                        REVISED, March 25, 1998

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 96-30664



                        STAFFORD J. COOLBAUGH,

                                                Plaintiff - Appellant,


                                VERSUS


                          STATE OF LOUISIANA,
                                                  Defendant - Appellee.




          Appeal from the United States District Court
              For the Western District of Louisiana

                           February 27, 1998


Before DAVIS, SMITH and DUHÉ, Circuit Judges.

DAVIS, Circuit Judge:

     Stafford J. Coolbaugh, a quadriplegic, filed this action

against the State of Louisiana in federal court alleging that the

State violated Title II of the Americans with Disabilities Act of

1990, 42 U.S.C. §§ 12131-12165 (1994), by discriminating against

him on the basis of his disability.         The district court denied

Coolbaugh’s motion for summary judgment and the jury eventually

returned a verdict in favor of the State.       Coolbaugh has appealed

the district court’s denial of his summary judgment motion, as well

as the take nothing judgment entered on the jury’s verdict. Before
turning to the merits, we consider whether jurisdiction was proper.

Specifically, we consider whether the ADA represents an appropriate

Congressional exercise of its Section 5 enforcement power so as to

override the State of Louisiana’s Eleventh Amendment immunity.    In

light of the Supreme Court's decisions in Seminole Tribe of Florida

v. Florida, 116 S. Ct. 1114 (1996), City of Boerne v. Flores, 117

S. Ct. 2157 (1997), and City of Cleburne, Texas v. Cleburne Living

Center, Inc., 473 U.S. 432 (1985), we hold that the provisions of

the ADA are enforceable against a state because the enactment of

this legislation was a valid exercise of Congress’ Section 5

enforcement power, and for that reason does not infringe upon

Louisiana’s rights under the Eleventh Amendment. On the merits, we

find no error and affirm.

                                 I.

     Coolbaugh and his family moved to Louisiana in 1993 after

living in California for many years.    While he was a California

resident, Coolbaugh received a driver’s license permitting him to

operate   a   specially   equipped,   hand-controlled    automobile.

Coolbaugh’s testimony revealed that he had used his California

license for identification purposes, but not to drive.    Upon their

arrival in Louisiana, Coolbaugh and his wife went to the local

Office of Motor Vehicles to obtain Louisiana driver’s licenses.

     Generally, a new Louisiana resident may obtain a Louisiana

driver’s license by presenting a valid out-of-state license and

passing an eye exam.      Coolbaugh’s wife, who was not disabled,

followed this procedure and obtained a Louisiana driver’s license.


                                 2
An   employee    of   the     Office   of       Motor       Vehicles     told   Coolbaugh,

however, that in addition to the usual requirements, he must

complete a special medical form and pass a road test in his own

hand-controlled vehicle.           Although Coolbaugh’s doctor certified

that    Coolbaugh     could    safely       drive       a    “handicapped       controlled

vehicle,”      Coolbaugh    failed     to    supply          his   own   hand-controlled

vehicle or otherwise to take and pass the required road test.                           As

a    result,   Louisiana      declined      to    issue       Coolbaugh     a    Louisiana

driver’s license.

       Coolbaugh brought the current action against the State of

Louisiana in federal court alleging that the State violated Title

II of the ADA by treating him and his nondisabled wife differently

with respect to the issuance of Louisiana driver’s licenses.                           The

district court denied Coolbaugh’s motion for summary judgment, and

the case proceeded to trial.            The jury returned a verdict in favor

of Louisiana, finding that the State had not discriminated against

Coolbaugh on the basis of a disability.                     Coolbaugh appeals both the

district court’s denial of his motion for summary judgment and the

jury’s verdict.

                                         II.

       The Eleventh Amendment provides immunity to states from suits

in federal court by private persons. The Eleventh Amendment states

that:

       The Judicial power of the United                     States 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.


                                            3
U.S. Const. amend. XI. The Supreme Court has broadly construed the

Eleventh    Amendment’s   narrow   language,   to   embrace   the   larger

principle that a state is granted immunity from suits initiated by

private entities or persons in federal court, if the state has not

consented to such suits. Seminole Tribe of Florida v. Florida, 116

S. Ct. 1114, 1122 (1996) (“[W]e have understood the Eleventh

Amendment to stand not so much for what it says, but for the

presupposition . . . which it confirms.”) (quoting Blatchford v.

Native Village of Noatak, 501 U.S. 775, 779 (1991)).

     Congress has the authority to abrogate states’ immunity in

certain circumstances pursuant to Congress’ powers under Section 5

of the Fourteenth Amendment.        Section 5 provides that "Congress

shall have power to enforce, by appropriate legislation, the

provisions of this article."       U.S. Const. amend. XIV, § 5.      Among

the provisions is Section 1's mandate that

     [n]o state shall make or enforce any law which shall
     abridge the privileges or immunities of citizens of the
     United States; nor shall any State deprive any person of
     life, liberty, or property, without due process of law;
     nor deny to any person within its jurisdiction the equal
     protection of the laws.

Id., § 1.

     Seminole Tribe established a two-pronged test for determining

the validity of Congress’ abrogation of state immunity through the

exercise of its Section 5 enforcement power.        First, a court must

determine whether Congress “unequivocally expresse[d] its intent to

abrogate the immunity.”      116 S. Ct. at 1123 (quoting Green v.

Mansour, 474 U.S. 64, 68 (1985)).        Second, a court must determine

whether Congress acted “pursuant to a valid exercise of power.”

                                     4
Id. (quoting Green, 474 U.S. at 68).

     The first prong--Congress’ intent to abrogate state immunity--

is patently clear in the ADA.     Section 12202 of the ADA provides

that “[a] State shall not be immune under the eleventh amendment

[sic] to the Constitution of the United States from an action in

Federal or State court of competent jurisdiction for a violation of

this chapter.”   42 U.S.C. § 12202.        See also Clark v. California,

123 F.3d 1267, 1269 (9th Cir. 1997) (finding that in the ADA,

Congress   “unequivocally   expressed      its   intent   to   abrogate   the

State’s immunity”).

     The   second   prong--whether       Congress   has   abrogated   state

immunity in the ADA through a valid exercise of its enforcement

power--is less clear.   The Constitution allows Congress to enforce

the Fourteenth Amendment, and the Supreme Court held in City of

Cleburne, Texas v. Cleburne Living Center, Inc. that disabled

persons are protected by the Equal Protection Clause.1 473 U.S.

     1
        We recognize that Cleburne specifically addressed the
mentally disabled, and not the physically disabled. However, we
are persuaded that its reasoning applies to the physically disabled
as well. In arguing against extension of heightened scrutiny to
mentally disabled individuals, the Court pointed out the difficulty
of “distinguish[ing] a variety of other groups who have perhaps
immutable disabilities setting them off from others, who cannot
themselves mandate the desired legislative responses, and who can
claim some degree of prejudice from at least part of the public at
large.” Cleburne, 473 U.S. at 445.     The Court then listed such
indistinguishable groups, naming “the aging, the disabled, the
mentally ill, and the infirm.”       Id. at 446.     Rejecting the
eligibility of these groups for heightened scrutiny, the Court
stated, “[w]e are reluctant to set out on that course, and we
decline to do so.” Id. This assignment of rational basis review
to physically disabled persons has been recognized and applied by
numerous courts after Cleburne. See Hansen v. Rimel, 104 F.3d 189,
190 n.3 (8th Cir. 1997) (“Although protected by statutory
enactments such as the [ADA], the disabled do not constitute a

                                     5
432, 450 (1985).

      In Cleburne, the City of Cleburne denied a special use permit

to a proposed operator of a group home for the mentally retarded.

Id. at 435-37.      The plaintiffs challenged the denial, arguing that

the   zoning    ordinance    requiring     a   permit   violated   the   equal

protection rights of the mentally retarded.               Id. at 437.      The

Supreme Court held that “legislation that distinguishes between the

mentally retarded and others must be rationally related to a

legitimate governmental purpose.”          Id. at 446.

      Thus, applying Cleburne, the disabled are protected by the

Equal Protection Clause and Congress is entitled to enforce this

protection against the states despite the Eleventh Amendment.              The

Court last term, however, in City of Boerne v. Flores, declared

that Congress’ power in this respect is not unlimited.             117 S. Ct.

2157 (1997).

      Flores arose out of the City of Boerne’s rejection of the

Archbishop     of   San   Antonio’s   permit    application   to   enlarge   a

historically significant church.           Id. at 2160.       The Archbishop



“suspect class” for purposes of equal protection analysis.”);
Suffolk Parents of Handicapped Adults v. Wingate, 101 F.3d 818,
824-27 (2d Cir. 1996) (applying rational basis standard to claims
of handicapped individuals who challenged a state’s denial of
funding), cert. denied, 117 S. Ct. 1843 (1997); Does v. Chandler,
83 F.3d 1150, 1155 (9th Cir. 1996) (“For the purposes of equal
protection analysis, the disabled do not constitute a suspect
class.”); Spragens v. Shalala, 36 F.3d 947, 950 (10th Cir. 1994)
(holding that “a classification applying to blind persons is not
suspect, or even quasi-suspect, and we therefore apply the
‘rational basis’ standard, rather than some more strict one”); More
v. Farrier, 984 F.2d 269, 271 (8th Cir.), cert. denied, 510 U.S.
819 (1993) (holding that the wheelchair-bound are not a suspect
class).

                                       6
brought an action claiming, among other things, that rejection of

the permit violated The Religious Freedom Restoration Act of 1993

(“RFRA”).    107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to

2000bb-4 (1994)).       The Court held that RFRA, legislation passed

pursuant to Congress’ enforcement power under Section 5 of the

Fourteenth Amendment, was unconstitutional because it exceeded

Congress’ enforcement power.      Flores, 117 S. Ct. at 2172.

     The Flores Court declared that “§ 5 is ‘a positive grant of

legislative power’ to Congress.”          Id. at 2163 (quoting Katzenbach

v. Morgan, 384 U.S. 641, 651 (1966)).           The Flores Court restated

its longstanding view that

     [w]hatever legislation is appropriate, that is, adapted
     to carry out the objects the amendments have in view,
     whatever tends to enforce submission to the prohibitions
     they contain, and to secure to all persons the enjoyment
     of perfect equality of civil rights and the equal
     protection of the laws against State denial or invasion,
     if not prohibited, is brought within the domain of
     congressional power.

Id. at 2163 (quoting Ex parte Virginia, 100 U.S. 339, 345-46

(1879)).    The Flores Court affirmed the historical principle that

Congress    has   the    authority       to   both   remedy   and   prevent

constitutional violations. Id. at 2164-67. In addition, the Court

restated its historical view that

     [l]egislation which deters or remedies constitutional
     violations can fall within the sweep of Congress’
     enforcement power even if in the process it prohibits
     conduct which is not itself unconstitutional and intrudes
     into ‘legislative spheres of autonomy previously reserved
     to the States.’

Id. at 2163 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455

(1976)).    In contrast to its affirmation of Congress’ Section 5


                                     7
powers, the Court was clear in its mandate that Congress may not

“determine what constitutes a constitutional violation.”              Id. at

2164.

      The Flores Court explained Congress’ Section 5 authority to

adopt   legislation      that    remedies    or    prevents    constitutional

violations by reciting examples from earlier cases.              Id. at 2166-

67.     For example, the Supreme Court “upheld a suspension of

literacy tests and similar voting requirements under Congress’

parallel power to enforce the provisions of the Fifteenth Amendment

. . . to combat racial discrimination in voting.”                Id. at 2163

(citing South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966))

(citation omitted).      The Court upheld this legislation to prevent

violations     despite     its     earlier        decision    upholding   the

constitutionality of the literacy tests in Lassiter v. Northampton

County Bd. of Elections, 360 U.S. 45 (1959).           The Supreme Court has

“also concluded that other measures protecting voting rights are

within Congress’ power to enforce the Fourteenth and Fifteenth

Amendments, despite the burdens those measures placed on the

States.”    Flores, 117 S. Ct. at 2163.

      In Flores, the Court stated that “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.”      Id. at 2164.        The Court held that to be a valid

exercise of power under Section 5, “[t]here must be a congruence

and proportionality between the injury to be prevented or remedied


                                      8
and the means adopted to that end.”               Id. (emphasis added).      As

guidance to applying this test, the Court stated that “[t]he

appropriateness of remedial measures must be considered in light of

the evil presented.”         Id. at 2169 (citation omitted).

        In summary, the Supreme Court has instructed us that Congress

is authorized to adopt legislation that remedies or prevents

unconstitutional conduct, provided there is a “congruence and

proportionality between the injury to be prevented or remedied and

the means adopted to that end.”         Id. at 2164.     This proportionality

inquiry has two primary facets:              the extent of the threatened

constitutional violations, and the scope of the steps provided in

the legislation to remedy or prevent such violations.

        In making our proportionality review, as Flores directs, we

must consider the ADA’s scope in light of the evil it addresses.

We first turn to findings in the ADA where Congress detailed its

understanding     of   the    extent   of   the   evil   it   was   addressing--

discrimination against the disabled.2

        (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

    2
        The findings in the ADA distinguish it from RFRA, 42 U.S.C.
§§ 2000bb to 2000bb-4, in which Congress made no specific findings
regarding the seriousness or the scope of discrimination against
religious persons.

                                        9
          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.3

    3
        The   principal findings regarding the existence of
discrimination are listed above. Congress also found:
     (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

                                 10
42 U.S.C. § 12101 (a) (1995).

     We    must     give    these      congressional      findings         substantial

deference.        “In reviewing the constitutionality of a statute,

‘courts    must    accord       substantial    deference       to    the    predictive

judgments of Congress.’”           Turner Broad. Sys., Inc. v. FCC (Turner

II), 117 S. Ct. 1174, 1189 (1997) (quoting Turner Broad. Sys., Inc.

v. FCC (Turner I), 512 U.S. 622, 665 (1994) (Kennedy, J. Op.)).

     The Court in Flores reaffirmed this bedrock principal when it

stated    that    “[i]t    is    for   Congress     in   the   first       instance   to

‘determin[e] whether and what legislation is needed to secure the

guarantees of the Fourteenth Amendment,’ and its conclusions are

entitled to much deference.”            117 S. Ct. at 2172 (quoting Morgan,

384 U.S. at 651).

     The Turner II Court instructs that the judiciary’s “sole

obligation is ‘to assure that, in formulating its judgments,

Congress has drawn reasonable inferences based on substantial

evidence.’”       117 S. Ct. at 1189 (quoting Turner I, 512 U.S. at 666

(Kennedy, J. Op.)).

     Deference       to    the    judgment     of   Congress        is     particularly

appropriate in this case, because in Cleburne, the Court identified

Congress as the ideal governmental branch to make findings and

decisions regarding the legal treatment of the disabled.                       473 U.S.

at 442-43.       In Cleburne, the Court stated: “How this large and

diversified group is to be treated under the law is a difficult and


            nonproductivity.

42 U.S.C. § 12101(a) (1995).

                                          11
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.” Id.

       Before enacting the ADA, Congress considered a wide range of

evidence and made findings.             Both the House and the Senate cited

seven substantive studies or reports to support its conclusion that

discrimination against the disabled is a serious and pervasive

problem.      S. Rep. No. 101-116, at 6 (1989); H.R. Rep. No. 101-485,

pt.    2,    at    28   (1990)     (Both   citing    National     Council     on   the

Handicapped, On the Threshold of Independence (Jan. 1988) (updating

the legislative changes recommended in Toward Independence); Report

of the Presidential Commission on the Human Immunodeficiency Virus

Epidemic (June 1988) (reviewing the medical, financial, ethical,

policy, and legal issues that affect those afflicted with HIV);

Louis Harris and Associates, The ICD (International Center for the

Disabled)         Survey   II:       Employing      Disabled     Americans     (1987)

(surveying         210 top managers, 301 equal employment managers, 210

department        heads    and   line   managers,    and   200   top    managers    in

companies employing 10-49 people); Louis Harris and Associates, The

ICD (International Center for the Disabled) Survey of Disabled

Americans:        Bringing Disabled Americans into the Mainstream (March

1986) (surveying 1000 disabled persons); National Council on the

Handicapped, Toward Independence (Feb. 1986) (reviewing different

laws   and    programs      that    affect      disabled   persons     and   offering

recommendations for legislative changes); U.S. Commission on Civil

Rights, Accommodating the Spectrum of Individual Abilities (Sept.


                                           12
1983) (reporting on, among other things, the history, nature, and

extent    of    discrimination    against    the   disabled);   From     ADA   to

Empowerment:       The Report of the Task Force on the Rights and

Empowerment      of   Americans    with    Disabilities   (Oct.    12,    1990)

(compiling findings and recommendations following the formation of

a Task Force, which conducted 14 Washington, D.C., teleconference

meetings with participants from across the country, held 63 public

forums in the 50 states and some territories, held other meetings

involving 25,000 participants, testified in congressional hearings,

met with legislative and executive staff members, met with the

President, Vice President and various Cabinet members, and met with

opponents of the ADA)).          The legislative history also includes a

wealth of testimonial and anecdotal evidence from a spectrum of

parties    to     support   the    finding    of   serious   and   pervasive

discrimination.4

     4
        See, e.g., S. Rep. No. 101-116, at 6 (1989)(quoting the
testimony of Timothy Cook of the National Disability Action Center,
regarding the mentally and emotionally debilitating effects of
discrimination); id. at 6-7 (quoting the testimony of Judith
Heumann of the World Institute on Disability, regarding her
personal history of discrimination due to her disability); id. at
7 (citing a Washington Post article in March, 1988, profiling a zoo
keeper’s refusal to admit children with Downs Syndrome); id. at 8
(citing testimony about a Kentucky woman who was fired because her
son, ill with AIDS, moved into her home so she could provide care
for him); id. at 7 (citing the discrimination apparent in the facts
of Alexander v. Choate, 469 U.S. 287 (1985), in which a child with
cerebral palsy was excluded from the classroom because the teacher
believed the child’s appearance nauseated classmates); id. at 9
(citing the testimony of U.S. Attorney General Dick Thornburgh (on
behalf of President Bush), profiling the isolation and dependence
faced by the disabled); id. at 10 (citing the testimony of Harold
Russell, Chair of the President’s Committee on Employment of People
with Disabilities, that a majority of disabled persons require no
reasonable accommodation, and many others require only an
inexpensive one); id. at 12 (citing testimony regarding the

                                      13
      We are satisfied that the extensive record compiled in the

legislative history fully supports Congress’ detailed findings of

a serious and pervasive problem of discrimination against the

disabled.       As   stated   above,   these    findings   are   entitled    to

deference.      Because Congress found a significant likelihood of

unconstitutional actions and therefore a significant “evil” to be

addressed, the only remaining inquiry is whether the scope of the

ADA   is   so   “sweeping”    that     the   statute   cannot    be   seen   as

proportional to the evil Congress sought to address.

      We are persuaded that Congress’ scheme in the ADA to provide

a remedy to the disabled who suffer discrimination and to prevent

such discrimination is not so draconian or overly sweeping to be

considered disproportionate to the serious threat of discrimination

Congress perceived.       The ADA first sets forth broad provisions

generally outlawing discrimination.5           In addition to these general



inaccessibility of many polling places to disabled persons).
      5
        Title I and Title II each contain a broad mandate.               See,
e.g., 42 U.S.C. § 12112(a):

      No covered entity shall discriminate against a qualified
      individual with a disability because of the disability of
      such individual in regard to job application procedures,
      the hiring, advancement, or discharge of employees,
      employee compensation, job training, and other terms,
      conditions, and privileges of employment.

See also 42 U.S.C. § 12132:

      [N]o 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.


                                       14
provisions       outlawing    discrimination,            Congress       made       specific

judgments in particular circumstances as to what it perceived to be

reasonable        and     appropriate        to        prevent      unconstitutional

discrimination.             For    example,        in     Title        I,     42       U.S.C.

§ 12112(b)(5)(A) declares it discriminatory to reject an employee

whose mental or physical limitation may be reasonably accommodated,

so   long   as    such    accommodation      does       not    cause    undue      burden;

§ 12112(d) declares it discriminatory to subject a potential

employee to       medical    examinations         or    inquiries;      and        §    12113

provides a defense to an entity that refuses employment to a

disabled person when the refusal is “job-related and consistent

with business necessity.”          Included in the provisions of Title II

is 42 U.S.C. § 12142(a), which requires entities that purchase or

renovate new buses or rail vehicles to ensure that such new or

renovated vehicles be accessible to the disabled, and 42 U.S.C.

§ 12148(b), which requires that at least one car per train is

accessible to the disabled.           Congress made these particularized

judgments    after       hearing   testimony       on    the     reasonableness           and

feasibility of these provisions. See, e.g., H.R. Rep. No. 101-485,

pt. 2, at 44-45 (1990) (citing testimony that businesses will

benefit from the ADA because the labor pool will improve); id. at

45 (citing employee expertise and performance benefits that accrue

to corporations that make accommodations); id. (citing testimony

from a former CEO of small and large companies, arguing that the

ADA is affordable and is “good business”); id. at 46 (citing

testimony regarding the Marriott Corporation’s success as a result


                                        15
of policies similar to those established in the ADA).

     In sum, the ADA represents Congress’ considered efforts to

remedy   and    prevent   what   it    perceived        as   serious,   widespread

discrimination against the disabled.                We recognize that in some

instances, the provisions of the ADA will “prohibit[] conduct which

is not itself unconstitutional and intrude[] into ‘legislative

spheres of autonomy previously reserved to the States.’”                   Flores,

117 S. Ct. at 2163 (quoting Fitzpatrick, 427 U.S. at 455).                         We

cannot   say,    however,   in   light       of   the    extensive     findings   of

unconstitutional      discrimination         made   by    Congress,     that    these

remedies are too sweeping to survive the Flores proportionality

test for legislation that provides a remedy for unconstitutional

discrimination or prevents threatened unconstitutional actions.

     In concluding that Congress did not exceed its Section 5 power

in adopting the ADA, we join the only other circuit that has

considered the issue since the Court decided Flores.                  In Clark, the

Ninth Circuit upheld the constitutionality of the ADA as a proper

exercise of Congress' Section 5 power.                   123 F.3d at 1270.        The

panel concluded that

     [i]n both acts, Congress explicitly found that persons

     with disabilities have suffered discrimination. Both the

     ADA and the Rehabilitation Act therefore are within the

     scope      of   appropriate      legislation        under   the    Equal

     Protection Clause as defined by the Supreme Court.                    At

     the same time, neither act provides remedies so sweeping

     that they exceed the harms that they are designed to


                                        16
      redress.

Id.   For these reasons, the Ninth Circuit concluded that "both the

ADA and the Rehabilitation Act were validly enacted under the

Fourteenth Amendment."         Id.

      Congress' inclusion of detailed findings in the ADA is an

important distinguishing feature between this case and Flores.             In

contrast to the extensive findings Congress made in the ADA,

Congress made no findings in RFRA of widespread unconstitutional

treatment of religious persons. Indeed, the Flores Court concluded

that "the emphasis of the hearings [related to RFRA] was on laws of

general applicability which place incidental burdens on religion."

Flores, 117 S. Ct. at 2169.          The detailed factual findings in the

ADA, which require our deference, are critical to the application

of the Flores proportionality review.

      Also, we are convinced that the threat posed by RFRA to our

principles of separation of powers is not similarly posed by the

ADA. In the ADA, Congress included no language attempting to upset

the   balance    of   powers     and    usurp   the   Court's   function   of

establishing a standard of review by establishing a standard

different from the one previously established by the Supreme Court.

Congress performed one of its traditional legislative functions by

finding facts relating to proposed legislation.           The Supreme Court

may in the future, if it chooses to do so, reconsider the Cleburne

standard   of    review   in    light   of   the   Congressional   findings.

However, this conflict is not a sufficient reason for us to

invalidate the ADA.


                                        17
     The dissent seems to conclude that Congress does not have the

power under § 5 to prohibit constitutional conduct.                 We disagree.

The Flores court stated

     [l]egislation which deters or remedies constitutional
     violations can fall within the sweep of Congress’
     enforcement power even if in the process it prohibits
     conduct which is not itself unconstitutional and intrudes
     into ‘legislative spheres of autonomy previously reserved
     to the States.’

Id. at 2163 (quoting Fitzpatrick, 427 U.S. at 455).

     We therefore hold that the ADA represents a proper exercise of

Congress’    Section    5   enforcement       power    under   the    Fourteenth

Amendment.    As a result, Louisiana is not entitled to Eleventh

Amendment immunity from suits brought pursuant to the ADA.

                                      III.

     We now turn to the merits.              The record fully supports the

jury’s finding that the state did not discriminate against Mr.

Coolbaugh, who was a paraplegic, by requiring that he demonstrate

his ability to drive on the state’s roadways by taking a driving

test.   A number of plausible explanations may be offered for the

verdict.    Perhaps the clearest one that is fully supported by the

evidence is that the state’s refusal to issue Mr. Coolbaugh a

driver’s license based on his possession of a California license

was not motivated, even in part, by its desire to discriminate

against him because of his disability.               Rather, its decision was

motivated    by   a   desire   to   protect    the    public   on    the   state’s

highways.    Mr. Coolbaugh's argument that, absent discrimination,

the state would have accepted his California driver's license as

sufficient evidence of his ability to drive was particularly

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unpersuasive.     The evidence revealed that though Coolbaugh held a

valid California driver’s license, he had not actually driven a

vehicle since obtaining his license, and had used the license only

for   identification   purposes.    Because   the   verdict   is   fully

supported by the record and we find no reversible error, the

judgment of the district court is affirmed.

      AFFIRMED.




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