No. 94-15403 ___________________________________________________________________ ___________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH-CIRCUIT _________________ VERNON CROWDER et al, Plaintiffs-Appellants YUKIO KITIGAWA, et al. Defendants-Appellees _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII _________________ BRIEF FOR THE UNITED STATES AS AMICUS CURIAE _________________ DEVAL L. PATRICK, Assistant Attorney General JESSICA DUNSAY SILVER REBECCA K. TROTH Attorneys Department of Justice P.O. Box 66078 Washington, DC 20035-6078 (202) 514-4541 ___________________________________________________________________ ___________________________________________________________________ 01-04998 TABLE OF CONTENTS PAGE STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . 1 INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES PRESENTED . . . . . . . . . . . . . . . 2 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2 1. Procedural History . . . . . . . . . . . . . . . . . 2 2. Factual Background . . . . . . . . . . . . . . . . . 3 A. Hawaii's System Governing Importation of Animals . . . . . . . . . . . . . . . . . . . . 3 B. The State's Motion for Summary Judgment. . . 4 C. Plaintiffs' Opposition . . . . . . . . . . . 5 D. The District Court's Opinion . . . . . . . . 9 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT: I. HAWAII'S SYSTEM GOVERNING THE IMPORTATION OF ANIMALS AND REQUIRING THE FOUR-MONTH QUARANTINE OF ALL DOGS COMING INTO THE STATE IS SUBJECT TO THE REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT. . . . . . . . . . . . . . . . . . . . . . . . . 13 A. Purpose and Coverage of the Act . . . . . . . . 13 B. Hawaii's Quarantine is Covered by the Act . . . 15 II. THE STATE LEGISLATURE'S REJECTION OF ALTERNATIVES TO THE QUARANTINE FOR GUIDE DOGS DOES NOT ESTABLISH THAT A REASONABLE MODIFICATION SHOULD NOT BE MADE TO THE RULES TO ACCOMMODATE THE NEEDS OF INDIVIDUALS WHO ARE VISUALLY IMPAIRED . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 25 - i - 01-04999 TABLE OF AUTHORITIES CASES: PAGE Alexander v. Choate, 469 U.S. 287 (1985) . . . . . 5, 20, 21, 22 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . . 24 Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993) . . 24 Heller v. Doe, 113 S. Ct. 2637 (1993). . . . . . . . . . . . . 5 Rice v. President & Fellows of Harvard College, 663 F.2d 336 (1st Cir. 1981), cert. denied, 456 U.S. 928 (1982) . . . . . . . . . . . . . . . . . . . 16 Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368 (3d Cir. 1991) . . . . . . . . . . . . . 23-24 School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). . 22 Southeastern Community College v. Davis, 442 U.S. 397 (1979) . . . . . . . . . . . . . . . 15, 21, 22 United States v. Board of Trustees for Univ. of Alabama, 908 F.2d 740 (11th Cir. 1990) . . . . . . . . . . . . . . 24 CONSTITUTION, STATUTES AND REGULATIONS: Constitution of the United States: Fourteenth Amendment. . . . . . . . . . . . . . . . . . 3, 9 Americans with Disabilities Act (ADA), Title II (Supp. IV 1992): 42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . 11, 13 42 U.S.C. 12101(a)(5) . . . . . . . . . . . . . . . . . . 11 42 U.S.C. 12101(b)(1) . . . . . . . . . . . . . . . . . . 11 42 U.S.C. 12101(b)(3) . . . . . . . . . . . . . . . . . . 13 42 U.S.C. 12131 . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. 12131(2). . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 12134(a) . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 12206(c)(3). . . . . . . . . . . . . . . . . . . 1 Education Amendments of 1972, Title IX, 20 U.S.C. 1681 . . . 16 ii 01-05000 Rehabilitation Act of 1973, Section 504: 29 U.S.C. 794. . . . . . . . . . . . . . . . . . . . passim 28 U.S.C. 129. . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1343(a)(3) . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1343(a)(4) . . . . . . . . . . . . . . . . . . . . . 1 28 C.F.R. Part 35 (1993) . . . . . . . . . . . . . . . . . . . 1 28 C.F.R. Part 35, App. A (1993). . . . . . . . . . . . . 14, 18 28 C.F.R. 35.102. . . . . . . . . . . . . . . . . . . . . . . 14 28 C.F.R. 35.130(b)(7) (1993). . . . . . . . . . . . . . . 9, 21 29 C.F.R. Ch. XIV, Pt. 1630, App. (1993). . . . . . . . . . . 23 45 Fed. Reg. 37,630 (1980). . . . . . . . . . . . . . . . . . 18 Hawaii Revised Statutes (1988): Section 142-2 . . . . . . . . . . . . . . . . . . . . . . 3 Hawaii Admin. R. (1986): Section 4-29-4 . . . . . . . . . . . . . . . . . . . . . 19 Section 4-29-8 . . . . . . . . . . . . . . . . . . . . . 19 Section 4-29-9(a) . . . . . . . . . . . . . . . . . . . . 3 Section 4-29-15(a) . . . . . . . . . . . . . . . . . . . 4 Section 4-29-15(b)(1) . . . . . . . . . . . . . . . . . . 4 Section 4-29-15(b)(2) . . . . . . . . . . . . . . . . . . 4 Section 4-29-15(b)(3) . . . . . . . . . . . . . . . . . . 4 Section 4-29-15(b)(5) . . . . . . . . . . . . . . . . . . 4 LEGISLATIVE HISTORY: H.R. Rep. No. 485 (II), 101st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 303 . . . . . . . . . . . . . . . . . . . 14 134 Cong. Rec. 9606 (1988). . . . . . . . . . . . . . . . . . 14 136 Cong. Rec. 11461 (1990) . . . . . . . . . . . . . . . . . 18 MISCELLANEOUS: Americans with Disabilities Act Title II Technical Assistance Manual (1993). . . . . . . . . . . . . . . . . . . . 2, 15, 22 Webster's Third New International Dictionary (1986) . . . . . 18 01-05001 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ----------------- No. 94-15403 VERNON CROWDER, et al., Plaintiffs-Appellants v. YUKIO KITIGAWA, et al., Defendants-Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ---------------- BRIEF FOR THE UNITED STATES AS AMICUS CURIAE ---------------- STATEMENT OF JURISDICTION The district court entered final judgment on February 10, 1994. CR. 30.1/ Plaintiffs/appellants filed a timely notice of appeal on February 23, 1994. CR. 31. This Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. 1291. The district court's jurisdiction was based on 28 U.S.C. 1331 and 28 U.S.C. 1343(a)(3) and 1343(a)(4). INTEREST OF THE UNITED STATES The Department of Justice enforces Title II of the Americans with Disabilities Act (ADA). See 42 U.S.C. 12133 (Supp. IV 1992). Pursuant to 42 U.S.C. 12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued regulations and a Technical Assistance Manual interpreting Title II. See 28 C.F.R. Part 35 (1993); The __________________ 1/ References to "CR." are to items in the district court record. 01-05002 - 2 - Americans with Disabilities Act Title II Technical Assistance Manual (1993) (copies of which are filed herewith). The district court rejected the Department's interpretation of the ADA, and the outcome of this appeal may affect the United States' ability to enforce the statute. STATEMENT OF THE ISSUES PRESENTED The United States will address the two issues that affect its enforcement interests under the ADA: 1. Whether Hawaii's system governing the importation of animals and requiring the four month quarantine of all dogs coming into the State to preserve its rabies-free status is subject to the anti-discrimination requirements of Title II of the ADA, 42 U.S.C. 12132. 2. Whether the Hawaii legislature's rejection of alternatives to the quarantine for guide dogs owned by visually impaired individuals precludes a court, as a matter of law, from determining whether a reasonable modification of the rules should be made under the ADA to accommodate the needs of disabled individuals. STANDARD OF REVIEW The standard of review of both issues is de novo. STATEMENT OF THE CASE 1. Procedural History Appellants Vernon Crowder and Stephanie Good are visually- impaired individuals who use guide dogs. Crowder is a resident of California, and Good is a resident of Hawaii. They filed this 01-05003 - 3 - suit as a class action in March 1993 against the State of Hawaii and various state officials alleging that Hawaii's mandatory four-month rabies quarantine of all animals entering the State violates Title II of the ADA, 42 U.S.C. 12132. CR. 1. The text of the relevant portions of the ADA is provided in the Addendum to Brief. Plaintiffs also alleged violations of their Fourteenth Amendment rights to substantive due process, to equal protection, and to travel. The defendants moved to certify the class and for summary judgment in November 1993. The district court certified the case as a class action on January 24, 1994 (CR. 28), and on February 10, 1994, entered judgment for defendants. CR. 30. This appeal followed. 2. Factual Background A. Hawaii's System Governing Importation of Animals Hawaii has enacted a detailed program to govern the importation of animals into the State. Section 142-2 of the Hawaii Revised Statutes allows the Hawaii Department of Agriculture to make rules for the quarantine of animals upon their arrival in Hawaii. Pursuant to this section, the Hawaii Department of Agriculture established a 120-day quarantine in a quarantine station for dogs, cats, and other animals entering Hawaii from the United States mainland or from any other country that is not considered rabies free. Haw. Admin. R.  4-29-9(a) (1986). 01-05004 - 4 - Guide dogs belonging to Hawaii residents who are returning to Hawaii from the U.S. mainland or a country that is not rabies- free, as well as guide dogs belonging to nonresidents visiting the State, are subject to the four month quarantine. Upon written request, a disabled person seeking to bring a guide dog into the State may stay in an apartment at no charge at the quarantine station for the four months. Haw. Admin. R.  4-29- 15(a). After an initial ten-day observation period, the guide dog may train with its owner on the station grounds, Haw. Admin. R.  4-29-15(b)(1)-(2), and may train off the station grounds for up to four hours a day, three days a week, if accompanied by a department inspector. Haw. Admin. R.  4-29-15(b)(3). During the time the guide dog is outside the quarantine station, however, it may have no contact with other animals or humans. Haw. Admin. R.  4-29-15(b)(5). The quarantine station is in Halawa Valley, a remote area on Oahu approximately seven miles from central Honolulu. CR. 19, Jones Decl. Exh. B, Report to the 1990 State Legislature from the Interim Task Force to Study the State of Hawaii's Animal Quarantine System (Interim Task Force Report) at 8. B. The State's Motion for Summary Judgment In moving for summary judgment, the State argued that the quarantine did not violate plaintiffs' constitutional rights and that the State has a legitimate governmental interest in maintaining Hawaii's rabies-free status. The State legislature in 1993 had considered and rejected alternatives to the 01-05005 - 5 - quarantine, and the State argued that the court could not substitute its judgment for the State's rational decision to choose "the most conservative course that science currently has to offer." CR. 11, Defendants' Motion at 19. On the ADA claim, the State contended that the Act does not apply to the quarantine requirement because the visually-impaired plaintiffs are not "qualified individual[s] with a disability" under 42 U.S.C. 12131(2). The State also argued that the ADA does not "create a broad-brush prohibition on all types of disparate impact that any type of state action may indirectly cause." CR. 11 at 26. Relying on Alexander v. Choate, 469 U.S. 287 (1985), and its interpretation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, the State argued essentially that the quarantine does not deny plaintiffs "meaningful access" to State services or benefits. Finally, the legislature had considered and rejected alternatives to the quarantine, and, the State argued, this legislative choice "'is not subject to courtroom factfinding'" under the ADA. CR. 11 at 28-29 (quoting Heller v. Doe, 113 S. Ct. 2637, 2643 (1993)). C . Plaintiffs' Opposition In opposition to the motion, plaintiffs submitted the declarations of the two named plaintiffs and other class members describing how the quarantine severely limits their ability to function. The declarants described how the guide dogs allow visually-impaired individuals to travel and negotiate public streets and transportation systems safely and independently. 01-05006 - 6 - They explained that without their guide dogs, going to work, travelling, or visiting strange areas alone was virtually impossible. Each gave several examples of how their guide dogs were critical to their safety and their day-to-day existence. Plaintiff Crowder, for example, described his inability to perform his job as an agricultural economist with the Bank of America because he was unable to travel to Hawaii with his guide dog on business to visit clients. CR. 19, Crowder Decl. at 3-4. Two others described how their guide dogs saved their lives by pushing them out of the paths of on-coming vehicles. CR. 19, Crawford Decl. at 2, Pomerantz Decl. at 3. There was also evidence in the declarations that the quarantine has a direct adverse impact on the guide dogs as well, including evidence that these animals lose their training irretrievably in quarantine. As a result, guide dog organizations on the U.S. mainland will not allow their dogs to be taken to Hawaii. CR. 19, Good Decl. at 2; CR. 24, Terrones Decl. at 2, Cote Decl. at 3. Two class members eventually were forced to obtain guide dogs from Australia (a rabies-free country) at great expense. CR. 19, Weymouth Decl. at 4, Good Decl. at 1-2. Another result of the quarantine is that there are very few guide dogs on the Islands - 12 as of 1990. CR. 19, Jones Decl. Exh. B, Interim Task Force Report at 16. Plaintiffs also presented extensive evidence that the quarantine of guide dogs is unnecessary, and that the State's purpose can be achieved in ways that do not violate the rights of 01-05007 - 7 - visually-impaired individuals. Because guide dogs receive great care and attention throughout their lives, there is no perceptible risk that a guide dog could transmit rabies. The State admitted that there was no evidence that a guide dog has ever had rabies. CR. 19, Exh. A at 5. Even in the general dog population, there have been no indigenous dog exposure cases in the United States since at least 1965. Jones Decl. Exh. B, Interim Task Force Report at 6. It was also undisputed that in 77 years of using the quarantine in Hawaii, no case of rabies has ever been intercepted. Id. at 8. The State also admitted that a rabid dog can be released from quarantine without the rabies being detected, consistent with a British study that concluded that a four-month quarantine was only 78% likely to detect rabies, since the incubation period for the disease may exceed 120 days. CR. 19, Exh. A, Admissions 8, 9, 24, and 25. Plaintiffs introduced additional evidence that in the international scientific community, quarantine has become increasingly questioned as a method of controlling rabies, and that vaccine-based rabies prevention has been recommended to replace it. CR. 19, Jones Decl. at 4. Other countries, including Japan, have maintained their rabies-free status by using a vaccination system rather than a quarantine. Ibid. Plaintiffs introduced reports from the World Health Organization and the 1990 Interim Task Force to Study the State of Hawaii's Animal Quarantine System recommending that Hawaii substitute a vaccine-based system for the quarantine for guide dogs. CR. 19, 01-05008 - 8 - Jones Decl. at 7-10, Exh. B, and Exh. E. Although there are several variations of such a system, the recommendations are based on the evidence that "killed" vaccines are nearly 100% effective when properly administered. CR. 19, Jones Decl. at 5. Plaintiffs proposed as a reasonable modification that, rather than lose their guide dogs for four months in quarantine, a system should be used in which veterinarians would certify that the animals had been vaccinated with a killed vaccine some time in advance of travel, the guide dogs would be fitted with a microchip to ensure that the dog's identification on the microchip matched the vaccination certification, and the dog's blood would be tested for the rabies antibodies (using a test called an RFFIT titer) before travel and before entering Hawaii. CR. 19, Jones Decl. at 7-10, Exh. B, and Exh. E. Plaintiffs' expert declared that this combination of safeguards provides greater protection from rabies than four months of quarantine. CR. 19, Jones Decl. at 11. Against this factual background, plaintiffs argued that Hawaii's quarantine violates their constitutional right to travel under the Fourteenth Amendment because it deters them from travelling to and from the State of Hawaii. Plaintiffs argued further that the State failed to choose the least drastic means to achieve its purpose of preventing the introduction of rabies into the State. CR. 19, Plaintiffs' Opposition at 20. Plaintiffs' equal protection and substantive due process analysis is similar; since the quarantine burdens the right of visually 01-05009 - 9 - impaired people to travel but does not burden the right of non- disabled individuals to travel, the State failed to fulfill its obligation to narrowly tailor the restriction. Plaintiffs also contended that the quarantine violates the ADA because it discriminates against individuals with disabilities who require a guide dog in their daily lives. CR. 19, Plaintiffs' Opposition at 28. They argued that they are covered by the Act as "qualified individuals with a disability" because they are eligible for various services offered by the State to tourists and residents that they cannot use if they do not have their guide dogs with them. Plaintiffs also argued that the State failed to make a reasonable modification for the needs of visually impaired individuals as the Act requires, citing 28 C.F.R. 35.130(b)(7) (1993). CR. 19, Plaintiffs' Opposition at 29. D. The District Court's Opinion The district court granted summary judgment for the State, finding first that plaintiffs' constitutional rights are not violated because the legislature's method of preventing the spread of rabies is not irrational, and is suitably tailored to serving the State's compelling interest in preventing the spread of rabies in Hawaii. The court concluded that the Fourteenth Amendment does not require it to "replace its judgment for that of the Hawaii Legislature." CR. 29, Order at 18; see also Order at 19. 01-05010 - 10 - On the ADA claim, the court concluded initially that the Act does not apply because plaintiffs are not "qualified individual[s]" under 42 U.S.C. 12131(2) (Supp. IV 1992). The court reasoned that "[t]he quarantine requirement is a public health measure, and not a 'service' or benefit furnished by the state to eligible participants." CR. 29, Order at 21. Although plaintiffs noted that they are eligible for such "benefits" as government sponsored transportation, the court found that plaintiffs "fail to provide any evidence * * * that they have been deprived of these 'benefits' because of the state's animal quarantine requirements." Id. at 21-22. But even if they were covered by the Act, the court found, the reasonable modification requirement was not violated because the "legislature has already thoroughly considered the plaintiffs' proposed alternatives and has rejected them." Id. at 22. The court concluded that "it is the province of the legislature, and not this court, to assess the efficacy of public health measures against the risks they are designed to reduce, particularly when the questions are debatable and experts disagree as to the best solution to the problem." Ibid. SUMMARY OF ARGUMENT Congress enacted the ADA in 1990 after finding that "discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, * * * and access to public services [.]" 42 U.S.C. 01-05011 - 11 - 12101(a)(3) (Supp. IV 1992). Congress recognized that individuals with disabilities suffer from discrimination resulting from "outright intentional exclusion," as well as from the "discriminatory effects of * * * overprotective rules and policies[.]" 42 U.S.C. 12101(a)(5). Thus, in enacting the ADA, Congress sought to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities[.]" 42 U.S.C. 12101(b)(1). Hawaii's four- month quarantine of all animals coming into the state effectively prevents individuals who are visually impaired and rely on guide dogs from traveling to or from Hawaii. The district court's judgment is inconsistent with the Act's clear purpose to ensure that individuals with disabilities are able to participate fully in our society. The district court erred first in finding that the ADA did not cover Hawaii's system governing the importation of animals. The court found that since plaintiffs were not eligible to receive any services under the quarantine law, they were not "qualified individual[s] with a disability" within the meaning of 42 U.S.C. 12131(2). The court also claimed, ignoring the record, that plaintiffs failed to show that they had been denied state services as a result of the quarantine. Plaintiffs, however, submitted affidavits that because the quarantine deprives them of their guide dogs, they are denied meaningful access to almost all state services -- services for which they are clearly eligible. The district court thus erred as a matter of law in finding that 01-05012 - 12 - the ADA does not apply to Hawaii's system governing importation of animals, and in granting summary judgment when there was clear evidence in the record establishing that the quarantine discriminates against individuals with disabilities. The court also erred in assuming that if the legislature considered changing the quarantine rules for guide dogs and then rejected such proposals, the court had no duty to consider whether a reasonable modification should have been made. A court, however, must apply the requirements of federal law. When Congress enacted Title II, it decided that the ADA's protections would override contrary state policy. Title II of the ADA applies specifically to legislative actions that may violate the rights of persons with disabilities. While states clearly are allowed to promulgate rules to protect the public welfare, a court must determine, based on the evidence in the record, whether a modification to such rules would in fact pose a health risk. The court thus erred as a matter of law in granting summary judgment without considering the evidence that guide dogs pose no health risk to the State, and that an alternative method for excluding infected animals would protect public safety fully, allowing Hawaii to maintain its rabies-free status. 01-05013 - 13 - ARGUMENT I HAWAII'S SYSTEM GOVERNING THE IMPORTATION OF ANIMALS AND REQUIRING THE FOUR-MONTH QUARANTINE OF ALL DOGS COMING INTO THE STATE IS SUBJECT TO THE REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT A. Purpose and Coverage of the Act The ADA arose out of the congressional finding that "discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, * * * and access to public services [.]" 42 U.S.C. 12101(a)(3). In enacting the ADA, Congress intended "to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities[.]" 42 U.S.C. 12101(b)(3). Title II of the ADA prohibits discrimination by state and local governments, and 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. Given the broad language of the statute, the Department of Justice has interpreted Title II to "appl[y] to anything a 01-05014 - 14 - public entity does." 28 C.F.R. Part 35, App. A at p. 441 (analysis of 28 C.F.R. 35.102) (1993).2/ In defining who is protected under the ADA, the statute (42 U.S.C. 12131(2)) provides that a "qualified individual with a disability" is: 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. This language does not narrow the scope of state actions covered by the Act. Rather, it ensures that if the state program at issue has eligibility requirements, it is not a violation of the ________________________ 2/ The legislative history of the statute confirms that Congress intended Title II to cover all state activities, including legislative and regulatory enactments and programs. The House Report notes that: The Committee has chosen not to list all the types of actions that are included within the term "discrimination," as was done in titles I and III, because this title [II] essentially simply extends the anti-discrimination prohibition embodied in section 504 to all actions of state and local governments. H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 84, reprinted in 1990 U.S.C.C.A.N. 303, 366 (emphasis added). See also H.R. Rep. 485 (II) at 151, reprinted in 1990 U.S.C.C.A.N. at 434 (Title II of the bill "makes all activities of State and local governments subject to the types of prohibitions against discrimination against a qualified individual with a disability included in section 504"). Representative Tony Coelho, the ADA's principal sponsor in the House, explained that Title II of the ADA was meant to "prohibit discriminatory activities of State and local governments resulting from ordinance[s], laws, regulations, or ILLEGIBLE 01-05015 -15- Act to exclude an individual with disabilities if that person could not meet those requirements, even after reasonable modifications to rules, policies or practices. See Southeastern Community College v. Davis, 442 U.S. 397 (1979); see also Part II, infra. As the Department of Justice has noted in interpreting 42 U.S.C. 12131(2), "essential eligibility requirements" for participation in many activities of public entities may be so minimal as to be nonexistent. "For example, most public entities provide information about their programs, activities, and services upon request. In such situations, the only 'eligibility requirement' for receipt of such information would be the request for it." DOJ Title II Technical Assistance Manual at p. 8. B. Hawaii's Quarantine is Covered by the Act The district court erred in finding that the ADA did not apply to the State's system regulating the importation of animals. The court erred first in concluding that plaintiffs were not "qualified individual[s] with a disability" under 42 U.S.C. 12131(2), because the animal import restrictions are not a "service" or benefit for which there are eligibility requirements. CR. 29, Order at 21. The district court appeared to agree with the State that in order for the statute to apply, the benefits or services that the plaintiffs were denied (and for which they were otherwise eligible) had to be "furnished to others through the quarantine law." CR. 11, Defendants' Motion at 25; see CR. 29, Op. 21. In other words, there is no violation 01-05016 -16- of the ADA unless the source of the discrimination is a part of the program under which benefits are provided. The district court, however, took no note of the last portion of 42 U.S.C. 12132, which makes plain that an ADA violation is established whenever any state action results in discrimination against a person with disabilities. Under that section, "no qualified individual with a disability shall * * * be subjected to discrimination" by the State.3/ Here, the State, through the imposition of the quarantine, effectively prevents visually impaired individuals who rely on guide dogs from entering the State and enjoying the benefits of State activities and services for which they are clearly eligible. Under Title II, it is immaterial that the quarantine itself is not the source of services, benefits, programs, or activities denied to plaintiffs. The class members testified in their declarations that without their guide dogs, they are either discouraged from ______________________ 3/ The language of Title II is thus broader than the language of Section 504 of the Rehabilitation Act. Under that statute, there is no cause of action against a state for discrimination against people with disabilities unless the individual was "denied the benefits of, or [was] subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. 794 (emphasis added). Even under that language, however, a policy that effectively excludes individuals with a disability from the state also excludes such individuals from all programs within the state. Cf. Rice v. President & Fellows of Harvard College, 663 F.2d 336, 339 n.2 (1st Cir. 1981), cert. denied, 456 U.S. 928 (1982) (under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, "[o]ne who is discriminated against in seeking admission is denied access to all educational programs and activities within an institution, illegible body of programs within the school is tainted 01-05017 -17- travelling or prevented from travelling altogether because they need their guide dogs with them at all times to lead them safely wherever they go. Without their guide dogs, the visually impaired plaintiffs and class members cannot walk on public streets, use public transportation, visit public parks, beaches, and other tourist attractions, or use other public services, such as educational and governmental facilities. Hawaii's mandatory quarantine of guide dogs is no different from a hypothetical state policy designed to protect pedestrians that prohibits four wheel vehicles from using the sidewalks. The policy effectively precludes disabled individuals with wheelchairs from using any public services or facilities, in clear violation of 42 U.S.C. 12132. Although plaintiffs made this argument below, and described the ways in which the restriction impedes their ability to use state services, the district court inexplicably found that "[p]laintiffs fail to provide any evidence * * * that they have been deprived of these 'benefits' because of the state's animal quarantine requirements." CR. 29, Order at 22. That finding is clearly erroneous in light of the uncontested evidence that plaintiffs presented below. But even if the ADA were interpreted more narrowly to prohibit discrimination only if it occurs within the quarantine program itself, the State and the district court mistakenly assumed that the eligibility requirements referred to in 42 U.S.C. 12131(2) necessarily imply eligibility for a service or 01-05018 -18- benefit.4/ 42 U.S.C. 12132, however, establishes the coverage of Title II, and under that provision, qualified individuals with a disability are protected from discrimination not only in the delivery of services or benefits, but also in the operation of a public entity's "programs" and "activities." 42 U.S.C. 12132 (emphasis added). The district court never considered whether the actions of the State in limiting the importation of animals into Hawaii constitute a "program" or "activity" of the State, but clearly they do in light of the broad meanings of those two terms. According to Webster's Third New International Dictionary at pp. 22 and 1812 (1986), the definitions of "program" include a "plan of procedure: a schedule or system5/ under which action may be taken toward a desired goal: a proposed project or scheme." The definitions of "activity" include "an occupation, pursuit, or recreation in which a person is active -- often used in plural (business activities)," and the "duties or functions" of an "organizational unit," using as an example "the food-inspection [activity] of the health department." As noted above, this broad statutory language shows Congress' intent to cover "anything a public entity does." 28 C.F.R. Part 35, App. A at p. 441 (1993). See, e.q., 136 Cong. Rec. 11461 (1990) (statement of Rep. Levine that the ADA covers police arrest practices that discriminate against people with disabilities); see also 45 Fed. ----------------------- 4/ It should be noted that 42 U.S.C. 12131(2) does not contain the phrase "benefit." 5/ The State referred to its "quarantine system" in its motion illegible 01-05019 -19- Reg. 37,630 (1980) (preamble to Department of Justice's regulations on program accessibility under Section 504 requires local law enforcement agencies to make reasonable modifications in arrest procedures to accommodate the needs of individuals who are hearing impaired). Because the State's importation activities are well within the language of 42 U.S.C. 12131 and 42 U.S.C. 12132, the question becomes whether these activities have any eligibility requirements. Hawaii's animal importation program is an example -- similar to the requirements for obtaining information from a state office -- of an activity for which the "essential eligibility requirements" are minimal. To be entitled to bring an animal into the State, "[e]very carrier, owner, handler, or other person causing dogs, cats, or other carnivores to arrive in the State shall be required to present the animals to the department [of agriculture] for inspection immediately upon arrival." Haw. Admin. R.  4-29-4. The regulations also require that the animals meet certain preshipment entry requirements, including the presentation of various health and vaccination certificates and a permit to import. Id. at  4-29-8. There has been no suggestion that plaintiffs have not fulfilled or could not fulfil these requirements for bringing their guide dogs into the State. Plaintiffs therefore are qualified individuals with a 01-05020 -20- disability within the meaning of 42 U.S.C. 12131(2) who were subjected to discrimination in violation of 42 U.S.C. 12132.6/ II THE STATE LEGISLATURE'S REJECTION OF ALTERNATIVES TO THE QUARANTINE FOR GUIDE DOGS DOES NOT ESTABLISH THAT A REASONABLE MODIFICATION SHOULD NOT BE MADE TO THE RULES TO ACCOMMODATE THE NEEDS OF INDIVIDUALS WHO ARE VISUALLY IMPAIRED Given the broad scope of the ADA and the clear congressional directive that discriminatory state and local government policies are to give way to the rights of disabled persons, the court erred as a matter of law in refusing to examine the legislative decision to maintain the quarantine system for all animals, without an exception for guide dogs. CR. 29, Order at 22. The district court contended that since, in its view, the decision satisfies the constitutional test, it is not the court's role to second guess the legislative choice. The question here, however, is not whether the policy satisfies constitutional standards, but ---------------------- 6/ Although the district court did not reach the issue, the State contended below that "discrimination on the basis of disability" does not include all state actions that have a disparate impact on individuals with disabilities, citing Alexander v. Choate, 469 U.S. 287 (1985). Cr. 11 at 28. While this is true, Choate made clear that the balance to be struck requires that "an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers." 469 U.S. at 301. Choate, a Rehabilitation Act case, involved a limit on the number of annual inpatient hospital days for which the state would provide Medicaid reimbursement. The Court found that the state's decision to impose the same limit across the board, rather than raising the limit and allowing additional benefits to disabled individuals, did not deny disabled individuals "meaningful access" to hospital services. In contrast, if a state says a blind person is entitled to use public services and facilities, but then effectively denies that person the use of a guide dog, the state has denied the disabled person "meaningful access" to those services 01-05021 -21- whether a reasonable exception can be made to the policy that accommodates the needs of persons with disabilities, as required by 42 U.S.C. 12131(2). These questions must be resolved on the basis of the ADA and its purposes, not by extrapolating from constitutional decisions that did not confront this issue. The district court's holding thus conflicts with the very purpose of Title II -- to provide protections to individuals with disabilities in the provision of public services. The statute requires a public entity to make "reasonable modifications to rules, policies, or practices" if such modifications would allow otherwise qualified disabled individuals to participate in state programs and benefit from state services. 42 U.S.C. 12131(2). Cf. Alexander v. Choate, 469 U.S. 287, 301 (1985) (under the Rehabilitation Act, individuals with disabilities must be "provided with meaningful access to the benefit" that the state offers). Both the ADA and its implementing regulations refer to the standards established for making such determinations under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. The Department's regulations thus require a "public entity [to] 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 C.F.R. 35.130(b)(7) illegible 01-05022 -22- College v. Davis, 442 U.S. at 397, a Rehabilitation Act case in which the Supreme Court held that the state was not required to admit a student who was hearing-impaired to a state nursing program. The Court found that allowing the applicant to participate would require a "fundamental alteration in the nature of [the] program," 442 U.S. at 410, that would be "far more than the reasonable modifications the statute or regulations required." Alexander v. Choate, 469 U.S. at 300. In School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court considered the application of the Rehabilitation Act in the public health context -- to a school board's decision to discharge a teacher with tuberculosis. The Court held that in analyzing whether there is a violation under the Rehabilitation Act, a court must make findings of fact, based on reasonable medical judgment, about the nature, duration, and severity of the health risk, and the probabilities the disease will be transmitted and will cause varying degrees of harm. While courts "normally should defer to the reasonable medical judgments of public health officials," the Supreme Court made clear in Arline that the district court must "evaluate, in light of these medical findings, whether the [defendant] could reasonably accommodate the [disabled individual] under the established standards for that inquiry." 480 U.S. at 288. See also Title II Technical Assistance Manual at p. 8. The EEOC has interpreted this language under Title I of the ADA, which prohibits discrimination in employment, to mean that "[a]n 01-05023 -23- employer * * * is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient." 29 C.F.R. Ch. XIV, Pt. 1630, App. at 410 (1993). Here, there was substantial evidence in the record that allowing guide dogs into the state would not pose even a slightly increased risk to the public health. The State admitted that it knew of no cases in which guide dogs had ever contracted rabies. According to Hawaii's Interim Task Force Report, the quarantine has never, in 77 years, intercepted an animal with rabies. Even though there is no perceptible risk that guide dogs would jeopardize Hawaii's rabies-free status, plaintiffs proposed a reasonable -- and extremely limited7/ -- modification to the state's method of importing animals (substituting vaccinations, plus microchip, plus tests for the quarantine) that would eliminate any conceivable threat to the public safety. Contrary to the Act's requirements, the district court did not make any factual findings that either guide dogs or plaintiffs' modification of the system of importation would threaten public safety. See Nathanson v. Medical College of Pennsylvania, 926 -------------------- 7/ The district court also erred in assuming that plaintiffs were requesting "replacement of the entire quarantine scheme with a system of vaccinations and other tests." CR. 29, Order at 22. Plaintiffs were requesting a modification with regard only to the entry of guide dogs. There was no suggestion that it was an all or nothing proposition -- that the State has to maintain the illegible 01-05024 - 24 - F.2d 1368, 1386 (3d Cir. 1991) ("[a] district court's estimate of what is reasonable 'rests in large part upon factual determinations,'" quoting United States v. Board of Trustees for Univ. of Alabama, 908 F.2d 740, 750 (11th Cir. 1990)). And in fact, the State did not purport to defend the legislature's choice as the correct judgment, but merely as the one that was made by the legislature and thus should not be second guessed. CR. 21, Defendants' Reply at 3. Summary judgment was inappropriate in light of the evidence that the importation of guide dogs, even without the plaintiffs' proposed modification, posed no risk to public safety. See Bonner v. Lewis, 857 F.2d 559, 564 (9th Cir. 1988) (presence of genuine issues of fact preclude summary judgment on a claim under the Rehabilitation Act of 1973, 29 U.S.C. 794); Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993) (in the Rehabilitation Act context, an employer "may not merely speculate that a suggested accommodation is not feasible"). 01-05025 - 25 - CONCLUSION For the foregoing reasons, the district court's judgment should be reversed on the issue of the coverage of the ADA, and remanded for consideration of the proposed reasonable modification. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General (Signature) ___________________________ JESSICA DUNSAY SILVER REBECCA K. TROTH Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4541 01-05026 ADDENDUM 01-05027 S 12101 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 156 Sec. 12211. Definitions. (a) Homosexuality and bisexuality. (b) Certain conditions. 12212. Alternative means of dispute resolution. 12213. Severability. CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 20 section 1142; title 26 section 44; title 29 sections 720, 721, 743, 761a, 762, 781, 793, 795g, 797a: title 38 section 4307; title 49 App. sections 1607a, 1608, 1022, 1023, 2202.  12101. Findings and purpose (a) Findings The Congress finds that-- (1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older; (2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with dis- abilities continue to be a serious and pervai- sive social problem; (3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommoda- tions, education, transportation, communica- tion, recreation, institutionalization, health services, voting, and access to public services; (4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal re- course to redress such discrimination; (5) individuals with disabilities continually encounter various forms of discrimination, in- cluding outright intentional exclusion, the discriminatory effects of architectural, trans- portation, and communication barriers, over- protective rules and policies, failure to make modifications to existing facilities and prac- tices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities; (6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disad- vantage socially, vocationally, economically, and educationally; (7) individuals with disabilities are a dis- crete and insular minority who have been faced with restrictions and limitations, sub- jected to a history of purposeful unequal treatment, and relegated to a position of po- litical powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereoty- pic assumptions not truly indicative of the in- dividual ability of such individuals to partici- pate in, and contribute to, society; (8) the Nation's proper goals regarding indi- viduals with disabilities are to assure equality of opportunity, full participation, independ- ent living, and economic self-sufficiency for such individuals; and (9) the continuing existence of unfair and Illegible denies people with disabilities the opportuni- ty to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary ex- penses resulting from dependency and non- productivity. (b) Purpose It is the purpose of this chapter-- (1) to provide a clear and comprehensive na- tional mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, en- forceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of indi- viduals with disabilities; and (4) to invoke the sweep of congressional au- thority, including the power to enforce the fourteenth amendment and to regulate com- merce, in order to address the major areas of discrimination faced day-to-day by people with disabilities. (Pub. L. 101-336,  2, July 26, 1990, 104 Stat. 328.) REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original "this Act", meaning Pub. L. 101-336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out below and Tables. SHORT TITLE Section 1(a) of Pub. L. 101-336 provided that: "This Act [enacting this chapter and section 225 of Title 47, Telegraphs, Telephones, and Radiotelegraphs, amend- ing section 706 of Title 29, Labor, and sections 152, 221, and 611 of Title 47, and enacting provisions set out as notes under sections 12111, 12131, 12141, 12161, and 12181 of this title) may be cited as the 'Americans with Disabilities Act of 1990'."  12102. Definitions As used in this chapter: (1) Auxiliary aids and services The term "auxiliary aids and services" in- cludes-- (A) qualified interpreters or other effec- tive methods of making aurally delivered materials available to individuals with hear- ing impairments; (B) qualified readers, taped texts, or other effective methods of making visually deliv- ered materials available to individuals with visual impairments; (C) acquisition or modification of equip- ment or devices; and (D) other similar services and actions. (2) Disability The term "disability" means, with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; Illegible 01-05028 S 12131 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 162 (Pub. L. 101-336, title I,  107, July 26, 1990, 104 Stat. 136.) REFERENCES IN TEXT The Rehabilitation Act of 1973, referred to in subsec. (b), is Pub. L. 93-112, Sept. 26, 1973, 37 Stat. Illegible, as amended, which is classified generally to chapter 16 ( 701 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 701 of Title 29 and Tables. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1981a, 12203 of this title. SUBCHAPTER II--PUBLIC SERVICES SUBCHAPTER REFERRED TO IN OTHER SECTIONS This subchapter is referred to in sections 12201, 12203, 12204, 12206 of this title: title 29 section 792. PART A--PROHIBITION AGAINST DISCRIMINATION AND OTHER GENERALLY APPLICABLE PROVISIONS PART REFERRED TO IN OTHER SECTIONS This part is referred to in section 12206 of this title.  12131. Definitions As used in this subchapter: (1) Public entity The term "public entity" means-- (A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Cor- poration, and any commuter authority (as defined in section 502(8) of title 45). (2) Qualified individual with a disability The term "qualified individual with a dis- ability" means an individual with a disability who, with or without reasonable modific- tions to rules, policies, or practices, the re- moval of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essen- tial eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. (Pub. L. 101-336, title II,  201, July 26, 1990, 104 Stat. 337.) EFFECTIVE DATE Section 205 of Pub. L. 101-336 provided that: "(a) GENERAL RULE.--Except as provided in subsec- tion (b), this subtitle [subtitle A ( 201-205) of title II of Pub. L. 101-336, enacting this part] shall become ef- fective 18 months after the date of enactment of this Act [July 26, 1990]. "(b) EXCEPTION.--Section 204 [section 12134 of this title] shall become effective on the date of enactment of this Act." SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 12181 of this title.  12132. Discrimination Subject to the provisions of this subchapter, no qualified individual with a disability shall, Illegible 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. (Pub. L. 101-336, title II,  202, July 26, 1990, 104 Stat. 337.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 12133, 12142, 12143, 12144, 12146, 12147, 12148, 12162 of this title. S 12133. Enforcement The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchap- ter provides to any person alleging discrimination on the basis of disability in violation of sec- tion 12132 of this title. (Pub. L. 101-336, title II,  203, July 26, 1990, 104 Stat. 337.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 12203 of this title.  12134. Regulations (a) In general Not later than 1 year after July 26, 1990, the Attorney General shall promulgate regulations in an accessible format that implement this part. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation under section 12143, 12149, or 12164 of this title. (b) Relationship to other regulations Except for "program accessibility, existing fa- cilities" and "communications", regulations under subsection (a) of this section shall be consistent with this chapter and with the co- ordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to re- cipients of Federal financial assistance under section 794 of title 29. With respect to "pro- gram accessibility, existing facilities", and "communications", such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regu- lations, applicable to federally conducted activities under section 794 of title 29. (c) Standards Regulations under subsection (a) of this sec- tion shall include standards applicable to facili- ties and vehicles covered by this part, other than facilities, stations, rail passenger cars, and vehicles covered by part B of this subchapter. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Bar- riers Compliance Board in accordance with sec- tion 2204(a) of this title. (Pub. L. 101-336, title II,  204, July 26, 1990, Illegible 01-05029  12204 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 182 an investigation, proceeding, or hearing under this chapter. (b) Interference, coercion, or intimidation It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on ac- count of his or her having aided or encouraged any other individual in the exercise or enjoy- ment of, any right granted or protected by this chapter. (c) Remedies and procedures The remedies and procedures available under sections 12117, 12133, and 12188 of this title shall be available to aggrieved persons for viola- tions of subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter III of this chapter, respectively. (Pub. L. 101-336, title V,  503, July 26, 1990, 104 Stat. 370.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 29 sections 791, 793, 794.  12204. Regulations by Architectural and Transporta- tion Barriers Compliance Board (a) Issuance of guidelines Not later than 9 months after July 26, 1990, the Architectural and Transportation Barriers Compliance Board shall issue minimum guide- lines that shall supplement the existing Mini- mum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter. (b) Contents of guidelines The supplemental guidelines issued under subsection (a) of this section shall establish ad- ditional requirements, consistent with this chapter, to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transporta- tion, and communication, to individuals with disabilities. (c) Qualified historic properties (1) In general The supplemental guidelines issued under subsection (a) of this section shall include procedures and requirements for alterations that will threaten or destroy the historic sig- nificance of qualified historic buildings and facilities as defined in 4.1.7(1)(a) of the Uni- form Federal Accessibility Standards. (2) Sites eligible for listing in National Register With respect to alterations of buildings or facilities that are eligible for listing in the Na- tional Register of Historic Places under the National Historic Preservation Act (16 U.S.C. 470 et seq.), the guidelines described in para- graph (1) shall, at a minimum, maintain the procedures and requirements established in 4.1.7(1) and (2) of the Uniform Federal Acces- sibility Standards. (3) Other sites With respect to alterations of buildings or facilities designated as historic under State or local law, the guidelines described in para- graph (1) shall establish procedures equiva- lent to those established by 4.1.7(1xb) and (c) of the Uniform Federal Accessibility Stand- ards, and shall require, at a minimum, compli- ance with the requirements established in 4.1.7(2) of such standards. (Pub. L. 101-336, title V,  504, July 26, 1990, 104 Stat. 370.) REFERENCES IN TEXT The National Historic Preservation Act, referred to in subsec. (cx2), is Pub. L. 89-665, Oct. 15, 1966, 80 Stat. 915, as amended, which is classified generally to subchapter 11 (S 470 et seq.) of chapter 1A of Title 16, Conservation. For complete classification of this Act to the Code, see section 470(a) of Title 16 and Tables. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 12134, 12149, 12150, 12163, 12165, 12186 of this title; title 29 sections 791, 793, 794.  12205. Attorney's fees In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the pre- vailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. (Pub. L. 101-336, title V,  505, July 26, 1990, 104 Stat. 371.)  12206. Technical assistance (a) Plan for assistance (1) In general Not later than 180 days after July 26, 1990, the Attorney General, in consultation with the Chair of the Equal Employment Opportu- nity Commission, the Secretary of Transpor- tation, the Chair of the Architectural and Transportation Barriers Compliance Board, and the Chairman of the Federal Communi- cations Commission, shall develop a plan to assist entities covered under this chapter, and other Federal agencies, in understanding the responsibility of such entities and agencies under this chapter. (2) Publication of plan The Attorney General shall publish the plan referred to in paragraph (1) for public comment in accordance with subchapter II of chapter 5 of title 5 (commonly known as the Administrative Procedure Act). (b) Agency and public assistance The Attorney General may obtain the assist- ance of other Federal agencies in carrying out subsection (a) of this section, including the Na- tional Council on Disability, the President's Committee on Employment of People with Dis- abilities, the Small Business Administration, and the Department of Commerce. 01-05030 Page 183 TITLE 42--THE PUBLIC HEALTH AND WELFARE  12207 (c) Implementation (1) Rendering assistance Each Federal agency that has responsibility under paragraph (2) for implementing this chapter may render technical assistance to in- dividuals and institutions that have rights or duties under the respective subchapter or subchapters of this chapter for which such agency has responsibility. (2) Implementation of subchapters (A) Subchapter I The Equal Employment Opportunity Commission and the Attorney General shall implement the plan for assistance devel- oped under subsection (a) of this section, for subchapter I of this chapter. (B) Subchapter II (I) Part A The Attorney General shall implement such plan for assistance for part A of sub- chapter II of this chapter. (II) Part B The Secretary of Transportation shall implement such plan for assistance for part B of subchapter II of this chapter. (C) Subchapter III The Attorney General, in coordination with the Secretary of Transportation and the Chair of the Architectural Transporta- tion Barriers Compliance Board, shall im- plement such plan for assistance for sub- chapter III of this chapter, except for sec- tion 12184 of this title, the plan for assist- ance for which shall be implemented by the Secretary of Transportation. (D) Title IV The Chairman of the Federal Communi- cations Commission, in coordination with the Attorney General, shall implement such plan for assistance for title IV. (3) Technical assistance manuals Each Federal agency that has responsibility under paragraph (2) for implementing this chapter shall, as part of its implementation responsibilities, ensure the availability and provision of appropriate technical assistance manuals to individuals or entities with rights or duties under this chapter no later than six months after applicable final regulations are published under subchapters I, II, and III of this chapter and title IV. (d) Grants and contracts (1) In general Each Federal agency that has responsibility under subsection (c)(2) of this section for im- plementing this chapter may make grants or award contracts to effectuate the purposes of this section, subject to the availability of ap- propriation. Such grants and contracts may be awarded to individuals, institutions not or- ganized for profit and no part of the net earn- ings of which inures to the benefit of any pri- rate shareholder or individual (including edu- ILLEGIBLE under this chapter. Contracts may be award- ed to entities organized for profit, but such entities may not be the recipients or ILLEGIBLE grants described in this paragraph. (2) Dissemination of Information Such grants and contracts, among other uses, may be designed to ensure wide dissemi- nation of information about the rights and duties established by this chapter and to pro- vide information and technical assistance about techniques for effective compliance with this chapter. (e) Failure to receive assistance An employer, public accommodation, or other entity covered under this chapter shall not be excused from compliance with the require- ments of this chapter because of any failure to receive technical assistance under this section, including any failure in the development or dis- semination of any technical assistance manual authorized by this section. (Pub. L. 101-336, title V,  506, July 26, 1990, 104 Stat. 371.) REFERENCES IN TEXT Title IV, referred to in subsec. (Cx2xD). (3) means title IV of Pub. L. 101-336, July 26, 1990, 104 Stat. 366. which enacted section 225 of Title 47, Telegraphs, Telephones, and Radiotelegraphs, and amended sec- tion- 152, 221, and 611 of Title 47. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 29 sections 761a.  12207. Federal wilderness areas (a) Study The National Council on Disability shall con- duct a study and report on the effect that wilderness designations and wilderness land man- agement practices have on the ability of indi- viduals with disabilities to use and enjoy the National Wilderness Preservation System as es- tablished under the Wilderness Act (16 U.S.C. 1131 et seq.). (b) Submission of report Not later than 1 year after July 26, 1990, the National Council on Disability shall submit the report required under subsection (a) of this sec- tion to Congress. (c) Specific wilderness access (1) In general Congress reaffirms that nothing in the Wil- derness Act [16 U.S.C. 1131 et seq.] is to be construed as prohibiting the use of a wheel- chair in a wilderness area by an individual whose disability requires use of a wheelchair, and consistent with the Wilderness Act no agency is required to provide any form of spe- cial treatment or accommodation, or to construct any facilities or modify any conditions of lands within a wilderness area in order to facilitate such use. 01-05031 STATEMENT OF RELATED CASES Counsel for the United States is not aware of any related cases pending in this Court. 01-05032 CERTIFICATE OF SERVICE I certify that on this 13th day of June 1994, two copies of the foregoing Brief for the United States as Amicus Curiae and one copy of The Americans with Disabilities Act Title II Technical Assistance Manual (1993) were mailed by first class mail to the following addresses: Michael A. Lilly Ning, Lilly, & Jones 707 Richards Street, Suite 700 Honolulu, Hawaii 96813 Robert A. Marks Sonia Faust Heidi M. Rian Office of the Attorney General Kekuanao'a Building 465 South King Street Honolulu, Hawaii 96813 (Signature) ____________________ REBECCA K. TROTH Attorney 01-05033