those who are 40 or older. The fact
that one person in the protected class has lost out to another
person in the protected class is thus irrelevant, so long as he has
lost out
because of his age."); cf.
Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75, 76 (1998)
("[W]orkplace harassment can violate Title VII's prohibition
against 'discriminat[ion] ... because of ... sex,' 42 U. S. C. §
2000e-2(a)(1), when the harasser and the harassed employee are of
the same sex.");
Jefferies v.
Harris County Community
Action Assn., 615 F.2d
1025, 1032
(CA5 1980) ("[D]iscrimination against black
females can exist even in the absence of discrimination against
black men or white women.").
600
nancial assistance." (Emphasis added.)) Ultimately, in the ADA,
enacted in 1990, Congress not only required all public entities to
refrain from discrimination, see 42 U. S. C. § 12132; additionally,
in findings applicable to the entire statute, Congress explicitly
identified unjustified "segregation" of persons with disabilities
as a "for[m] of discrimination." See § 12101(a)(2) ("historically,
society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to be
a serious and pervasive social problem"); § 12101(a)(5)
("individuals with disabilities continually encounter various forms
of discrimination, including ... segregation").l1
Recognition that unjustified institutional isolation of persons
with disabilities is a form of discrimination reflects two evident
judgments. First, institutional placement of persons who can handle
and benefit from community settings perpetuates unwarranted
assumptions that persons so isolated are incapable or unworthy of
participating in community life. Cf.
Allen v.
Wright,
468 U. S. 737,
755 (1984) ("There can be no doubt that [stigmatizing injury often
caused by racial discrimination] is one of the most serious
consequences of discriminatory government action.");
Los Angeles
Dept. of Water and Power v.
Manhart, 435 U. S. 702, 707, n. 13
(1978) (" 'In forbidding employers to discriminate against
individuals because of their sex, Congress intended to strike at
the entire spectrum of disparate treatment of men and women
resulting from sex stereotypes.'" (quoting
Sprogis v.
United Air Lines, Inc., 444 F.2d
1194, 1198
(CA7
11 Unlike the ADA, § 504 of the Rehabilitation Act contains no
express recognition that isolation or segregation of persons with
disabilities is a form of discrimination. Section 504's
discrimination proscription, a single sentence attached to
vocational rehabilitation legislation, has yielded divergent court
interpretations. See Brief for United States as
Amicus
Curiae 23-25.
601
1971)). Second, confinement in an institution severely
diminishes the everyday life activities of individuals, including
family relations, social contacts, work options, economic
independence, educational advancement, and cultural enrichment. See
Brief for American Psychiatric Association et al. as
Amici
Curiae 20-22. Dissimilar treatment correspondingly exists in
this key respect: In order to receive needed medical services,
persons with mental disabilities must, because of those
disabilities, relinquish participation in community life they could
enjoy given reasonable accommodations, while persons without mental
disabilities can receive the medical services they need without
similar sacrifice. See Brief for United States as
Amicus
Curiae 6-7, 17.
The State urges that, whatever Congress may have stated as its
findings in the ADA, the Medicaid statute "reflected a
congressional policy preference for treatment in the institution
over treatment in the community." Brief for Petitioners 31. The
State correctly used the past tense. Since 1981, Medicaid has
provided funding for state-run home and community-based care
through a waiver program. See 95 Stat. 812-813, as amended, 42 U.
S. C. § 1396n(c); Brief for United States as
Amicus Curiae
20-21.12 Indeed, the United States points out that the Department
of Health and Human Services (HHS) "has a policy of encouraging
States to take advantage of the waiver program, and often approves
more waiver slots than a State ultimately uses."
Id., at
25-26 (further observing that, by 1996, "HHS approved up to 2109
waiver slots for Georgia, but Georgia used only 700").
We emphasize that nothing in the ADA or its implementing
regulations condones termination of institutional settings for
persons unable to handle or benefit from community
12 The waiver program provides Medicaid reimbursement to States
for the provision of community-based services to individuals who
would otherwise require institutional care, upon a showing that the
average annual cost of such services is not more than the annual
cost of institutional services. See § 1396n(c).
602
settings. Title II provides only that "qualified individual[s]
with a disability" may not "be subjected to discrimination." 42 U.
S. C. § 12132. "Qualified individuals," the ADA further explains,
are persons with disabilities who, "with or without reasonable
modifications to rules, policies, or practices, ... 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).
Consistent with these provisions, the State generally may rely
on the reasonable assessments of its own professionals in
determining whether an individual "meets the essential eligibility
requirements" for habilitation in a communitybased program. Absent
such qualification, it would be inappropriate to remove a patient
from the more restrictive setting. See 28 CFR § 35.130(d) (1998)
(public entity shall administer services and programs in "the most
integrated setting
appropriate to the needs of qualified
individuals with disabilities" (emphasis added)); cf.
School Bd.
of Nassau Cty. v.
Arline, 480 U. S. 273, 288 (1987)
("[C]ourts normally should defer to the reasonable medical
judgments of public health officials.")Y Nor is there any federal
requirement that community-based treatment be imposed on patients
who do not desire it. See 28 CFR § 35.130(e)(1) (1998) ("Nothing in
this part shall be construed to require an individual with a
disability to accept an accommodation ... which such individual
chooses not to accept."); 28 CFR pt. 35, App. A, p. 450 (1998)
("[P]ersons with disabilities must be provided the option of
declining to accept a particular accommodation."). In this case,
however, there is no genuine dispute concerning the status of L. C.
and E. W. as individuals "quali-
13 Georgia law also expresses a preference for treatment in the
most integrated setting appropriate. See Ga. Code Ann. § 37-4-121
(1995) ("It is the policy of the state that the least restrictive
alternative placement be secured for every client at every stage of
his habilitation. It shall be the duty of the facility to assist
the client in securing placement in noninstitutional community
facilities and programs.").
603
fied" for noninstitutional care: The State's own professionals
determined that community-based treatment would be appropriate for
L. C. and E. W., and neither woman opposed such treatment. See
supra, at 593.14
B
The State's responsibility, once it provides communitybased
treatment to qualified persons with disabilities, is not boundless.
The reasonable-modifications regulation speaks of "reasonable
modifications" to avoid discrimination, and allows States to resist
modifications that entail a "fund amenta[l] alter[ation]" of the
States' services and programs. 28 CFR § 35.130(b)(7) (1998). The
Court of Appeals construed this regulation to permit a cost-based
defense "only in the most limited of circumstances," 138 F. 3d, at
902, and remanded to the District Court to consider, among other
things, "whether the additional expenditures necessary to treat L.
C. and E. W. in community-based care would be unreasonable given
the demands of the State's mental health budget,"
id., at
905.
The Court of Appeals' construction of the
reasonablemodifications regulation is unacceptable for it would
leave the State virtually defenseless once it is shown that the
plaintiff is qualified for the service or program she seeks. If the
expense entailed in placing one or two people in a communitybased
treatment program is properly measured for reasonableness against
the State's entire mental health budget, it is unlikely that a
State, relying on the fundamental-alteration defense, could ever
prevail. See Tr. of Oral Arg. 27 (State's attorney argues that
Court of Appeals' understanding of the
14 We do not in this opinion hold that the ADA imposes on the
States a "standard of care" for whatever medical services they
render, or that the ADA requires States to "provide a certain level
of benefits to individuals with disabilities." Cf.
post, at
623, 624 (THOMAS, J., dissenting). We do hold, however, that States
must adhere to the ADA's nondiscrimination requirement with regard
to the services they in fact provide.
604
Opinion of GINSBURG, J.
fundamental-alteration defense, as expressed in its order to the
District Court, "will always preclude the State from a meaningful
defense"); cf. Brief for Petitioners 37-38 (Court of Appeals'
remand order "mistakenly asks the district court to examine [the
fundamental-alteration] defense based on the cost of providing
community care to just two individuals, not all Georgia citizens
who desire community care"); 1:95cv-1210-MHS (ND Ga., Oct. 20,
1998), p. 3, App. 177 (District Court, on remand, declares the
impact of its decision beyond L. C. and E. W. "irrelevant").
Sensibly construed, the fundamental-alteration component of the
reasonablemodifications regulation would allow the State to show
that, in the allocation of available resources, immediate relief
for the plaintiffs would be inequitable, given the responsibility
the State has undertaken for the care and treatment of a large and
diverse population of persons with mental disabilities.
When it granted summary judgment for plaintiffs in this case,
the District Court compared the cost of caring for the plaintiffs
in a community-based setting with the cost of caring for them in an
institution. That simple comparison showed that community
placements cost less than institutional confinements. See App. to
Pet. for Cert. 39a. As the United States recognizes, however, a
comparison so simple overlooks costs the State cannot avoid; most
notably, a "State ... may experience increased overall expenses by
funding community placements without being able to take advantage
of the savings associated with the closure of institutions." Brief
for United States as
Amicus Curiae 21.15
As already observed, see
supra, at 601-602, the ADA is
not reasonably read to impel States to phase out institutions,
placing patients in need of close care at risk. Cf.
post,
at
15 Even if States eventually were able to close some
institutions in response to an increase in the number of community
placements, the States would still incur the cost of running
partially full institutions in the interim. See Brief for United
States as
Amicus Curiae 21.
605
610 (KENNEDY, J., concurring in judgment). Nor is it the ADA's
mission to drive States to move institutionalized patients into an
inappropriate setting, such as a homeless shelter, a placement the
State proposed, then retracted, for E. W. See
supra, at 593.
Some individuals, like L. C. and E. W. in prior years, may need
institutional care from time to time "to stabilize acute
psychiatric symptoms." App. 98 (affidavit of Dr. Richard L.
Elliott); see 138 F. 3d, at 903 ("[T]here may be times [when] a
patient can be treated in the community, and others whe[n] an
institutional placement is necessary."); Reply Brief 19 (placement
in a communitybased treatment program does not mean the State will
no longer need to retain hospital accommodations for the person so
placed). For other individuals, no placement outside the
institution may ever be appropriate. See Brief for American
Psychiatric Association et al. as
Amici Curiae 22-23 ("Some
individuals, whether mentally retarded or mentally ill, are not
prepared at particular times-perhaps in the short run, perhaps in
the long run-for the risks and exposure of the less protective
environment of community settings"; for these persons,
"institutional settings are needed and must remain available.");
Brief for Voice of the Retarded et al. as
Amici Curiae 11
("Each disabled person is entitled to treatment in the most
integrated setting possible for that person-recognizing that, on a
case-by-case basis, that setting may be in an institution.");
Youngberg v.
Romeo, 457 U. S. 307, 327 (1982)
(Blackmun, J., concurring) ("For many mentally retarded people, the
difference between the capacity to do things for themselves within
an institution and total dependence on the institution for all of
their needs is as much liberty as they ever will know.").
To maintain a range of facilities and to administer services
with an even hand, the State must have more leeway than the courts
below understood the fundamental-alteration defense to allow. If,
for example, the State were to demonstrate that it had a
comprehensive, effectively working plan
606
Opinion of GINSBURG, J.
for placing qualified persons with mental disabilities in less
restrictive settings, and a waiting list that moved at a reasonable
pace not controlled by the State's endeavors to keep its
institutions fully populated, the reasonable-modifications standard
would be met. See Tr. of Oral Arg. 5 (State's attorney urges that,
"by asking [a] person to wait a short time until a community bed is
available, Georgia does not exclude [that] person by reason of
disability, neither does Georgia discriminate against her by reason
of disability"); see also
id., at 25 ("[I]t is reasonable
for the State to ask someone to wait until a community placement is
available."). In such circumstances, a court would have no warrant
effectively to order displacement of persons at the top of the
communitybased treatment waiting list by individuals lower down who
commenced civil actions.16
16We reject the Court of Appeals' construction of the
reasonablemodifications regulation for another reason. The Attorney
General's Title II regulations, Congress ordered, "shall be
consistent with" the regulations in part 41 of Title 28 of the Code
of Federal Regulations implementing § 504 of the Rehabilitation
Act. 42 U. S. C. § 12134(b). The § 504 regulation upon which the
reasonable-modifications regulation is based provides now, as it
did at the time the ADA was enacted:
"A recipient shall make reasonable accommodation to the known
physicalor mental limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of
its program." 28 CFR § 41.53 (1990 and 1998 eds.).
While the part 41 regulations do not define "undue hardship,"
other § 504 regulations make clear that the "undue hardship"
inquiry requires not simply an assessment of the cost of the
accommodation in relation to the recipient's overall budget, but a
"case-by-case analysis weighing factors that include: (1) [t]he
overall size of the recipient's program with respect to number of
employees, number and type of facilities, and size of budget; (2)
[t]he type of the recipient's operation, including the composition
and structure of the recipient's workforce; and (3) [t]he nature
and cost of the accommodation needed." 28 CFR § 42.511 (c) (1998);
see 45 CFR § 84.12(c) (1998) (same).
Under the Court of Appeals' restrictive reading, the
reasonablemodifications regulation would impose a standard
substantially more
607
***
For the reasons stated, we conclude that, under Title II of the
ADA, States are required to provide communitybased treatment for
persons with mental disabilities when the State's treatment
professionals determine that such placement is appropriate, the
affected persons do not oppose such treatment, and the placement
can be reasonably accommodated, taking into account the resources
available to the State and the needs of others with mental
disabilities. The judgment of the Eleventh Circuit is therefore
affirmed in part and vacated in part, and the case is remanded for
further proceedings.
It is so ordered.
JUSTICE STEVENS, concurring in part and concurring in the
judgment.
Unjustified disparate treatment, in this case, "unjustified
institutional isolation," constitutes discrimination under the
Americans with Disabilities Act of 1990. See
ante, at 600.
If a plaintiff requests relief that requires modification of a
State's services or programs, the State may assert, as an
affirmative defense, that the requested modification would cause a
fundamental alteration of a State's services and programs. In this
case, the Court of Appeals appropriately remanded for consideration
of the State's affirmative defense. On remand, the District Court
rejected the State's "fundamental-alteration defense." See
ante, at 596, n. 7. If the District Court was wrong in
concluding that costs unrelated to the treatment of L. C. and E. W.
do not support such a defense in this case, that arguable error
should be corrected either by the Court of Appeals or by this Court
in review of that decision. In my opinion, therefore, we should
simply affirm the judgment of the Court of Appeals.
difficult for the State to meet than the "undue burden" standard
imposed by the corresponding § 504 regulation.
608
KENNEDY, J., concurring in judgment
But because there are not five votes for that disposition, I
join the Court's judgment and Parts I, II, and III-A of its
opinion. Cf.
Bragdon v.
Abbott, 524 U. S. 624, 655-656
(1998) (STEVENS, J., concurring);
Screws v.
United
States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in
result).
JUSTICE KENNEDY, with whom JUSTICE BREYER joins as to Part I,
concurring in the judgment.
I
Despite remarkable advances and achievements by medical science,
and agreement among many professionals that even severe mental
illness is often treatable, the extent of public resources to
devote to this cause remains controversial. Knowledgeable
professionals tell us that our society, and the governments which
reflect its attitudes and preferences, have yet to grasp the
potential for treating mental disorders, especially severe mental
illness. As a result, necessary resources for the endeavor often
are not forthcoming. During the course of a year, about 5.6 million
Americans will suffer from severe mental illness. E. Torrey, Out of
the Shadows 4 (1997). Some 2.2 million of these persons receive no
treatment.
Id., at 6. Millions of other Americans suffer
from mental disabilities of less serious degree, such as mild
depression. These facts are part of the background against which
this case arises. In addition, of course, persons with mental
disabilities have been subject to historic mistreatment,
indifference, and hostility. See,
e. g.,
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 461464
(1985) (Marshall, J., concurring in judgment in part and dissenting
in part) (discussing treatment of the mentally retarded).
Despite these obstacles, the States have acknowledged that the
care of the mentally disabled is their special obligation. They
operate and support facilities and programs, sometimes elaborate
ones, to provide care. It is a continu-
609
ing challenge, though, to provide the care in an effective and
humane way, particularly because societal attitudes and the
responses of public authorities have changed from time to time.
Beginning in the 1950's, many victims of severe mental illness
were moved out of state-run hospitals, often with benign
objectives. According to one estimate, when adjusted for population
growth, "the actual decrease in the numbers of people with severe
mental illnesses in public psychiatric hospitals between 1955 and
1994 was 92 percent." Brief for American Psychiatric Association et
al. as
Amici Curiae 21, n. 5 (citing Torrey,
supra,
at 8-9). This was not without benefit or justification. The
so-called "deinstitutionalization" has permitted a substantial
number of mentally disabled persons to receive needed treatment
with greater freedom and dignity. It may be, moreover, that those
who remain institutionalized are indeed the most severe cases. With
reference to this case, as the Court points out,
ante, at
593, 603, it is undisputed that the State's own treating
professionals determined that community-based care was medically
appropriate for respondents. N evertheless, the depopulation of
state mental hospitals has its dark side. According to one
expert:
"For a substantial minority ... deinstitutionalization has been
a psychiatric Titanic. Their lives are virtually devoid of
'dignity' or 'integrity of body, mind, and spirit.'
'Self-determination' often means merely that the person has a
choice of soup kitchens. The 'least restrictive setting' frequently
turns out to be a cardboard box, a jail cell, or a terror-filled
existence plagued by both real and imaginary enemies." Torrey,
supra, at 11.
It must be remembered that for the person with severe mental
illness who has no treatment the most dreaded of confinements can
be the imprisonment inflicted by his own mind,
610
KENNEDY, J., concurring in judgment
which shuts reality out and subjects him to the torment of
voices and images beyond our own powers to describe.
It would be unreasonable, it would be a tragic event, then, were
the Americans with Disabilities Act of 1990 (ADA) to be interpreted
so that States had some incentive, for fear of litigation, to drive
those in need of medical care and treatment out of appropriate care
and into settings with too little assistance and supervision. The
opinion of a responsible treating physician in determining the
appropriate conditions for treatment ought to be given the greatest
of deference. It is a common phenomenon that a patient functions
well with medication, yet, because of the mental illness itself,
lacks the discipline or capacity to follow the regime the
medication requires. This is illustrative of the factors a
responsible physician will consider in recommending the appropriate
setting or facility for treatment. JUSTICE GINSBURG'S opinion takes
account of this background. It is careful, and quite correct, to
say that it is not "the ADA's mission to drive States to move
institutionalized patients into an inappropriate setting, such as a
homeless shelter .... "
Ante, at 605.
In light of these concerns, if the principle of liability
announced by the Court is not applied with caution and
circumspection, States may be pressured into attempting compliance
on the cheap, placing marginal patients into integrated settings
devoid of the services and attention necessary for their condition.
This danger is in addition to the federalism costs inherent in
referring state decisions regarding the administration of treatment
programs and the allocation of resources to the reviewing authority
of the federal courts. It is of central importance, then, that
courts apply today's decision with great deference to the medical
decisions of the responsible, treating physicians and, as the Court
makes clear, with appropriate deference to the program funding
decisions of state policymakers.
611
II
With these reservations made explicit, in my view we must remand
the case for a determination of the questions the Court poses and
for a determination whether respondents can show a violation of 42
U. S. C. § 12132's ban on discrimination based on the summary
judgment materials on file or any further pleadings and materials
properly allowed.
At the outset it should be noted there is no allegation that
Georgia officials acted on the basis of animus or unfair
stereotypes regarding the disabled. Underlying much discrimination
law is the notion that animus can lead to false and unjustified
stereotypes, and vice versa. Of course, the line between animus and
stereotype is often indistinct, and it is not always necessary to
distinguish between them. Section 12132 can be understood to deem
as irrational, and so to prohibit, distinctions by which a class of
disabled persons, or some within that class, are, by reason of
their disability and without adequate justification, exposed by a
state entity to more onerous treatment than a comparison group in
the provision of services or the administration of existing
programs, or indeed entirely excluded from state programs or
facilities. Discrimination under this statute might in principle be
shown in the case before us, though further proceedings should be
required.
Putting aside issues of animus or unfair stereotype, I agree
with JUSTICE THOMAS that on the ordinary interpretation and meaning
of the term, one who alleges discrimination must show that she
"received differential treatment vis-a-vis members of a different
group on the basis of a statutorily described characteristic."
Post, at 616 (dissenting opinion). In my view, however,
discrimination so defined might be shown here. Although the Court
seems to reject JUSTICE THOMAS' definition of discrimination,
ante, at 598, it asserts that unnecessary institutional care
does lead to "[d]issimilar treatment,"
ante, at 601.
According to the Court, "[i]n order to receive needed medical
services, persons with mental dis-
612
KENNEDY, J., concurring in judgment
abilities must, because of those disabilities, relinquish
participation in community life they could enjoy given reasonable
accommodations, while persons without mental disabilities can
receive the medical services they need without similar sacrifice."
Ibid.
Although this point is not discussed at length by the Court, it
does serve to suggest the theory under which respondents might be
subject to discrimination in violation of § 12132. If they could
show that persons needing psychiatric or other medical services to
treat a mental disability are subject to a more onerous condition
than are persons eligible for other existing state medical
services, and if removal of the condition would not be a
fundamental alteration of a program or require the creation of a
new one, then the beginnings of a discrimination case would be
established. In terms more specific to this case, if respondents
could show that Georgia (i) provides treatment to individuals
suffering from medical problems of comparable seriousness, (ii) as
a general matter, does so in the most integrated setting
appropriate for the treatment of those problems (taking medical and
other practical considerations into account), but (iii) without
adequate justification, fails to do so for a group of mentally
disabled persons (treating them instead in separate, locked
institutional facilities), I believe it would demonstrate
discrimination on the basis of mental disability.
Of course, it is a quite different matter to say that a State
without a program in place is required to create one. No State has
unlimited resources, and each must make hard decisions on how much
to allocate to treatment of diseases and disabilities. If, for
example, funds for care and treatment of the mentally ill,
including the severely mentally ill, are reduced in order to
support programs directed to the treatment and care of other
disabilities, the decision may be unfortunate. The judgment,
however, is a political one and not within the reach of the
statute. Grave constitutional concerns are raised when a federal
court is given the author-
613
ity to review the State's choices in basic matters such as
establishing or declining to establish new programs. It is not
reasonable to read the ADA to permit court intervention in these
decisions. In addition, as the Court notes,
ante, at 592, by
regulation a public entity is required only to make "reasonable
modifications in policies, practices, or procedures" when necessary
to avoid discrimination and is not even required to make those if
"the modifications would fundamentally alter the nature of the
service, program, or activity." 28 CFR § 35.130(b)(7) (1998). It
follows that a State may not be forced to create a
community-treatment program where none exists. See Brief for United
States as
Amicus Curiae 19-20, and n. 3. Whether a different
statutory scheme would exceed constitutional limits need not be
addressed.
Discrimination, of course, tends to be an expansive concept and,
as legal category, it must be applied with care and prudence. On
any reasonable reading of the statute, § 12132 cannot cover all
types of differential treatment of disabled and nondisabled
persons, no matter how minimal or innocuous. To establish
discrimination in the context of this case, and absent a showing of
policies motivated by improper animus or stereotypes, it would be
necessary to show that a comparable or similarly situated group
received differential treatment. Regulations are an important tool
in identifying the kinds of contexts, policies, and practices that
raise concerns under the ADA. The congressional findings in 42 U.
S. C. § 12101 also serve as a useful aid for courts to discern the
sorts of discrimination with which Congress was concerned. Indeed,
those findings have clear bearing on the issues raised in this
case, and support the conclusion that unnecessary
institutionalization may be the evidence or the result of the
discrimination the ADA prohibits.
Unlike JUSTICE THOMAS, I deem it relevant and instructive that
Congress in express terms identified the "isolat[ion] and
segregat[ion]" of disabled persons by society as a "for[m]
614
KENNEDY, J., concurring in judgment
of discrimination," §§ 12101(a)(2), (5), and noted that
discrimination against the disabled "persists in such critical
areas as ... institutionalization," § 12101(a)(3). These findings
do not show that segregation and institutionalization are always
discriminatory or that segregation or institutionalization are, by
their nature, forms of prohibited discrimination. Nor do they
necessitate a regime in which individual treatment plans are
required, as distinguished from broad and reasonable
classifications for the provision of health care services. Instead,
they underscore Congress' concern that discrimination has been a
frequent and pervasive problem in institutional settings and
policies and its concern that segregating disabled persons from
others can be discriminatory. Both of those concerns are consistent
with the normal definition of discrimination-differential treatment
of similarly situated groups. The findings inform application of
that definition in specific cases, but absent guidance to the
contrary, there is no reason to think they displace it. The issue
whether respondents have been discriminated against under § 12132
by institutionalized treatment cannot be decided in the abstract,
divorced from the facts surrounding treatment programs in their
State.
The possibility therefore remains that, on the facts of this
case, respondents would be able to support a claim under § 12132 by
showing that they have been subject to discrimination by Georgia
officials on the basis of their disability. This inquiry would not
be simple. Comparisons of different medical conditions and the
corresponding treatment regimens might be difficult, as would be
assessments of the degree of integration of various settings in
which medical treatment is offered. For example, the evidence might
show that, apart from services for the mentally disabled, medical
treatment is rarely offered in a community setting but also is
rarely offered in facilities comparable to state mental hospitals.
Determining the relevance of that type of evidence would require
considerable judgment and anal-
615
ysis. However, as petitioners observe, "[i]n this case, no class
of similarly situated individuals was even identified, let alone
shown to be given preferential treatment." Brief for Petitioners
21. Without additional information regarding the details of
state-provided medical services in Georgia, we cannot address the
issue in the way the statute demands. As a consequence, the
judgment of the courts below, granting partial summary judgment to
respondents, ought not to be sustained. In addition, as JUSTICE
GINSBURG'S opinion is careful to note,
ante, at 604, it was
error in the earlier proceedings to restrict the relevance and
force of the State's evidence regarding the comparative costs of
treatment. The State is entitled to wide discretion in adopting its
own systems of cost analysis, and, if it chooses, to allocate
health care resources based on fixed and overhead costs for whole
institutions and programs. We must be cautious when we seek to
infer specific rules limiting States' choices when Congress has
used only general language in the controlling statute.
I would remand the case to the Court of Appeals or the District
Court for it to determine in the first instance whether a statutory
violation is sufficiently alleged and supported in respondents'
summary judgment materials and, if not, whether they should be
given leave to replead and to introduce evidence and argument along
the lines suggested above.
For these reasons, I concur in the judgment of the Court.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.
Title II of the Americans with Disabilities Act of 1990 (ADA),
104 Stat. 337, as set forth in 42 U. S. C. § 12132, provides:
"Subject to the provisions of this subchapter, 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
616
of a public entity, or be subjected to discrimination by
any such entity." (Emphasis added.)
The majority concludes that petitioners "discriminated" against
respondents-as a matter of law-by continuing to treat them in an
institutional setting after they became eligible for community
placement. I disagree. Temporary exclusion from community placement
does not amount to "discrimination" in the traditional sense of the
word, nor have respondents shown that petitioners "discriminated"
against them "by reason of" their disabilities.
Until today, this Court has never endorsed an interpretation of
the term "discrimination" that encompassed disparate treatment
among members of the
same protected class. Discrimination,
as typically understood, requires a showing that a claimant
received differential treatment visa-vis members of a different
group on the basis of a statutorily described characteristic. This
interpretation comports with dictionary definitions of the term
discrimination, which means to "distinguish," to "differentiate,"
or to make a "distinction in favor of or against, a person or thing
based on the group, class, or category to which that person or
thing belongs rather than on individual merit." Random House
Dictionary 564 (2d ed. 1987); see also Webster's Third New
International Dictionary 648 (1981) (defining "discrimination" as
"the making or perceiving of a distinction or difference" or as
"the act, practice, or an instance of discriminating categorically
rather than individually").
Our decisions construing various statutory prohibitions against
"discrimination" have not wavered from this path. The best place to
begin is with Title VII of the Civil Rights Act of 1964, 78 Stat.
253, as amended, the paradigmatic antidiscrimination law.1 Title
VII makes it "an unlawful em-
1 We have incorporated Title VII standards of discrimination
when interpreting statutes prohibiting other forms of
discrimination. For example, Rev. Stat. § 1977, as amended, 42 U.
S. C. § 1981, has been interpreted to forbid all racial
discrimination in the making of private and
617
ployment practice for an employer ... to
discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin." 42 U.
S. C. § 2000e-2(a)(1) (emphasis added). We have explained that this
language is designed "to achieve equality of employment
opportunities and remove barriers that have operated in the past to
favor an identifiable group of white employees over other
employees."
Griggs v.
Duke Power Co., 401 U. S. 424, 429-430
(1971).2
Under Title VII, a finding of discrimination requires a
comparison of otherwise similarly situated persons who are in
different groups by reason of certain characteristics provided by
statute. See,
e. g., Newport News Shipbuilding & Dry
Dock Co. v.
EEOC, 462 U. S. 669, 683 (1983)
(explain-
public contracts. See
Saint Francis College v.
Al-Khazraji, 481 U. S. 604, 609
(1987). This Court has applied the "framework" developed in Title
VII cases to claims brought under this statute.
Patterson v.
M cLean Credit Union, 491 U. S. 164, 186
(1989). Also, the Age Discrimination in Employment Act of 1967, 81
Stat. 602, as amended, 29 U. S. C. § 623(a)(I), prohibits
discrimination on the basis of an employee's age. This Court has
noted that its "interpretation of Title VII ... applies with equal
force in the context of age discrimination, for the substantive
provisions of the ADEA 'were derived
in haec verba from
Title VII.'''
Trans World Airlines, Inc. v.
Thurston,
469 U. S. 111,
121 (1985) (quoting
Lorillard v.
Pons, 434 U. S. 575, 584
(1978)). This Court has also looked to its Title VII
interpretations of discrimination in illuminating Title IX of the
Education Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C.
§ 1681
et seq., which prohibits discrimination under any
federally funded education program or activity. See
Franklin
v.
Gwinnett County Public Schools, 503 U. S. 60, 75 (1992)
(relying on
Meritor Savings Bank, FSB v.
Vinson,
477 U. S. 57
(1986), a Title VII case, in determining that sexual harassment
constitutes discrimination).
2 This Court has recognized that two forms of discrimination are
prohibited under Title VII: disparate treatment and disparate
impact. See
Griggs, 401 U. S., at 431 ("The Act proscribes
not only overt discrimination but also practices that are fair in
form, but discriminatory in operation"). Both forms of
"discrimination" require a comparison among classes of
employees.
618
ing that Title VII discrimination occurs when an employee is
treated "'in a manner which but for that person's sex would be
different''') (quoting
Los Angeles Dept. of Water and Power
v.
Manhart, 435 U. S. 702, 711
(1978)). For this reason, we have described as "nonsensical" the
comparison of the racial composition of different classes of job
categories in determining whether there existed disparate impact
discrimination with respect to a particular job category.
Wards
Cove Packing Co. v.
Atonio, 490 U. S. 642, 651
(1989).3 Courts interpreting Title VII have held that a plaintiff
cannot prove "discrimination" by demonstrating that one member of a
particular protected group has been favored over another member of
that same group. See,
e. g., Bush v.
Commonwealth Edison Co., 990 F.2d
928, 931
(CA7 1993), cert. denied, 511 U. S. 1071 (1994)
(explaining that under Title VII, a fired black employee "had to
show that although he was not a good employee, equally bad
employees were treated more leniently by [his employer] if they
happened not to be black").
Our cases interpreting § 504 of the Rehabilitation Act of 1973,
87 Stat. 394, as amended, which prohibits "discrimination" against
certain individuals with disabilities, have applied this commonly
understood meaning of discrimination. Section 504 provides:
"No otherwise qualified handicapped individual ... shall, solely
by reason of his handicap, be excluded from the participation in,
be denied the benefits of, or be sub-
3 Following
Wards Cove, Congress enacted the Civil Rights
Act of 1991, Pub. L. 102-166,105 Stat. 1071, as amended, which,
inter alia, altered the burden of proof with respect to a
disparate impact discrimination claim. See
id., § 105
(codified at 42 U. S. C. § 2000e-2(k)). This change highlights the
principle that a departure from the traditional understanding of
discrimination requires congressional action. Cf.
Field v.
Mans, 516 U. S.
59, 69-70 (1995) (Congress legislates against the background
rule of the common law and traditional notions of lawful
conduct).
619
jected to discrimination under any program or activity receiving
Federal financial assistance."
In keeping with the traditional paradigm, we have always limited
the application of the term "discrimination" in the Rehabilitation
Act to a person who is a member of a protected group and faces
discrimination "by reason of his handicap." Indeed, we previously
rejected the argument that § 504 requires the type of "affirmative
efforts to overcome the disabilities caused by handicaps,"
Southeastern Community College v.
Davis, 442 U. S. 397, 410
(1979), that the majority appears to endorse today. Instead, we
found that § 504 required merely "the evenhanded treatment of
handicapped persons" relative to those persons who do not have
disabilities.
Ibid. Our conclusion was informed by the fact
that some provisions of the Rehabilitation Act envision
"affirmative action" on behalf of those individuals with
disabilities, but § 504 itself "does not refer at all" to such
action.
Ibid. Therefore, "[a] comparison of these provisions
demonstrates that Congress understood accommodation of the needs of
handicapped individuals may require affirmative action and knew how
to provide for it in those instances where it wished to do so."
Id., at 411.
Similarly, in
Alexander v.
Choate, 469 U. S. 287, 302
(1985), we found no discrimination under § 504 with respect to a
limit on inpatient hospital care that was "neutral on its face" and
did not "distinguish between those whose coverage will be reduced
and those whose coverage will not on the basis of any test,
judgment, or trait that the handicapped as a class are less capable
of meeting or less likely of having,"
id., at 302. We said
that § 504 does "not ... guarantee the handicapped equal results
from the provision of state Medicaid, even assuming some measure of
equality of health could be constructed."
Id., at 304.
Likewise, in
Traynor v.
Turnage, 485 U. S. 535, 548
(1988), we reiterated that the purpose of § 504 is to guarantee
that individuals with disabilities receive "evenhanded
treatment"
620
relative to those persons without disabilities. In
Traynor, the Court upheld a Veterans' Administration
regulation that excluded "primary alcoholics" from a benefit that
was extended to persons disabled by alcoholism related to a mental
disorder.
Id., at 551. In so doing, the Court noted that
"[t]his litigation does not involve a program or activity that is
alleged to treat handicapped persons less favorably than
nonhandicapped persons."
Id., at 548. Given the theory of
the case, the Court explicitly held: "There is nothing in the
Rehabilitation Act that requires that any benefit extended to one
category of handicapped persons also be extended to all other
categories of handicapped persons."
Id., at 549.
This same understanding of discrimination also informs this
Court's constitutional interpretation of the term. See
General
Motors Corp. v.
Tracy, 519 U. S. 278, 298 (1997)
(noting with respect to interpreting the Commerce Clause,
"[c]onceptually, of course, any notion of discrimination assumes a
comparison of substantially similar entities");
Yick Wo v.
Hopkins, 118
U. S. 356, 374 (1886) (condemning under the Fourteenth
Amendment "illegal discriminations between persons in similar
circumstances"); see also
Adarand Constructors, Inc. v.
Pena, 515 U.
S. 200, 223-224 (1995);
Richmond v.
J. A.
Croson Co., 488
U. S. 469, 493-494 (1989) (plurality opinion).
Despite this traditional understanding, the majority derives a
more "comprehensive" definition of "discrimination," as that term
is used in Title II of the ADA, one that includes "institutional
isolation of persons with disabilities."
Ante, at 600. It
chiefly relies on certain congressional findings contained within
the ADA. To be sure, those findings appear to equate institutional
isolation with segregation, and thereby discrimination. See
ibid. (quoting §§ 12101(a)(2) and 12101(a)(5), both of which
explicitly identify "segregation" of persons with disabilities as a
form of "discrimination"); see also
ante, at 588-589. The
congressional findings, however, are written in general, hortatory
terms and pro-
621
vide little guidance to the interpretation of the specific
language of § 12132. See
National Organization for Women,
Inc. v.
Scheidler, 510 U. S. 249, 260 (1994)
("We also think that the quoted statement of congressional findings
is a rather thin reed upon which to base a requirement"). In my
view, the vague congressional findings upon which the majority
relies simply do not suffice to show that Congress sought to
overturn a well-established understanding of a statutory term
(here, "discrimination").4 Moreover, the majority fails to explain
why terms in the findings should be given a medical content,
pertaining to the place where a mentally retarded person is
treated. When read in context, the findings instead suggest that
terms such as "segregation" were used in a more general sense,
pertaining to matters such as access to employment, facilities, and
transportation. Absent a clear directive to the contrary, we must
read "discrimination" in light of the common understanding of the
term. We cannot expand the meaning of the term "discrimination" in
order to invalidate policies we may find unfortunate. Cf.
NLRB v.
Highland Park Mfg. Co., 341 U. S. 322, 325 (1951)
(explaining that if Congress intended statutory terms "to have
other than their ordinarily accepted meaning,
4 If such general hortatory language is sufficient, it is
puzzling that this or any other court did not reach the same
conclusion long ago by reference to the general purpose language of
the Rehabilitation Act itself. See 29 U. S. C. § 701 (1988 ed.)
(describing the statute's purpose as "to develop and implement,
through research, training, services, and the guarantee of equal
opportunity, comprehensive and coordinated programs of vocational
rehabilitation and independent living, for individuals with
handicaps
in order to maximize their employability,
independence, and integration into the workplace and the community"
(emphasis added)). Further, this section has since been amended to
proclaim in even more aspirational terms that the policy under the
statute is driven by,
inter alia, "respect for individual
dignity, personal responsibility, self-determination, and pursuit
of meaningful careers, based on informed choice, of individuals
with disabilities," "respect for the privacy, rights, and equal
access," and "inclusion, integration, and full participation of the
individuals." 29 U. S. C. §§ 701(c)(1)-(3).
622
it would and should have given them a special meaning by
definition").5
Elsewhere in the ADA, Congress chose to alter the traditional
definition of discrimination. Title I of the ADA, § 12112(b)(1),
defines discrimination to include "limiting, segregating, or
classifying a job applicant or employee in a way that adversely
affects the opportunities or status of such applicant or employee."
Notably, however, Congress did not provide that this definition of
discrimination, unlike other aspects of the ADA, applies to Title
II. Ordinary canons of construction require that we respect the
limited applicability of this definition of "discrimination" and
not import it into other parts of the law where Congress did not
see fit. See,
e. g., Bates v.
United
States, 522 U. S.
23, 29-30 (1997) (" 'Where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion''') (quoting
Russello v.
United States,
464 U. S. 16, 23
(1983)). The majority's definition of discrimination-although not
specifically delineated-substantially imports the definition of
Title I into Title II by necessarily assuming that it is sufficient
to focus exclusively on members of one particular
5 Given my conclusion, the Court need not review the integration
regulation promulgated by the Attorney General. See 28 CFR §
35.130(d) (1998). Deference to a regulation is appropriate only"
'if Congress has not expressed its intent with respect to the
question, and then only if the administrative interpretation is
reasonable.' "
Reno v.
Bossier Parish School Bd.,
520 U. S. 471,
483 (1997) (quoting
Presley v.
Etowah County Comm'n,
502 U. S. 491,
508 (1992)). Here, Congress has expressed its intent in § 12132,
and the Attorney General's regulation-insofar as it contradicts the
settled meaning of the statutory term-cannot prevail against it.
See
NLRB v.
Town &
Country Elec., Inc.,
516 U. S. 85, 94
(1995) (explaining that courts interpreting a term within a statute
"must infer, unless the statute otherwise dictates, that Congress
means to incorporate the established meaning of that term"
(internal quotation marks omitted)).
623
group. Under this view, discrimination occurs when some members
of a protected group are treated differently from other members of
that same group. As the preceding discussion emphasizes, absent a
special definition supplied by Congress, this conclusion is a
remarkable and novel proposition that finds no support in our
decisions in analogous areas. For example, the majority's
conclusion that petitioners "discriminated" against respondents is
the equivalent to finding discrimination under Title VII where a
black employee with deficient management skills is denied in-house
training by his employer (allegedly because of lack of funding)
because other similarly situated black employees are given the
inhouse training. Such a claim would fly in the face of our prior
case law, which requires more than the assertion that a person
belongs to a protected group and did not receive some benefit. See,
e. g., Griggs, 401 U. S., at 430-431 ("Congress did not
intend by Title VII, however, to guarantee a job to every person
regardless of qualifications. In short, the Act does not command
that any person be hired simply because he was formerly the subject
of discrimination, or because he is a member of a minority
group").
At bottom, the type of claim approved of by the majority does
not concern a prohibition against certain conduct (the traditional
understanding of discrimination), but rather concerns imposition of
a standard of care.6 As such, the major-
6 In mandating that government agencies minimize the
institutional isolation of disabled individuals, the majority
appears to appropriate the concept of "mainstreaming" from the
Individuals with Disabilities Education Act (IDEA), 84 Stat. 175,
as amended, 20 U. S. C. § 1400
et seq. But IDEA is not an
antidiscrimination law. It is a grant program that affirmatively
requires States accepting federal funds to provide disabled
children with a "free appropriate public education" and to
establish "procedures to assure that, to the maximum extent
appropriate, children with disabilities ... are educated with
children who are not disabled." §§ 1412(1), (5). Ironically, even
under this broad affirmative mandate, we previously rejected a
claim that IDEA required the "standard of care"
624
ity can offer no principle limiting this new species of
"discrimination" claim apart from an affirmative defense because it
looks merely to an individual in isolation, without comparing him
to otherwise similarly situated persons, and determines that
discrimination occurs merely because that individual does not
receive the treatment he wishes to receive. By adopting such a
broad view of discrimination, the majority drains the term of any
meaning other than as a proxy for decisions disapproved of by this
Court.
Further, I fear that the majority's approach imposes significant
federalism costs, directing States how to make decisions about
their delivery of public services. We previously have recognized
that constitutional principles of federalism erect limits on the
Federal Government's ability to direct state officers or to
interfere with the functions of state governments. See,
e. g.,
Printz v.
United States, 521 U. S. 898 (1997);
New York v.
United States,
505 U. S. 144 (1992). We
have suggested that these principles specifically apply to whether
States are required to provide a certain level of benefits to
individuals with disabilities. As noted in
Alexander, in
rejecting a similar theory under § 504 of the Rehabilitation Act:
"[N]othing ... suggests that Congress desired to make major inroads
on the States' longstanding discretion to choose the proper mix of
amount, scope, and duration limitations on services .... " 469 U.
S., at 307. See also
Bowen v.
American Hospital
Assn., 476 U. S.
610, 642 (1986) (plurality opinion) ("[N]othing in [§ 504]
authorizes [the Secretary of Health and Human Services (HHS)] to
commandeer state agencies .... [These] agencies are
analysis adopted by the majority today. See
Board of Ed. of
Hendrick Hudson Central School Dist., Westchester Cty. v.
Rowley, 458 U.
S. 176, 198 (1982) ("We think ... that the requirement that a
State provide specialized educational services to handicapped
children generates no additional requirement that the services so
provided be sufficient to maximize each child's potential
commensurate with the opportunity provided other children"
(internal quotation marks omitted)).
625
not field offices of the HHS bureaucracy, and they may not be
conscripted against their will as the foot soldiers in a federal
crusade"). The majority's affirmative defense will likely come as
cold comfort to the States that will now be forced to defend
themselves in federal court every time resources prevent the
immediate placement of a qualified individual. In keeping with our
traditional deference in this area, see
Alexander, supra,
the appropriate course would be to respect the States' historical
role as the dominant authority responsible for providing services
to individuals with disabilities.
The majority may remark that it actually does properly compare
members of different groups. Indeed, the majority mentions in
passing the "[d]issimilar treatment" of persons with and without
disabilities.
Ante, at 601. It does so in the context of
supporting its conclusion that institutional isolation is a form of
discrimination. It cites two cases as standing for the unremarkable
proposition that discrimination leads to deleterious stereotyping,
ante, at 600 (citing
Allen v.
Wright, 468 U. S. 737, 755
(1984);
Manhart, 435 U. S., at 707, n. 13)), and an
amicus brief which indicates that confinement diminishes
certain everyday life activities,
ante, at 601 (citing Brief
for American Psychiatric Association et al. as
Amici Curiae
20-22). The majority then observes that persons without
disabilities "can receive the services they need without"
institutionalization and thereby avoid these twin deleterious
effects.
Ante, at 601. I do not quarrel with the two general
propositions, but I fail to see how they assist in resolving the
issue before the Court. Further, the majority neither specifies
what services persons with disabilities might need nor contends
that persons without disabilities need the same services as those
with disabilities, leading to the inference that the dissimilar
treatment the majority observes results merely from the fact that
different classes of persons receive different services-not from
"discrimination" as traditionally defined.
626
Finally, it is also clear petitioners did not "discriminate"
against respondents "by reason of [their] disabili[ties]," as §
12132 requires. We have previously interpreted the phrase "by
reason of" as requiring proximate causation. See,
e.
g., Holmes v.
Securities Investor Protection
Corporation, 503 U. S. 258, 265-266 (1992); see also
id., at 266, n. 11 (citation of cases). Such an
interpretation is in keeping with the vernacular understanding of
the phrase. See American Heritage Dictionary 1506 (3d ed. 1992)
(defining "by reason of" as "because of"). This statute should be
read as requiring proximate causation as well. Respondents do not
contend that their disabilities constituted the proximate cause for
their exclusion. Nor could they-community placement simply is not
available to those without disabilities. Continued institutional
treatment of persons who, though now deemed treatable in a
community placement, must wait their turn for placement does not
establish that the denial of community placement occurred "by
reason of" their disability. Rather, it establishes no more than
the fact that petitioners have limited resources.
***
For the foregoing reasons, I respectfully dissent.
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