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No. 04-1203

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

STATE OF GEORGIA, ET AL.

TONY GOODMAN, PETITIONER

v.

STATE OF GEORGIA, ET AL.

ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS PETITIONER
IN NO. 04-1203

PAUL D. CLEMENT
Solicitor General
Counsel of Record

BRADLEY J. SCHLOZMAN
Acting Assistant Attorney General

PATRICIA A. MILLETT
Assistant to the Solicitor General

DAVID K. FLYNN
SARAH E. HARRINGTON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 to 12165, is a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems.

PARTIES TO THE PROCEEDINGS

The petitioner in No. 04-1203, and the respondent supporting petitioner in No. 04-1236, is the United States of America. The United States intervened in the court of appeals, pursuant to 28 U.S.C. 2403, to defend the constitutionality of the abrogation of Eleventh Amendment immunity in Title II of the Americans with Disabilities Act of 1990.

The petitioner in No. 04-1236, and the respondent supporting petitioner in No. 04-1203, is Tony Goodman, who was the private plaintiff below.

The respondents in both cases are the same: the State of Georgia; the Georgia Department of Corrections; Johnny Sikes, the Georgia State Prison Warden; J. Wayne Garner, the Commissioner of the Georgia Department of Corrections; A.G. Thomas, the Director of Facilities Division of the Georgia Department of Corrections; J. Brady, the Deputy Warden of the Georgia State Prison; O. T. Ray, the supervisor of guard shifts at the Georgia State Prison; H. Whimbly, a guard at the Georgia State Prison; Margaret Patterson, a guard at the Georgia State Prison; and R. King, a staff member at the Georgia State Prison, all of whom were defendants below.

In the Supreme Court of the United States

No. 04-1203

UNITED STATES OF AMERICA, PETITIONER

v.

STATE OF GEORGIA, ET AL.

No. 04-1236

TONY GOODMAN, PETITIONER

v.

STATE OF GEORGIA, ET AL.

ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS PETITIONER
IN NO. 04-1203

OPINIONS BELOW

The opinion of the court of appeals (04-1203 Pet. App. 1a-22a) is unreported.1 The order and judgment of the district court (Pet. App. 23a-28a) are unreported.

JURISDICTION

The court of appeals entered its judgment on September 16, 2004. A petition for rehearing was denied on December 9, 2004 (Pet. App. 29a-30a). The petitions for a writ of certiorari in No. 04-1203 and No. 04-1236 were filed on March 9, 2005, and were granted and consolidated on May 16, 2005. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED

The relevant constitutional and statutory provisions are reproduced at Pet. App. 31a-84a. The relevant regulatory provisions are reproduced at Addendum D.

STATEMENT

1. The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., established a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b)(1). Congress found that, "historically, society has tended to isolate and segregate individuals with disabilities," and that "such forms of discrimination * * * continue to be a serious and pervasive social problem." 42 U.S.C. 12101(a)(2). Congress specifically found that discrimination against persons with disabilities "persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services." 42 U.S.C. 12101(a)(3). In addition, Congress found that persons with disabilities

continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifictions to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.

42 U.S.C. 12101(a)(5). Congress concluded that persons with disabilities

have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.

42 U.S.C. 12101(a)(7). Based on those findings, Congress "invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment," to enact the ADA. 42 U.S.C. 12101(b)(4).

The ADA targets three particular areas of discrimination against persons with disabilities. Title I, 42 U.S.C. 12111-12117, addresses discrimination by employers affecting interstate commerce; Title II, 42 U.S.C. 12131-12165, addresses discrimination by state and local governmental entities in the operation of public services, programs, and activities; and Title III, 42 U.S.C. 12181- 12189, addresses discrimination in public accommodations operated by private entities.

This case arises under Title II of the ADA, which 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 "public entity" is defined to include "any State or local government" and its components, 42 U.S.C. 12131(1)(A) and (B). Title II's coverage of "services, programs, or activities," 42 U.S.C. 12132, includes the administration of prisons. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210-212 (1998). Title II may be enforced through private suits against public entities, and 42 U.S.C. 12133, and Congress expressly abrogated the States' Eleventh Amendment immunity to such suits in federal court, 42 U.S.C. 12202.

Title II prohibits governments from, among other things, denying a benefit to a qualified individual with a disability because of his disability, providing him with a lesser benefit than is given to others, or limiting his enjoyment of the rights and benefits provided to the public at large. See 28 C.F.R. 35.130(b)(1)(i), (iii), and (vii).2 In addition, while there is no absolute duty to accommodate individuals with a disability, a public entity must make reasonable modifications to its policies, practices, or procedures if necessary to avoid the exclusion of individuals with disabilities, unless the accommodation would impose an undue financial or administrative burden on the government, or would fundamentally alter the nature of the service. See 28 C.F.R. 35.130(b)(7), 35.150(a)(2) and (3). The ADA does not normally require a public entity to make its existing physical facilities accessible. 28 C.F.R. 35.150(a)(1). Public entities need only ensure that "each service, program, or activity * * * when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." 28 C.F.R. 35.150(a). However, buildings constructed or altered after Title II's effective date must be designed to provide accessibility. 28 C.F.R. 35.151.

2. Tony Goodman is a paraplegic and is confined to a wheelchair due to multiple spinal fractures sustained in an automobile accident. Pet. App. 2a. Goodman, a Georgia state prison inmate, is housed in a "high/maximum security section" of the prison, at least in part because of "the special requirements associated with his being wheelchair bound." Id. at 4a. The "lock-up order" that sent Goodman to maximum security identified "inmate is in wheel chair" as the only reason for that detention decision. J.A. 90. He is kept in a cell measuring 12 feet by 3 feet for 23 to 24 hours per day. Pet. App. 4a. The cell's small size prevents Goodman from turning his wheelchair around, thereby rendering him functionally immobile for 23 to 24 hours every day. Id. at 5a, 17a. "[T]he size of his cell appear[s] to be unrelated to disciplinary issues." Id. at 4a. Goodman further alleges that the prison "lacks facilities for the disabled for hygiene, drinking and performing body excretion functions." Ibid. Goodman is unable to access his bed, his toilet, or the shower without assistance, and that assistance is often denied to him. Id. at 5a. As a result, Goodman has been "forced to live in a cell where the floor was smeared with defecation and urine" and "'required to live and sit in his own body waste,' while being refused repeated requests for cleaning supplies and assistance." Id. at 6a; see id. at 5a (Goodman "has been forced to sit in his own bodily waste for long periods of time because none of the guards was willing to assist him").

In addition, Goodman's only means of transferring himself between his wheelchair and his bed or toilet is by "hurl[ing]" himself, which often results in falls and injuries, such as broken toes, "crushed" knees, and a fall-induced seizure. Pet. App. 6a; J.A. 47, 108. On one occasion, a guard moved an unsecured toilet seat into a shower for Goodman to use. When he attempted to transfer to it, "the toilet seat turned over and he fell to the floor and was hurt at [the] head, neck, [and] left arm." Pet. App. 7a. Goodman further asserts that respondents have denied him catheters and "have failed 'to provide any assistance in preventing dangerous bedsores.'" Pet. App. 8a. When prison officials transported Goodman in a vehicle that was not wheelchair-accessible, he "fell to the floor and lost consciousness several times," and "suffer[ed] injures [sic] and pains at head, neck, back, stomach and legs." Id. at 7a. Goodman further asserts that he was purposefully denied adequate medical care after many of those incidents. Id. at 7a-8a.

Goodman has also been deprived for "long periods" of time of such basic humanitarian needs as "showers, baths, adequate ventilation or heating, recreation, work, medical and [mental health] care, laundry service, cleaning service, and phone service." Pet. App. 5a. The lack of wheelchair accessibility also has prevented him from exercising the same religious rights as other prisoners, has precluded his use of the prison's law library, and has deprived him of the counseling services, educational services, vocational training, and freedom of-movement throughout the institution afforded other inmates. Id. at 5a-6a, 24a; see J.A. 65 ("Because of my disabilities I'm being denied of all 'privileges and rights' which other similar security inmates have access to, such as counseling services, educational servicess [sic], college program, vocational training, recreational activities, freedom of-movement [sic] in unit and the institution, television, phone calls, entertainment-and religious rights."); J.A. 105.

After repeated unsuccessful attempts to obtain relief through the prison's administrative grievance process, Pet. App. 2a, Goodman filed suit pro se against respondents, the Georgia Department of Corrections and numerous prison officials, seeking injunctive and monetary relief under the Constitution and Title II. Id. at 2a-3a. The district court granted summary judgment for respondents Georgia and the Department of Corrections on Goodman's ADA claims on Eleventh Amendment grounds, id. at 25a-26a, and granted summary judgment in favor of the individual respondents on Goodman's claims for injunctive relief on mootness grounds, due to Goodman's transfer to another prison, id. at 27a.3

3. Goodman appealed, and the United States intervened to defend the constitutionality of Title II's abrogation of Eleventh Amendment immunity. J.A. 5. While the appeal was pending, this Court decided Tennessee v. Lane, 541 U.S. 509 (2004), which upheld, as legislation validly enacted under Section 5 of the Fourteenth Amendment, Title II's abrogation of the States' Eleventh Amendment immunity as applied to the class of cases implicating the accessibility of judicial services. Id. at 531.

The court of appeals subsequently affirmed the district court's grant of summary judgment for Georgia and its Department of Corrections on Eleventh Amendment grounds. Pet. App. 1a-22a. The court applied its recent decision in Miller v. King, 384 F.3d 1248 (11th Cir. 2004), in which it had held that Title II is not valid Section 5 legislation as applied to the administration of prisons. In Miller, the court read the relevant context for analyzing Congress's exercise of its Section 5 power under Tennessee v. Lane to be the particular constitutional right allegedly violated in the individual plaintiff's case, which, in Miller's case, was the Eighth Amendment. 384 F.3d at 1272. The court expressly refused to consider "the host of [additional] rights identified by the United States" as enforced by Title II in the prison context because it did not consider them to be "implicate[d]" by Miller's individual claims. Id. at 1272 n.28.

Having restricted the relevant constitutional context to the Eighth Amendment, the Miller court then concluded that Title II sweeps too broadly in the prison context because it proscribes "a different swath of conduct that is far broader and even totally unrelated to the Eighth Amendment in many instances," such as equal access to other prison programs that might implicate different constitutional rights. 384 F.3d at 1274. The court reasoned that, "[e]ven if a documented history of disability discrimination specifically in the prison context justifies application of some congressional prophylactic legislation to state prisons," "this case [is] radically different from Lane" because of "the limited nature of the constitutional right at issue." Id. at 1273.

In the case at hand, the Eleventh Circuit extended Miller's holding that Title II is not valid Section 5 legislation to Goodman's case, Pet. App. 19a, notwithstanding that Goodman presented claims implicating not just the Eighth Amendment, but also the Due Process Clause and the First Amendment, id. at 4a-6a, 24a. With respect to Goodman's Section 1983 action, however, the court of appeals reversed and remanded because Goodman's "filings evidence sufficient allegations to proceed with a limited number of Eighth-Amendment claims." Id. at 16a.

SUMMARY OF ARGUMENT

Application of Title II of the Americans with Disabilities Act to the administration of prisons falls squarely within Congress's comprehensive legislative power under Section 5 of the Fourteenth Amendment to prohibit, remedy, and prevent violations of the rights secured by that Amendment. This Court has already held that the Nation's tragic history and enduring problem of unconstitutional treatment of persons with disabilities in the administration of public services provides an appropriate basis for Congress's exercise of its Section 5 power to enact prophylactic legislation. That finding applies with particular force to prison administration, given the invidious historic uses of the penal system and the closely related practice of institutionalization to deprive the disabled of their most fundamental rights to life and liberty. As a result of that history and the inherent difficulty of stanching its effects, Congress confronted an enduring and widespread problem of unconstitutional mistreatment of prisoners with disabilities. Congress had before it substantial evidence that disabled inmates continue to be denied basic medical care and humane conditions of confinement, with the States' indifference sometimes resulting in death. Congress also was aware that the design of prison facilities and programs often consigned inmates with disabilities to atypical and significant hardships in the terms and conditions of confinement, deprived them of the most basic privileges afforded similarly situated inmates, and left them without access to the programs that allow offenders to shorten their prison terms. That official mistreatment results not just in the denial of the equal protection of the laws and equal access to governmental benefits, but also in the deprivation of fundamental rights, such as the rights of access to the courts, to substantive and procedural due process, to petition government officials, to equal opportunity for religious exercise, and to humane conditions of confinement. Indeed, in the prison context, Title II applies in an environment in which the States' pervasive control over the prisoner and exclusion of other avenues of assistance impose unique and extensive constitutional duties on the States.

In Title II, Congress formulated a statute that, much like federal laws combating racial and gender discrimination, is carefully designed to root out present instances of unconstitutional discrimination, to undo the effects of past discrimination, and to prevent future unconstitutional treatment by prohibiting discrimination and promoting integration where reasonable. At the same time, Title II preserves the latitude and flexibility that States legitimately require in the administration of their prison programs and services. Title II accomplishes those objectives by requiring States to afford inmates with disabilities genuinely equal access to services and programs, while at the same time confining the statute's protections to qualified individuals who, by definition, meet all of the States' legitimate and essential eligibility requirements. In addition, Title II requires only "reasonable" modifications and accommodations that do not impose undue burdens or fundamentally alter the nature or character of the governmental program. The statute is thus carefully tailored to prohibit state conduct that presents a substantial risk of violating the Constitution or that unreasonably perpetuates the exclusionary effects of prior unconstitutional treatment and isolation in the prison context.

ARGUMENT

TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS VALID SECTION 5 LEGISLATION AS APPLIED TO PRISON ADMINISTRATION

Section 5 of the Fourteenth Amendment is an affirmative grant of legislative power, see Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80 (2000), that gives Congress the "authority both to remedy and to deter violation of [Fourteenth Amendment] rights * * * by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text," Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727 (2003) (quoting Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001)). Section 5 "is a 'broad power indeed,'" Tennessee v. Lane, 541 U.S. 509, 518 (2004), empowering Congress not only to remedy past violations of constitutional rights, but also to enact "prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct," Hibbs, 538 U.S. at 727-728. Congress also may prohibit "practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause." Lane, 541 U.S. at 520. State prison operations are no exception to this power. See Hutto v. Finney, 437 U.S. 678, 693-699 (1978).

Section 5 legislation, however, must demonstrate a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520 (1997). In evaluating whether Title II is an appropriate response to past unconstitutional treatment of individuals with disabilities, the Court in Lane declined to address Title II as a whole, upholding it instead as "valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services," 541 U.S. at 531. Title II of the ADA likewise is appropriate Section 5 legislation as applied to prison administration because it is reasonably designed to remedy past and prevent future unconstitutional treatment of disabled inmates and deprivation of their constitutional rights in the operation of state penal systems.

A. Prison Administration Is The Relevant Context

In undertaking the as-applied analyses of Congress's exercise of its Section 5 power, the court of appeals looked only to Title II's relation to the Eighth Amendment, the constitutional amendment invoked by the plaintiff in that court's first case involving prison administration. Miller v. King, 384 F.3d 1248, 1272 (2004); see Pet. App. 19a. That asks the wrong question. The congruence and proportionality analysis assesses whether Section 5 legislation is an "appropriate response" to a "history and pattern of unequal treatment," Lane, 541 U.S. at 530, not whether the law is appropriately tailored to the legal claims of an individual plaintiff in a particular case more than a decade later. This Court has held that the history and "pattern of unequal treatment," id. at 525, that underlay Congress's enactment of Title II evidenced violations not only of the constitutional "prohibition on irrational disability discrimination," but also of "a variety of other basic constitutional guarantees," id. at 522. Accordingly, the analysis of whether Title II is a congruent and proportional response to those problems must take into account that same history.

In Lane, the Supreme Court did not define the relevant context for its as-applied analysis as the specific constitutional provisions invoked by the plaintiffs or even the particular factual claims of physical access to courtroom proceedings presented by the case. Instead, this Court framed the relevant inquiry in terms of the entire "class of cases implicating the accessibility of judicial services" and considered the full range of constitutional concerns implicated by that class of governmental activity. 541 U.S. at 531. Indeed, plaintiff Lane had alleged only that he had been jailed for failure to appear in an inaccessible courthouse. The other Lane plaintiff, Beverly Jones, alleged only that her ability to work as a court reporter was limited because she could not enter a number of courthouses. Id. at 513-514. Lane's particular claims thus implicated the Due Process and Confrontation Clauses, and Jones's claims implicated only the Equal Protection Clause.

In analyzing Congress's power to enact Title II, however, this Court discussed the full range of constitutional rights implicated by the "administration" and "accessibility of judicial services," Lane, 541 U.S. at 531:

The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant such as respondent Lane the "right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." The Due Process Clause also requires the States to afford certain civil litigants a "meaningful opportunity to be heard" by removing obstacles to their full participation in judicial proceedings. We have held that the Sixth Amendment guarantees to criminal defendants the right to trial by a jury composed of a fair cross section of the community, noting that the exclusion of "identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial." And, finally, we have recognized that members of the public have a right of access to criminal proceedings secured by the First Amendment.

Id. at 523 (citations omitted).4 Likewise, in Hibbs, supra, this Court broadly upheld the family-leave provisions of the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., as a proper exercise of Congress's Section 5 power to combat historic gender discrimination in employment. And the Court did so in a case that involved a male employee's application for family leave to care for an ailing spouse, where the complaint contained no constitutional claim of gender discrimination at all. See 538 U.S. at 725; 01-1368 J.A. 6-18.5

Focusing the as-applied analysis of Congress's exercise of its Section 5 power on substantive categories of governmental activity and the cluster of rights they may implicate makes sense. Congress is a national legislature and, especially when exercising its prophylactic and remedial Section 5 power, Congress necessarily responds to and addresses not the isolated claims of future litigants, but broad "pattern[s]" of unconstitutional conduct by government officials in the substantive areas in which they operate. Lane, 541 U.S. at 526. Indeed, in enacting Title II, Congress specifically found that unconstitutional treatment of individuals with disabilities "persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services." 42 U.S.C. 12101(a)(3) (emphasis added).

Beyond that, a central rationale for Congress's exercise of its prophylactic Section 5 legislation-one long endorsed by this Court-is that "[c]ase-by-case adjudication ha[s] proved too ponderous a method to remedy [past] discrimination." City of Rome v. United States, 446 U.S. 156, 174 (1980); see Hibbs, 538 U.S. at 736; South Carolina v. Katzenbach, 383 U.S. 301, 314-315 (1966). Making the constitutional claims in the plaintiff's complaint the measuring rod for legislation designed to address the ineffectiveness of such litigation gets the analysis exactly backwards.

For similar reasons, in light of Congress's conceded power to legislate prophylactically under Section 5, see Lane, 541 U.S. at 529, it would make little sense to focus on an individual plaintiff's claim in assessing whether the statute's prophylactic scope is valid. An individual's claim could fall exclusively within the prophylactic coverage of the statute and implicate no constitutional rights at all, and yet that would not render the statute unconstitutional. By the same token, the constitutional rights that are in fact implicated in any particular case may be happenstance and should not govern the broad question of whether Title II's application to a context is valid.6

Tellingly, in enacting other civil rights legislation pursuant to its power under the Civil War Amendments, Congress has not proceeded on a claim-by-claim basis the way a court might, but instead has often targeted substantive categories of governmental conduct that implicate a constellation of constitutional rights and interests. See, e.g., 42 U.S.C. 2000e et seq. (employment); 42 U.S.C. 1981 (contracts); 42 U.S.C. 2000c et seq. (education); 20 U.S.C. 1681(a) (same); 42 U.S.C. 1971 et seq. (voting); 42 U.S.C. 2000a et seq. (public accommodations); 42 U.S.C. 3601 et seq. (housing). Prisons, as a species of institutional detention, have also been an object of civil rights legislation. See, e.g., 42 U.S.C. 1997 et seq. Indeed, under the Constitution itself, the operation of prison systems is a governmental activity that is subject to distinct constitutional restraints, and this Court's cases recognize that prison policies may implicate a variety of constitutional rights and interests.7

Finally, the artificiality and unworkability of the court of appeals' contrary approach is illustrated by that court's application of its Miller precedent to Goodman's claims, even though Goodman's claims implicate not just rights protected by the Eighth Amendment, but also the constitutional protections of the Due Process and Equal Protection Clauses and the First Amendment. See Pet. App. 4a-6a, 24a; J.A. 65, 87-88, 103. After first holding in Miller that Title II is not appropriate Section 5 legislation precisely because it remedies and deters violations of a broader categories of rights and interests beyond the Eighth Amendment, 384 F.3d at 1273-1274, the court below applied that decision in a case that in fact implicated that broader category of rights and interests.

Accordingly, in evaluating whether Title II is an appropriate response to "pervasive unequal treatment in the administration of state services and programs," Lane, 541 U.S. at 524, this Court's decision in Lane directs courts to consider the entire "class of cases" and "variety of * * * constitutional guarantees" implicated by the category of governmental operations being regulated. Id. at 522, 531. Thus the question in this case is whether Title II is appropriate Section 5 legislation as applied to the entire "class of cases implicating" the "administration of * * * the penal system." Id. at 525, 531. It is.

B. Title II Responds To A Long History And A Continuing Problem Of Unconstitutional Treatment Of Individuals With Disabilities, Including In Prison Administration

1. Title II responds to a proven record of unconstitutional treatment

The constitutional predicate for Congress's enactment of Title II as Section 5 legislation is "clear beyond peradventure." Lane, 541 U.S. at 529. Congress passed Title II in response to an established record "of pervasive unequal treatment [of individuals with disabilities] in the administration of state services and programs, including systematic deprivations of fundamental rights." Id. at 524. Indeed, Congress and this Court have long acknowledged the Nation's "history of unfair and often grotesque mistreatment" of persons with disabilities. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 438 (1985).8

In contrast to the abrogation provisions struck down by this Court in Kimel and Garrett, which the Court viewed as intended "to place the States on an equal footing with private actors," Lane, 541 U.S. at 528 n.16, Title II of the ADA responds exclusively to the constitutional inadequacy of government action. Indeed, the Court's decision in Lane devoted two full pages to chronicling the history of unconstitutional treatment of individuals with disabilities by State and local governments. Id. at 524-526; see U.S. Br. at 17-36, Lane, supra (No. 02-1667). "Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services," Lane, 541 U.S. at 528-evidence that "includ[ed] judicial findings of unconstitutional state action, and statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services," id. at 529-this Court held that the "inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation." Ibid.

2. Congress had substantial evidence of unconstitutional treatment of the disabled in prisons

The record before Congress included substantial evidence of both historic and enduring unconstitutional treatment of individuals with disabilities by States and their subdivisions in the administration of their penal systems.9 Moreover, in studying the problem of unconstitutional treatment of the disabled in prisons, Congress confronted an area of state activity in which constitutional concerns and limitations pervade virtually every aspect of governmental operations, and where unconstitutional treatment, biases, fears, and stereotypes can have much more severe and far-reaching repercussions than in society at large, because of the inmates' reduced capacity for self-help or to seek the assistance of others.

Congress enacted Title II based on (i) more than forty years of experience studying the scope and nature of discrimination against persons with disabilities and testing incremental legislative steps to combat that discrimination10; (ii) two reports from the National Council on the Handicapped, an independent federal agency that was commissioned to report on the adequacy of existing federal laws and programs addressing discrimination against persons with disabilities11; (iii) thirteen congressional hearings devoted specifically to consideration of the ADA, see Garrett, 531 U.S. at 389-390 (Breyer, J., dissenting) (listing hearings); (iv) evidence presented to Congress by nearly 5000 individuals documenting the problems with discrimination persons with disabilities face daily, which was collected by a congressionally designated Task Force that held 63 public forums across the country12; and (v) several reports and surveys.13

That evidence led Congress to find that individuals with disabilities have been "subjected to a history of purposeful unequal treatment," 42 U.S.C. 12101(a)(7), and that "our society is still infected by the ancient, now almost subconscious assumption that people with disabilities are less than fully human and therefore are not fully eligible for the opportunities, services, and support systems which are available to other people as a matter of right. The result is massive, society-wide discrimination." S. Rep. No. 116, 101st Cong., 1st Sess. 8-9 (1989). And Congress specifically identified "institutionalization" as one "critical area[]" in which "discrimination * * * persists." 42 U.S.C. 12101(a)(3). That targeted finding of past and enduring unconstitutional treatment of institutionalized individuals with disabilities by States and their political subdivisions can naturally "be thought to include penal institutions." Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998).

The substantial record of mistreatment of disabled prisoners confirms that Congress meant what the statute naturally says. The very nature of the prison environment imposes unique constitutional duties on States to take affirmative steps to protect inmates that have no analog outside the prison walls.14 For example, the Eighth Amendment requires prison officials to provide inmates with "humane conditions of confinement," "adequate food, clothing, shelter, and medical care," and "reasonable measures to guarantee the[ir] safety." Farmer v. Brennan, 511 U.S. 825, 832 (1994).

But information before Congress documented a widespread and deeply rooted pattern of correctional officials' deliberate indifference to the health, safety, suffering, and medical needs of prisoners with disabilities. In fact, the House Report concluded that persons with disabilities, such as epilepsy, are "frequently inappropriately arrested and jailed" and "deprived of medications while in jail." H.R. Rep. No. 485, supra, Pt. 3, at 50; see also 136 Cong. Rec. 11,461 (1990) (Rep. Levine). The report of the United States Civil Rights Commission that was before Congress, see S. Rep. No. 116, supra, at 6; H.R. Rep. No. 485, supra, Pt. 2, at 28, also identified as problems the "[i]nadequate treatment * * * in penal and juvenile facilities," and "[i]nadequate ability to deal with physically handicapped accused persons and convicts (e.g., accessible jail cells and toilet facilities." United States Comm'n on Civil Rights, Accommodating the Spectrum of Individual Abilities 168 (1983) (Spectrum).15 Likewise, a report by the California Attorney General's Commission on Disability acknowledged (consistent with Goodman's allegations here, Pet. App. 4a-7a) problems with police officers removing individuals "unsafely from their wheelchairs to transport them to jail." California Att'y Gen., Commission on Disability: Final Report 102 (Dec. 1989) (Calif. Report); id. at 110; see also Barnes v. Gorman, 536 U.S. 181, 183-184 (2002) (unsafe transportation of paraplegic by police caused "serious medical problems").16

In addition, persons with hearing impairments "have been arrested and held in jail over night without ever knowing their rights nor what they are being held for."

2 Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative Hist. of Pub. L. No. 101-336: The Americans with Disabilities Act 1331 (Comm. Print 1990) (Leg. Hist.). That occurs even when interpreters are readily available. Kansas 3(5). Congress further heard that "jailers rational[ize] taking away [inmates'] wheelchairs as a form of punishment as if that is different than punishing prisoners by breaking their legs." 2 Leg. Hist. 1190. Congress also was aware that "[m]edical care at best in most State systems barely scratches the surface of constitutional minima," leaving prisoners with disabilities without adequate treatment for their needs.17

Moreover, "[i]n identifying past evils," for which Section 5 legislation is appropriate, "Congress obviously may avail itself of information from any probative source," South Carolina, 383 U.S. at 330, including

the information and expertise that Congress acquires in the consideration and enactment of earlier legislation. After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area.

Fullilove v. Klutznick, 448 U.S. 448, 503 (1980) (Powell, J., concurring). Prior congressional hearings had documented extensive and profound constitutional problems with the conditions of confinement and medical care afforded to disabled prisoners.

Congress was aware that "the confinement of inmates who are in need of psychiatric care and treatment * * * in the so called psychiatric unit of the Louisiana State Penitentiary constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." Civil Rights for Instit. Persons: Hearings on H.R. 2439 and H.R. 5791 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 320-321 (1977) (H.R. 2439 Hearings). The lack of treatment of mentally ill patients in other jurisdictions was found to be equally constitutionally deficient.18 One inmate "who had suffered a stroke and was partially incontinent"

was made to sit day after day on a wooden bench beside his bed so that the bed would be kept clean. He frequently fell from the bench, and his legs became blue and swollen. One leg was later amputated, and he died the following day.

S. 1393 Hearings 1067. As a result of the denial of the most basic medical care, "[a] quadriplegic [inmate] * * * suffered from bedsores which had developed into open wounds because of lack of care and which eventually became infested with maggots." Ibid. "Days would pass without his bandages being changed, until the stench pervaded the entire ward. The records show that in the month before his death, he was bathed and [h]is dressings were changed only once." Ibid. That, unfortunately, was not an isolated incident.19 In another facility, correctional officers served "mental patients" a "'stew' (containing no meats or vegetables) that was lacking in nutritional quality" because corrections officials reasoned that "'mental cases don't know what they eat anyway.'" Id. at 234. Indeed, inmates with disabilities have broadly been denied "the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834.20

"Being violently assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offenses against society.'" Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Indeed "[t]he State's first obligation must be to ensure the safety" not just of prison personnel, but also of "the prisoners themselves." Wilkinson v. Austin, 125 S. Ct. 2384, 2396 (2005). Yet Congress learned that inmates with disabilities are uniquely susceptible to being raped, assaulted, and preyed upon by other inmates, and that prison officials have repeatedly failed to provide adequate protection. See S. 10 Hearings 474 (noting repeated rape of mentally retarded inmates; "The mentally retarded were victimized and given no care.").21 "[H]aving stripped [inmates with disabilities] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course." Farmer, 511 U.S. at 833.

The Fourteenth Amendment's Due Process and Equal Protection Clauses also prohibit the imposition of significantly harsher conditions of confinement based on disability, rather than the inmate's conduct. Just as a State cannot make it a "criminal offense for a person to be mentally ill," Robinson v. California, 370 U.S. 660, 666 (1962), States may not subject individuals with physical or mental disabilities to "atypical and significant hardship within the correctional context" just because they are disabled, Wilkinson, 125 S. Ct. at 2395. Yet respondents' own records document that Goodman was placed in maximum security "lock-up" because "inmate is in wheel chair." J.A. 90; see Miller, 384 F.3d at 1254 ("Able-bodied inmates in disciplinary isolation are housed in less stringent units than the 'high maximum' security K-Building" where Georgia places inmates with physical disabilities). Consigning inmates with disabilities to maximum security, lock-down facilities, or other atypically harsh conditions of confinement because of their disability is not uncommon. When police in Kentucky learned that a man they arrested had AIDS, "[i]nstead of putting the man in jail, the officers locked him inside his car to spend the night." 2 Leg. Hist. 1005. In California, inmates with disabilities often are unnecessarily "confined to medical units where access to work, job training, recreation and rehabilitation programs is limited." Calif. Report 103.22

Congress also was aware that many States structure prison programs and operations in a manner that has the effect of denying persons with disabilities the equal opportunity to obtain vital services and to exercise fundamental rights, such as attending religious services, accessing the law library, or maintaining contact with spouses and children who visit. Indeed, for inmates with disabilities, the failure to provide accessible programs and facilities has the same real-world effect as incarcerating them under the most severe terms of segregation and isolation. See S. 1393 Hearings 639 (wheelchair-bound inmate "had not been out of the second floor dormitory in the Draper Prison for years").23 Where programs required for parole or good time credits are inaccessible, disabled inmates directly suffer longer prison sentences solely because of their disability.24

Beyond that, because "most offenders will eventually return to society, [a] paramount objective of the corrections system is the rehabilitation of those committed to its custody." McKune v. Lile, 536 U.S. 24, 36 (2002) (plurality) (quoting Pell v. Procunier, 417 U.S. 817, 823 (1974)). Inmates with disabilities have the same interest in access to the programs, services, and activities provided to the other inmates as individuals with disabilities outside of prison have to the counterpart programs, services, and activities. At a minimum, they have a due process right not to be treated worse than other inmates solely because of their disability. Negative stereotypes about the abilities and needs of inmates with disabilities often underlie that selective denial of services that other inmates routinely receive.25

3. Court decisions and federal enforcement efforts confirm the problem

Other sources available to Congress corroborated the historic and enduring problem of unconstitutional treatment of individuals with disabilities within state penal systems. In Garrett, Justices Kennedy and O'Connor suggested that, if a widespread problem of disability discrimination existed, "one would have expected to find * * * extensive litigation and discussion of the constitutional violations." 531 U.S. at 376. Numerous courts, in fact, have found discrimination and the deprivation of fundamental rights on the basis of disability. In one case, a prison guard repeatedly assaulted paraplegic inmates with a knife, forced them to sit in their own feces, and taunted them with remarks like "crippled bastard" and "[you] should be dead." Parrish v. Johnson, 800 F.2d 600, 603, 605 (6th Cir. 1986). In another, a mentally ill inmate's due process rights were violated when he was confined without notice or an opportunity to be heard for 56 days in solitary confinement in a "strip cell" with no windows, no interior lights, no bunk, no floor covering, no toilet beyond a hole in the floor, no articles of personal hygiene, no opportunity for recreation outside the cell, no access to reading materials, and frequently no clothing or bedding material. Littlefield v. Deland, 641 F.2d 729, 730-732 (10th Cir. 1981). Another case found constitutional violations where mentally ill and impaired inmates were confined to the prison's "special needs unit" and subjected to unjustified uses of physical force and brutality by prison guards. Kendrick v. Bland, 541 F. Supp. 21, 26 (W.D. Ky. 1981). Scores of other cases echoed the problem, while more recent cases document its enduring and intractable nature.26 "[I]t is not only appropriate but also realistic to presume that," in enacting Title II, "Congress was thoroughly familiar with th[o]se unusually important precedents" that predated the enactment of Title II and that addressed in constitutional terms the very problem under study by Congress. Cannon v. University of Chicago, 441 U.S. 677, 699 (1979); see also Lane, 541 U.S. at 524 n.7, 525 & nn.11-14.

Federal efforts to enforce the rights of individuals with disabilities offer still more evidence. Between 1980 and the enactment of Title II in 1990, Department of Justice investigations found unconstitutional treatment of individuals with disabilities in correctional facilities in 13 States. See Addendum B, infra.27 Those findings include institutions that (i) had the practice of "stripping naked psychotic inmates and inmates attempting suicide, shackling them, and placing them in a glazed cell without ventilation," Addendum B at 2b, (ii) engaged in the improper use of chemical agents on mentally ill inmates, id. at 3b, and (iii) pervasively denied even minimally adequate medical care for both juvenile and adult detainees, id. at 2b-8b. In addition, mentally disabled detainees in a county jail in Mississippi were routinely left for days shackled in a "drunk tank" without any mental health treatment or supervision. Addendum B at 6b-7b. Such findings properly inform the Court's evaluation of the propriety of Section 5 legislation. See South Carolina, 383 U.S. at 312-313.

4. That extensive pattern of unconstitutional treatment warrants congressional enforcement

The "propriety of [any § 5 legislation] must be judged with reference to the historical experience . . . it reflects." South Carolina, 383 U.S. at 308. That foregoing record of extensive unconstitutional treatment of inmates with disabilities by state and local governments reaffirms this Court's holding in Lane that "the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities," 541 U.S. at 528-evidence that this Court agreed "document[ed] a pattern of unequal treatment in the administration of * * * the penal system," id. at 525-"makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation," id. at 529, especially in the prison context. Indeed, the evidence of unconstitutional treatment exceeds both the evidence of violations of the rights of access to the courts presented in Lane, see id. at 524 & n.14, 527, and the evidence of unconstitutional leave policies in Hibbs, 538 U.S. at 730-732. Given that solid evidentiary predicate for congressional action, application of the congruence and proportionality analysis must afford Congress the same "wide berth in devising appropriate remedial and preventative measures," Lane, 541 U.S. at 520, that Congress was afforded in Hibbs and Lane.

Indeed, there is a close practical nexus between unconstitutional treatment in access to the courts and in penal administration. In the administration of justice, courts and correctional facilities work as tandem components of the criminal justice system, and the imperative of rooting out and remedying unconstitutional treatment applies equally to both. See Johnson v. California, 125 S. Ct. 1141, 1149 (2005). "[P]ublic respect for our system of justice is undermined when the system discriminates," whether in court proceedings or prison administration. Ibid.; see id. at 1150 ("[T]he integrity of the criminal justice system depends on full compliance with the Eighth Amendment.").

Accordingly, this Court's holding in Lane that Title II is appropriate prophylactic Section 5 legislation in the context of judicial administration informs the analysis of Title II's constitutionality in the prison context. Beyond that, the unfortunate reality is that "[p]rejudice, once let loose, is not easily cabined." Cleburne, 473 U.S. at 464 (Marshall, J., concurring). There is no basis in logic or human experience for concluding that the widespread pattern of unconstitutional treatment that pervades the administration of public services and access to public facilities-including in particular the judicial system, Lane, 541 U.S. at 529-stops at the prison doors. The evidence before Congress proved the opposite.

In addition, Congress was well aware of the critical role that abusive penal administration played in the Nation's "lengthy and tragic history" of discrimination against the disabled. Cleburne, 473 U.S. at 461 (Marshall, J., concurring). "[T]orture, imprisonment, and execution of handicapped people throughout history are not uncommon." Spectrum 18 n.5. In colonial times, "[i]ncarceration in jail was the common solution" for dealing with the mentally ill. A. Deutsch, The Mentally Ill in America 41 (2d ed. 1949).28 From the 1920s to the 1960s, the eugenics movement labeled persons with mental and physical disabilities as "sub-human creatures" and "waste products" responsible for crime. Spectrum 19-20. "A regime of state-mandated segregation and degradation soon emerged that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow." Cleburne, 473 U.S. at 462 (Marshall, J., concurring).29 Even after that, "[t]hroughout the United States, especially in rural districts, it is quite common to confine mental patients in jails, lockups and police stations pending their commitment to state hospitals," even when state laws direct otherwise. Deutsch, supra, at 434-435. This Court's own cases record the unconstitutional treatment of individuals with disabilities as part of the criminal process.30

That common heritage is important. This Court upheld the family-leave provisions of the Family and Medical Leave Act as appropriate Section 5 legislation in Hibbs in a case concerning a husband's request to take leave to care for an ailing spouse. 538 U.S. at 725. In so holding, the Court acknowledged that the vast majority of the evidence before Congress pertained to "parenting leave" and not to spousal leave. Id. at 731 n.5. The Court concluded, however, that "[e]vidence pertaining to parenting leave is relevant here * * * because parenting and family leave address very similar situations * * * [and] they implicate the same stereotypes." Ibid. Even more so here, penal administration and judicial administration are closely intertwined in the criminal justice system. And not only do the problems of unequal treatment in both contexts share the same roots and build upon the same stereotypes, but in fact the prison system played a unique role in spawning them.

C. Title II of the Americans With Disabilities Act Is Reasonably Tailored To Remedying And Preventing Constitutional Violations In The Prison Context

While Congress "must tailor its legislative scheme to remedying or preventing" the unconstitutional conduct it has identified, Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 639 (1999), "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies," Flores, 521 U.S. at 519-520. Thus, the relevant inquiry is not whether Title II "prohibit[s] a somewhat broader swath of conduct," Garrett, 531 U.S. at 365, than would the courts. "Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence." Ibid. The question is whether, in light of the scope of the problem identified by Congress, the enactment "is 'so out of proportion to a * * * remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.'" Kimel, 528 U.S. at 86. As applied to prison administration, Title II is appropriate legislation, for three reasons.

1. The constitutional harm addressed is grave

"[T]he appropriateness of the remedy depends on the gravity of the harm it seeks to prevent." Lane, 541 U.S. at 523. As in Lane and Hibbs, Title II's application to prison administration legislates in an area where the States' conduct often "triggers a heightened level of scrutiny," Hibbs, 538 U.S. at 736, and where their ability to infringe those rights generally, let alone to deny them disparately to one particular segment of the population, is constitutionally curtailed. "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84 (1987). "[P]risoners retain the constitutional right to petition the government for the redress of grievances, Johnson v. Avery, 393 U.S. 483 (1969), * * * and they enjoy the protections of due process, Wolff v. McDonnell, 418 U.S. 539 (1974)." Turner, 482 U.S. at 84. The Due Process Clause requires States to afford inmates with disabilities fair proceedings in a range of circumstances, including the administration of antipsychotic drugs, Washington v. Harper, 494 U.S. 210, 221-222 (1990), involuntary transfer to a mental hospital, Vitek, supra, and parole hearings, Young v. Harper, 520 U.S. 143, 152-153 (1997). The Due Process Clause also requires fair proceedings when a prisoner is denied access to benefits or programs created by state regulations and policies even where the liberty interest at stake does not arise from the Due Process Clause itself. See, e.g., Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979) (parole); Wolff, supra (good-time credits and solitary confinement); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation). In addition, "[p]risoners must be provided 'reasonable opportunities' to exercise their religious freedom guaranteed under the First Amendment," Hudson v. Palmer, 468 U.S. 517, 523 (1984), and they have a "fundamental constitutional right of access to the courts" to challenge their convictions or conditions of confinement. Lewis, 518 U.S. at 346.

While many of those constitutional claims are invoked with appropriate deference to prison officials, see Turner, supra, that is not true of Eighth Amendment claims, race-based equal protection claims, and other claims that are not inconsistent with proper incarceration. See Johnson, 125 S. Ct. at 1149. Moreover, Turner review is more exacting than rational-basis review, as Turner itself demonstrates. See 482 U.S. at 94-99 (striking down marriage restrictions). More importantly, while the special nature of prisons requires appropriate deference, the ubiquity and exclusivity of state control that characterize prison life mean that the State has constitutional duties to inmates that have no counterpart outside prison walls. Indeed, prison administration is an area in which the "government exerts a degree of control unparalleled in civilian society and severely disabling" to the exercise of the inmates' basic rights. Cutter v. Wilkinson, 125 S. Ct. 2113, 2121 (2005). "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Helling v. McKinney, 509 U.S. 25, 32 (1993) (quoting DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989)). That principle applies with even greater force when, as rarely occurs in other governmental operations, the failure to meet the basic medical and humanitarian needs of inmates with disabilities can have life-or-death consequences.

Accordingly, under the Constitution, the State's desire to save resources on cleaning bed sheets provides no basis for forcing a severely disabled inmate to sit on a wooden bench all day. Finances are no defense to the failure to provide basic medical care and humane conditions of confinement in a manner that avoids wanton suffering and that respects "the dignity of man." Hope v. Pelzer, 536 U.S. 730, 738 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958)); see Wilson v. Seiter, 501 U.S. 294, 301-302 (1991). Nor will "any reasonably conceivable state of facts that could provide a rational basis," Garrett, 531 U.S. at 367, justify subjecting inmates to "atypical and significant hardship within the correctional context," Wilkinson, 125 S. Ct. at 2395, or leaving them to serve longer or harsher prison sentences than non-disabled inmates due to the inaccessibility of critical programs.

Moreover, much of the identified conduct fails even rational basis scrutiny. Even that low constitutional threshold cannot justify the selective deprivation, due to nothing more than physical inaccessibility, of the same access to law libraries, religious services, and rehabilitative programs afforded to other inmates. A purported rational basis for treatment of the disabled will fail if the State does not accord the same treatment to other groups similarly situated, Garrett, 531 U.S. at 366 n.4; Cleburne, 473 U.S. at 447-450, if it is based on "animosity" towards the disabled, Romer v. Evans, 517 U.S. 620, 634 (1996), or if it gives effect to private biases, Palmore v. Sidoti, 466 U.S. 429, 433 (1984). It accordingly is not enough that the State can offer a rational basis for failing to offer special diets required by disability, see Addendum B at 4b, 16b, when the State already offers special diets for religious reasons or for non-disabling medical conditions, see Georgia Dep't of Corrs., Standard Operating Procedures, VA01-0011, § VI.4 (July 1, 2005). Nor can the State refuse to offer benefit information or services in handicap-accessible formats if the State is already accommodating the special communication needs of others (such as non-English speaking inmates). Programs and services that prisons already broadly provide to other inmates, by definition, are not "inconsistent with proper incarceration," Overton v. Bazzetta, 539 U.S. 126, 131 (2003), and thus cannot selectively be withheld from qualified disabled inmates without heightened justification. See Johnson, 125 S. Ct. at 1149 (Turner standard applies "only to rights that are 'inconsistent with proper incarceration'"). Thus, as applied to prison administration, Title II targets not isolated and unrelated instances of unfair treatment that may or may not amount to unconstitutional treatment, but an "across the board" pattern of governmental decisionmaking that implicates constitutional concerns. And, in the prison context, Title II does far more than regulate access to ice rinks or seek to put States on an equal footing with private actors. It addresses a quintessential governmental activity in an environment in which constitutional duties are pervasive and the history of unconstitutional treatment is extensive.

2. The problem is entrenched and intractable

In the prison context, Title II is an appropriate congressional response to an enduring and entrenched pattern of unconstitutional treatment. "Difficult and intractable problems often require powerful remedies," Kimel, 528 U.S. at 88; see Hibbs, 538 U.S. at 737. As the Court recognized in Lane, unconstitutional treatment of individuals with disabilities-including specifically in "administration of * * * the penal system"-"persisted despite several federal and state legislative efforts to address it." Lane, 541 U.S. at 525, 526. Indeed, in enacting Title II, Congress specifically found that existing state and federal laws were "inadequate to address the pervasive problems of discrimination that people with disabilities are facing." S. Rep. No. 116, supra, at 18; see also ibid. (section of report entitled "CURRENT FEDERAL AND STATE LAWS ARE INADEQUATE"); H.R. Rep. No. 485, supra, Pt. 2, at 47 (same). The 50 State Governors' Committees "report[ed] that existing state laws do not adequately counter * * * discrimination." Ibid. And the Illinois Attorney General testified that "[p]eople with disabilities should not have to win these rights on a State-by-State basis" and that "[i]t is long past time * * * [for] a national policy that puts persons with disabilities on equal footing with other Americans."31

Both Congress and President George H. W. Bush likewise recognized that the prior piecemeal approach of federal legislation had not succeeded and, in fact, had created "a patchwork quilt * * * [with] serious gaps in coverage that leave persons with disabilities without adequate civil rights protections." S. Rep. No. 116, supra, at 19 (quoting Att'y Gen. Thornburgh); see 26 Weekly Comp. Pres. Doc. 1165 (July 26, 1990) ("Existing laws and regulations * * * have left broad areas of American life untouched or inadequately addressed").32 The volume and persistence of constitutional violations documented in the legislative record, in the Justice Department's investigations under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997a, see Addendum B, and in civil rights actions under 42 U.S.C. 1983, see Addendum A, manifested the need for a congressional response that went beyond providing procedural mechanisms for directly enforcing the Constitution's prohibitions. As in Hibbs, constitutional problems that have proven resistant to prior remedial legislation "may justify added prophylactic measures." 538 U.S. at 737.

3. Title II's terms are sensitive to the unique security needs in prisons and tailored to the constitutional problems it remedies

In the prison context, Title II targets exclusively governmental action that is itself directly and comprehensively regulated by the Constitution. Title II in the prison context also focuses on government action that threatens fundamental rights or that is unreasonable. For those reasons, much of Title II's operation in prisons targets conduct outlawed by the Constitution itself or that creates a substantial risk that constitutional rights are imperilled, see City of Rome, 446 U.S. at 177. When, as in the case at hand, Title II applies to prison conditions that implicate the Eighth Amendment, due process, the right of access to the courts, or the right to an equal opportunity to exercise religion (see Cutter, 125 S. Ct. at 2121), Title II's requirements of equal access and reasonable accommodations track the Fourteenth Amendment's prohibition on the disparate deprivation of fundamental rights for invidious or insubstantial reasons. Furthermore, Title II targets discrimination that is unreasonable and, in so doing, ensures (as this Court did in Cleburne, 473 U.S. at 447-450) that the government's articulated rationale for differential treatment does not mask impermissible animus and does not result in the differential treatment of similarly situated inmates.

But Title II "does not require States to employ any and all means to make [prison] services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for [prison] programs." Lane, 541 U.S. at 531-532. Under Title II, the States retain their discretion to exclude inmates from prison programs, services, or benefits for any lawful reason unconnected with their disability or for no reason at all. The ADA does not require preferences and permits the denial of benefits or services if a person cannot "meet[] the essential eligibility requirements" of the governmental program or service, 42 U.S.C. 12131(2). But once an individual proves that he can meet all the essential eligibility requirements of a program or service, especially those programs and services that implicate fundamental rights, the government's interest in excluding that qualified individual solely "by reason of such disability," 42 U.S.C. 12132, is both minimal and constitutionally circumscribed. At the same time, permitting the States to retain and enforce their essential eligibility requirements protects their legitimate interests in structuring governmental activities.

Title II also requires "reasonable modifications" in public services. 42 U.S.C. 12131(2). But, as Hibbs makes clear, once Congress identifies a predicate of unconstitutional conduct that it seeks to remedy, Congress has flexibility in fashioning the remedy. See Hibbs, 538 U.S. at 734 n.10, 736-739. The requirement of reasonable modifications, moreover, comports with the unique needs of prison management in two ways.

First, Congress did not dictate a uniform and unbending response to the needs of inmates with disabilities. Rather, Title II's flexibility permits States to meet the statute's requirements in a variety of ways. Lane, 541 U.S. at 532. "And in no event is the [prison] required to undertake measures that would impose an undue financial or administrative burden, threaten historic preservation interests, or effect a fundamental alteration in the nature of the service," ibid. (citing 28 C.F.R. 35.150(a)(2) and (a)(3)), in light of their nature or cost, agency resources, and the operational practices and structure of the program, 42 U.S.C. 12111(10), 12112(b)(5)(A); 28 C.F.R. 35.130(b)(7), 35.150(a)(3), 35.164; Olmstead v. L.C., 527 U.S. 581, 606 n.16 (1999) (plurality). Title II is thus unlike the statutes at issue in Kimel and Flores, which, upon a minimal showing by a plaintiff, subjected constitutional state action to a level of rigid and probing review that this Court characterized as tantamount to strict scrutiny. See Kimel, 528 U.S. at 87-88; Flores, 521 U.S. at 534. Title II requires a more substantial showing by the plaintiff and offers the defendant a less stringent standard of justification, thus preserving the States' capacity to draw reasoned-and thus presumptively constitutional, see Turner, supra-distinctions based on disability or the genuine difficulty of accommodation.

Second, that reasonableness standard is, by its very nature, sensitive to context and capable of "be[ing] applied in an appropriately balanced way, with particular sensitivity to security concerns." Cutter, 125 S. Ct. at 2123. Indeed, in Cutter, this Court recognized that a federally imposed standard of strict scrutiny for religious accommodations was not inconsistent with the "urgency of discipline, order, safety, and security in penal institutions." Ibid. A fortiori, Title II's requirement of "reasonable" accommodations is workable in the prison context. Indeed, like the constitutional standard for protecting inmates' rights, Turner, supra, "Title II balances the interests of disabled inmates and the burden on prison administration" and, "[j]ust as Turner requires consideration of the impact on prison resources, Title II's reasonable modification requirement allows for consideration of cost and other burdens." Cochran v. Pinchak, 401 F.3d 184, 197 (3d Cir. 2005) (Scirica, CJ., dissenting); see ibid. ("Just as Turner considers available alternatives, Title II considers whether there are 'other methods for meeting the requirements'") (quoting 28 C.F.R. 35.150(b)).

In fact, for nearly three decades, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same accommodation obligation that Title II imposes on States. See 29 U.S.C. 794(a); 42 U.S.C. 12134. The Bureau of Prisons advises that compliance with the law has not imposed financial hardship and that, over the last five years, inmate claims under the Rehabilitation Act have represented, on average, less than 1% of all inmate grievances.33 The Bureau has further advised that the cost of making new construction accessible has averaged less than 2% of a project. That is consistent with the testimony of witnesses and expert studies before Congress. One local government official stressed that "[t]his bill will not impose great hardships on our county governments" because "[t]he cost of making new or renovated structures accessible is less than 1 percent of the total cost of construction." 2 Leg. Hist. 1443 (Treasurer, Harris Co., Tex.).34

Moreover, Title II's remedies correspond closely to the constitutional problems Congress identified. Given (i) the history of segregation, isolation, and abusive detention, (ii) the resulting entrenched stereotypes, fear, prejudices, and ignorance about inmates with disabilities, (iii) the endurance of unconstitutional treatment, and (iv) the inability of prior legislative responses to resolve the problem, Congress reasonably determined that a simple ban on overt discrimination would be insufficient. It would do little to combat the "stereotypes [that have] created a self-fulfilling cycle of discrimination" against inmates with disabilities, and which, in turn, lead "to subtle discrimination that may be difficult to detect on a case-by-case basis." Hibbs, 538 U.S. at 736. Prison officials' failure to make reasonable accommodations to the rigid enforcement of seemingly neutral criteria-especially the types of accommodations and adjustments that are made for non-disabled inmates-can often mask just such invidious, but difficult to prove, discrimination. At the same time, given the history and persistence of unconstitutional treatment in the administration of public services, the statute appropriately casts a skeptical eye over decisions made "because of" or "on the basis of disability."

In addition, a simple ban on discrimination would freeze in place the effects of States' prior official mistreatment of inmates with disabilities, which had the effect of rendering the disabled invisible to the designers of prison facilities and programs. See Gaston County v. United States, 395 U.S. 285 (1969) (constitutionally administered literacy test banned because it perpetuates the effects of past discrimination). While Title II goes further than the Constitution itself, it does so only to the extent that some disability discrimination in prison may have no impact on fundamental rights and may be rational for constitutional purposes, but still be unreasonable under Title II. But that margin of prophylactic statutory protection does not exceed Congress's authority here any more than it did in Hibbs and Lane. Like Title II's prophylactic application to courts in Lane and the Family and Medical Leave Act's application to spousal leave as a remedy for discrimination in parenting leave in Hibbs, Title II's extra level of statutory protection in prisons is necessary (i) to eliminate unreasoned reliance on stereotypes and "mere negative attitudes, or fear," Garrett, 531 U.S. at 367; see Cleburne supra; (ii) to reach unconstitutional conduct that would otherwise escape detection in court; and (iii) to deter future constitutional violations.

Furthermore, "[a] proper remedy for an unconstitutional exclusion * * * aims to eliminate so far as possible the discriminatory effects of the past and to bar like discrimination in the future." United States v. Virginia, 518 U.S. 515, 547 (1996) (internal quotation marks and brackets omitted). Section 5 thus empowers Congress to do more than simply prohibit the creation of new barriers to equality; it can require States to remedy enduring manifestations of past discrimination and exclusion. See id. at 550 n.19 (Equal Protection Clause itself can require modification of facilities and programs to ensure equal access); see Hibbs, 538 U.S. at 734 n.10. Accordingly, as applied to prisons, Title II is "a reasonable prophylactic measure, reasonably targeted to a legitimate end." Lane, 541 U.S. at 533.

D. Title II Is Constitutional Even If Evaluated In A Narrower Or Broader Context

As noted (see Section A, supra), this Court's decision in Lane makes clear that the proper focus for Section 5 analysis is the application of Title II to the overall context of prison administration and the constitutional rights implicated in that context. But, while Title II is appropriate legislation in the prison context, it is especially so in cases like the present where, in light of the plaintiff's allegations, Title II's protections overlap extensively with those of the Constitution. See Pet. App. 15a-18a (remanding for trial on potential Eighth Amendment violations). Thus, in this case, Title II serves largely to "provid[e] remedies where the judiciary has already found a set of facts to violate the Constitution."35 At a minimum, Title II is constitutional as applied to Goodman's allegations concerning actual violations of the Constitution, much for the same reason that Title VII, 42 U.S.C. 2000e et seq., reflects a constitutional exercise of the Section 5 power, cf. Hibbs, supra: the gap between the Constitution and the statute is negligible.

In addition, for the reasons explained in the brief for the United States in Lane, supra, Title II in its entirety is a proper exercise of Congress's Section 5 power. This Court held in Lane that the widespread history of discrimination against persons with disabilities in the provision of public services "makes clear beyond peradventure" that the entire subject-not just particular categories-of "inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation." 541 U.S. at 529. Nor do Title II's mandates vary from context to context-the requirements of "reasonable" accommodation and accessible construction of new facilities apply across the board. And they are appropriate across the board because, by their very nature, they permit balancing of competing state interests, preserve governmental flexibility, and prevent fundamental alterations in governmental programs and the imposition of undue hardships.

Title II's coverage is broad, but no broader than necessary. Congress enacted a comprehensive remedy because it confronted a comprehensive problem, and it determined that only an equally comprehensive effort to integrate persons with disabilities would end the cycle of isolation, segregation, and second-class citizenship, and deter further discrimination. Ending discrimination and unconstitutional treatment in access to the judicial system prior to conviction, while ignoring its selective deprivation post-conviction, would undercut the "legitimacy of the entire criminal justice system." Johnson, 125 S. Ct. at 1149. Allowing access to the courts while denying inmates the basic hygiene, medical attention, and safety necessary to preserve health and life would be an empty promise. And requiring fair, equal, and humane treatment in prisons is of little gain if neither government services, transportation, educational services, nor the social activities of public life are accessible to bring the disabled into the life of the communities into which they return.36

Furthermore, as a matter of human nature, discrimination, animosity, and stereotypes do not confine themselves to isolated compartments. The same mindset that has presumed that persons with disabilities cannot be educated, should not be parents, need not vote, and are too much trouble to accommodate within the judicial process also gives rise to the stereotype that "mental cases don't know what they eat anyway," S. 1393 Hearings 234, the animosity and negativism that cause prison guards to label paraplegic inmates "crippled bastard[s]" "who should be dead," Parrish, 800 F.2d at 603, 605, and the deliberate indifference that prefers maintaining clean linens to preserving the life of an inmate with a disability, S. 1393 Hearings 1067.

CONCLUSION

The judgment of the court of appeals should be reversed and the case remanded for further proceedings consistent with the decision of this Court.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
Counsel of Record

BRADLEY J. SCHLOZMAN
Acting Assistant Attorney General

PATRICIA A. MILLETT
Assistant to the Solicitor General

DAVID K. FLYNN
SARAH E. HARRINGTON
Attorneys

JULY 2005

1 All "Pet. App." citations are to the petition appendix filed by the United States in No. 04-1203.

2 Congress instructed the Attorney General to issue regulations to implement Title II, based on regulations previously promulgated under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (2000 & Supp. I 2001). See 42 U.S.C. 12134.

3 Counsel for Goodman advises that he has since been returned to the Georgia State Prison at Reidsville.

4 See Lane, 541 U.S. at 525 n.14 (considering cases involving the denial of interpretive services to deaf defendants and the exclusion of blind and hearing-impaired persons from jury duty); id. at 532-533 (noting, inter alia, the duty to waive filing fees in certain family-law cases).

5 Notably, the complaint in Lane did not assert any constitutional claims. See 02-1667 Pet. App. 12-28. Nor, at least outside prisons, is there a fundamental constitutional "right of access to the courts" per se. Instead, that phrase is commonly used as a shorthand reference to the bundle of constitutional rights held by the public, criminal defendants, civil litigants, detainees, and jurors that are implicated by the governmental activity of judicial administration.

6 See Maher v. Gagne, 448 U.S. 122, 132 (1980) ("Congress was acting within its enforcement power [under Section 5] in allowing the award of fees in a case in which the plaintiff prevails on a wholly statutory, non-civil-rights claim" pendent to a substantial but unadjudicated constitutional claim.).

7 See generally Johnson v. California, 125 S. Ct. 1141 (2005); Lewis v. Casey, 518 U.S. 343 (1996); DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 198-200 (1989); Wolff v. McDonnell, 418 U.S. 539 (1974); Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam).

8 See Olmstead v. L.C., 527 U.S. 581, 608 (1999) (Kennedy, J., concurring) ("[O]f course, persons with mental disabilities have been subject to historic mistreatment, indifference, and hostility."); Alexander v. Choate, 469 U.S. 287, 295 n.12 (1985) ("well-cataloged instances of invidious discrimination against the handicapped do exist"); see also Foucha v. Louisiana, 504 U.S. 71 (1992) (unconstitutional confinement based on history of mental illness); Cleburne, supra (unconstitutional zoning discrimination); Youngberg v. Romeo, 457 U.S. 307, 315, 322 (1982) (institutionalized persons have due process "right to adequate food, shelter, clothing, and medical care," "safe conditions," and freedom from unreasonable physical restraint, and "such training as may be reasonable in light of [the resident's] liberty interests in safety and freedom from unreasonable restraints"); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 7 (1981) (undisputed factual findings that "[c]onditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the 'habilitation' of the retarded"); O'Connor v. Donaldson, 422 U.S. 563 (1975) (unconstitutional confinement); Jackson v. Indiana, 406 U.S. 715 (1972) (same).

9 As in Lane, 541 U.S. at 527 n.16, evidence of unconstitutional treatment of individuals with disabilities by local governments is relevant to the Section 5 question presented here. As with the provision of judicial services, ibid., there is substantial overlap and shared use of correctional facilities by state and local governments. See Ga. Code Ann. § 42-5-50(c) and (d) (1997 & Supp. 2004); id. § 42-5-51 (1997); Georgia Bd. of Pardons and Paroles, Georgia Offender Summary: May 2005 (June 16, 2005) <http://www.pap.state.ga.us/ cjb's.htm>; Addendum B at 6b (local jail used to house inmates awaiting transfer to a state institution); Civil Rights of Instit. Persons: Hearings on S. 1393 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 121 (1977) (discussing transfers of disabled inmates between local and state facilities). Indeed, in Georgia and other jurisdictions, sheriffs operating county jails are deemed to be acting as "arms of the state." See Manders v. Lee, 338 F.3d 1304, 1318-1328 (11th Cir. 2003) (en banc) (Georgia), cert. denied, 540 U.S. 1107 (2004); Marsh v. Butler County, 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc) (Alabama); Cromer v. Brown, 88 F.3d 1315, 1331-1332 (4th Cir. 1996) (South Carolina); Blankenship v. Warren County, 931 F. Supp. 447, 449 (W.D. Va. 1996) (Virginia). Finally, unless Title II as applied to prison administration is appropriate Commerce Clause legislation-and respondents argue that it is not, Miller, 384 F.3d at 1268 n.23-this case draws into question the substantive power of Congress to remedy and deter unconstitutional treatment of inmates with disabilities by both State and local governments, regardless of whether the law is enforced through private damages actions, private injunctive actions, or suits by the United States itself. Accordingly, because resolution of this case will directly impact Congress's legislative authority to require local governments to comply with Title II at all, the actions of local governments of necessity must be factored into the Section 5 calculus, just as they were in South Carolina, 383 U.S. at 308-313, and Lane, 541 U.S. at 527 & n.16.

10 See, e.g., Act of June 10, 1948, ch. 434, 62 Stat. 351 (prohibiting employment discrimination by the United States Civil Service against World War II veterans with disabilities); Architectural Barriers Act of 1968, 42 U.S.C. 4151 et seq.; Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.; Education of the Handicapped Act, Pub. L. No. 91-230, Title VI, 84 Stat. 175 (reenacted in 1990 as the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.); Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 6000 et seq.; Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C. 1973ee et seq.; Air Carrier Access Act of 1986, 49 U.S.C. 41705; Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. 10801; 42 U.S.C. 1437f (lower income housing assistance for, inter alia, individuals with disabilities); 38 U.S.C. 1502, 1524 (vocational rehabilitation for disabled veterans); Education of the Handicapped Act Amedments of 1983, Pub. L. No. 98-199, § 10, 97 Stat. 1367; Fair Housing Amendments Act of 1988, 42 U.S.C. 3604.

11 See Rehabilitation Amendments of 1984, Pub. L. No. 98-221, Title I, § 141(a), 98 Stat. 26; Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Title V, § 502(b), 100 Stat. 1829; see also National Council on the Handicapped, On the Threshold of Independence (1988); National Council on the Handicapped, Toward Independence: An Assessment of Federal Laws and Programs Affecting Persons with Disabilities (1986).

12 See Task Force on the Rights and Empowerment of Americans with Disabilities, From ADA to Empowerment 18 (1990) (Task Force Report);

2 Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative Hist. of Pub. L. No. 101-336: The Americans with Disabilities Act 1040 (Comm. Print 1990) (Leg. Hist.). The Task Force submitted those "several thousand documents" evidencing "massive discrimination and segregation in all aspects of life" to Congress, 2 Leg. Hist. 1324-1325, as part of the official legislative history of the ADA. See id. at 1336, 1389; Lane, 541 U.S. at 516. In Garrett, the United States lodged with the Clerk a complete set of those submissions. See 531 U.S. at 391-424 (Breyer, J., dissenting). As in Garrett, those submissions are cited herein by reference to the State and Bates stamp number.

13 See S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 28 (1990); Task Force Report 16; United States Civil Rights Comm'n, Accommodating the Spectrum of Individual Abilities (1983); Louis Harris & Assoc., The ICD Survey of Disabled Americans: Bringing Disabled Americans into the Mainstream (1986); Louis Harris & Assocs., The ICD Survey II: Employing Disabled Americans (1987); Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic (1988).

14 See generally Helling v. McKinney, 509 U.S. 25, 32 (1993); De-Shaney, 489 U.S. at 198-199; Youngberg, 457 U.S. at 315-316, 322.

15 A recent survey of state prisons revealed that only one out of 38 responding States had grab bars or chairs in the prison shower to accommodate inmates with physical disabilities. Only ten provide accessible cells. J. Krienert et al., Inmates with Physical Disabilities: Establishing a Knowledge Base, 1 S.W. J. of Crim. Just. 13, 20 (2003).

16 See also Kentucky Legis. Research Comm'n, Research Report No. 125, Mentally Retarded Offenders in Adult and Juvenile Correctional Institutions, at A-3 (1975) ("Kentucky Corrections offers no appropriate treatment to the retarded and subjects them to varied institutional abuse"); id. at A-29 to A-34 (documenting widespread problem across more than half of the States in dealing with mentally retarded inmates); AK 55 (jail failed to provide person with disability medical treatment); De. 331 ("There exists a gross lack of psychiatric care for juveniles and adult offenders. While the system provides other medical care, those in need of psychiatric treatment are often left with little or no intervention."); National Inst. of Corrections, U.S. Dep't of Justice, The Handicapped Offender 4 (1981) (noting the lack of appropriate treatment facilities for mentally ill and mentally retarded offenders, inadequate training of personnel to treat the disabled offender, and inadequate diagnostic services); L. Teplin, The Prevalence of Severe Mental Disorder Among Male Urban Jail Detainees: Comparison with the Epidemiologic Catchment Area Program, 80 Am. J. Pub. Health 663, 666 (June 1990) ("[S]ince disorders such as schizophrenia, major depression, and mania require immediate attention, jails must routinely screen all incoming detainees for severe mental disorder. Interestingly, although the courts mandate that jails conduct routine mental health evaluations, many jails do not do so.").

17 AIDS and the Admin. of Justice: Hearing Before the Subcomm. on Courts, Civil Liberties and the Admin. of Justice of the House Comm. on the Judiciary, 100th Cong., 1st Sess. 39 (1987); see ibid. (medical system in Illinois prisons had been held unconstitutional).

18 Civil Rights of Instit. Persons: Hearings on S. 1393 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 1066-1067 (1977) (S. 1393 Hearings) (the Alabama Board of Corrections employs "one clinical psychologist, who works one afternoon each week," to treat 2400 inmates who are mentally retarded or suffer from mental illness; if psychotic inmates become violent, "they are removed to lockup cells which are not equipped with restraints or padding and where they are unattended"; "the large majority of mentally disturbed prisoners receive no treatment whatsoever. It is tautological that such care is constitutionally inadequate") (quoting court findings in Newman v. Alabama, 349 F. Supp. 278, 284 (M.D. Ala. 1972), aff'd in relevant part, 503 F.2d 1320, att'y fee award vacated, 522 F.2d 71 (5th Cir. 1974) (en banc), cert. denied, 421 U.S. 948 (1975)).

19 S. 1393 Hearings 232-233 (noting repeated instances of bedridden inmates suffering from "lack of medical treatment, living in filth with rats, substandard conditions, draining bedsores, inmates that are catheterized and the catheters have not been changed in weeks with urinary tract infections, human suffering"); id. at 233 (bedridden inmates are "incarcerated 24 hours a day with bedsores, a lack of medical and nursing treatment, poor nutrition, poor food service, exposed to rats, bad ventilation, exorbitant temperatures"); id. at 234 (inmates with "draining bedsores that had not been treated" were "locked up in a cellblock area that was unquestionably a firetrap").

20 See, e.g., H.R. 2439 Hearings 293 ("The lack of adequate medical care in state and local correctional institutions is another serious condition which we have found." "Untrained inmates often are allowed to provide medical treatment to other inmates, and rarely are professional medical, dental, or psychiatric services available on a regular basis."); id. at 316-317 (at Louisiana State Penitentiary, inmates with psychiatric problems "are incarcerated in a so called psyschiatric [sic] unit which consists of nothing more than overcrowded cells. Because of the lack of proper facilities and supervising staff, these psychiatric patients do not receive adequate medical care, exercise, and other treatment"); S. 1393 Hearings 121 ("Most persons charged with felonies" in the Los Angeles County Jail "are not eligible for transfer" to the state hospital for treatment of disabilities and, even when transferred, may be "returned precipitously to the jail regardless of treatment needs"; one such inmate "who was returned to jail was found shivering under the bed covers at the jail hospital unit in an acutely psychotic state"); id. at 234 ("In one institution a mental patient (stripped of clothing) in a 7 ft. by 5 ft. cell, with a room temperature of 102 [degrees] F and no air movement, was sleeping on urine- and fecal-soaked floors"; the corrections officer advised that the "patient had been confined under these conditions * * * about 6 to 8 weeks"); id. at 569-570 ("[T]here are not proper facilities in the Maryland prisons * * * to treat mentally retarded, geriatrics or psychologically disturbed prisoners"); id. at 1107 ("Though approximately one half of the average in-patient population at the penitentiary is hospitalized for psychiatric reasons, there is no professional psychiatric staff available for treatment on a regular basis. * * * The only 'treatment' available at the penitentiary consists of temporary relief from 'distress' through sedation.") (quoting Battle v. Anderson, 376 F. Supp. 402, 415 (E.D. Okla. 1974)); Civil Rights of the Institutionalized: Hearings on S. 10 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 474 (1979) (S. 10 Hearings) ("The overtly psychotic were housed without treatment or supervision in dimly-lit, unventilated and filthy 5' x 8' cells for 24 hours a day."); Corrections: Hearings Before Subcomm. No. 3 of the House Comm. on the Judiciary, 92d Cong., 2d Sess. Pt. 8, at 92 (1972) ("Inmates with serious medical conditions do not receive necessary medical care. * * * [N]o psychological treatment is usually provided."); id. at 131 (mentally ill inmates are segregated into "areas [that] are known as mental wards, although no psychiatric treatment is given, other than the administration of tranquilizing drugs"); Drugs in Institutions: Hearings Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. 2 (1975) (discussing the "chemical straitjacketing of thousands"-the use of psychotropic drugs to control the behavior-of mentally retarded persons within the "juvenile justice system" and other institutions); Juvenile Delinquency: Hearings Before the Subcomm. to Investigate Juvenile Deliquency of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess. Pt. 20, at 5012 (1969) (although superintendent of state penitentiary "knew the man was psychotic and could not be locked in his cell without being let out periodically * * *, the superintendent locked this man in a cell and left him there," and "scoffed at" his pleas for help, until prisoner committed suicide).

21 See 126 Cong. Rec. 3713 (1980) (Sen. Bayh) (noting prison conditions that permit the "gang homosexual rape of paraplegic prisoners"); id. at S1860 (daily ed. Feb. 26, 1980) (similar); Spectrum 168 (noting the persistent problem of "[a]buse of handicapped persons by other inmates"); National Institute of Corr., U.S. Dep't of Justice, The Handicapped Offender 4 (1981) (noting the problem of abuse and exploitation of inmates with disabilities); H.R. 2439 Hearings 240 ("Physical abuse at the hands of officers and other inmates is a frequent occurrence, most often inflicted upon those who are young, weak and mentally deficient."); NM 1091 (inmates with developmental disabilities are "more subject to physical and mental attacks by other inmates"); M. Santamour & B. West, The Mentally Retarded Offender and Corrections 9 (Dep't of Justice 1977) (discussing the widespread abuse of mentally retarded inmates as "a scapegoat or a sexual object"); Prison Visiting Comm., Corr. Ass'n of N.Y., State of the Prisons 2002-2003: Conditions of Confinement in 14 New York State Corr. Facilities 15, 19 (June 2005) (NY Report).

22 See Calif. Report 111; NM 1091 (prisoners with developmental disabilities subjected to longer terms of imprisonment); Del. 345 (denial of equal access to prison facilities); NY Report 15 ("most inmates with mental illness are housed * * * in maximum security facilities"); id. at 23 (in some units, "over half of the inmates in solitary confinement were identified as seriously mentally ill); id. at 24 (one seriously mentally ill man "had accumulated a total of 35 years in solitary confinement"); Addendum B at 8b; IL 572 (deaf people arrested and held in jail overnight without explanation because of failure to provide interpretive services), NC 1161 (police failed to provide interpretive services to deaf person in jail); KS 673 (deaf man jailed and held without a sign language interpreter for him to "understand the charges against him and his rights").

23 See S. 10 Hearings 474 ("The mentally retarded were * * * given no care, educational or special programs."); Spectrum 168 (identifying widespread problem of "[i]nadequate * * * rehabilitation programs"); Calif. Report 102 ("jail visiting rooms and jails have architectural barriers that make them inaccessible to people who use wheelchairs"); id. at 102-103 (documenting the inaccessibility of "visiting, showering, and recreation areas in jails and prisons"); id. at 110-111; MD 787 (state prison lacks telecommunications for the deaf). Addendum C to this brief records actions taken by the Department of Justice's Civil Rights Division to enforce Title II's provisions in correctional facilities. Those efforts document that numerous facilities lack accessible cells, toileting facilities, and telephones, thereby subjecting inmates with disabilities to disproportionately harsh conditions of confinement and deprivation of the most basic inmate privileges.

24 See Yeskey, 524 U.S. at 208 (disabled inmate denied admission to boot camp program "which would have led to his release on parole in just six months" rather than serving 18-36 months); Key v. Grayson, 179 F.3d 996 (6th Cir. 1999) (deaf inmate denied access to sex offender program that allegedly was required as a condition of parole), cert. denied, 528 U.S. 1120 (2000).

25 See Handicapped Offender, supra, at 4 (stereotypes about abilities of mentally ill offenders impair their access to work programs); Calif. Report 102 ("Too many criminal justice policies" remain the product of "erroneous myths and stereotypes.").

26 See Addendum A, infra. Many of those cases specifically found constitutional violations. In others, courts found, sometimes while adjudicating statutory claims, a substantial factual basis from which Congress could conclude that constitutional rights were at risk-which is a sufficient basis for congressional action under Section 5, City of Rome, 446 U.S. at 177; see City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (plurality) ("The power to 'enforce' may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations.").

27 That number and the accompanying addendum include violations that were found in state mental health institutions that also served as detention facilities for mentally disabled inmates at the relevant time. See Cal. Penal Code § 2684 (1978); 730 Ill. Comp. Stat. 5/5-2-6(d) (1981); La. Rev. Stat. Ann. § 15:830 (West 1980); Mich. Comp. Laws § 791.265b(2) (1981); Tenn. Code Ann. § 33-3-402 (1984); Va. Code Ann. § 53.1-40.1 (1988).

28 See also Deutsch, supra, at 55 ("The jails * * * into which the insane were thrown were bad beyond description."); id. at 165 (discussing the "catalogue of miseries and horrors" in jails housing the mentally ill); M. Burgdorf & R. Burgdorf, A History of Unequal Treatment, 15 Santa Clara Lawyer 855, 885 (1975) ("The mentally disabled person prone to violent behavior was placed in prison and subjected to physical and mental tortures.") (footnotes omitted).

29 See 2 Legis. Hist. 1161 ("People with mental disorders have been herded into jail-like asylums along with the poor and criminals. Mental patients have been isolated, chained and beaten, and abused. At one time, tickets were sold to the public to watch the, quote, lunatics, as entertainment, adding to the degradation and brutality. Is it any wonder, then, that the legacy today are views of the mentally ill as dangerous and criminal, objects of ridicule and blame, people to be shunned and abused.").

30 See, e.g., Foucha, supra (Louisiana statute unconstitutionally allowing the continued confinement of the mentally ill, who were acquitted by reason of insanity); Vitek v. Jones, 445 U.S. 480 (1980) (due process protections required to transfer prisoner to state mental hospital); Jackson, supra (pre-trial detention of deaf and mentally retarded defendant).

31 Americans with Disabilities Act of 1989: Hearings on S.933 Before the Subcomm. on the Handicapped of the Senate Comm. on Labor and Human Res., 101st Cong., 1st Sess. 77 (1989) (May 1989 Hearings); see id. at 778 (Ohio Governor's testimony that "state and local governments must also be held to the same standards" of ensuring "that there is no discrimination against people with disabilities in any program under their jurisdiction"); 136 Cong. Rec. 11,455 (1990) (Rep. Wolpe); id. at 11,461 (Rep. Levine); 134 Cong. Rec. 9384-9385 (1988) (Sen. Simon); 2 Leg. Hist. 963; id. at 967 ("Too many States, for whatever reason, still perpetuate confusion. It is time for Federal action."); id. at 1050 (Elmer Bartels, Mass. Rehab. Comm'n); id. at 1455-1456 (Nikki Van Hightower, Treas., Harris Co., Tex.); id. at 1473-1474 (Robert Lanier, Chair, Metro. Transit Auth. of Harris Co., Tex.); id. at 1506 (Texas State Sen. Chet Brooks) ("We cannot effectively piece these protections together state by state, person by person."); id. at 1508; id. at 1642-1643) (noting variations and gaps in coverage of state laws); 3 Leg. Hist. 2245; AL 24; AK 52; see generally United States Dep't of Health & Human Servs., Visions of: Independence, Productivity, Integration for People with Developmental Disabilities 28 (1990) (19 States strongly recommended passage of the ADA).

32 See May 1989 Hearings 77-78 (Illinois Attorney General) (the Rehabilitation Act's scheme of prohibiting discrimination by entities receiving federal funds "[u]nfortunately * * * translates [into] total confusion for the disabled community and the inability to expect consistent treatment"); H.R. Rep. No. 485, supra, Pt. 4, at 24; 134 Cong. Rec. 9385 (1988) (Sen. Simon); id. at 9357 (Sen. Weicker); 2 Leg. Hist. 1272 (Rep. Owens); 3 Leg. Hist. 2015 (Att'y Gen. Thornburgh); id. at 2244-2245 (James Ellis); Toward Independence, supra, at 7 ("[c]omplexities, inconsistencies, and fragmentation in the various Federal laws and programs" had created a confused and ineffective "patchwork quilt of existing policies and programs"); On the Threshold of Independence, supra, at 19-21.

33 In any event, the more effective way to combat abusive prisoner litigation is not to withhold substantive civil rights protections, but to impose procedural requirements that inhibit meritless filings, which Congress has already done. See Prison Litigation Reform Act of 1995, 42 U.S.C. 1997e.

34 See also S. Rep. No. 116, supra, at 10-12, 89, 92; H.R. Rep. No. 485, supra, Pt. 2, at 34; 2 Leg. Hist. 1552, 1077, 1388-1389, 1456-1457, 1560; 3 Leg. Hist. 2190-2191; Task Force Report 27; Spectrum 2, 30, 70; GAO, Briefing Report on Costs of Accommodations, Americans with Disabilities Act: Hearing Before the House Comm. on Small Business, 101st Cong., 2d Sess. 190 (1990).

35 Kiman v. New Hampshire Dep't of Corr., 301 F.3d 13, 15-16 (1st Cir.) (upholding Title II "at least as * * * applied to cases in which a court identifies a constitutional violation by the state"), opinion withdrawn pending reh'g en banc, 310 F.3d 785 (2002), district court aff'd by equally divided en banc court, 332 F.3d 29 (1st Cir. 2003), vacated and remanded in light of Lane, 541 U.S. 1059 (2004).

36 See Hibbs, 538 U.S. at 734 n.10 ("Congress did not create a particular leave policy for its own sake," but rather addressed leave policy as part of a broader effort to "dismantle persisting gender-based barriers to the hiring, retention, and promotion of women in the workplace.").

ADDENDUM A

Cases Evidencing the Problem of Unconstitutional Treatment of Individuals with Disabilities in Correctional Facilities: Vitek v. Jones, 445 U.S. 480 (1980) (due process protections required to transfer prisoner to state mental hospital); Miller v. King, 384 F.3d 1248 (11th Cir. 2004) (reversing grant of summary judgment to defendants on Eighth Amendment claims by paraplegic inmate where inmate was housed in a cell so small that he could not turn his wheelchair around; where inmate did not have access to wheelchair-accessible toilets and showers, as a result of which inmate was not able to bathe regularly and was forced to urinate and defecate on himself; and where prison staff's failure to provide adequate medical care resulted in bed sores, serious atrophy, and deterioration of his spinal condition); Serrano v. Francis, 345 F.3d 1071 (9th Cir. 2003) (court of appeals found assignment of wheelchair-bound inmate to administrative segregation implicated protected liberty interest where inmate was not allowed to use his wheelchair while in segregation, forcing him to crawl around vermin and cockroach-infested floor to get to his bed and to hoist himself up by the toilet seat in order to use the toilet; was prevented from showering due to a lack of accessible showers; and was denied outdoor exercise due to inaccessible yard), cert. denied, 125 S. Ct. 43 (2004); Cole v. Velasquez, 67 Fed. Appx. 252 (5th Cir. 2003) (reversing dismissal of blind inmate's ADA claim that he was denied access to the prison law library on the basis of his disability); Kiman v. New Hampshire Dep't of Corr., 301 F.3d 13, 15-16 (1st Cir.) (disabled inmate stated Eighth Amendment claims for denial of accommodations needed to protect his health and safety due to his degenerative nerve disease), opinion withdrawn pending reh'g en banc, 310 F.3d 785 (2002), district court aff'd by an equally divided court, 332 F.3d 29 (2003) (en banc), vacated and remanded in light of Tennessee v. Lane, 541 U.S. 509 (2004); Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002) (reversing dismissal of inmates' ADA claim where inmates were categorically excluded from consideration for parole), cert. denied, 538 U.S. 921 (2003); Lawson v. Dallas County, 286 F.3d 257 (5th Cir. 2002) (paraplegic inmate's Eighth Amendment rights violated where jail staff failed to follow medically prescribed procedures for treating skin condition causing inmate's skin to rot and die; and where he was placed in solitary cell with no supports, causing him repeatedly to fall to the floor and lie there for extended periods of time); St. Amand v. Block, 34 Fed. Appx. 283 (9th Cir. 2002) (finding that inmate's Eighth Amendment, ADA, and Section 504 claims were not frivolous where wheelchair-dependent amputee inmate claimed he was given inadequate medical care and was denied access to the prison's law library); Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) (failure to conduct parole and parole revocation proceedings in a manner that disabled inmates can understand and in which they can participate), cert. denied, 537 U.S. 812 (2002); Chisolm v. McManimon, 275 F.3d 315 (3d Cir. 2001) (reversing grant of summary judgment to defendants on ADA and Section 504 claims where hearing-impaired jail inmate was not provided with any communication assistance and, as a result, was erroneously classified as a vagrant, was housed in solitary lock-down, was denied access to an accessible telephone, and was denied an interpreter at his extradition hearing); Gorman v. Eas-ley, 257 F.3d 738, 742 (8th Cir. 2001) (paraplegic arrested for trespass improperly restrained in non-wheelchair-accessible police van, causing his urine bag to burst, "soaking him with his own urine" and resulting in serious medical problems), judgment rev'd in part on other grounds, 536 U.S. 181 (2002); Beckford v. Portuondo, 234 F.3d 128 (2d Cir. 2000) (reversing grant of summary judgment to defendants on Eighth Amendment, ADA, and Section 504 claims of wheelchair-bound inmate alleging he was denied access to drinking water for a long period of time, bedding and clothing, access to outdoor recreation, and access to adequate medical and mental health care); May v. Sheahan, 226 F.3d 876 (7th Cir. 2000) (affirming denial of qualified immunity to constitutional claims of inmate with AIDS where inmate, who was taken to a hospital during his confinement, was shackled to his hospital bed 24 hours per day, was denied access to his attorney or other visitors who could assist him in his legal defense, and was denied transportation to assigned court dates); Brown v. MDOC, No. 98-1587, 2000 WL 659031 (6th Cir. May 10, 2000) (reversing grant of summary judgment to defendants on claim by inmate that his Eighth Amendment rights were violated when prison refused to provide a smoke-free environment, despite notice that inmate's polio-induced serious respiratory problems required such an environment, and when prison officials caused him to have a wheelchair accident through the use of excessive force); Key v. Grayson, 179 F.3d 996 (6th Cir. 1999) (deaf inmate denied access to sex offender program required as precondition for parole), cert. denied, 528 U.S. 1120 (2000); Bradley v. Puckett, 157 F.3d 1022, 1025-1026 (5th Cir. 1998) (failure to provide means for amputee to bathe for several months led to infection); Simmons v. Cook, 154 F.3d 805 (8th Cir. 1998) (Eighth Amendment violated when two paraplegic inmates placed in maximum security could not eat, because their wheelchairs could not pass the cell bunk to reach the barred door where food was set, and were denied accessible toilet facilities); Love v. Westville Corr. Ctr., 103 F.3d 558, 558, 560-561 (7th Cir. 1996) (quadriplegic inmate "was unable to participate in substance abuse, education, church, work, or transition programs available to members of the general inmate population"); Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) (in an ADA and Rehabilitation Act suit brought by deaf inmate who was allegedly denied an interpreter at prison disciplinary and classification proceedings, fact issues as to qualifications of the interpreter provided by prison officials and the inmate's ability to communicate with her effectively and adequately precluded defendants' motion for summary judgment); Koehl v. Dalsheim, 85 F.3d 86 (2d Cir. 1996) (Eighth Amendment violated when inmate with serious vision problem was denied glasses and treatment); Hicks v. Frey, 992 F.2d 1450 (6th Cir. 1993) (upholding jury verdict finding violation of Eighth Amendment where jail employees placed paraplegic inmate in isolation cell with door closed for 23 hours per day, denied him access to his wheelchair, failed to change his soiled linens, and did not turn him for more than two months); Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993) ("squalor in which [prisoner] was forced to live as a result of being denied a wheelchair" violated the Eighth Amendment); Johnson v. Hardin County, 908 F.2d 1280 (6th Cir. 1990) (Eighth Amendment violated when prisoner disabled by mobility impairment was denied prescribed medical care and denied access to a shower for 40 days after injuring himself in a fall); Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989) (county jail maintained policy of deliberate indifference to serious medical needs of paraplegic inmates in violation of Eighth Amendment where paraplegic inmate was not bathed regularly, was forced to sit in his own urine, and was not given necessary help for bowel movements), cert. denied, 495 U.S. 932 (1990); Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989) (evidence established that physician assistant's treatment of prisoner after he severely injured his leg constituted deliberate indifference to prisoner's serious medical needs); Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) (reversing grant of summary judgment to defendant on inmate's Section 504 claim where inmate, who is deaf, mute, and suffers from a severe progressive vision loss, was not provided with a sign-language interpreter for counseling sessions, administrative or disciplinary hearings, or medical appointments); Eng v. Smith, 849 F.2d 80 (2d Cir. 1988) (upholding grant of preliminary injunction based on constitutionally inadequate provision of medical care to mentally ill inmates); Cortes-Quinones v. Jimenez- Nettleship, 842 F.2d 556 (1st Cir.) (Eighth Amendment violated when mentally ill prisoner was housed in a severely overcrowded cell where he was ultimately killed and dismembered by other inmates), cert. denied, 488 U.S. 823 (1988); LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) (Powell, J.) (failure to provide paraplegic inmate with an accessible toilet is cruel and unusual punishment); Parrish v. Johnson, 800 F.2d 600, 603, 605 (6th Cir. 1986) (prison guard repeatedly assaulted paraplegic inmates with a knife, forced them to sit in their own feces, and taunted them with remarks like "crippled bastard" and "[you] should be dead"); Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985) (failure to provide medications for epilepsy, which caused prisoner's death, violated Eighth Amendment); Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984) (State subjected individuals awaiting civil commitment proceedings to unconstitutional conditions of confinement in county jails); Bee v. Greaves, 744 F.2d 1387 (10th Cir.) (genuine issue of material fact as to whether an emergency existed and as to whether forcible medication for an indefinite period was an exaggerated response, where pretrial detainee claimed he was forced to take antipsychotic drug thorazine against his will), cert. denied, 469 U.S. 1214 (1984); Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981) (colorable claim for relief under the Eighth Amendment where paraplegic prisoner alleged that he had received no physical therapy for his condition over a period of some 11 months since he had entered prison); Littlefield v. Deland, 641 F.2d 729 (10th Cir. 1981) (Due Process violation where mentally ill inmate was confined without notice or an opportunity to be heard for 56 days in solitary confinement in a "strip cell" with no windows, no interior lights, no bunk, no floor covering, no toilet beyond a hole in the floor, no articles of personal hygiene, no opportunity for recreation outside cell, no access to reading materials, and frequently no clothing or bedding material); Williams v. Edwards, 547 F.2d 1206, 1217 (5th Cir. 1977) (upholding finding of Eighth Amendment violations where prison provided no mental health care despite finding that 40% of inmates would benefit from psychiatric treatment); Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973) (administration of drugs that induced vomiting to nonconsenting inmates on the basis of alleged violations of behavior rules constituted cruel and unusual punishment); Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973) (finding that disabled inmate sufficiently alleged being subjected to cruel and unusual punishment where inmate claimed he received without his consent a "fright drug" that caused him to regularly suffer nightmares and awaken unable to breathe); Scott v. Garcia, 370 F. Supp. 2d 1056 (S.D. Cal. 2005) (summary judgment was precluded on Eighth Amendment and ADA claims, where inmate diagnosed with esophageal erosion, possible Barrett's esophagus, multiple gastric erosions, gastric ulcer, pyloric channel ulcer, duodenal bulb ulcer, and multiple second duodenum ulcers was not allowed to transfer to a facility with an acute care hospital); Ginest v. Board of County Comm'rs, 333 F. Supp. 2d 1190 (D. Wyo. 2004) (Eighth Amendment violated by inadequate provision of medical and mental health care to mentally ill inmates); Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 434, 438-440 (S.D.N.Y. 2004) (denying defendants' motion to dismiss in Eighth Amendment suit brought by prisoner alleging that, during a bus crash, he sustained injuries to his head, spine, back, neck, legs, and hips, and that a prison medical employee was deliberately indifferent to his serious medical needs, as well as that city administrative employees failed to respond to his complaints of inadequate medical care); Simms v. Hardesty, 303 F. Supp. 2d 656 (D. Md. 2003) (genuine issue of material fact existed as to whether brain-damaged pretrial detainee's due process right to be free of excessive force was violated, when he suffered severely debilitating facial and head injuries caused by a struggle with officers); Bane v. Virginia Dep't of Corr., 267 F. Supp. 2d 514 (W.D. Va. 2003) (fact issues precluded summary judgment on disabled inmate's Eighth Amendment claims where he allegedly suffered injuries because he was handcuffed behind his back even though prison personnel were on notice that he was not to be cuffed behind his back); Lavender v. Lampert, 242 F. Supp. 2d 821 (D. Or. 2002) (in Section 1983 suit brought by inmate suffering partial spastic paralysis, allegations supported inmate's deliberate indifference claims against the superintendent and health services manager and fact issues existed as to whether the care providers were deliberately indifferent to the prisoner's serious medical needs); Terry v. Hill, 232 F. Supp. 2d 934 (E.D. Ark. 2002) (constitutional rights of mentally ill pretrial detainees violated by inadequate mental health care and evaluation); Mitchell v. Massachusetts Dep't of Corrs., 190 F. Supp. 2d 204 (D. Mass. 2002) (complaint sufficient to state an ADA claim in suit in which prisoner alleged that he was denied the opportunity to participate in certain inmate programs based on the fact that he suffered from diabetes and a heart condition); Navedo v. Maloney, 172 F. Supp. 2d 276 (D. Mass. 2001) (denied defendant's motion for summary judgment in ADA suit where defendants' refusal to allow disabled inmate access to wheelchair and to accessible facilities caused severe and irreparable damage to his leg); Becker v. Oregon, 170 F. Supp. 2d 1061 (D. Or. 2001) (denying defendants' motion to dismiss in ADA and Rehabilitation Act suit brought by below-the-knee amputee inmate who alleged he was denied handicapped shower facilities); Kruger v. Jenne, 164 F. Supp. 2d 1330, 1332 (S.D. Fla. 2000) (denying motion to dismiss blind county jail inmate's ADA suit where inmate was denied a cane or equivalent accommodations and, as a result, he was injured in three separate falls); Jones'El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001) (preliminary injunction granted where plaintiffs showed likelihood of success on merits of claims that seriously mentally ill inmates were subject to cruel and unusual conditions of confinement); Maynor v. Morgan County, 147 F. Supp. 2d 1185 (N.D. Ala. 2001) (preliminary injunction granted based on showing that county jail is unconstitutionally indifferent to the medical needs of mentally ill inmates); Hicks v. Armstrong, 116 F. Supp. 2d 287 (D. Conn. 1999) (denying motion to dismiss paraplegic pretrial detainee's ADA and Rehabilitation Act suit where detainee had no access to supplies for using the toilet or an accessible shower and was given a carton to urinate in and forced to lie in his own feces); Lawson v. Dallas County, 112 F. Supp. 2d 616 (N.D. Tex. 2000) (jail officials' denial of adequate medical care to paraplegic inmate, which resulted in his developing decubitus ulcers, constituted cruel and unusual punishment); Hallett v. New York State Dep't of Corr. Servs., 109 F. Supp. 2d 190 (S.D.N.Y. 2000) (denying defendants' motion to dismiss in suit where former inmate alleged that he was denied access to special programs while incarcerated due to his status as an HIV-positive amputee, in violation of the ADA and Rehabilitation Act, and was denied proper medical care in violation of the Eighth Amendment); Rainey v. County of Delaware, No. Civ. A. 00-548, 2000 WL 1056456 (E.D. Pa. Aug. 1, 2000) (denying defendant's motion to dismiss in suit brought by semi-paraplegic inmate in which he alleged that he was denied food and medical treatment); Candelaria v. Cunningham, No. 98 Civ. 6273(LAP), 2000 WL 280052, at *5 (S.D.N.Y. Mar. 14, 2000) (triable issue of fact precluded defendants' motion for summary judgment in suit brought by paraplegic inmate alleging that defendants' delayed treatment and failure to provide him with his prescribed diet constituted a violation of his Eighth Amendment rights); Roop v. Squadrito, 70 F. Supp. 2d 868 (N.D. Ind. 1999) (in Section 1983 and ADA suit brought by HIV-positive inmate, evidence raised genuine issue of material fact as to whether deprivations suffered by inmate while in jail constituted a violation of his civil rights, precluding summary judgment on inmate's Section 1983 claim, and evidence raised genuine issue of material fact as to whether inmate's medical condition required that he be treated differently from other inmates in jail, precluding summary judgment on inmate's claim that defendants violated the ADA); Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999) (denying defendants' motion for summary judgment in double amputee inmate's ADA and Rehabilitation Act suit where inmate alleged that county jail deprived him of a wheelchair or other accommodation and forced him to crawl and pull himself about the jail on the floor); Beckford v. Irvin, 49 F. Supp. 2d 170 (W.D.N.Y. 1999) (prison officials violated wheelchair-dependent inmate's Eighth Amendment rights by depriving him of the use of his wheelchair for extended periods of time and denying him access to a shower or any other effective means of bathing); McNally v. Prison Health Servs., 46 F. Supp. 2d 49 (D. Me. 1999) (fact issues precluded summary judgment for defendant where detainee alleged deprivation of his due process rights and violation of the ADA arising out of denial of medication required for his HIV condition while he was incarcerated for three days); Montez v. Romer, 32 F. Supp. 2d 1235 (D. Colo. 1999) (denying motion to dismiss prisoners' ADA and Rehabilitation Act suit where prisoners alleged, inter alia, that prison refused to accommodate their disabilities, resulting in their being unable to use law libraries, visiting areas, yard areas, laundry facilities, dining halls, vocational training, recreational facilities, bathing and restroom facilities, and medical clinics); Perri v. Coughlin, No. 90-1160, 1999 WL 395374 (N.D.N.Y. June 11, 1999) (finding violation of the Eighth Amendment rights of inmate identified as mentally ill where inmate was housed in segregated unit without clothes or a blanket for two months, which caused him to develop body sores from sleeping naked on the cold floor; where inmate was denied access to personal items, legal materials, and mail while in segregated unit; where inmate was forced to live for ten days in cell smeared with urine and feces; and where inmate supposed to be on suicide watch managed to sever an artery on one occasion and hang himself to the point of unconsciousness on two occasions); Morales Feliciano v. Rosselló González, 13 F. Supp. 2d 151 (D.P.R. 1998) (correctional system violated constitutional rights of inmates by failing to provide adequate medical and mental health care to inmates with chronic illnesses and to inmates with mental illness); Hanson v. Sangamon County Sheriff's Dep't, 991 F. Supp. 1059 (C.D. Ill. 1998) (denying motion to dismiss deaf arrestee's ADA and Rehabilitation Act suit where sheriff's department failed to provide arrestee with hearing impaired equipment that it had available in order to communicate with friends and/or relatives to post bond even though officers knew he was deaf); Purcell v. Pennsylvania Dep't of Corrs., No. 95-6720, 1998 WL 10236 (E.D. Pa. Jan. 9, 1998) (denying defendants' motion for summary judgment on inmate's ADA claims where prison guards punished inmate suffering from Tourette's Syndrome for following doctor's orders to remain in his cell in order to release his tics in private when needed, and where prison refused to provide a plastic shower chair for inmate suffering from degenerative joint disease); Herndon v. Johnson, 970 F. Supp. 703 (E.D. Ark. 1997) (denying defendants' motion for partial judgment on the pleadings in inmate's ADA and Rehabilitation Act suit where inmate with fused spine who regularly uses mobility aids alleged that sheriff refused to provide him with certain assistive devices needed to allow him to have bowel movements and to prevent bed sores and other problems with his fused spine); Saunders v. Horn, 960 F. Supp. 893, 896-897 (E.D. Pa. 1997) (denying motion to dismiss inmate's Eighth Amendment suit where prisoner alleged that an "officer discarded his doctor-prescribed orthopedic shoes and cane, that he did not obtain treatment * * *, that the standard-issue shoes he was required to wear caused him constant pain, that [he] wrote to [defendants] about his difficulties, and that [defendants] did acquiesce in the failure to address [inmate's] medical condition"); Carty v. Farrelly, 957 F. Supp. 727, 739 (D.V.I. 1997) ("The abominable treatment of the mentally ill inmates shows overwhelmingly that defendants subject inmates to dehumanizing conditions punishable under the Eighth Amendment."); Kaufman v. Carter, 952 F. Supp. 520 (W.D. Mich. 1996) (amputee hospitalized after fall in inaccessible jail shower); Armstrong v. Wilson, 942 F. Supp. 1252 (N.D. Cal. 1996) (denying defendants' motion for summary judgment in inmates' ADA and Rehabilitation Act suit where parties stipulated that some prison facilities do not have visual alarms or strobe lights to warn prisoners with hearing impairments of emergencies); Bullock v. Gomez, 929 F. Supp. 1299 (C.D. Cal. 1996) (denying defendants' motion for summary judgment in suit brought by HIV-positive inmate and his wife, alleging that refusal to allow overnight visits violated the ADA and Rehabilitation Act); Young v. Breeding, 929 F. Supp. 1103 (N.D. Ill. 1996) (inmate stated Eighth Amendment claim against nurse and correctional officers who allegedly refused to provide him with medical attention during an asthma attack); Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) (Eighth Amendment violated by inadequate provision of mental health care, unnecessary segregation of inmates with mental illness, and unjustified use of tasers against mentally ill inmates); Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995) (violation of deaf and hearing impaired inmates' Due Process and Eighth Amendment rights where such inmates could not meaningfully participate in proceedings to protect their rights, such as disciplinary and good-time proceedings, as well as parole board proceedings, and where failure to provide assistive or interpretive devices constituted deliberate indifference to inmates' medical needs); Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995) (finding sufficient evidence to support a finding that prison officials violated ADA by intentionally discriminating against inmate on the basis of his disability in denying him access to prison programs such as educational opportunities, the law library, outdoor recreation, religious services, and job assignments); Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) (mentally ill inmates subject to cruel and unusual punishment in violation of Eighth Amendment); Lowrance v. Coughlin, 862 F. Supp. 1090 (S.D.N.Y. 1994) (prison delay in providing surgery for inmate's knee, and deprivation of postsurgery rehabilitation, violated the Eighth Amendment); Harrelson v. Elmore County, 859 F. Supp. 1465, 1466 (M.D. Ala. 1994) (paraplegic prisoner denied use of a wheelchair and forced to crawl around his cell); Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) (denying defendant's motion for summary judgment on semi-quadriplegic inmate's ADA claims where jail placed inmate in cell without a bed or any furniture, and with no toilet beyond an open drain in the floor; where jail staff did not provide inmate with sufficient water to drink as prescribed by a physician; where inmate was not permitted to shower for three months; where inmate was consistently denied the medical treatment h