REHNQUIST, C. J., DISSENTING
TENNESSEE V. LANE
541 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-1667
TENNESSEE, PETITIONER
v. GEORGE LANE
et al.
on writ of certiorari to the united states court of
appeals for the sixth circuit
[May 17, 2004]
Chief Justice Rehnquist, with
whom Justice Kennedy and Justice Thomas join, dissenting.
In
Board of Trustees of Univ.
of Ala. v.
Garrett, 531 U. S. 356 (2001), we held that
Congress did not validly abrogate States’ Eleventh Amendment
immunity when it enacted Title I of the Americans with Disabilities
Act of 1990 (ADA), 42 U. S. C. §§12111–12117. Today
,
the Court concludes that Title II of that Act, §§12131–12165, does
validly abrogate that immunity, at least insofar “as it applies to
the class of cases implicating the fundamental right of access to
the courts.”
Ante, at 19. Because today’s decision is
irreconcilable with
Garrett and the well-established
principles it embodies, I dissent.
The Eleventh Amendment bars private lawsuits
in federal court against an unconsenting State.
E.g., Nevada
Dept. of Human Resources v.
Hibbs, 538 U. S. 721, 726 (2003);
Garrett, supra, at 363;
Kimel v.
Florida Bd.
of Regents, 528 U. S. 62, 73 (2000). Congress may
overcome States’ sovereign immunity and authorize such suits only
if it unmistakably expresses its intent to do so, and only if it
“acts pursuant to a valid exercise of its power under §5 of the
Fourteenth Amendment.”
Hibbs, supra, at 726. While the
Court correctly holds that Congress satisfied the first
prerequisite,
ante, at 6, I disagree with its conclusion
that Title II is valid §5 enforcement legislation.
Section 5 of the Fourteenth Amendment grants
Congress the authority “to enforce, by appropriate legislation,”
the familiar substantive guarantees contained in §1 of that
Amendment. U. S. Const., Amdt. 14, §1 (“No State shall … deprive
any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal
protection of the laws”). Congress’ power to enact “appropriate”
enforcement legislation is not limited to “mere legislative
repetition” of this Court’s Fourteenth Amendment jurisprudence.
Garrett, supra, at 365. Congress may “remedy” and “deter”
state violations of constitutional rights by “prohibiting a
somewhat broader swath of conduct, including that which is not
itself forbidden by the Amendment’s text.”
Hibbs, 538 U.
S., at 727 (internal quotation marks omitted). Such “prophylactic”
legislation, however, “must be an appropriate remedy for identified
constitutional violations, not ‘an attempt to substantively
redefine the States’ legal obligations.’ ”
Id., at
727–728 (quoting
Kimel, supra, at 88);
City of
Boerne v.
Flores, 521 U. S. 507, 525 (1997) (enforcement
power is “corrective or preventive, not definitional”). To ensure
that Congress does not usurp this Court’s responsibility to define
the meaning of the Fourteenth Amendment, valid §5 legislation must
exhibit “ ‘congruence and proportionality between the injury
to be prevented or remedied and the means adopted to that
end.’ ”
Hibbs, supra, at 728 (quoting
City of
Boerne, supra, at 520). While the Court today pays
lipservice to the “congruence and proportionality” test, see
ante, at 8, it applies it in a manner inconsistent with
our recent precedents.
In
Garrett, we conducted the
three-step inquiry first enunciated in
City of Boerne to
determine whether Title I of the ADA satisfied the
congruence-and-proportionality test. A faithful application of that
test to Title II reveals that it too “ ‘substantively
redefine[s],’ ” rather than permissibly enforces, the rights
protected by the Fourteenth Amendment.
Hibbs, supra, at
728.
The first step is to “identify with some
precision the scope of the constitutional right at issue.”
Garrett, supra, at 365. This task was easy in
Garrett,
Hibbs, Kimel, and
City of Boerne because the statutes
in those cases sought to enforce only one constitutional right. In
Garrett, for example, the statute addressed the equal
protection right of disabled persons to be free from
unconstitutional employment discrimination.
Garrett,
supra, at 365. See also
Hibbs, supra, at 728 (“The
[Family and Medical Leave Act of 1993 (FMLA)] aims to protect the
right to be free from gender-based discrimination in the
workplace”);
Kimel, supra, at 83 (right to be free from
unconstitutional age discrimination in employment);
City of
Boerne, supra, at 529 (right of free exercise of religion).
The scope of that right, we explained, is quite limited; indeed,
the Equal Protection Clause permits a State to classify on the
basis of disability so long as it has a rational basis for doing
so.
Garrett, supra, at 366–368 (discussing
Cleburne v.
Cleburne Living Center, Inc.,
473 U. S. 432 (1985)); see also
ante, at 11.
In this case, the task of identifying the
scope of the relevant constitutional protection is more difficult
because Title II purports to enforce a panoply of constitutional
rights of disabled persons: not only the equal protection right
against irrational discrimination, but also certain rights
protected by the Due Process Clause.
Ante, at 11–12.
However, because the Court ultimately upholds Title II “as it
applies to the class of cases implicating the fundamental right of
access to the courts,”
ante, at 19, the proper inquiry
focuses on the scope of those due process rights. The Court cites
four access-to-the-courts rights that Title II purportedly
enforces: (1) the right of the criminal defendant to be present at
all critical stages of the trial,
Faretta v.
California, 422 U. S. 806, 819
(1975); (2) the right of litigants to have a “meaningful
opportunity to be heard” in judicial proceedings,
Boddie
v.
Connecticut, 401 U. S. 371, 379 (1971); (3) the
right of the criminal defendant to trial by a jury composed of a
fair cross section of the commun- ity,
Taylor v.
Louisiana,
419 U. S. 522, 530
(1975); and (4) the public right of access to criminal proceedings,
Press&nbhyph;Enterprise Co. v.
Superior Court of
Cal., County of Riverside, 478 U. S. 1, 8–15 (1986).
Ante, at 11–12.
Having traced the “metes and bounds” of the
constitutional rights at issue, the next step in the
congruence-and-proportionality inquiry requires us to examine
whether Congress “identified a history and pattern” of violations
of these constitutional rights by the States with respect to the
disabled.
Garrett, 531 U. S., at 368. This step is crucial
to determining whether Title II is a legitimate attempt to remedy
or prevent actual constitutional violations by the States or an
illegitimate attempt to rewrite the constitutional provisions it
purports to enforce. Indeed, “Congress’ §5 power is appropriately
exercised
only in response to state transgressions.”
Ibid. (emphasis added). But the majority identifies
nothing in the legislative record that shows Congress was
responding to widespread violations of the due process rights of
disabled persons.
Rather than limiting its discussion of
constitutional violations to the due process rights on which it
ultimately relies, the majority sets out on a wide-ranging account
of societal discrimination against the disabled.
Ante, at
12–15. This digression recounts historical discrimination against
the disabled through institutionalization laws, restrictions on
marriage, voting, and public education, conditions in mental
hospitals, and various other forms of unequal treatment in the
administration of public programs and services. Some of this
evidence would be relevant if the Court were considering the
constitutionality of the statute as a whole; but the Court rejects
that approach in favor of a narrower “as-applied” inquiry.[
Footnote 1] We discounted much the same
type of outdated, generalized evidence in
Garrett as
unsupportive of Title I’s ban on employment discrimination. 531 U.
S., at 368–372; see also
City of Boerne, 521 U.
S.
, at 530 (noting that the “legislative record lacks …
modern instances of … religious bigotry”). The evidence here is
likewise irrelevant to Title II’s purported enforcement of Due
Process access-to-the-courts rights.
Even if it were proper to consider this
broader category of evidence, much of it does not concern
unconstitutional action by the
States. The bulk
of the Court’s evidence concerns discrimination by nonstate
governments, rather than the States themselves.[
Footnote 2] We have repeatedly held that such
evidence is irrelevant to the inquiry whether Congress has validly
abrogated Eleventh Amendment immunity, a privilege enjoyed only by
the sovereign States.
Garrett, supra, at 368–369;
Florida Prepaid Postsecondary Ed. Expense Bd. v.
College Savings Bank, 527 U. S. 627, 640 (1999);
Kimel, 528 U. S.
, at 89. Moreover, the majority
today cites the same congressional task force evidence we rejected
in
Garrett.
Ante, at 15 (citing
Garrett,
supra, at 379 (Breyer, J., dissenting), and 531 U. S., at
391–424 (App. C to opinion of Breyer, J., dissenting) (chronicling
instances of “unequal treatment” in the “administration of public
programs”)). As in
Garrett, this “unexamined, anecdotal”
evidence does not suffice. 531 U. S., at 370. Most of the brief
anecdotes do not involve States at all, and those that do are not
sufficiently detailed to determine whether the instances of
“unequal treatment” were irrational, and thus unconstitutional
under our decision in
Cleburne. Garrett, supra, at
370–371. Therefore, even outside the “access to the courts”
context, the Court identifies few, if any, constitutional
violations perpetrated by the States against disabled
persons.[
Footnote 3]
With respect to the due process “access to the
courts” rights on which the Court ultimately relies, Congress’
failure to identify a pattern of actual constitutional violations
by the States is even more striking. Indeed, there is
nothing in the legislative record or statutory findings to
indicate that disabled persons were systematically denied the right
to be present at criminal trials, denied the meaningful opportunity
to be heard in civil cases, unconstitutionally excluded from jury
service, or denied the right to attend criminal trials.[
Footnote 4]
The Court’s attempt to disguise the
lack of congressional documentation with a few citations to
judicial decisions cannot retroactively provide support for Title
II, and in any event, fails on its own terms. See,
e.g.,
Garrett, 531 U. S., at 368 (“[W]e examine whether
Congress identified a history and pattern” of
constitutional violations);
ibid. (“[t]he
legislative
record … fails to show that
Congress did in fact
identify a pattern” of constitutional violations) (emphases added).
Indeed, because this type of constitutional violation occurs in
connection with litigation, it is particularly telling that the
majority is able to identify only
two reported cases
finding that a disabled person’s federal constitutional rights were
violated.[
Footnote 5] See
ante, at 14, n. 14 (citing
Ferrell v.
Estelle, 568 F. 2d 1128, 1132–1133 (CA5), opinion
withdrawn as moot, 573 F. 2d 867 (1978);
People v.
Rivera, 125 Misc. 2d 516, 528, 480 N. Y. S. 2d
426, 434 (Sup. Ct. 1984)).[
Footnote
6]
Lacking any real evidence that Congress was
responding to actual due process violations, the majority relies
primarily on three items to justify its decision: (1) a 1983 U. S.
Civil Rights Commission Report showing that 76% of “public services
and programs housed in state-owned buildings were inaccessible” to
persons with disabilities,
ante, at 15–16; (2) testimony
before a House subcommittee regarding the “physical
inaccessibility” of local courthouses,
ante, at 16; and
(3) evidence submitted to Congress’ designated ADA task force that
purportedly contains “numerous examples of the exclusion of persons
with disabilities from state judicial services and programs.”
Ibid.
On closer examination, however, the Civil
Rights Commission’s finding consists of a single conclusory
sentence in its report, and it is far from clear that its finding
even includes courthouses. The House subcommittee report, for its
part, contains the testimony of
two witnesses, neither of
whom reported being denied the right to be present at
constitutionally protected court proceedings.[
Footnote 7] Indeed, the witnesses’ testimony,
like the U. S. Civil Rights Commission Report, concerns only
physical barriers to access, and does not address whether States
either provided means to overcome those barriers or alternative
locations for proceedings involving disabled persons. Cf.,
n. 4,
supra (describing alternative means of access
offered to respondent Lane).
Based on the majority’s description,
ante, at 16, the report of the ADA Task Force on the
Rights and Empowerment of Americans with Disabilities sounds
promising. But the report itself says nothing about any disabled
person being denied access to court. The Court thus apparently
relies solely on a general citation to the Government’s Lodging in
Garrett, O. T. 2000, No. 99–1240 which, amidst thousands
of pages, contains only a few anecdotal handwritten reports of
physically inaccessible courthouses, again with no mention of
whether States provided alternate means of access. This evidence,
moreover, was submitted not to Congress, but only to the task
force, which itself made no findings regarding disabled persons’
access to judicial proceedings. Cf.
Garrett, 531 U. S., at
370–371 (rejecting anecdotal task force evidence for similar
reasons). As we noted in
Garrett, “had Congress truly
understood this [task force] information as reflecting a pattern of
unconstitutional behavior by the States, one would expect some
mention of that conclusion in the Act’s legislative findings.”
Id., at 371. Yet neither the legislative findings, nor
even the Committee Reports, contain a single mention of the
seemingly vital topic of access to the courts.[
Footnote 8] Cf.
ibid.; Florida
Prepaid, 527 U. S., at 641 (observing that Senate Report on
Patent and Plant Variety Protection Remedy Clarification Act
(Patent Remedy Act) “contains no evidence that unremedied patent
infringement by States had become a problem of national import”).
To the contrary, the Senate Report on the ADA observed that “[a]ll
states currently mandate accessibility in newly constructed
state-owned public buildings.” S. Rep. No. 101–116, p. 92
(1989).
Even if the anecdotal evidence and conclusory
statements relied on by the majority could be properly considered,
the mere existence of an architecturally “inaccessible”
courthouse—
i.e., one a disabled person cannot utilize
without assistance—does not state a constitutional violation. A
violation of due process occurs only when a person is actually
denied the constitutional right to access a given judicial
proceeding. We have never held that a person has a
constitutional right to make his way into a courtroom
without any external assistance. Indeed, the fact that the State
may need to assist an individual to attend a hearing has no bearing
on whether the individual successfully exercises his due process
right to be present at the proceeding. Nor does an “inaccessible”
courthouse violate the Equal Protection Clause, unless it is
irrational for the State not to alter the courthouse to make it
“accessible.” But financial considerations almost always furnish a
rational basis for a State to decline to make those alterations.
See
Garrett, 531 U. S.
, at 372 (noting that it
would be constitutional for an employer to “conserve scarce
financial resources” by hiring employees who can use existing
facilities rather than making the facilities accessible to disabled
employees). Thus, evidence regarding inaccessible courthouses,
because it is not evidence of constitutional violations, provides
no basis to abrogate States’ sovereign immunity.
The near-total lack of actual constitutional
violations in the congressional record is reminiscent of
Garrett, wherein we found that the same type of minimal
anecdotal evidence “f[e]ll far short of even suggesting the pattern
of unconstitutional [state action] on which §5 legislation must be
based.”
Id., at 370. See also
Kimel, 528 U.
S.
, at 91 (“Congress’ failure to uncover any significant
pattern of unconstitutional discrimination here confirms that
Congress had no reason to believe that broad prophylactic
legislation was necessary”);
Florida Prepaid, supra, at
645 (“The legislative record thus suggests that the Patent Remedy
Act did not respond to a history of ‘widespread and persisting
deprivation of constitutional rights’ of the sort Congress has
faced in enacting proper prophylactic §5 legislation” (quoting
City of Boerne, 521 U. S., at 526)).
The barren record here should likewise be
fatal to the majority’s holding that Title II is valid legislation
enforcing due process rights that involve access to the courts.
This conclusion gains even more support when Title II’s nonexistent
record of constitutional violations is compared with legislation
that we have sustained as valid §5 enforcement legislation. See,
e.g., Hibbs, 538 U. S., at 729–732 (tracing the extensive
legislative record documenting States’ gender discrimination in
employment leave policies);
South Carolina v.
Katzenbach,
383 U. S. 301, 312–313 (1966) (same
with respect to racial discrimination in voting rights).
Accordingly, Title II can only be understood as a congressional
attempt to “rewrite the Fourteenth Amendment law laid down by this
Court,” rather than a legitimate effort to remedy or prevent state
violations of that Amendment.
Garrett, supra, at
374.[
Footnote 9]
The third step of our
congruence-and-proportionality inquiry removes any doubt as to
whether Title II is valid §5 legislation. At this stage, we ask
whether the rights and remedies created by Title II are congruent
and proportional to the constitutional rights it purports to
enforce and the record of constitutional violations adduced by
Congress.
Hibbs, supra, at 737–739;
Garrett,
supra, at 372–373.
Title II provides that “no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U. S. C.
§12132. A disabled person is considered “qualified” if he “meets
the essential eligibility requirements” for the receipt of the
entity’s services or participation in the entity’s programs,
“
with or without reasonable modifications to rules, policies,
or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and
services.” §12131(2) (emphasis added). The ADA’s findings make
clear that Congress believed it was attacking “discrimination” in
all areas of public services, as well as the “discriminatory
effect” of “architectural, transportation, and communication
barriers.” §§12101(a)(3), (a)(5). In sum, Title II requires, on
pain of money damages, special accommodations for disabled persons
in virtually every interaction they have with the State.
“Despite subjecting States to this expansive
liability,” the broad terms of Title II “d[o] nothing to limit the
coverage of the Act to cases involving arguable constitutional
violations.”
Florida Prepaid, 527 U. S.
, at 646.
By requiring special accommodation and the elimination of programs
that have a disparate impact on the disabled, Title II prohibits
far more state conduct than does the equal protection ban on
irrational discrimination. We invalidated Title I’s similar
requirements in
Garrett, observing that “[i]f special
accommodations for the disabled are to be required, they have to
come from positive law and not through the Equal Protection
Clause.” 531 U. S., at 368;
id., at 372–373 (contrasting
Title I’s reasonable accommodation and disparate impact provisions
with the Fourteenth Amendment’s requirements). Title II fails for
the same reason. Like Title I, Title II may be laudable public
policy, but it cannot be seriously disputed that it is also an
attempt to legislatively “redefine the States’ legal obligations”
under the Fourteenth Amendment.
Kimel, 528 U. S., at
88.
The majority, however, claims that Title II
also vindicates fundamental rights protected by the Due Process
Clause—in addition to access to the courts—that are subject to
heightened Fourteenth Amendment scrutiny.
Ante, at 11
(citing
Dunn v.
Blumstein, 405 U. S. 330, 336–337
(1972) (voting);
Shapiro v.
Thompson, 394 U. S. 618, 634
(1969) (right to move to a new jurisdiction);
Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535, 541
(1942) (marriage and procreation)). But Title II is not tailored to
provide prophylactic protection of these rights; instead, it
applies to any service, program, or activity provided by any
entity. Its provisions affect transportation, health, education,
and recreation programs, among many others, all of which are
accorded only rational-basis scrutiny under the Equal Protection
Clause. A requirement of accommodation for the disabled at a
state-owned amusement park or sports stadium, for example, bears no
permissible prophylactic relationship to enabling disabled persons
to exercise their fundamental constitutional rights. Thus, as with
Title I in
Garrett, the Patent Remedy Act in
Florida
Prepaid, the Age Discrimination in Employment Act of 1967 in
Kimel, and the RFRA in
City of Boerne, all of
which we invalidated as attempts to substantively redefine the
Fourteenth Amendment, it is unlikely “that many of the [state
actions] affected by [Title II] ha[ve] any likelihood of being
unconstitutional.”
City of Boerne, supra, at 532. Viewed
as a whole, then, there is little doubt that Title II of the ADA
does not validly abrogate state sovereign immunity.[
Footnote 10]
The majority concludes that Title II’s massive
overbreadth can be cured by considering the statute only “as it
applies to the class of cases implicating the accessibility of
judicial services.”
Ante, at 20 (citing
United
States v.
Raines, 362 U. S. 17, 26 (1960)).
I have grave doubts about importing an “as applied” approach into
the §5 context. While the majority is of course correct that this
Court normally only considers the application of a statute to a
particular case, the proper inquiry under
City of Boerne
and its progeny is somewhat different. In applying the
congruence-and-proportionality test, we ask whether Congress has
attempted to statutorily redefine the constitutional rights
protected by the Fourteenth Amendment. This question can only be
answered by measuring the breadth of a statute’s coverage against
the scope of the constitutional rights it purports to enforce and
the record of violations it purports to remedy.
In conducting its as-applied analysis,
however, the majority posits a hypothetical statute, never enacted
by Congress, that applies only to courthouses. The effect is to rig
the congruence-and-proportionality test by artificially
constricting the scope of the statute to closely mirror a
recognized constitutional right. But Title II is not susceptible of
being carved up in this manner; it applies indiscriminately to all
“services,” “programs,” or “activities” of any “public entity.”
Thus, the majority’s approach is not really an assessment of
whether Title II is “appropriate
legislation” at all, U.
S. Const., Amdt. 14, §5 (emphasis added), but a test of whether the
Court can conceive of a hypothetical statute narrowly tailored
enough to constitute valid prophylactic legislation.
Our §5 precedents do not support this
as-applied approach. In each case, we measured the full breadth of
the statute or relevant provision that Congress enacted against the
scope of the constitutional right it purported to enforce. If we
had arbitrarily constricted the scope of the statutes to match the
scope of a core constitutional right, those cases might have come
out differently. In
Garrett, for example, Title I might
have been upheld “as applied” to irrational employment
discrimination; or in
Florida Prepaid, the Patent Remedy
Act might have been upheld “as applied” to intentional,
uncompensated patent infringements. It is thus not surprising that
the only authority cited by the majority is
Raines,
supra, a case decided long before we enunciated the
congruence-and-proportionality test.[
Footnote 11]
I fear that the Court’s adoption of an
as-applied approach eliminates any incentive for Congress to craft
§5 legislation for the purpose of remedying or deterring actual
constitutional violations. Congress can now simply rely on the
courts to sort out which hypothetical applications of an
undifferentiated statute, such as Title II, may be enforced against
the States. All the while, States will be subjected to substantial
litigation in a piecemeal attempt to vindicate their Eleventh
Amendment rights. The majority’s as-applied approach simply cannot
be squared with either our recent precedent or the proper role of
the Judiciary.
Even in the limited courthouse-access context,
Title II does not properly abrogate state sovereign immunity. As
demonstrated in depth above, Congress utterly failed to identify
any evidence that disabled persons were denied constitutionally
protected access to judicial proceedings. Without this predicate
showing, Title II, even if we were to hypothesize that it applies
only to courthouses, cannot be viewed as a congruent and
proportional response to state constitutional violations.
Garrett, 531 U. S., at 368 (“Congress’ §5 authority is
appropriately exercised only in response to state
transgressions”).
Moreover, even in the courthouse-access
context, Title II requires substantially more than the Due Process
Clause. Title II subjects States to private lawsuits if,
inter
alia, they fail to make “reasonable modifications” to fa-
cilities, such as removing “architectural … barriers.” 42 U. S., C.
§§12131(2), 12132. Yet the statute is not limited to occasions when
the failure to modify results, or will likely result, in an actual
due process violation—
i.e., the inability of a disabled
person to participate in a judicial proceeding. Indeed, liability
is triggered if an inaccessible building results in a disabled
person being “subjected to discrimination”—a term that presumably
encompasses any sort of inconvenience in accessing the facility,
for whatever purpose. §12132.
The majority’s reliance on
Boddie v.
Connecticut, 401 U. S. 371 (1971), and other cases
in which we held that due process requires the State to waive
filing fees for indigent litigants, is unavailing. While these
cases support the principle that the State must remove financial
requirements that in fact prevent an individual from exercising his
constitutional rights, they certainly do not support a statute that
subjects a State to liability for failing to make a vast array of
special accommodations,
without regard for whether the failure
to accommodate results in a constitutional wrong.
In this respect, Title II is analogous to the
Patent Remedy Act at issue in
Florida Prepaid. That
statute subjected States to monetary liability for any act of
patent infringement. 527 U. S., at 646–647. Thus, “Congress did
nothing to limit” the Act’s coverage “to cases involving arguable
[Due Process] violations,” such as when the infringement was
nonnegligent or uncompensated.
Ibid. Similarly here,
Congress has authorized private damages suits against a State for
merely maintaining a courthouse that is not readily accessible to
the disabled, without regard to whether a disabled person’s due
process rights are ever violated. Accordingly, even as applied to
the “access to the courts” context, Title II’s “indiscriminate
scope offends [the congruence-and-proportionality] principle,”
particularly in light of the lack of record evidence showing that
inaccessible courthouses cause actual Due Process violations.
Id., at 647.[
Footnote
12]
For the foregoing reasons, I respectfully
dissent.
Footnote 1
For further discussion of the propriety of
this approach, see
infra, at 14–15.
Footnote 2
E.g., ante, at 13 (citing
Cleburne v.
Cleburne Living Center, Inc.,
473 U. S. 432 (1985) (irrational
discrimination by city zoning board));
ante, at 14,
n. 12 (citing
New York ex rel. Spitzer v.
County
of Delaware, 82 F. Supp. 2d 12 (NDNY 2000) (ADA lawsuit
brought by State against a county));
ante, at
13–14, n. 11 (citing four cases concerning local school boards’
unconstitutional actions);
ante, at 14, n. 13 (citing
one case involving conditions in federal prison and another
involving a county jail inmate);
ante, at 15 (referring to
“hundreds of examples of unequal treatment … by States
and
their political subdivisions” (emphasis added)).
Footnote 3
The majority obscures this fact by repeatedly
referring to congressional findings of “discrimination” and
“unequal treatment.” Of course, generic findings of discrimination
and unequal treatment
vel non are insufficient to show a
pattern of
constitutional violations where rational-basis
scrutiny applies.
Board of Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356, 370 (2001).
Footnote 4
Certainly, respondents Lane and Jones were
not denied these constitutional rights. The majority admits that
Lane was able to attend the initial hearing of his criminal trial.
Ante, at 1. Lane was arrested for failing to appear at his
second hearing only after he refused assistance from officers
dispatched by the court to help him to the courtroom.
Ante, at 2. The court conducted a preliminary hearing in
the first-floor library to accommodate Lane’s disability, App. to
Pet. for Cert. 16, and later offered to move all further
proceedings in the case to a handicapped-accessible courthouse in a
nearby town. In light of these facts, it can hardly be said that
the State violated Lane’s right to be present at his trial; indeed,
it made affirmative attempts to secure that right. Respondent
Jones, a disabled court reporter, does not seriously contend that
she suffered a constitutional injury.
Footnote 5
As two Justices noted in
Garrett, if
the States were violating the Due Process rights of disabled …
persons, “one would have expected to find in decisions of the
courts … extensive litigation and discussion of the constitutional
violations.” 531 U. S., at 376 (Kennedy, J., joined by O’Connor,
J., concurring).
Footnote 6
The balance of the Court’s citations refer to
cases arising
after enactment of the ADA or do not contain
findings of federal constitutional violations.
Ante, at
14–15, n. 14 (citing
Layton v.
Elder, 143
F. 3d 469 (CA8 1998) (post-ADA case finding ADA violations
only);
Matthews v.
Jefferson, 29 F. Supp. 2d
525 (WD Ark. 1998) (same);
Galloway v.
Superior
Court, 816 F. Supp. 12 (DC 1993) (same);
State
v.
Schaim, 65 Ohio St. 3d 51, 600 N. E. 2d 661 (1992)
(remanded for hearing on constitutional issue);
People v.
Green, 561 N. Y. S. 2d 130 (County Ct. 1990)
(finding violation of state constitution only);
DeLong v.
Brumbaugh, 703 F. Supp. 399 (WD Pa. 1989) (statute
upheld against facial constitutional challenge; Rehabilitation Act
of 1973 violations only);
Pomerantz v.
Los Angeles
County, 674 F. 2d 1288 (CA9 1982) (Rehabilitation Act of
1973 claim; challenged jury-service statute later amended)).
Accordingly, they offer no support whatsoever for the notion that
Title II is a valid response to documented constitutional
violations.
Footnote 7
Oversight Hearing on H. R. 4468 before
the House Subcommittee on Select Education of the Committee on
Education and Labor, 100th Cong., 2d Sess., 40–41 (1988) (statement
of Emeka Nwojke) (explaining that he encountered difficulties
appearing in court due to physical characteristics of the
courthouse and courtroom and the rudeness of court employees);
id., at 48 (statement of Ellen Telker) (blind attorney
“know[s] of at least one courthouse in New Haven where the
elevators do not have tactile markings”).
Footnote 8
The majority rather peculiarly points to
Congress’ finding that “ ‘discrimination against individuals
with disabilities persists in such critical areas as
access to
public services’ ” as evidence that Congress sought to
vindicate the Due Process rights of disabled persons.
Ante, at 18 (quoting 42 U. S. C. §12101(a)(3)
(emphasis added by the Court)). However, one does not usually refer
to the right to attend a judicial proceeding as “access to [a]
public servic[e].” Given the lack of any concern over courthouse
accessibility issues in the legislative history, it is highly
unlikely that this legislative finding obliquely refers to state
violations of the due process rights of disabled persons to attend
judicial proceedings.
Footnote 9
The Court correctly explains that “ ‘it
[i]s easier for Congress to show a pattern of state constitutional
violations’ ” when it targets state action that triggers a
higher level of constitutional scrutiny.
Ante, at 18
(quoting
Nevada Dept. of Human Resources v.
Hibbs,
538 U. S. 721, 736 (2003)). However,
this Court’s precedents attest that Congress may not dispense with
the required showing altogether simply because it purports to
enforce due process rights. See
Florida Prepaid Postsecondary
Ed. Expense Bd. v.
College Savings Bank, 527 U. S. 627, 645–646 (1999)
(invalidating Patent Remedy Act, which purported to enforce the Due
Process Clause, because Congress failed to identify a record of
constitutional violations);
City of Boerne v.
Flores, 521 U. S. 507, 530–531 (1997) (same
with respect to Religious Freedom Restoration Act of 1993 (RFRA)).
As the foregoing discussion demonstrates, that is precisely what
the Court has sanctioned here. Because the record is utterly devoid
of proof that Congress was responding to state violations of due
process access-to-the-courts rights, this case is controlled by
Florida Prepaid and
City of Boerne, rather than
Hibbs.
Footnote 10
Title II’s all-encompassing approach to
regulating public services contrasts starkly with the more closely
tailored laws we have upheld as legitimate prophylactic §5
legislation. In Hibbs, for example, the FMLA was “narrowly
targeted” to remedy widespread gender discrimination in the
availability of family leave. 538 U. S., at 738–739 (distinguishing
City of Boerne,
Kimel v.
Florida Bd. of
Regents, 528 U. S. 62 (2000)
, and
Garrett on this ground). Similarly, in cases involving
enforcement of the Fifteenth Amendment, we upheld “limited remedial
scheme[s]” that were narrowly tailored to address massive evidence
of discrimination in voting.
Garrett, 531 U. S., at 373
(discussing
South Carolina v.
Katzenbach,
383 U. S. 301 (1966)). Unlike these
statutes, Title II’s “indiscriminate scope … is particularly
incongruous in light of the scant support for the predicate
unconstitutional conduct that Congress intended to remedy.”
Florida Prepaid, 527 U. S., at 647.
Footnote 11
Raines is inapposite in any event.
The Court there considered the constitutionality of the Civil
Rights Act of 1957—a statute designed to enforce the Fifteenth
Amendment—whose narrowly tailored substantive provisions could
“unquestionably” be applied to state actors (like the respondents
therein). 362 U. S., at 25, 26. The only question presented was
whether the statute was facially invalid because it might be read
to constrain nonstate actors as well.
Id., at 20. The
Court upheld the statute as applied to respondents and declined to
entertain the facial challenge.
Id., at 24–26. The
situation in this case is much different: The very question
presented is whether Title II’s indiscriminate substantive
provisions can constitutionally be applied to the petitioner State.
Raines thus provides no support for avoiding this question
by conjuring up an imaginary statute with substantive provisions
that might pass the congruence-and-proportionality test.
Footnote 12
The majority’s invocation of
Hibbs
to justify Title II’s overbreadth is unpersuasive. See
ante, at 22, n. 24. The
Hibbs Court concluded
that “in light of the evidence before Congress” the FMLA’s 12-week
family-leave provision was necessary to “achiev[e] Congress’
remedial object.” 538 U.S. at 748. The Court found that the
legislative record included not only evidence of state
constitutional violations, but evidence that a provision merely
enforcing the Equal Protection Clause would actually perpetuate the
gender stereotypes Congress sought to eradicate because employers
could simply eliminate family leave entirely.
Ibid.
Without comparable evidence of constitutional violations and the
necessity of prophylactic measures, the Court has no basis on which
to uphold Title II’s special-accommodation requirements.
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