207 F.3d 945 (7th Cir. 2000)
Melinda Erickson,    Plaintiff-Appellee,United States of America,    Intervenor,v.Board of Governors of State Colleges and  Universities for Northeastern Illinois University,    Defendant-Appellant.
No. 98-3614
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 27, 1999Decided March 27, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 95 C 2541--John A. Nordberg, Judge.
Before Eschbach, Easterbrook, and Diane P. Wood, Circuit  Judges.
Easterbrook, Circuit Judge.


1
We must decide  whether Title I of the Americans with  Disabilities Act, 42 U.S.C. sec.sec. 12111-17, is  an exercise of power under sec.5 of the  Fourteenth Amendment, which confers authority "to  enforce, by appropriate legislation, the  provisions of this article." Defendant in this  suit is an arm of Illinois and therefore one of  the United States for purposes of the Eleventh  Amendment. Congress has power under the Commerce  Clause to adopt the ADA's rules, but given the  Eleventh Amendment a statute that rests only on  the Commerce Clause can not authorize private  suits against states in federal court. Seminole  Tribe v. Florida, 517 U.S. 44 (1996). But if  sec.5 bestows power to adopt the ADA, then private  litigation is compatible with the Eleventh  Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445  (1976).


2
Melinda Erickson worked for five years in the  College of Business and Management at  Northeastern Illinois University, rising from  secretary to "program associate." She contends  that the University failed to accommodate her  efforts to have children. Medical care for her  infertility was physically demanding and had side  effects. Both the treatment and the circumstances  that gave rise to it were emotionally draining.  Erickson often did not come to work and was late  on days when she did appear. She was fired after  she became distraught and stayed home for six  working days. Erickson does not contend that the  attendance requirements were designed to  discriminate against persons with disabilities.  Instead she argues that the University should  have tolerated absences and tardiness that it  would not have condoned from a healthy employee.  Invoking the Eleventh Amendment, the University  filed a motion to dismiss, which the district  court denied. 1998 U.S. Dist. Lexis 15779 (N.D.  Ill. Oct. 1, 1998). The University's  interlocutory appeal is within our jurisdiction,  see Seminole Tribe, 517 U.S. at 52, even though  the University does not assert sovereign immunity  with respect to Erickson's claim under the  Pregnancy Discrimination Act, 42 U.S.C.  sec.2000e(k). Scott v. Lacy, 811 F.2d 1153 (7th  Cir. 1987). Cf. Wisconsin Department of  Corrections v. Schacht, 524 U.S. 381 (1998). The  United States intervened as a party in this court  to defend the ADA's constitutionality. See 28  U.S.C. sec.2403(a).


3
Three times during the last four Terms, the  Supreme Court has addressed the extent of  legislative power under sec.5. Kimel v. Florida  Board of Regents, 120 S. Ct. 631 (2000); Florida  Prepaid Postsecondary Education Expense Board v.  College Savings Bank, 527 U.S. 627 (1999); Boerne  v. Flores, 521 U.S. 507 (1997). Thrice it has  stressed that the language of sec.5, which gives  Congress the power to "enforce" the Fourteenth  Amendment, must be taken seriously. Statutes that  create new rights, or expand old rights beyond  the Fourteenth Amendment's bounds, do not  "enforce" that amendment.


4
Boerne dealt with the Religious Freedom  Restoration Act of 1993 (RFRA), 42 U.S.C. sec.sec.  2000bb to 2000bb-4, a response to Employment  Division v. Smith, 494 U.S. 872 (1990). Smith had  held that the Free Exercise Clause of the First  Amendment never requires accommodation of  religiously inspired practices, so that laws  neutral with respect to religion are valid. The  RFRA, by contrast, obliged states to accommodate  practices associated with religion. The Court  held that an accommodation requirement could not  be thought to "enforce" a constitutional norm  that does not require accommodation. Florida  Prepaid held that Congress may not use sec.5 to  abrogate state sovereign immunity on the ground  that statutory rights are "property" under the  Fourteenth Amendment. Kimel held that sec.5 does  not support the Age Discrimination in Employment  Act, 29 U.S.C. sec.sec. 621-34, because although  the ADEA forbids consideration of an employee's  age unless age is a "bona fide occupational  qualification reasonably necessary to the normal  operation of the particular business",  sec.623(f)(1), the Constitution's own requirement  is considerably more lenient. The Equal  Protection Clause permits a state to consider a  person's age unless age lacks a rational  relationship to the state's objective. Most  consideration of age in employment therefore is  constitutional; but under the ADEA most  consideration of age is forbidden; Kimel  therefore held that the ADEA sets up an  independent rule and does not "enforce" the  Constitution's rule.


5
Twenty-three days before the Supreme Court  decided Boerne, we held in Crawford v. Indiana  Department of Corrections, 115 F.3d 481, 487 (7th  Cir. 1997), that sec.5 supports Title II of the  ADA, which deals with public services. Our opinion  analogized the ADA to the ADEA and observed that  the latter statute had been applied to states in  private litigation. Kimel shows that if our  analogy to the ADEA is precise, then Crawford is  no longer authoritative; Florida Prepaid and  Boerne likewise call for a fresh look at the  subject. Elsewhere a great deal of ink has been  spilled on this question. After Boerne but before  Kimel, panels of five appellate courts held that  sec.5 supplies the necessary legislative power,  though there was one squarely contrary holding by  a court en banc. Compare Muller v. Costello, 187  F.3d 298 (2d Cir. 1999); Coolbaugh v. Louisiana,  136 F.3d 430 (5th Cir. 1998); Clark v.  California, 123 F.3d 1267 (9th Cir. 1997); Martin  v. Kansas, 190 F.3d 1120 (10th Cir. 1999); and  Kimel v. Florida Board of Regents, 139 F.3d 1426,  1433, 1441-44 (11th Cir. 1998), with Alsbrook v.  Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc).  The fourth circuit is internally divided.  Although Amos v. Maryland Department of Public  Safety, 178 F.3d 212 (4th Cir. 1999) (rehearing  en banc granted Dec. 28, 1999), holds that  private ADA litigation may proceed against state  prisons, Brown v. North Carolina Division of  Motor Vehicles, 166 F.3d 698 (4th Cir. 1999),  held that a regulation, based on the ADA,  requiring the state's Division of Motor Vehicles  to accommodate disabled drivers, is  unconstitutional. Recently a divided panel of the  ninth circuit disagreed with Brown. See Dare v.  California Department of Motor Vehicles, 191 F.3d  1167 (9th Cir. 1999). The Supreme Court's opinion  in Kimel calls all of these decisions into  question, and we think it best to analyze the  subject afresh rather than to rehash pre-Kimel  conclusions in and out of this circuit. Believing  that the Supreme Court would tackle the issue  before July, the second circuit declined to  reconsider Muller in light of Kimel. See  Kilcullen v. New York State Department of Labor,  2000 U.S. App. Lexis 2714 (2d Cir. Feb. 24, 2000).  But settlements have dashed that hope; we  therefore undertake independent consideration.


6
Whether Congress has authorized federal  litigation against states is our initial  question. Kimel answered yes for the ADEA, see 120  S. Ct. at 640-42, and the same answer is  appropriate for the ADA. By incorporating 42  U.S.C. sec.2000e, the ADA defines persons, and  thus employers, to include units of government.  42 U.S.C. sec.12111(5)(A), (7). Fitzpatrick held  that sec.2000e is a sufficiently clear statement.  Section 12202 adds that "[a] State shall not be  immune under the eleventh amendment to the  Constitution of the United States from an action  in Federal or State court of competent  jurisdiction for a violation of this chapter."  Finally, just in case there were doubt,  sec.12101(b)(4) invokes all possible sources of  authority to enact the ADA, "including the power  to enforce the fourteenth amendment".


7
On the question whether a statute such as the  ADA enforces the Fourteenth Amendment, Kimel  establishes two principal propositions. First,  because the rational-basis test applies to age  discrimination, almost all of the ADEA's  requirements stand apart from the Constitution's  rule. Most age discrimination is rational, and  therefore constitutional, yet the Act forbids it.  The ADEA therefore does not "enforce" the  Fourteenth Amendment. 120 S. Ct. at 645-48.  Second, there is no need for prophylactic rules  to catch evasions of the rational-basis test by  state governments. Congress did not find that  such a problem exists, and there is no evidence  of one. The ADEA therefore cannot be understood as  enforcement legislation. 120 S. Ct. at 648-50.  Both of these propositions are true of the ADA as  well--indeed, the ADA is harder to conceive as  "enforcement" of the Fourteenth Amendment than is  the ADEA. Under the ADEA employers must ignore age  but are free to act on the basis of attributes  such as strength, mental acuity, and salary that  are related to age. Hazen Paper Co. v. Biggins,  507 U.S. 604 (1993). In other words, the ADEA  forbids disparate treatment but not disparate  impact. EEOC v. Francis W. Parker School, 41 F.3d  1073, 1077 (7th Cir. 1994); Anderson v. Baxter  Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994).  Likewise with the Constitution and most other  employment-discrimination laws. E.g., Troupe v.  May Department Stores Co., 20 F.3d 734 (7th Cir.  1994) (the Pregnancy Discrimination Act does not  require accommodation). Title I of the ADA, by  contrast, requires employers to consider and to  accommodate disabilities, and in the process  extends beyond the anti-discrimination principle.  42 U.S.C. sec.12112(b)(5)(A), (6) (defining  failure to accommodate, and criteria with  disparate impacts, as "discrimination"). (Some  other titles of the ADA are less expansive. See  Doe v. Mutual of Omaha Insurance Co., 179 F.3d  557 (7th Cir. 1999). Our concern in this case is  Title I, and unelaborated references to "the ADA"  are to Title I.)


8
A rational-basis test applies to distinctions on  the ground of disability, just as to distinctions  on the ground of age. Cleburne v. Cleburne Living  Center, Inc., 473 U.S. 432, 439-42 (1985); Heller  v. Doe, 509 U.S. 312, 319-21 (1993); United  States v. Harris, 197 F.3d 870, 873-76 (7th Cir.  1999). Consideration of an employee's  disabilities is proper, so far as the  Constitution is concerned. See Cleburne, 473 U.S.  at 444 ("governmental consideration of those  differences in the vast majority of situations is  not only legitimate but also desirable").  Consider this from the perspective of a  university such as our defendant. A would-be  professor who is not in the top 1% of the  population in mental acuity is not apt to be a  good teacher and scholar. Likewise it is rational  for a university to favor someone with good  vision over someone who requires the assistance  of a reader. The sighted person can master more  of the academic literature (reading is much  faster than listening), improving his chance to  be a productive scholar, and also is less  expensive (because the university need not pay  for the reader). An academic institution that  prefers to use a given budget to hire a sighted  scholar plus a graduate teaching assistant,  rather than a blind scholar plus a reader, has  complied with its constitutional obligation to  avoid irrational action. But it has not complied  with the ADA, which requires accommodation at any  cost less than "undue hardship". 42 U.S.C.  sec.12112(b) (5)(A), sec.12111(10). How the  "undue hardship" defense under the ADA compares  with the "bona fide occupational qualification"  defense under the ADEA is an interesting question,  but not one we need pursue: both statutes  presumptively forbid consideration of attributes  that the Constitution permits states to consider,  and then (like the RFRA) require the state to  carry a burden of persuasion in order to take the  characteristic into account. As in Kimel, the  fact that the law has made adverse action based  on a characteristic "prima facie unlawful" shows  the extent of its departure from the  Constitution's own rule. 120 S. Ct. at 647. Like  the ADEA, the ADA "prohibits very little conduct  likely to be held unconstitutional," id. at 648.


9
The ADA's main target is an employer's rational  consideration of disabilities. Rational  discrimination by definition does not violate a  constitutional provision that condemns only  irrational distinctions based on disabilities.  Congress has ample power under the Commerce  Clause to forbid rational discrimination, which  may bear especially heavily on a class of persons  who suffer from diminished human (and often  financial) capital. But to say that in devising  these new rules Congress is just "enforcing" a  substantive command present in sec.1 of the  Fourteenth Amendment since 1868 would be a legal  fiction. Boerne, Florida Prepaid, and Kimel hold  that fictions do not support legislation under  sec.5.


10
One way to distinguish the ADA from the ADEA would  be to emphasize a remark in Kimel that "[o]ld age  . . . does not define a discrete and insular  minority because all persons, if they live out  their normal life spans, will experience it." 120  S. Ct. at 645. The argument would continue that  many disabilities are immutable; few people born  blind acquire vision later. We do not read the  Court's observation in Kimel as distinguishing  among characteristics that are subject to  rational-basis review; instead the Court offered  the observation as one reason why earlier cases  had applied the rational-basis test to age.  Because Cleburne held that the rational-basis  test likewise governs disabilities, the reasoning  behind that opinion need not come back into  consideration. We know from Cleburne that  rational distinctions based on disabilities  comport with the Constitution. What is more, many  disabilities come and go, or progress with time.  Beethoven did not become deaf, or Milton blind,  until middle age. Erickson's medical problem  affected her for a number of years but not for a  lifetime (if only because medical treatment may  have succeeded, or because after menopause it  would have lost significance). One can imagine an  argument under sec.5 for a federal law dealing  with discrimination against persons with life-  long disabilities, but the ADA is not such a law--  not only because it extends beyond permanently  disabled persons, but also because  "discrimination" as the ADA defines it, see  sec.12112(b), has little in common with  "discrimination" in constitutional law.


11
To see this, consider the role of intent. When  a state law or practice does not expressly  concern a particular characteristic (such as  race, sex, age, or disability), but has a  disparate impact on persons with that  characteristic, the plaintiff in constitutional  litigation must establish that the state intends  to discriminate on the basis of that  characteristic. See, e.g., Personnel  Administrator v. Feeney, 442 U.S. 256 (1979)  (sex); Washington v. Davis, 426 U.S. 229 (1976)  (race). Things are otherwise under the ADA, which  not only demands accommodation (which forces the  employer to consider, rather than ignore,  disabilities) but also prohibits any rule or  practice that has a disparate impact, unless the  rule is "job-related for the position in question  and is consistent with business necessity". 42  U.S.C. sec.12112(b)(6). See Washington v. Indiana  High School Athletic Ass'n, 181 F.3d 840 (7th  Cir. 1999) (under the ADA the plaintiff need not  show that the governmental body intended to  discriminate on account of disability). Cases  such as Feeney and Davis hold that the Equal  Protection Clause does not forbid laws and  practices that have a disparate impact; but the  ADA does forbid them.


12
By requiring that employers accommodate rather  than disregard disabilities, the ADA is a cousin  to the RFRA. Smith held that demands for  accommodation and claims of disparate impact have  no constitutional footing under the Free Exercise  Clause; it takes express or intentional  discrimination to violate that provision. See  also Church of the Lukumi Babalu Aye, Inc. v.  Hialeah, 508 U.S. 520 (1993). Congress then  enacted the RFRA, which requires every unit of  government to justify any law or practice that  burdens a person's exercise of religion, "even if  the burden results from a rule of general  applicability". 42 U.S.C. sec.2000bb-1(a). This  requires a state to accommodate religiously  motivated behavior unless it can show a  "compelling" reason for neutrality between  religious and secular conduct. Boerne responded  that Congress may not redefine the constitutional  rule under the rubric of "enforcement." What the RFRA did for religion, the ADA does for  disabilities. In neither situation does the  Constitution forbid neutral laws or practices  that create disparate impacts; in neither  situation does the Constitution require  accommodation. Both the RFRA and the ADA replace  the Constitution's approach with a prohibition of  disparate impact and jettison neutrality in favor  of accommodation. The RFRA's demand for a  "compelling governmental interest", 42 U.S.C.  sec.2000bb-1(b)(1), made it harder for a  government to prevail than do the ADA's  requirements (job-relatedness, business  necessity, and undue hardship), but there is a  countervailing difference that makes the ADA the  more adventuresome. The Free Exercise Clause  forbids all intentional discrimination against  religious practices; the Equal Protection Clause  has no similar rule about disabilities. Rational  discrimination against persons with disabilities  is constitutionally permissible in a way that  rational discrimination against religious  practices is not. This makes the ADA harder than  the RFRA to justify under sec.5, for "[i]t is  precisely in a close case that the independent  judgment of Congress on a constitutional question  should make a difference." Michael W. McConnell,  Institutions and Interpretation: A Critique of  City of Boerne v. Flores, 111 Harv. L. Rev. 153,  155 (1997). See also Stephen L. Carter, The  Morgan "Power" and the Forced Reconsideration of  Constitutional Decisions, 53 U. Chi. L. Rev. 819  (1986). Some of the Justices and several careful  scholars believe that the rule of decision in the  RFRA is the Constitution's own. See Boerne, 521  U.S. at 544 (O'Connor, J., dissenting), 565  (Souter, J., dissenting). Others who support the  majority position in Smith acknowledge that the  question is difficult. See generally Symposium,  Reflections on City of Boerne v. Flores, 39  William & Mary L. Rev. 597 (1998). But no one  believes that the Equal Protection Clause  establishes the disparate-impact and mandatory-  accommodation rules found in the ADA. The statute  is outside the boundaries of constitutional  discourse in a way that the RFRA was not. If the  RFRA and the ADEA exceed the sec.5 power, then so  does the ADA--at least to the extent it extends  beyond remedies for irrational discrimination.


13
Well, then, can the ADA be sustained as  reasonable prophylactic legislation? Because the  ADA requires accommodation, forbids practices with  disparate impact, and disregards the employer's  intent, it is harder than the ADEA to characterize  as a remedial measure. The ADEA was a real anti-  discrimination law; unless age was held against  the employee, there was no violation. The ADA goes  beyond the anti-discrimination principle, a step  that requires reason to think that only by going  to these lengths is it possible to implement the  core constitutional rule. Yet just as for the  ADEA, Congress did not find that states have  adopted clever devices that conceal irrational  discrimination. The legislative findings in 42  U.S.C. sec.12101 contain not a word about state  governments. Congress did find that persons with  disabilities have been discriminated against; it  found the same in the ADEA for age. What it did  not find is that the practices labeled  "discrimination" are irrational (as that term  works under the Equal Protection Clause) or that  states are major offenders--a critical inquiry  not only under Kimel but also under Florida  Prepaid. Instead, Congress used the word  "discrimination" in sec.12101, and Committees of  Congress used that word in the legislative  history, to refer to any disadvantage that  accompanies a disability. For example, the  statement in H.R. Rep. No. 101-485(II), 101st  Cong. 2d Sess. 37 (1990), that "inconsistent  treatment of people with disabilities by  different State or local government agencies is  both inequitable and illogical for a society  committed to full access for people with  disabilities" means only that different public  bodies treated persons differently, because the  Rehabilitation Act applied to some persons but  not others; it does not mean that either  treatment was unconstitutional. "Inconsistent" is  not a synonym for irrational--especially not when  it was a federal statute that induced the  inconsistency on which the Committee remarked.


14
Just as in Kimel, legislative statements about  discrimination consist "almost entirely of  isolated sentences clipped from floor debates and  legislative reports." 120 S. Ct. at 649. These  snippets use the word "discrimination" in a way  that fails to distinguish between rational  distinctions (which the Constitution allows) and  irrational ones (which it forbids). The sort of  findings that would permit adoption of the ADA as  a precautionary measure, after the fashion of the  Voting Rights Act, see South Carolina v.  Katzenbach, 383 U.S. 301 (1966), must establish  that states have been able to disguise forbidden  discrimination as the permissible kind. Nothing  in the legislative findings, or the debates  preceding the ADA's adoption, shows (or even  asserts) that state governments engaged in  deception that prevented victims of irrational  discrimination from obtaining a remedy. Findings  underlying Title VII were more substantial, and  because employers frequently disguised their  resort to racial criteria it is easier to justify  the disparate-impact features of Title VII as  remedial measures. In re Employment  Discrimination Litigation, 198 F.3d 1305 (11th  Cir. 1999), concludes accordingly that sec.5  supports the disparate-impact rules under Title  VII, as well as the disparate-treatment rules  addressed in Fitzpatrick v. Bitzer. We leave that  question for another day and hold only that the  background of the ADA does not meet the standards  that Boerne and Kimel set for using sec.5 to  enact prophylactic legislation.


15
From all of this it follows that the ADA does  not "enforce" the Fourteenth Amendment, and from  Seminole Tribe it follows that the Eleventh  Amendment and associated principles of sovereign  immunity block private litigation against states  in federal court. But Northeastern Illinois  University must understand the limits of this  holding. The ADA is valid legislation, which both  private and public actors must follow. Even if  the Supreme Court should overrule Garcia v. San  Antonio Metropolitan Transit Authority, 469 U.S.  528 (1985), and return to the view of National  League of Cities v. Usery, 426 U.S. 833, 852  (1976), that laws resting only on the Commerce  Clause cannot "directly displace the States'  freedom to structure integral operations in areas  of traditional governmental functions," the  University still would be bound by the ADA, for  running a university is no more a core  governmental function than is running a railroad.  See United Transportation Union v. Long Island  R.R., 455 U.S. 678 (1982). Like most railroads,  most universities in the United States are  private. All our holding means is that private  litigation to enforce the ADA may not proceed in  federal court. Erickson may repair to Illinois  court--for although states may implement a  blanket rule of sovereign immunity, see Alden v.  Maine, 527 U.S. 706 (1999), Illinois has not done  this. Having opened its courts to claims based on  state law, including its own prohibition of  disability discrimination by units of state  government, see 775 ILCS 5/1-102, 5/2-  101(B)(1)(c), Illinois may not exclude claims  based on federal law. Howlett v. Rose, 496 U.S.  356, 367-75 (1990); FERC v. Mississippi, 456 U.S.  742, 759-69 (1982); Testa v. Katt, 330 U.S. 386  (1947). Moreover, the United States may enforce  the ADA against the University and other state  actors through federal litigation. West Virginia  v. United States, 479 U.S. 305, 311 n.4 (1987).  But Erickson has not enlisted the United States  as her champion (its intervention was for the  purpose of defending Erickson's right to sue in  her own name), so this suit belongs in state  court.


16
Reversed Diane P. Wood, Circuit Judge, dissenting.


17
The  Americans with Disabilities Act, or ADA, 42  U.S.C. sec. 12111 et seq., stands at the  intersection of two lines of cases that address  Congress's power under section 5 of the  Fourteenth Amendment to abrogate the Eleventh  Amendment immunity of the states. Laws that fall  within the section 5 power may abrogate the  States' Eleventh Amendment immunity from suit, if  Congress has made its intent to abrogate  "unmistakably clear" in the language of the  statute. See City of Boerne v. Flores, 521 U.S.  507 (1997); Atascadero State Hospital v. Scanlon,  473 U.S. 234, 242 (1985). When the question has  been whether Title VII of the Civil Rights Act  represents a valid use of Congress's power under  section 5, courts have answered in the  affirmative. See, e.g., Fitzpatrick v. Bitzer,  427 U.S. 445, 456-57 (1976); In re Employment  Discrimination Litigation Against State of  Alabama, 198 F.3d 1305, 1324 (11th Cir. 1999)  (finding that disparate impact analysis is a  valid prophylactic measure and thus that this  aspect of Title VII, equally with the disparate  treatment branch, is a valid exercise of section  5 power).


18
On the other hand, the Supreme Court has  recently ruled that the Age Discrimination in  Employment Act, or ADEA, 29 U.S.C. sec. 621-34,  exceeded Congress's section 5 powers and thus  could not as a matter of law override the State's  Eleventh Amendment immunity. Kimel v. Florida  Board of Regents, 120 S.Ct. 631 (2000). The  question before us today, as the majority  recognizes, is which line of authority to apply  to yet another statute, the ADA. This is plainly  a delicate and difficult issue, as the Supreme  Court itself appeared to have signaled when it  granted certiorari in Florida Dept. of  Corrections v. Dickson, 120 S.Ct. 976 (2000), and  in Alsbrook v. Arkansas, 120 S.Ct. 1003 (2000). We must therefore  decide this case without the prospect of  immediate guidance from Washington. For the  reasons I explain below, I conclude that Title I  of the ADA falls within Congress's section 5  powers under the principles the Court has  articulated. I would therefore find that Erickson  is entitled to bring her ADA suit against  Northeastern Illinois University consistently  with the Eleventh Amendment, and I respectfully  dissent.


19
* Although the literal language of the Eleventh  Amendment addresses only the question of the  extent of the judicial power of the United States  (which "shall not be construed to extend to any  suit in law or equity, commenced or prosecuted  against one of the United States by Citizens of  another State, or by Citizens or Subjects of any  Foreign State," U.S. Const. amend. XI), the Supreme  Court has held in a recent line of decisions that  the meaning of this part of the Constitution is  not limited to the precise words of the text.  Instead, the Eleventh Amendment reflects the  structural fact that each state is a sovereign  entity within the federal system, and as such,  each state enjoys sovereign immunity from suit  except insofar as its immunity has legitimately  been curtailed. See Seminole Tribe v. Florida,  517 U.S. 44, 54 (1996); Alden v. Maine, 119 S.Ct.  2240, 2253-54 (1999); Florida Prepaid  Postsecondary Education Expense Board v. College  Savings Bank, 119 S.Ct. 2199, 2204 (1999).


20
There are a number of ways in which sovereign  immunity can be overcome consistently with the  law: the state might consent to suit; to much the  same effect, it might choose to waive its  sovereign immunity; or Congress might enact  legislation that abrogates the state's  immunity.1 Only the last of those options is  relevant here. Abrogation is constitutionally  possible only in narrow circumstances. First,  Congress must make its intent to abrogate  "unmistakably clear" in the language of the  statute. See Kimel, 120 S.Ct. at 640 (citing  Dellmuth v. Muth, 491 U.S. 223, 228 (1989), and  quoting from Atascadero, 473 U.S. at 242).  Second, it must act pursuant to a valid grant of  constitutional power. Kimel, 120 S.Ct. at 642;  City of Boerne, 521 U.S. 507, 519; Green v.  Mansour, 474 U.S. 64, 68 (1985). Here, everyone  agrees that the only source of congressional  power at issue is section 5 of the Fourteenth  Amendment. Cf. Florida Prepaid, 119 S.Ct. at  2205.


21
In Kimel, the Court found that the ADEA  satisfied the "clear statement" requirement for  abrogation. 120 S.Ct. at 640-42. The majority  finds, and I agree, that the same is true of the  ADA. Unlike the majority, however, I also  conclude that Congress legitimately used its  power under section 5 of the Fourteenth Amendment  when it made the ADA applicable to the states.


22
As I have already noted, we know that Title VII  represents a valid exercise of Congress's section  5 power to abrogate the Eleventh Amendment  immunity of the states, but the ADEA does not.  The Kimel Court made the latter finding because,  following City of Boerne, it concluded that the  ADEA was a measure that went beyond either  enforcement of the Fourteenth Amendment or valid  prophylactic measures designed to prevent  violations of the Constitution. See Kimel, 120  S.Ct. at 645, 648-49. In Florida Prepaid, the  Court explained the difference between valid  efforts to exercise section 5 powers and those  that go beyond the constitutional limits as  follows:


23
While 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,  the distinction exists and must be observed.  There must be a congruence and proportionality  between the injury to be prevented or remedied  and the means adopted to that end.


24
119 S.Ct. at 2205 (quoting from City of Boerne,  521 U.S. at 519-20).


25
While the majority appears to concede that  Kimel should guide our decision with respect to  the ADA, its reading of Kimel overlooks important  qualifications on that decision. The majority  sees Kimel as a case holding that virtually all  discrimination that is subject to rational basis  review for equal protection clause purposes is  outside the scope of Congress's section 5 powers.  Ante, at 948. I find no hint of this in Kimel; to  the contrary, after recognizing that age  discrimination is subject to rational basis  review, the Court took pains to analyze the ADEA  in detail before finding that it cannot be  sustained against the states as a valid exercise  of the section 5 powers. That analysis would have  been entirely beside the point if the mere fact  of rational basis review was enough to decide the  case. Furthermore, the majority here, in  rejecting the idea that the accommodation  provisions of the ADA could be sustained under  section 5 (ante at 950) ignores the express holding  of Kimel that "we have never held that section 5  precludes Congress from enacting reasonably  prophylactic legislation." 120 S.Ct. at 648.  Last, the majority appears to hold that virtually  all antidiscrimination statutes that focus on  disparate impact, rather than intentional  disparate treatment, exceed Congress's section 5  powers. In so doing, it has created a square  conflict with the Eleventh Circuit's decision in  Employment Discrimination, supra, 198 F.3d at  1324.


26
Kimel provides the analytical approach for  assessing whether a statute addressing  discrimination is a valid exercise of the section  5 power. Looking at both the legislative record  and the language of the pertinent statute, the  Kimel Court first asked whether the substantive  requirements of the statute were proportionate to  any unconstitutional conduct that the statute  could have targeted. 120 S.Ct. at 645. It looked  to earlier decisions that had considered the  constitutional implications of age discrimination  and found it significant that all had upheld age  distinctions against constitutional challenges.  See Gregory v. Ashcroft, 501 U.S. 452 (1991);  Vance v. Bradley, 440 U.S. 93 (1979);  Massachusetts Bd. of Retirement v. Murgia, 427  U.S. 307 (1976) (per curiam). Second, it  consulted the legislative record to see if it  revealed either (1) a pattern of age  discrimination committed by the states or (2)  "any discrimination whatsoever that rose to the  level of constitutional violation." 120 S.Ct. at  648-50. Finding neither element present, the  Court concluded that Congress did not in the ADEA  validly abrogate the states' sovereign immunity.


27
Following this roadmap, one can see that the  ADA differs critically from the ADEA in the areas  the Supreme Court deemed significant. The first  question concerns the level of constitutional  protection the Supreme Court has recognized in  prior cases for persons with disabilities. With  that standard in mind, the next question is  whether the ADA represents a proportionate  response to the likelihood of constitutional  violations.


28
The leading case on the equal protection  dimensions of disability discrimination is City  of Cleburne v. Cleburne Living Center, Inc., 473  U.S. 432 (1985). Although, as the majority  observes, the Court ultimately decided that  rational basis review was proper for the  ordinance in that case, the majority finds the  Court's reasoning to be irrelevant, ante at 949.  The majority also pays no heed to the fact that  the Court struck down the Cleburne ordinance  because it unconstitutionally discriminated  against the mentally retarded (clearly  illustrating that legislation prohibiting  discrimination with respect to a category that  receives rational basis review might indeed be  enforcing the Constitution). I cannot dismiss  either aspect of Cleburne so readily.


29
The specific question before the Court in  Cleburne was whether a local ordinance that  required a special use permit for a home for the  mentally retarded, but that imposed no such  requirement for many similar uses, violated the  equal protection rights of the mentally disabled.  The Court held that mental retardation should not  be treated as a "quasi-suspect classification"  for equal protection purposes, but it  nevertheless found that the ordinance failed  rational basis scrutiny, because the permit  requirement "rest[ed] on an irrational prejudice  against the mentally retarded . . . ." Cleburne,  473 U.S. at 450, 105 S.Ct.3249.2 In coming to that conclusion,  the Court subjected the city's proffered reasons  in defense of the ordinance to careful scrutiny,  even while it avoided introducing undue rigidity  into its analysis by using terms like "suspect"  or "quasi-suspect" classifications--terms which  the Court later pointed out had sometimes given  rise to the erroneous notion that scrutiny that  was strict in theory was often fatal in fact. See  Adarand Constructors, Inc. v. Pena, 515 U.S. 200,  237 (1995).


30
Both the rationale of Cleburne and the nature  of disability discrimination itself, as outlined  in the congressional findings and legislative  history of the ADA, highlight important  differences between disability and age as bases  for differential treatment, and they reveal,  contrary to the majority's surprising suggestion,  that the ADA is indeed a statute designed to  prohibit irrational discrimination.


31
As the Kimel Court observed, older persons  "have not been subjected to a history of  purposeful unequal treatment." 120 S.Ct. at 645  (citing Murgia, 427 U.S. at 313, quoting San  Antonio Independent School Dist. v. Rodriguez,  411 U.S. 1, 28 (1973)). In contrast, Congress  found in the ADA that disabled persons have been  "subjected to a history of purposeful unequal  treatment," "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. sec. 12101. Second, harking back to the  well known idea in United States v. Carolene  Products, 304 U.S. 144, 152-53 n.4 (1938), in no  meaningful sense of the term can the elderly be  regarded as a "discrete and insular minorit[y]";  to the contrary, as Kimel notes, "all persons, if  they live out their normal life spans, will  experience [old age]." 120 S.Ct. at 645. This is  a strong reason to believe that the normal  political processes are adequate to protect the  interests of the elderly and that they will not  be singled out for unconstitutionally  discriminatory treatment.


32
The disabled stand in a distinctly different  position. Not everyone is or will become  disabled. And the fact that some disabilities  arise later in life and some do not persist for  a lifetime does not make them the equivalent of  the inexorable aging process. The point is that  Congress found that those who are disabled will  suffer during the time they are disabled from the  same invidious discrimination that has haunted  racial minorities and women. The ADA reflects  Congress's finding that society has the ability  to, and has historically, "tended to isolate and  segregate individuals with disabilities." 42  U.S.C. sec. 12101.


33
There are other reasons as well to conclude  that the ADA is a permissible exercise of  Congress's section 5 power. Apart from the  salient differences between age and disability as  bases for categorization, the two statutes fare  quite differently under the proportionality  analysis required by Boerne and Kimel. The broad  sweep of the ADEA caused the Supreme Court to find that it was not a proportional response to  the problem of age discrimination. The ADEA  prohibits all employment discrimination on the  basis of age against persons in the protected  class (those above the age of 40). 29 U.S.C. sec.  623(a)(1). The only tempering of this rule  appears in the statutory rules allowing an  employer to justify age-based distinctions if it  shows either a substantial basis for believing  that all or nearly all employees above a given  age lack the qualifications required for the  position or that reliance on the age  classification is necessary because individual  testing for qualifications is highly impractical.  Kimel, 120 S.Ct. at 647 (citing Western Air Lines  v. Criswell, 472 U.S. 400, 422 (1985)). The  EEOC's implementing regulations, as well as cases  decided under the ADEA, make it clear that these  exceptions were intended to be narrow ones. See  29 C.F.R. sec. 1625.6(a); see also Western Air  Lines, 472 U.S. at 422.


34
The ADA adopts a more nuanced approach to the  problem of disability discrimination. An employer  is entitled to treat a disabled person  differently--indeed, even to deny employment to  the person on that basis--if there are no  reasonable accommodations that will permit the  individual to do the job and she cannot handle  the job without accommodations. 42 U.S.C. sec.  12113. See, e.g., Stewart v. County of Brown, 86  F.3d 107, 112 (7th Cir. 1996); Pond v. Michelin  North America, Inc., 183 F.3d 592, 596 (7th Cir.  1999); Sieberns v. Wal-Mart Stores, Inc., 125  F.3d 1019, 1022 (7th Cir. 1997). Thus, while an  employer discriminating on the basis of age must  demonstrate that it would be "highly impractical"  not to do so, an employer making distinctions on  the basis of disability need only show that  "reasonable steps" of accommodation, such as  modifying work schedules, training materials,  facilities, or policies, will not work. See 42  U.S.C. sec.sec. 12113, 12111. The incorporation  of a reasonableness standard in the duty to  accommodate, which itself modifies the duty not  to discriminate on the basis of disability, is  essentially a legislative incorporation of the  proportionality test required under the  Constitution. It also illustrates, contrary to  the majority's suggestion, that the duty to  accommodate is not a command to give "special"  treatment; instead, it spells out the way that  discrimination is to be avoided. I would  therefore find that the ADA meets the first part  of the Kimel analysis.


35
The second question under Kimel requires us to  consider whether the legislative record reveals  either a pattern of age discrimination committed  by the states or "any discrimination whatsoever  that [rises] to the level of constitutional  violation." 120 S.Ct. at 649. Here, although the  evidence is stronger on the second point than the  first, the record shows both kinds of disability  discrimination.


36
With respect to the first question (i.e.  legislative findings pertaining specifically to  state behavior), the legislative record is  admittedly sparse. Nevertheless, the House Report  notes that "inconsistent treatment of people with  disabilities by different state or local  government agencies is both inequitable and  illogical." H.R. Rep. No. 101-485 (II). More  importantly, the express congressional findings  with respect to pervasive discrimination address  many areas that are controlled to a significant  degree by state and local governments. For  example, Congress identified discrimination in  education as a particular problem. See 42 U.S.C.  sec. 12101(3). Education in this country is  overwhelmingly an enterprise of state and local  government.3 Another sector singled out in the  statute was health services, see 42 U.S.C. sec.  12101(3), in which state and local governments  also play a powerful role.4 The story is similar for transportation, which is also  mentioned in sec. 12101(3).5 Congress's  specific attention to sectors with such a  substantial state and local governmental presence  indicates that it knew that government action at  the state level was an important part of the  problem it was addressing.


37
The other evidence the Kimel Court found  lacking for the ADEA--a record of discrimination  that reveals constitutional violations--is  present in abundance for the ADA. It would be  hard to imagine greater scrutiny than Congress  gave to the harm caused by disability  discrimination when it passed the ADA. Its  findings explain in painstaking detail the extent  of the evil. See 42 U.S.C. sec. 12101.6 We give  congressional findings substantial deference,  because Congress "is far better equipped than the  judiciary to amass and evaluate the vast amounts  of data bearing upon legislative questions."  Turner Broadcasting Systems v. F.C.C., 520 U.S.  180, 195 (1997). This is the legislative task the  Supreme Court contemplated in Cleburne, where it  held that the way disabled people are "to be  treated under the law is a difficult and often a  technical matter, very much a task for  legislators guided by qualified professionals and  not by the perhaps ill-informed opinions of the  judiciary." Cleburne, 473 U.S. at 442-43.


38
The ADA's legislative findings distinguish the  ADA from both the ADEA and RFRA, the statute  before the Court in City of Boerne. Like the ADEA  and unlike the ADA, Congress did not make  findings in the RFRA about the seriousness or  scope of discrimination against religious  persons. See 42 U.S.C. sec.sec. 2000bb to  2000bb-4. As I have already noted, in the ADEA  Congress never identified "any discrimination  whatsoever that rose to the level of  constitutional violation." Kimel, 120 S.Ct. at  649. The only evidence the Kimel Court found  showing the harm at which the ADEA was aimed was  a few "isolated sentences clipped from floor  debates and legislative reports." Id. When  formulating the ADA, in contrast, Congress  compiled an immense legislative record. It  examined all this evidence and found that "[t]he  severity and pervasiveness of discrimination  against people with disabilities [was] well  documented." H.R. 101-485 (II). This factor  therefore points toward a conclusion that the  legislative basis for a valid exercise of  Congress's section 5 powers is present for the  ADA, even though it was not for the ADEA or RFRA.


39
Before leaving this subject, it is important to  note that the majority has elevated a single  point in the legislative history to dispositive  significance: the absence of a statement  somewhere to the effect that "we are passing this  law because we need to correct discrimination on  the basis of disability committed by the states."  I see nothing in Kimel that gives such primacy to  this single point. Combining the explicit  coverage of sectors in which the states are the  principal actors, with the deliberate decision of  Congress to make the states subject to the  statute, and finally with the enormous  legislative record documenting the depth of the  problem of disability discrimination, I find the  second part of the Kimel approach to be satisfied  for the ADA.

II

40
Given its conclusion about the Eleventh  Amendment, the majority does not reach the last  question that was presented in this case, which  was whether the analysis that applies to an  Eleventh Amendment argument directed at the  general prohibition in the ADA against  discrimination is different from the analysis  appropriate to the accommodation provisions of  the Act. Because I would reject the general  Eleventh Amendment defense, I add a brief word on  this point. In my view, because the accommodation  duty and the duty to avoid discrimination are  nothing more than two sides of the same coin, the  answer is no.


41
The ADA defines discrimination to include "not  making reasonable accommodations to the known  physical or mental limitations of an otherwise  qualified individual with a disability who is an  applicant or employee, unless . . . [the] covered  entity can demonstrate that the accommodation  would impose an undue hardship on the operation  of the business of such covered entity." 42  U.S.C. sec. 12112(b)(5)(A). The Act also provides  that an employer may defend against a charge of  discrimination by showing that its goals require  discrimination--that they "cannot be accomplished  by reasonable accommodation." 42 U.S.C. sec.  12113(a).


42
The University argues that this statutory  accommodation process is unconstitutional under  Printz v. United States, 521 U.S. 898 (1997),  because it violates the Tenth Amendment by  forcing state officials to administer a federal  regulatory scheme. In my view, however, the  Printz model has no bearing on the question  before us. The flaws the Court identified in  Printz included the act of conscripting state  officials to administer a federal program, the  effective reallocation of duties from the  branches of the federal government to which the  Constitution assigned them to the state  officials, and the conferral of policy-making  authority on the state officials without adequate  guidance. The Printz Court found that forcing the  state to implement this type of regulatory system  violated the principles of separation of powers  and dual sovereignty. Id. at 922, 932, 930, 117 S.Ct.2365.


43
The ADA does not establish anything like the  regulatory scheme for handguns at issue in  Printz. The ADA is instead a straightforward law  prohibiting discrimination on the part of all  employers, private and governmental alike, and  defining the way the prohibition must be  implemented. It provides the employers with  precise definitions to follow: a reasonable  accommodation is one tailored to the  discrimination issue before the employer, which  does not "impose an undue hardship on the  operation [of the employer's business]." 42  U.S.C. sec. 12112(b)(5)(A). Unlike the regulatory  system before the Printz Court, the ADA does not  confer any special powers on employers in general  or on state employers in particular. Employers  are not administering a federal benefit by  providing a reasonable accommodation; they are  refraining from discrimination and to some degree  taking preventative measures. There is no duty to  accommodate that is separate from the general  obligation to avoid discrimination against the  disabled.


44
It bears repeating that, for this purpose,  state employers stand in exactly the same  position as private employers. As this court held  in Travis v. Reno, 163 F.3d 1000, 1004-05 (7th  Cir. 1998), federal law may pervasively regulate  states as market participants; the anti-  commandeering law of Printz only comes into play  when the federal government calls on the states  to use their sovereign powers to implement a  federal regulatory program. In Travis, which came  to the result later endorsed by the Supreme Court  in Reno v. Condon, supra, we concluded that the  Drivers Privacy Protection Act (DPPA) did not  violate the Tenth Amendment. The DPPA requires  disclosure of certain records by the state, and  so necessarily forces the state to come up with  a system of determining which records should be  disclosed, as well as how best to disclose them.  The system was found constitutional because it  affects states in their role as owners of  databases, not in their role as governments.  Condon, 120 S.Ct. at 672; Travis, 163 F.3d at  1004.


45
Though the ADA forces the states to comply with  a federal regulation, it affects the states in  their role as employers, not in their role as  governments. Federal regulations of states acting  as employers have been upheld in the past. In  Garcia v. San Antonio Metropolitan Transit  Authority, 469 U.S. 528 (1985), the Court held  that state employers may be forced to follow the  federal Fair Labor Standards Act's wage and hour  rules. Nothing in the recent line of Eleventh  Amendment decisions undermines that rule. To the  contrary, in Alden v. Maine the Court went out of  its way to reaffirm that "[t]he constitutional  privilege of a State to assert its sovereign  immunity in its own courts does not confer upon  the State a concomitant right to disregard the  Constitution or valid federal law." 119 S.Ct. at  2266. Instead, the Court assumed that the states  would ordinarily live up to their duties under  federal law as a matter of good faith, and it  noted that enforcement of federal obligations by  the federal government remains permissible under  the constitutional design. Id. at 2267. The fact  of dual sovereignty does not, therefore, carry  with it any implication that states are allowed  to disregard or to frustrate valid federal  programs. See City of New York v. United States,  179 F.3d 29, 35 (2d Cir. 1999).


46
By defining discrimination in part as not  making reasonable accommodations to disabled  employees, the ADA does impose costs on  employers, including the states. Employers must  affirmatively act to alter any practices they  have in place that discriminate against the  disabled. Of course, this makes a great deal of  sense. Just because an employer has a  discriminatory practice, such as maintaining  steep stairways or only offering breaks at wide  intervals and therefore not allowing diabetics to  take their medication, does not mean that the  employer should be able to continue such a  discriminatory practice without violating the  ADA, any more than an employer's refusal in the  past to construct a women's restroom would  justify a refusal to hire female employees. The  ADA allows an employer to adjust the workplace  environment on a case-by-case basis, adopting  only those changes that are reasonably necessary  to refrain from discriminating against the  disabled individual or individuals in question.


47
The ADA hardly broke new ground when it  incorporated this type of affirmative duty. The  Equal Protection Clause often requires states to  take affirmative measures to eliminate or prevent  discriminatory systems. For example, states with  racially discriminatory reapportionment plans  must redraw their congressional districts. See,  e.g., Shaw v. Reno, 509 U.S. 630, 652 (1993)  (holding that the state's reapportionment plan  might violate the Equal Protection Clause). The  logic of the University's argument here would, if  taken to its limits, call into question every  affirmative injunction a court has ever entered  to prevent threatened future violations of the  constitutional guarantee of equal protection of  the laws. Nothing in the Supreme Court decisions  on which the University relies even hints at such  a radical result. Similarly, the First Amendment  guarantee of the right of free exercise of  religion carries with it an implied duty on the  part of the state to make reasonable adjustments.  See, e.g., Sherbert v. Verner, 374 U.S. 398, 403-  04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 231  (1972); Church of the Lukumi Babalu Aye v. City  of Hialeah, 508 U.S. 520, 546 (1993); Zorach v.  Clauson, 343 U.S. 306, 313-14 (1952). Boerne does  not overrule these direct constitutional rulings.


48
Last, as I indicated above, I do not read any  of the Supreme Court's recent decisions as  overruling prior rulings that have upheld  congressional legislation prohibiting measures  with a discriminatory impact as valid exercises  of the section 5 power. As the Eleventh Circuit  explained in Employment Discrimination,  "disparate impact analysis was designed as a  'prophylactic' measure." 198 F.3d at 1321 (citing  Connecticut v. Teal, 457 U.S. 440, 449 (1982),  Albemarle Paper Co. v. Moody, 422 U.S. 405, 417  (1975), and Griggs v. Duke Power Co., 401 U.S.  424, 435 (1971)). The Eleventh Circuit went on to  explain that even though, in a disparate impact  case, "the plaintiff is never explicitly required  to demonstrate discriminatory motive, a genuine  finding of disparate impact can be highly  probative of the employer's motive since a racial  'imbalance is often a telltale sign of purposeful  discrimination.'" Id. (citing International  Brotherhood of Teamsters v. United States, 431  U.S. 324, 339-40 n.20 (1977)). It found from this  that the disparate impact provisions of Title VII  are preventive rules that have the necessary  congruence between the means used and the  constitutional violation to be addressed  (intentional discrimination). Id. at 1322.  Nothing in Kimel comes close to suggesting that  the Court was overruling this long line of its  own authority, upon which the Eleventh Circuit  carefully relied, and I am not prepared to take  that step in the present case.


49
For all these reasons, I therefore respectfully  dissent from the majority's conclusion that the  Eleventh Amendment bars Erickson's suit against  Northeastern University.



Notes:


1
 The extent of the protection from suit that  results from a finding of sovereign immunity is  also an important question, because, at least in  certain contexts, sovereign immunity is qualified  rather than absolute. See, e.g., the Foreign  Sovereign Immunities Act, 28 U.S.C. sec.sec.  1602, 1605. Despite the exchange between the  majority and dissenters in College Savings Bank  v. Florida Prepaid Postsecondary Educ. Expense  Bd., 119 S.Ct. 2219, 2230-31, 2235-37 (1999), on  the significance of market participation for  sovereign immunity purposes, there remains some  tension in the Supreme Court's cases on this  point. See Reno v. Condon, 120 S.Ct. 666 (2000)  (finding the Driver's Privacy Protection Act to  be a valid exercise of Congress's Commerce Clause  power, and non-violative of state sovereignty  under both the Tenth and Eleventh Amendments,  because it regulated the state's market  activities); California v. Deep Sea Research, 523  U.S. 491, 506-07 (1998) (finding that, in  determining whether sovereign immunity applies to  states, the Court looks at whether sovereign  immunity would apply to the federal government,  because "this Court has recognized a correlation  between sovereign immunity principles applicable  to States and the Federal government," and at  whether sovereign immunity would apply to a  foreign government). Although I recognize that  the Supreme Court may ultimately have more to say  on the subject, I am assuming here, consistently  with College Savings and Kimel, that the  commercial character of the operation of a state  university system is not enough to qualify the  state's Eleventh Amendment immunity.


2
 This implies a more exacting test for rationality  than the majority finds in Cleburne, ante at 949-50.  The majority goes on to advance the astonishing  propositions that it would be rational for a  university to conclude that anyone not in the top  1% of the population is not apt to be a good  teacher and scholar, or that it would be rational  to refuse to hire a blind professor because she  could not master material as fast as her sighted  colleagues. Such a view flies in the face of  evidence about the accomplishments of the  visually impaired; it assumes rationality in the  process of choosing who exactly falls within the  top 1% of the population; and it illustrates  exactly the kind of stereotyped thinking that the  ADA was designed to combat.


3
 A 1995 study by the Department of Education  showed that 90% of elementary and secondary  education in the United States is public--only  10% of students are enrolled in private schools.  See <http://www.ed.gov>.


4
 Together, state and local governments were  responsible for 12.7% of the United States'  health expenditures in 1998, while private  individuals and corporations were responsible for  only 54% of those costs. See  <http://www.hcfa.gov>.


5
 Government as a whole paid about 50% of  transportation costs in the United States in  1996, with state and local governments covering  about 60% of those costs, or 34.5% of the total.  See <http://www.bts.gov>.


6
 Congress found that:
(1)  some 43,000,000 Americans have one or more  physical or mental disabilities, and this number  is increasing as the population as a whole is  growing older;
(2)  historically, society has tended to isolate  and segregate individuals with disabilities, and,  despite some improvements, such forms of  discrimination against individuals with  disabilities continue to be a serious and  pervasive social problem;
(3)  discrimination against 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;
(4)  unlike individuals who have experienced  discrimination on the basis of race, color, sex,  national origin, religion, or age, individuals  who have experienced discrimination on the basis  of disability have often had no legal recourse to  redress such discrimination;
(5)  individuals 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 modifications to existing facilities and  practices, exclusionary qualification standards  and criteria, segregation, and relegation to  lesser services, programs, activities, benefits,  jobs, or other opportunities;
(6)  census data, national polls, and other  studies have documented that people with  disabilities, as a group, occupy an inferior  status in our society, and are severely  disadvantaged socially, vocationally,  economically, and educationally;
(7)  individuals with disabilities are a discrete  and insular minority who 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;
(8)  the Nation's proper goals regarding  individuals with disabilities are to assure  equality of opportunity, full participation,  independent living, and economic self-sufficiency  for such individuals, and
(9)  the continuing existence of unfair and  unnecessary discrimination and prejudice denies  people with disabilities the opportunity to  compete on an equal basis and to pursue those  opportunities for which our free society is  justifiably famous, and costs the United States  billions of dollars in unnecessary expenses  resulting from dependency and nonproductivity.
42 U.S.C. sec. 12101.


