In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3614

Melinda Erickson,

Plaintiff-Appellee,


United States of America,

Intervenor,

v.

Board of Governors of State Colleges and
Universities for Northeastern Illinois University,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 2541--John A. Nordberg, Judge.


Argued April 27, 1999--Decided March 27, 2000



  Before Eschbach, Easterbrook, and Diane P. Wood, Circuit
Judges.

  Easterbrook, Circuit Judge. 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).

  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).

  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.

  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.

  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.

  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".
  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.)

  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.

  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.

  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.

  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.

  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.

  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.
  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.

  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.
Reversed



  Diane P. Wood, Circuit Judge, dissenting. 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).

  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),
two cases presenting precisely the problem before
us now. The Court dismissed those two petitions
under S.Ct. Rule 46.1, and so it will not be
considering the issue during the present Term.
See Dickson, No. 98-829, 2000 WL 215674 (U.S.,
Feb. 23, 2000), and Alsbrook, No. 99-423, 2000 WL
230234 (U.S., Mar. 1, 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.

I

  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).

  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.

  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.

  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:

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.

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

  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 5. 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 7) 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.

  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.

  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.

  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 6.
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.

  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./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).

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  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

  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.

  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).

  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.

  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.
  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.

  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).

  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.

  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.
  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.

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




/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 6-7.
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.
