                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-1825
                                  ___________

Christopher B. Alsbrook;                  *
                                          *
       Plaintiff/Appellee,                *
                                          *
United States of America,                 *
                                          *
               Intervenor on Appeal,      *
                                          *
       v.                                 * Appeal from the United States
                                          * District Court for the Eastern
City of Maumelle, Arkansas;               * District of Arkansas.
                                          *
               Defendant,                 *
                                          *
Arkansas Commission on Law                *
Enforcement Standards and Training;       *
State of Arkansas; W. C. Brassell, also *
known as Dub Brassell, Individually       *
and in his capacity as Chairman of the *
Arkansas Commission on Law                *
Enforcement Standards and Training;       *
Bobby Hilderbrand, Individually and in *
his official capacity as a member of the *
Arkansas Commission on Law                *
Enforcement Standards and Training;       *
Willard, Individually and in his official *
capacity as a member of the Arkansas *
Commission on Law Enforcement             *
Standards and Training; Elanor            *
Anthony, Individually and in her          *
official capacity as a member of the      *
Arkansas Commission on Law              *
Enforcement Standards and Training;     *
Bob Johnston, Individually and in his   *
official capacity as a member of the    *
Arkansas Commission on Law              *
Enforcement Standards and Training;     *
David Muniz, Individually and in his    *
official capacity as a member of the    *
Arkansas Commission on Law              *
Enforcement Standards and Training;     *
Gary Ashcraft, Individually, and in his *
official capacity as a member of the    *
Arkansas Commission on Law              *
Enforcement Standards and Training,     *
                                        *
      Defendants/Appellants.            *
                                   ___________

                             Submitted: January 11, 1999

                                  Filed: July 23, 1999
                                   ___________

Before BOWMAN,1 Chief Judge, McMILLIAN, RICHARD S. ARNOLD, FAGG,
      WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,
      and MURPHY, Circuit Judges.
                              ___________

BEAM, Circuit Judge.

    Christopher Alsbrook brought this suit against his employer, the City of
Maumelle, Arkansas (the City); the State of Arkansas (the State); the Arkansas

      1
       The Honorable Pasco M. Bowman stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on April 23,
1999. He has been succeeded by the Honorable Roger L. Wollman.

                                          -2-
Commission on Law Enforcement Standards and Training (ACLEST); and the
commissioners of ACLEST, in their official capacities, under Title II of the Americans
with Disabilities Act (ADA) and 42 U.S.C. § 1983. He also brought claims against the
commissioners, in their individual capacities, under 42 U.S.C. § 1983. The State,
ACLEST, and the commissioners (collectively, appellants) moved for summary
judgment asserting that the ADA claim was barred by Eleventh Amendment immunity
and that the section 1983 claims were barred by Eleventh Amendment immunity,
qualified immunity, and failure to state a cause of action against the commissioners in
their individual capacities. The district court denied the motion. This interlocutory
appeal followed.

       We reverse the district court's denial of summary judgment on the ADA claim,
because we find that extension of Title II of the ADA to the State exceeds Congress's
authority under Section 5 of the Fourteenth Amendment. We also reverse the district
court's denial of summary judgment on the section 1983 claim.

I.    BACKGROUND

        ACLEST is an agency of the State of Arkansas which regulates the hiring and
certification of law enforcement officers within the State. To be certified as a law
enforcement officer, an applicant must meet certain minimum standards established by
ACLEST. The standards, set out in Section 1002 of the Rules and Regulations of the
Executive Commission on Law Enforcement Standards and Training (Section 1002),
provide in pertinent part that "[e]very officer employed by a law enforcement unit shall
. . . [b]e examined by a licensed physician and meet the physical requirements
prescribed in Specification S-5, Physical Examination." The relevant portion of
Specification S-5 states that an applicant must possess visual acuity that can be
corrected to 20/20 in each eye.




                                          -3-
        Christopher Alsbrook began his employment with the Maumelle Department of
Public Safety (Maumelle Department) in January 1993, as a public safety officer.
Alsbrook's right eye has a corrected vision of 20/30 and cannot be corrected to 20/20
due to a congenital condition called amblyopia. At the time he was hired by the
Maumelle Department, Dr. Cosgrove, an ophthalmologist in Little Rock, had written
a letter opining that Alsbrook's amblyopia would not impair his ability to perform any
activity or type of work.

       In May 1993, Alsbrook submitted an application for enrollment in an officer
training course at the Arkansas Law Enforcement Training Academy. In the
application, Alsbrook's supervisor certified that Alsbrook met the minimum standards
for appointment as a law enforcement officer as prescribed in Section 1002.2 Alsbrook
was accepted into the course and successfully completed it in December, 1993. He
was then employed as a law enforcement officer with the Maumelle Department.
However, because the Maumelle Department never filed a request for certification on
Alsbrook's behalf after he completed the training course, Alsbrook was technically
functioning as an uncertified law enforcement officer during this time period.3



      2
        It appears from the record that Alsbrook's supervisor thought that Dr.
Cosgrove's letter, opining that Alsbrook's amblyopia would not affect his job
performance, took care of any problem regarding Alsbrook's inability to meet the visual
acuity requirement.
      3
        In order for an individual who has completed the officer training course to
become a certified law enforcement officer in the State of Arkansas, it is necessary for
the employing agency to request certification by the filing of an Application for Award
of Law Enforcement Officer Certificate, form F-7. It remains unclear from the record
as to why the Maumelle Department failed to apply for Alsbrook's certification.
According to Alsbrook, the Maumelle Department told him that the failure to request
certification was not uncommon and probably due to administrative oversight. It was
not until September 11, 1995, that the Maumelle Department finally requested
certification.

                                          -4-
        In 1995, Alsbrook sought to join the larger Little Rock Police Department which
he believed would offer him better opportunities for advancement. After being notified
of the results of an eye exam Alsbrook took as part of his application to the Little Rock
Police Department, and having reviewed the documentation on Alsbrook's eye
condition on file at the Maumelle Department, the training officer in Little Rock
informed Alsbrook that he needed to obtain a waiver from ACLEST exempting him
from the visual acuity requirement before he could be hired.

       On September 5, 1995, Alsbrook appeared before ACLEST requesting a waiver
of the visual acuity requirement. ACLEST determined that it did not have the authority
to waive the requirement. It undertook a study to determine whether the requirement
should be changed, and concluded that the visual acuity requirement was necessary to
meet legitimate concerns. On September 19, 1995, ACLEST notified the Maumelle
Department that it would not certify Alsbrook due to his eyesight. Because of his
inability to obtain a waiver, Alsbrook was denied employment with the Little Rock
Police Department. He remained with the Maumelle Department, but was barred from
responding to any police calls or working on any police-related paperwork or duties.
His salary remained unaffected. Appellants admit that Alsbrook has successfully
completed all requirements to be a certified law enforcement officer in the State other
than having a corrected vision of 20/20 in his right eye.

        Alsbrook brought the present action in federal district court seeking injunctive
relief as well as compensatory and punitive damages on the grounds that appellants
violated his rights under Title II of the ADA4 and 42 U.S.C. § 1983 in refusing to

      4
          Title II of the ADA, captioned "Public Services," provides:

      Subject to the provisions of this subchapter, no qualified individual with
      a disability shall, by reason of such disability, be excluded from
      participation in or be denied the benefits of the services, programs, or
      activities of a public entity, or be subjected to discrimination by any such

                                           -5-
certify him as a law enforcement officer because of his disability, or because they
regarded him as having a disability.5

       Appellants moved for summary judgment arguing that: (1) there was no valid
abrogation of their Eleventh Amendment immunity under the ADA; (2) the section
1983 claim asserted against appellants in their official capacities was barred by the
Eleventh Amendment; (3) the section 1983 claim against the commissioners in their
individual capacities for violations of Title II of the ADA failed to state a cause of
action because Title II only covers discrimination by a public entity; and (4) in any



      entity.

42 U.S.C. § 12132.

      A qualified individual with a disability is defined as:

      [A]n individual with a disability who, with or without reasonable
      modifications to rules, policies, or practices, the removal of architectural,
      communication, or transportation barriers, or the provision of auxiliary
      aids and services, meets the essential eligibility requirements for the
      receipt of services or the participation in programs or activities provided
      by a public entity.

42 U.S.C. § 12131.
      5
        Oral argument revealed that Alsbrook recently received a waiver of the visual
acuity requirement and now works as a law enforcement officer with the City of Little
Rock. Therefore, the demand for injunctive relief is moot, leaving only Alsbrook's
claim for money damages. The claim for money damages appears to be premised on
the argument that, had Alsbrook received certification, he would have been employed
at a higher salary with the City of Little Rock rather than the salary he had with the
Maumelle Department. In addition, Alsbrook claims that lack of certification prevented
him from doing off-duty work requiring law enforcement certification, and resulted in
emotional distress and loss of reputation.

                                          -6-
event, the commissioners were entitled to qualified immunity. The summary judgment
motion also asserted that Alsbrook was not disabled within the meaning of the ADA.

       The district court denied appellants' motion. It found that because the ADA was
enacted pursuant to the Fourteenth Amendment, it represented a valid abrogation of
Eleventh Amendment immunity. It also denied summary judgment on the section 1983
claims brought against the commissioners in their individual capacities.6 In reaching
its decision the district court was careful to point out that:

      The narrow holding of this Order is simply that the defendants are not
      entitled to summary judgment, either in their official or individual
      capacities. At trial, the defendants may be able to demonstrate that the
      standards they set are reasonable and rationally related to necessary skills
      for law enforcement officers. On the record currently before the Court,
      the defendants are not entitled to judgment as a matter of law.

Alsbrook v. City of Maumelle, No. LR-C-96-68, memo. op. at 9 (E.D. Ark. Mar. 24,
1997).

        This interlocutory appeal on the issues of Eleventh Amendment and qualified
immunity followed. Pursuant to 28 U.S.C. § 2403(a), the United States has intervened
in the appeal to oppose appellants' Eleventh Amendment argument as it pertains to the
ADA claim. On appeal, a panel of this court, one judge dissenting, affirmed the district
court's denial of summary judgment on the ADA claim, but reversed the district court's
denial of summary judgment on the section 1983 claims against the commissioners in
their individual capacities. See Alsbrook v. City of Maumelle, 156 F.3d 825 (8th Cir.
1998).




      6
       The district court order did not mention the § 1983 claim asserted against the
appellants in their official capacities.

                                          -7-
       We granted rehearing en banc, thereby vacating the panel opinion. After
consideration by the court en banc, we now reverse the district court's denial of
summary judgment on both grounds for the reasons discussed below.

II.   DISCUSSION

        As a preliminary matter, we hold that we have jurisdiction over this
interlocutory appeal under the collateral order doctrine of Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541, 545-47 (1949). See, e.g., Murphy v. Arkansas, 127 F.3d
750, 753 (8th Cir.1997) (order denying claim of Eleventh Amendment immunity is
appealable as a collateral order); Manzano v. South Dakota Dep't of Soc. Servs., 60
F.3d 505, 509 (8th Cir. 1995) (denial of a motion for summary judgment based on
qualified immunity is immediately appealable under the collateral order doctrine).
Issues of law that are closely related to the qualified immunity determination may also
be considered on interlocutory appeal. See Henderson v. Baird, 29 F.3d 464, 467 (8th
Cir. 1994).

       We review a denial of summary judgment de novo. See Hopkins v. Saunders,
93 F.3d 522, 525 (8th Cir. 1996). Summary judgment should be granted if there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c); Hopkins 93 F.3d at 525. As in this case, where the
unresolved issues are primarily legal rather than factual, summary judgment is
particularly appropriate. See Crain v. Board of Police Comm'rs, 920 F.2d 1402,
1405-06 (8th Cir. 1990).




                                           -8-
       A.     The ADA Claim7

       Appellants argue that the district court erred in failing to grant them summary
judgment on the basis of Eleventh Amendment immunity. In rejecting appellants'
Eleventh Amendment argument, the district court stated: "[t]he Court is unpersuaded
by the State defendants' analysis of Eleventh Amendment immunity. The Americans
with Disabilities Act was passed under the auspices of the Fourteenth Amendment as
well as the Commerce Clause."8

       The Eleventh Amendment grants a state immunity from suits brought in federal
court by its own citizens as well as citizens of another state. See U.S. Const. amend.
XI; Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Congress can, however,
abrogate this immunity or a state can waive it. See Atascadero State Hosp. v. Scanlon,

       7
        In Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), the
Supreme Court declined to consider whether application of the ADA to state prisons
is a constitutional exercise of Congress's power under Section 5 in light of plaintiffs'
failure to raise the issue below.
       8
        It is unclear from the complaint whether Alsbrook is asserting an ADA claim
against the commissioners in their individual capacities. To the extent that he is, we
agree with the panel opinion's conclusion that the commissioners may not be sued in
their individual capacities directly under the provisions of Title II. Title II provides
disabled individuals redress for discrimination by a "public entity." See 42 U.S.C. §
12132. That term, as it is defined within the statute, does not include individuals. See
42 U.S.C. § 12131(1); see also Transamerica Mortgage Advisors, Inc. v. Lewis, 444
U.S. 11, 19 (1979) ("[I]t is an elemental canon of statutory construction that where a
statute expressly provides a particular remedy or remedies, a court must be chary of
reading others into it."). Furthermore, while no circuit has directly addressed the issue
of individual liability under Title II, three have held that there is no liability under Title
I against individuals who do not otherwise qualify as "employers" under the statutory
definition. See Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999);
Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); EEOC v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1280-82 (7th Cir. 1995).

                                             -9-
473 U.S. 234, 238 (1985). It is undisputed that Arkansas has not consented to this suit.
Alsbrook contends, however, that Congress abrogated the State's immunity when it
passed the ADA.

        Congress has a limited power to abrogate Eleventh Amendment immunity. See
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). But because the Eleventh Amendment
"implicates the fundamental constitutional balance between the Federal Government
and the States," the Supreme Court has cautioned that courts should exercise care
before finding abrogation. Atascadero, 473 U.S. at 238; see also Pennhurst State Sch.
and Hosp. v. Halderman, 465 U.S. 89, 99 (1984) ("Our reluctance to infer that a State's
immunity from suit in the federal courts has been negated stems from recognition of the
vital role of the doctrine of sovereign immunity in our federal system."). Cf. Alden v.
Maine, No. 98-436, 1999 WL 412617, at *7 (U.S. June 23, 1999) ("[states'] immunity
from private suits central to sovereign dignity").

       In order to determine the validity of Congress's abrogation of immunity, we
engage in a two-prong analysis. See Seminole Tribe of Florida v. Florida, 517 U.S.
44, 55 (1996). First, we determine whether Congress has unequivocally expressed its
intent to abrogate the immunity–which is obvious in this case. Section 12202 of the
ADA provides that "[a] State shall not be immune under the eleventh amendment . . .
from an action in Federal or State court of competent jurisdiction for a violation of this
chapter." 9 See 42 U.S.C. § 12202. Thus, we find that Congress, in passing the ADA,


      9
        We believe that Congress's reference to abrogating Eleventh Amendment
immunity in "state court" is mere surplusage because "the Eleventh Amendment does
not apply in state courts." Will v. Michigan Dep't of State Police, 491 U.S. 58, 63-64
(1989). Furthermore, the Supreme Court's recent decision in Alden v. Maine, declaring
unconstitutional the provisions of the Fair Labor Standards Act purporting to authorize
private actions against the states in their own courts without regard to consent, suggests
that any attempt by Congress to subject an unconsenting state to suit under Title II
would likewise be invalid.

                                          -10-
"unequivocally expressed" its intent to abrogate Eleventh Amendment immunity.
Accord Coolbaugh v. Louisiana, 136 F.3d 430, 433 (5th Cir.) (finding that Congress's
intent to abrogate state immunity is "patently clear" in the ADA), cert. denied, 119 S.
Ct. 58 (1998).

       Second, we determine whether Congress has acted pursuant to a valid exercise
of power. See Seminole Tribe, 517 U.S. at 55. As a threshold matter, we ask whether
the ADA was passed pursuant to a constitutional provision granting Congress the
power to abrogate. See id. at 59. Following the Supreme Court's holding in Seminole
Tribe, Congress can abrogate Eleventh Amendment immunity only if it is acting
pursuant to its powers under Section 5 of the Fourteenth Amendment (Section 5). See
id. at 59-67. In passing the ADA, Congress stated that it was invoking its powers
under Section 5 and the Commerce Clause. See 42 U.S.C. § 12101(b)(4) (listing
among the ADA's purposes "to invoke the sweep of congressional authority, including
the power to enforce the fourteenth amendment and to regulate commerce, in order to
address the major areas of discrimination faced day-to-day by people with
disabilities").

      Congress's declaration that a statute is passed pursuant to Section 5 does not,
however, end our inquiry under the second prong. We next turn to the question of
whether the substantive provisions of the statute are a constitutional exercise of that
power. See Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 702-03
(4th Cir. 1999). Section 5 states: "[t]he Congress shall have power to enforce, by
appropriate legislation, the provisions of this article." U.S. Const. amend. XIV, § 5.10

        10
             Among the provisions in the Fourteenth Amendment is Section 1's mandate
that:

        No 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

                                           -11-
 Thus, the crux of our inquiry boils down to the following question–does Title II of the
ADA represent a proper exercise of Congress's Section 5 powers "to enforce" by
"appropriate legislation" the constitutional guarantees of the Fourteenth Amendment,
in particular, the Equal Protection Clause?11 See City of Boerne v. Flores, 521 U.S.
507, 517 (1997). If the provision at issue exceeds Section 5 powers, "it is without
jurisdictional effect and cannot constitutionally abrogate immunity." Brown, 166 F.3d
at 703.

       In Boerne, the Supreme Court's most detailed pronouncement on Congress's
authority to impose legislation on the states pursuant to its Section 5 powers, the Court
held that Congress exceeded its Section 5 powers in enacting the Religious Freedom
Restoration Act (RFRA).12 While the Court in Boerne acknowledged that Congress's


      deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend XIV, § 1.
      11
        We limit the scope of our Section 5 inquiry to Title II of the ADA, under which
Alsbrook brought his suit. Although the United States, as intervenor, would prefer that
we consider the statute as a whole, we decline to do so. See Spector Motor Serv., Inc.
v. McLaughlin, 323 U.S. 101, 105 (1944) ("If there is one doctrine more deeply rooted
than any other in the process of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such adjudication is unavoidable.");
Brown, 166 F.3d at 703-05 (declining to engage in "broad-brush" review of the ADA
for purposes of determining whether Congress exceeded its Section 5 powers).
      12
         The Supreme Court recently expounded on its views of Congress's Section 5
power in Florida Prepaid Postsecondary Education Expense Board v. College Savings
Bank, No. 98-531, 1999 WL 412723 (U.S. June 23, 1999) (College Savings II), in
which it held that Congress could not abrogate states' immunity under the Patent
Remedy Act (PRA) because the statute could not be sustained as legislation enacted
to enforce the guarantees of the Fourteenth Amendment. We think the Court's extensive
discussion of Congress's Section 5 powers and its application of Boerne to the facts
of that case provide further support for the conclusion we reach today.

                                          -12-
powers under Section 5 are broad, it also stated "that as broad as the congressional
enforcement power is, it is not unlimited." Boerne, 521 U.S. at 518 (quotations and
citations omitted); see Humenansky v. Regents of the Univ. of Minn., 152 F.3d 822,
828 (8th Cir. 1998) ("Congress' § 5 powers, while broad, are not without limits"),
petition for cert. filed, 67 U.S.L.W. 3504 (U.S. Feb. 1, 1999) (No. 98-1235); see also
EEOC v. Wyoming, 460 U.S. 226, 259 (1983) (Burger, C.J., dissenting on other
grounds) (Congress's ability to enact legislation affecting the states under Section 5,
"does not mean that Congress has been given a 'blank check' to intrude into details of
states' governments at will.").

       The Court in Boerne found that Congress's enforcement power under Section 5
was limited to enacting remedial legislation. Congress has no authority, the Court
emphasized, to enact substantive legislation defining the scope of the Fourteenth
Amendment's restrictions on the states. See Boerne, 512 U.S. at 519. "Congress does
not enforce a constitutional right by changing what the right is." Id. The Court
concluded that for legislation to be classified as remedial and therefore a valid exercise
of Section 5 power "[t]here must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end." Id. at 520.
Under the reasoning set forth in Boerne, we do not think that extension of Title II of the
ADA to the states constitutes a proper exercise of Congress's power under Section 5.13

      13
         In so holding, we part company with some circuits that have decided this issue.
See Kimel v. Florida Bd.of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted,
119 S. Ct. 901, 902 (1999); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.), cert.
denied, 119 S. Ct. 58 (1998); Clark v. California, 123 F.3d 1267 (9th Cir.1997), cert.
denied sub nom. Wilson v. Armstrong, 118 S. Ct. 2340 (1998); Crawford v. Indiana
Dep't of Corrections, 115 F.3d 481 (7th Cir. 1997); see also Torres v. Puerto Rico
Tourism Co., 175 F.3d 1, 6 n.7 (1st Cir. 1999) (declining to address issue but stating
in dicta "we have considered the issue of Congress's authority sufficiently to conclude
that, were we to confront the question head-on, we almost certainly would join the
majority of courts upholding the [abrogation] provision"). However, in Brown, the
Fourth Circuit held that a regulation promulgated under Title II of the ADA, 28 C.F.R.

                                          -13-
       Alsbrook and the United States, as intervenor, argue that unlike with RFRA,
Congress made detailed findings, when passing the ADA, of a serious and pervasive
problem of discrimination against the disabled, and that we should defer to Congress's
assessment of the problem. We do not dispute that in passing the ADA Congress made
extensive findings regarding the discrimination faced by disabled citizens. See 42
U.S.C. § 12101(a); Coolbaugh, 136 F.3d at 436-37 & n.4 (citing to the extensive
studies, reports, and testimony compiled in the legislative history of the ADA). We also
note that other circuits have relied to a great extent on the existence of congressional
findings in determining that Congress did not exceed its Section 5 powers in extending
the ADA to the states.14

        We think, however, that the state of the legislative record, alone, cannot suffice
to bring Title II within the ambit of Congress's Section 5 powers if Title II is not
"adapted to the mischief and wrong which the Fourteenth Amendment was intended to
provide against." Boerne, 521 U.S. at 532 (quotations and alterations omitted); see also
id. ("[r]egardless of the state of the legislative record, RFRA cannot be considered
remedial, preventive legislation, if those terms are to have any meaning"). Just
recently, the Supreme Court in Saenz v. Roe, No. 98-97, 1999 WL 303743 (May 17,
1999), noted that "'Congress' power under § 5 . . . is limited to adopting measures to


§ 35.130(f), exceeded Congress's powers under Section 5. See Brown v. North
Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir. 1999). But see Amos v.
Maryland Dep't of Pub. Safety and Correctional Servs., No. 96-7091, 1999 WL 454509
(4th Cir. June 24, 1999) (holding that application of Title II of the ADA to state
prisons is a constitutional exercise of Congress's power under Section 5).
      14
        See, e.g., Clark, 123 F.3d at 1270 (finding that because Congress explicitly
found that persons with disabilities have suffered discrimination, the ADA is therefore
within the scope of appropriate legislation under the Equal Protection Clause);
Coolbaugh, 136 F.3d at 438 ("[w]e cannot say, however, in light of the extensive
findings of unconstitutional discrimination made by Congress, that these remedies [of
the ADA] are too sweeping").

                                          -14-
enforce the guarantees of the [Fourteenth] Amendment; § 5 grants Congress no power
to restrict, abrogate, or dilute these guarantees.'" Id. at *10 (quoting Katzenbach v.
Morgan, 384 U.S. 641, 651 n.10 (1966)). We think a necessary corollary to this is that
Congress may also not pass legislation which attempts to expand, enhance, or add to
the guarantees of the Fourteenth Amendment. See, e.g., Humenansky, 152 F.3d at 827
(stating that Congress's power to enforce the Equal Protection Clause would be
virtually unlimited if it is not tied to enforcing judicially recognized equal protection
violations). In short, regardless of the extent of its findings, Congress, under Section
5, only has the power to prohibit that which the Fourteenth Amendment prohibits.

       In City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), the
Supreme Court held that under the Equal Protection Clause of the Fourteenth
Amendment, state classifications on the basis of mental retardation need only satisfy
rational basis review.15 We do not think that Title II of the ADA "enforces" the rational
relationship standard recognized by the Supreme Court in Cleburne. The United States,
as intervenor, argues that because Cleburne recognized that arbitrary discrimination
against the disabled violates the Equal Protection Clause, the ADA, which also
prohibits discrimination against the disabled, lies within Congress's enforcement
powers. Congress's enforcement powers under Section 5, it argues, are not limited to
only suspect classifications.

      We agree that congressional enforcement of equal protection rights under
Section 5 is not limited to suspect classifications. It is not enough to say, however, that
the ADA falls within Congress's enforcement powers simply because it prohibits


      15
        Although Cleburne dealt specifically with discrimination against the mentally
disabled, we think its reasoning extends to disabilities generally. Accord Brown, 166
F.3d at 706 ("we cannot extend to the physically disabled, a different standard of
protection from that given to the mentally disabled [in Cleburne]); Coolbaugh, 136 F.3d
at 433 n.1 (same).

                                           -15-
discrimination against the disabled. "[I]t matters what kind of discrimination the
Constitution prohibits, and whether the ADA was aimed at that kind of discrimination."
Kimel, 139 F.3d at 1448-49 n.2 (Cox, J., concurring in part and dissenting in part).16
 And we do not agree with the United States' argument that the ADA enforces the
rational basis standard articulated in Cleburne because it merely requires states to show
that distinctions made on the basis of disability are not the result of stereotypes or
irrational fears but, rather, are based on legitimate governmental objectives.

        Title II does far more than enforce the rational relationship standard recognized
by the Supreme Court in Cleburne. Under Title II, a state's program, service, or
activity, even if rationally related to a legitimate state interest and valid under Cleburne,
would be struck down unless it provided "reasonable modifications." See 42 U.S.C.
§ 12131(2). Only if a state can demonstrate that modifications would "fundamentally
alter" the nature of the service, program, or activity, could a court uphold the state's
policy. See 28 C.F.R. § 35.130(b)(7); see also Boerne, 521 U.S. at 534; Coolbaugh,
136 F.3d at 440-41 (Smith, J., dissenting) (discussing similar problem with respect to
the "reasonable accommodation" requirement of Title I). The specter of open-ended
obligations for a state under Title II is further compounded by the fact that, unlike the
term "reasonable accommodation" used in Title I, the term "reasonable modification"
is not defined anywhere in the statute. Compare 42 U.S.C. § 12111(9) with 42 U.S.C.
§ 12131.

      Nor does enforcement of Title II against the states comport with the rationale
behind the Supreme Court's decision to adopt the rational basis test in Cleburne. The
Cleburne Court emphasized that a rational basis standard of review would best allow


       16
        The dissent commits the same fallacy when it states that "Congress did not
exceed its authority under § 5 of the Fourteenth Amendment . . . because protection
against disability-based discrimination is a well-established Fourteenth Amendment
equal protection guarantee." Post at 23.
                                            -16-
governmental bodies the flexibility and freedom to shape remedial efforts towards the
disabled. See Cleburne, 473 U.S. at 446. Title II's provisions detract from this notion,
by preventing states from making decisions tailored to meet specific local needs and
instead imposing upon them the amorphous requirement of providing reasonable
modifications in every program, service, and activity they provide. Cf. Wyoming, 460
U.S. at 264-65 (discussing intrusion into state sovereignty when Congress acts under
Section 5 to enact Age Discrimination in Employment Act). "This is a considerable
congressional intrusion into the State's traditional prerogatives and general authority to
regulate for the health and welfare of their citizens." Boerne, 521 U.S. at 534.

        Nevertheless, appellees contend that the Supreme Court's statement in Boerne
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'" indicates that Congress's Section 5 authority can
extend beyond conduct which is unconstitutional. Id. at 518 (quoting Fitzpatrick, 427
U.S. at 455). We think this passage, which the Court noted was illustrated by
Congress's legislation in the voting rights area, is best understood as saying that
Congress may prohibit conduct which itself is not necessarily unconstitutional, if to do
so would rectify an existing constitutional violation. See College Savings II, 1999 WL
412723, at *11 (discussing Congress's voting rights legislation as examples of
congressional enactments that pervasively prohibit "constitutional state action in an
effort to remedy or to prevent unconstitutional state action") (emphasis added). In the
present case, it cannot be said that Title II identifies or counteracts particular state laws
or specific state actions which violate the Constitution. Title II targets every state law,
policy, or program. "Preventative measures prohibiting certain types of laws may be
appropriate when there is reason to believe that many of the laws affected by the
congressional enactment have a significant likelihood of being unconstitutional." Id.
at 532. We do not think that the legislative record of the ADA supports the proposition


                                            -17-
that most state programs and services discriminate arbitrarily against the disabled.17
Indeed, all states in this circuit have enacted comprehensive laws to combat
discrimination against the disabled, many of them adopted prior to the effective date
of the ADA.18 Cf. Brown, 166 F.3d at 707.

       In sum, it cannot be said that in applying Title II of the ADA to the states,
Congress has acted to enforce equal protection guarantees for the disabled as they have
been defined by the Supreme Court. We find therefore, that the extension of Title II
of the ADA to the states was not a proper exercise of Congress's power under Section
5 of the Fourteenth Amendment. Consequently, there is no valid abrogation of
Arkansas' Eleventh Amendment immunity from private suit in federal court and the
district court lacked subject matter jurisdiction over the ADA claim.




      17
          The dissent suggests that Congress was not required to make specific findings
that the states themselves were discriminating against the disabled. See post at 30. In
College Savings II, however, the Supreme Court noted that part of the problem with
Congress's attempted abrogation under the PRA was that the legislative record of the
PRA provided "little evidence of infringing conduct on the part of the States." 1999
WL 412723, at *8. Consequently, we also disagree with the dissent's attempt to
differentiate the Court's holding in College Savings II from the present case on the basis
that the legislative record compiled in enacting the PRA, unlike the ADA, did not show
a history of widespread deprivation of constitutional rights. In fact, the legislative
record of the ADA suffers from exactly the same infirmity that the Supreme Court
noted with respect to the legislative record of the PRA–an absence of a showing of
widespread discrimination on the part of the states.
      18
        See Ark. Code Ann. §§ 16-123-101 et seq.; Iowa Code Ann.§§ 216C.1 et seq.;
Minn. Stat. Ann. §§ 363. 01 et seq.; Mo. Ann. Stat. §§ 213.010 et seq.; Neb. Rev.
Stat. Ann. §§ 20-126 et seq.; N.D. Cent. Code §§ 14-02.4-01 et seq.; S.D. Codified
Laws §§ 20-13-1 et seq.
                                          -18-
B.    Section 1983 Claims

       Alsbrook also brings section 1983 claims against the appellants for the alleged
deprivation of his rights under the ADA. We note first, that a section 1983 suit cannot
be brought against the State or ACLEST. See Will v. Michigan Dep't of State Police,
491 U.S. 58, 64 & 70 (1989) (a state and its agencies are not "persons" within the
meaning of section 1983); see also Quern v. Jordan, 440 U.S. 332, 345 (1979) (section
1983 does not abrogate a state's Eleventh Amendment immunity). Nor can a section
1983 suit be asserted against the commissioners of ACLEST in their official capacities,
because such suit is no different from a suit against the state itself. See Will, 491 U.S.
at 70-71.19 This leaves only the claim against the commissioners in their individual
capacities as the sole cognizable section 1983 claim. See Hafer v. Melo, 502 U.S. 21,
23 (1991) (state officials sued in their individual capacities are "persons" for purposes
of section 1983).

        The substance of Alsbrook's section 1983 claim is that the refusal to grant him
a waiver of the visual acuity requirement violated his rights under Title II of the ADA.
Appellants argue that the district court erred in failing to grant summary judgment
dismissing the section 1983 claim because the individual commissioners are not "public
entities" within the meaning of Title II and hence any section 1983 action premised on
a violation of Title II fails to state a cause of action. Alternatively, they maintain that
the commissioners are protected by qualified immunity. In reversing the district court's
denial of summary judgment, the panel opinion held that it would be inconsistent with

      19
         The exception to this rule is that a state official may be sued in his or her
official capacity for injunctive relief. See Will, 491 U.S. 71 n.10 (state officials sued
in their official capacities for injunctive relief are "persons" under section 1983
because official capacity actions for prospective relief are not treated as actions against
the state). As noted earlier, the only form of relief available to Alsbrook at this point
would be money damages. See supra note 5.
                                           -19-
the ADA's comprehensive remedial and enforcement scheme to recognize a section
1983 suit predicated solely on alleged violations of the ADA.

       Section 1983 provides a federal cause of action for plaintiffs to sue officials
acting under color of state law for alleged deprivations of "rights, privileges, or
immunities secured by the Constitution and laws" of the United States. See 42 U.S.C.
§ 1983. It is well recognized that a plaintiff may use section 1983 to enforce not only
rights contained in the Constitution, but also rights that are defined by federal statutes.
See Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980); Arkansas Med. Soc'y, Inc. v.
Reynolds, 6 F.3d 519, 523 (8th Cir. 1993). An exception to this general rule exists
when a comprehensive remedial scheme evidences a congressional intent to foreclose
resort to section 1983 for remedy of statutory violations. See Middlesex County
Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19-21 (1981). Courts
should presume that Congress intended that the enforcement mechanism provided in
the statute be exclusive. See Pona v. Cecil Whittaker's, Inc., 155 F.3d 1034, 1038 (8th
Cir. 1998), cert. denied, 119 S. Ct. 1805 (1999).

       We agree with the panel's conclusion that the ADA's comprehensive remedial
scheme bars Alsbrook's section 1983 claims against the commissioners in their
individual capacities. In Davis v. Francis Howell School District, 104 F.3d 204, 206
(8th Cir. 1997), this court, in dicta, expressed the view that "the comprehensive
enforcement mechanisms provided under § 504 [of the Rehabilitation Act] and the
ADA suggest Congress did not intend violations of those statutes to be also cognizable
under § 1983." More recently, in Pona, we found that, "Congress has provided [Title
II] with detailed means of enforcement that it imported from Title VII . . . . [We] think
that Congress has, under the applicable legal principles, rather clearly indicated an
intention to make the remedies that Title II itself gives the exclusive ones for the
enforcement of that subchapter." Pona, 155 F.3d at 1038; see also Holbrook v. City
of Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997) (holding that a plaintiff may not


                                           -20-
maintain a section 1983 action in lieu of, or in addition to, an ADA cause of action if
the only alleged deprivation is of employee's rights created by the ADA).

       We agree with the conclusions reached in these cases and hold that Title II's
detailed remedial scheme bars Alsbrook from maintaining a section 1983 action against
the commissioners in their individual capacities for alleged violations of the ADA.20
More fundamentally, we find that Alsbrook cannot bring a section 1983 claim against
the commissioners in their individual capacities when, as we have earlier concluded,
he could not do so directly under the ADA. See supra note 8; Huebschen v.
Department of Health and Soc. Serv., 716 F.2d 1167, 1170 (7th Cir. 1983) ("[A]
plaintiff cannot bring an action under section 1983 based upon Title VII against a
person who could not be sued directly under Title VII."). Allowing a plaintiff to bring
a section 1983 claim based on violations of Title II against a defendant who could not
be sued directly under Title II would enlarge the relief available for violations of Title
II. See Huebschen, 716 F.2d at 1170. We have consistently stated that section 1983


      20
         In reaching its decision that a section 1983 suit could not be maintained against
the commissioners in their individual capacities, the panel opinion noted that Alsbrook
was not without recourse for the ADA violations he alleged. We acknowledge that our
present holding may seem contradictory, i.e., finding that Alsbrook may not sue the
State and its agencies, and yet concluding that the ADA contains a comprehensive
remedial scheme barring a section 1983 suit. In Seminole Tribe, the Supreme Court
reached a similar result when it held that Congress could not abrogate the states'
immunity to suit under section 2710(d)(7) of the Indian Gaming Regulatory Act, and
yet found the Act's detailed remedial scheme precluded application of the doctrine of
Ex Parte Young against a state official. See 517 U.S. at 74. In reaching the latter
conclusion, the Court noted "nor are we free to rewrite the statutory scheme in order
to approximate what we think Congress might have wanted had it known that §
2710(d)(7) [of the Act] was beyond its authority. If that effort is to be made, it should
be made by Congress, and not by the federal courts." Id. at 76. Similarly, we conclude
that the fact that Congress was unaware that it was without authority to abrogate a
state's immunity from suit under Title II does not detract from our finding that Title II
provides a comprehensive remedial scheme of enforcement.
                                          -21-
creates no substantive rights; that it is merely a vehicle for seeking a federal remedy for
violations of federally protected rights. See, e.g., Riley v. St. Louis County, 153 F.3d
627, 630 (8th Cir. 1998); Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987). Thus,
Alsbrook is precluded from bringing a section 1983 suit against the commissioners in
their individual capacities for alleged violations of Title II of the ADA when he could
not do so directly under Title II itself. Because we hold that Alsbrook may not
maintain a section 1983 action against the commissioners in their individual capacities,
we need not determine whether the commissioners are otherwise entitled to qualified
immunity.

III.   CONCLUSION

      For the foregoing reasons, we find that Alsbrook's ADA claim is barred by the
Eleventh Amendment and that his section 1983 claims are not cognizable.
Accordingly, we reverse the decision of the district court.

    McMILLIAN, Circuit Judge, with whom RICHARD S. ARNOLD, FAGG and
MURPHY, Circuit Judges, join, concurring in part and dissenting in part.

       I concur in Part IIB of the majority opinion, but respectfully dissent from
Part IIA.

      I believe that Congress validly enacted the ADA pursuant to its enforcement
authority under § 5 of the Fourteenth Amendment and therefore properly abrogated the
Eleventh Amendment when it applied Title II of the ADA to the states. For the sake
of brevity, I will not repeat the reasons for this conclusion that I stated in the panel
opinion, see Alsbrook v. City of Maumelle, 156 F.3d 825 (8th Cir. 1998), or those
stated by the several other circuits which have taken the same position. See supra at




                                           -22-
13-14 n.13 (citing cases).21 I will instead take this opportunity to explain why I
disagree with the majority's reasoning in this en banc decision.

        To begin, even accepting as a correct statement of the law the majority's
proposed "necessary corollary" to the Supreme Court's holding in Saenz v. Roe – "that
Congress may also not pass legislation which attempts to expand, enhance, or add to
the guarantees of the Fourteenth Amendment," supra at 15, – Congress did not exceed
its authority under § 5 of the Fourteenth Amendment when it enacted Title II of the
ADA because protection against disability-based discrimination is a well-established
Fourteenth Amendment equal protection guarantee. See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 447 (1985) (Cleburne) ("the [disabled], like others, have and
retain their substantive constitutional rights in addition to the right to be treated equally
by the law"). Similarly, the majority's reference to Humenansky v. Regents of the
Univ. of Minn., 152 F.3d 822, 827 (8th Cir. 1998), for the proposition that "Congress's
power to enforce the Equal Protection Clause would be virtually unlimited if it is not
tied to enforcing judicially recognized equal protection violations," supra at 15, fails to

       21
         The majority acknowledges that its holding is contrary to decisions of the
Eleventh, Fifth, Ninth, and Seventh Circuits and in disagreement with dicta expressed
by the First Circuit. See supra at 13-14 n.13. Although the majority also cites Amos
v. Maryland Dep't of Pub. Safety & Correctional Servs., No. 96-7091, 1999 WL
454509 (4th Cir. June 24, 1999), the majority fails to acknowledge that the Fourth
Circuit, like all the other circuits which have decided this issue, also held that the ADA
was validly enacted pursuant to Congress's authority under § 5 of the Fourteenth
Amendment. See 1999 WL 454509, at *9 ("we hold that Congress acted within its
constitutionally granted powers when it enacted the ADA . . . pursuant to § 5 of the
Fourteenth Amendment"). The majority instead highlights the Fourth Circuit's earlier
decision in Brown v. North Carolina Div. of Motor Vehicles. In that case, however,
the Fourth Circuit specifically stated that it was only considering the constitutionality
of a federal regulation and not considering the constitutionality of 42 U.S.C. § 12132,
the liability provision of Title II of the ADA. See 166 F.3d at 708 n.* ("Deciding this
case on the basis of the constitutionality of 28 C.F.R. § 35.130(f), we need not pass on
42 U.S.C. § 12132 itself.").
                                            -23-
advance the majority's position because, as Cleburne illustrates, arbitrary discrimination
against individuals with disabilities is a judicially recognized equal protection violation.

       I also disagree with the majority's conclusion that, in enacting the ADA,
Congress exceeded its authority under § 5 of the Fourteenth Amendment because "Title
II does far more than enforce the rational relationship standard recognized by the
Supreme Court in Cleburne." Id. at 16. The Supreme Court has instructed that
"[l]egislation which deters or remedies constitutional violations can fall within the
sweep of Congress's enforcement power [under § 5 of the Fourteenth Amendment]
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.'" City
of Boerne v. Flores, 521 U.S. 507, 518 (1997) (City of Boerne) (quoting Fitzpatrick v.
Bitzer, 427 U.S. 445, 455 (1976)).22 The majority avoids this language by ascribing
to it what, in my view, is an overly-narrow interpretation. The majority reasons: "[w]e
think this passage . . . is best understood as saying that Congress may prohibit conduct
which itself is not necessarily unconstitutional, if to do so would rectify an existing
constitutional violation." Supra at 17 (emphasis added). However, that interpretation
cannot be correct for the simple reason that it entirely ignores the Supreme Court's
reference to legislation which "deters" constitutional violations and only takes into
consideration legislation which "remedies" constitutional violations. I am confident
that the Supreme Court's reference to deterrent legislation was both intentional and
meaningful because the City of Boerne opinion is replete with references to Congress's


       22
         Although the Supreme Court has yet to decide the issue now before us, it has
indicated that City of Boerne v. Flores, 521 U.S. 507, 518 (1997), sets forth the law to
be applied in determining whether Congress, in enacting the ADA, validly exercised
its authority under § 5 of the Fourteenth Amendment. See Pennsylvania Dep't of
Corrections v. Yeskey, 118 S. Ct. 1952, 1956 (1998) ("We do not address . . . whether
application of the ADA to state prisons is a constitutional exercise of Congress's power
under . . . § 5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U.S.
507 (1997).").
                                           -24-
authority to deter or prevent constitutional violations. See, e.g., 521 U.S. at 519 ("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"), 520
("there must be a congruence between the injury to be prevented or remedied and the
means adopted to that end"), 524 ("[t]he remedial and preventive nature of Congress'
enforcement power, and the limitation inherent in the power, were confirmed in our
earliest cases on the Fourteenth Amendment"), 530 ("preventive rules are sometimes
appropriate remedial measures"). Moreover, the majority's proposed interpretation
does not comport with a full reading of City of Boerne because it fails to acknowledge
Congress's broad discretion in fashioning remedial or preventive legislation. See, e.g.,
id. at 520 ("Congress must have wide latitude in determining where [the line between
remedial or preventive measures and substantive measures] lies"), 536 ("it 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") (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)).

      I believe that the decisive question in the present case is whether the statutory
provisions in question reflect a "congruence and proportionality between the injury to
be prevented or remedied and the means adopted to that end." Id. at 520; accord Little
Rock Sch. Dist. v. Mauney, No. 98-1721, 1999 WL 407763 at *6-11 (8th Cir. June 14,
1999) (applying same analysis to hold that the Individuals with Disabilities in
Education Act is a proper exercise of Congress's § 5 enforcement power under the
Fourteenth Amendment). In other words, the constitutional injury to be prevented or
remedied and the legislative means to achieve those goals must bear both a congruent
and a proportional relationship to one another. It is this "congruence and
proportionality" standard which allows the courts to identify legislation which exceeds
Congress's § 5 authority because the legislation is, in effect, substantive in nature. See
City of Boerne, 521 U.S. at 520 ("Lacking such a connection, legislation may become
substantive in operation and effect.").


                                          -25-
       In City of Boerne, the Supreme Court explained that "[t]he appropriateness of
remedial measures must be considered in light of the evil presented." 521 U.S. at 530
(emphasis added). The legislation at issue in City of Boerne, the Religious Freedom
Restoration Act (RFRA), was enacted by Congress with the stated purpose of restoring
the compelling interest test set forth in Sherbert v. Verner, 374 U.S. 398 (1972), which
had been abandoned when Sherbert v. Verner was overruled by Employment Div.,
Dep't of Human Resources v. Smith, 494 U.S. 872 (1990). RFRA prohibited any
government, state or federal, from substantially burdening a person's exercise of
religion, even if the burden resulted from a rule of general applicability, unless it were
in furtherance of a compelling governmental interest and the least restrictive means to
advance that compelling interest. RFRA applied to all federal and state laws and the
implementation of such laws. Examining the "evil" that Congress sought to prevent or
remedy by enacting RFRA, the Supreme Court noted, based upon RFRA's legislative
record, that "the emphasis of the [congressional] hearings was on laws of general
applicability which place incidental burdens on religion." 521 U.S. at 530 (emphasis
added). Congress did not find examples of laws or governmental policies that were
"enacted or enforced due to animus or hostility to the burdened religious practices" or
"indicat[ing] some widespread pattern of religious discrimination in this country." Id.
at 531. Indeed, the Supreme Court explained, "RFRA's legislative record lacks
examples of modern instances of generally applicable laws passed because of religious
bigotry." Id. at 530.

       Turning now to the ADA, the injury or "evil" that Congress intended to prevent
and remedy by enacting that legislation cannot be described as mere "incidental
burdens" on the rights of the disabled. See 42 U.S.C. § 12101(a). Without repeating
all of Congress's findings, I note, for the sake of comparison, the following findings
made by Congress:

      [D]iscrimination against individuals with disabilities persists in such
      critical areas as employment, housing, public accommodations, education,

                                          -26-
      transportation, communication, recreation, institutionalization, health
      services, voting, and access to public services[.]


Id. § 12101(a)(3).


      [I]ndividuals 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[.]


Id. § 12101(a)(5).

       No one, including the majority, see supra at 14, seriously disputes the fact that
Congress enacted the ADA upon an extensive evidentiary record and after making
"detailed findings of a serious and pervasive problem of discrimination against the
disabled." Coolbaugh v. Louisiana, 136 F.3d 430, 435 (5th Cir.), cert. denied, 119
S. Ct. 58 (1998).

      Alsbrook's ADA claim is brought pursuant to 42 U.S.C. § 12132, which states:

              Subject to the provisions of this subchapter, no qualified individual
      with a disability shall, by reason of such disability, be excluded from
      participation in or be denied the benefits of the services, programs, or
      activities of a public entity, or be subjected to discrimination by any such
      entity.


      Title 42 U.S.C. § 12131 provides the following pertinent definitions:


                                          -27-
      (1) Public entity
       The term "public entity" means –
            (A) any State or local government;
            (B) any department, agency, special purpose district, or
            other instrumentality of a State or States or local
            government; . . .

      (2) Qualified individual with a disability
            The term "qualified individual with a disability" means an
            individual with a disability who, with or without reasonable
            modifications to rules, policies, or practices . . . meets the
            essential eligibility requirements for the receipt of services
            or the participation in programs or activities provided by a
            public entity.[23]


       These remedial provisions bear a congruent relationship to the constitutional
injury to be remedied or deterred because they specifically address discriminatory
treatment toward individuals with disabilities. See City of Boerne, 521 U.S. at 530
(discussing congruence in terms of the "appropriateness of remedial measures . . . in
light of the evil presented"). Moreover, because a reasonableness standard is
incorporated into § 12131(2) (requiring no more than "reasonable modifications"), and
because Congress has broad discretion in fashioning preventive and remedial measures,
I believe that these statutory provisions are also proportional to the widespread and
persistent discrimination against individuals with disabilities that Congress found to


      23
         Not only has Alsbrook "successfully completed all requirements to be a
certified law enforcement officer in the State other than having a corrected vision of
20/20 in his right eye," supra at 5, but also, the "City of Maumelle admits that Mr.
Alsbrook has, and can, perform all essential functions of a police officer." Alsbrook
v. City of Maumelle, No. LR-C-96-68, slip op. at 2 (E.D. Ark. Mar. 24, 1997) (noting,
for example, that Alsbrook has consistently scored "expert" when tested on his ability
to shoot with a handgun, which indicates that he can shoot with either hand at targets
on either his left side or his right side).
                                         -28-
exist throughout our society. See 42 U.S.C. § 12101(a). Unlike RFRA, these statutory
provisions are not "so out of proportion to a supposed remedial or preventive object
that [they] cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior." City of Boerne, 521 U.S. at 532.

       The majority, by contrast, reasons that Congress exceeded its § 5 authority in
enacting Title II because "a state's program, service, or activity, even if rationally
related to a legitimate state interest and valid under Cleburne, would be struck down
unless it provided 'reasonable modifications.'" Supra at 16. The majority also reasons
that the "reasonable modifications" standard exceeds Congress's lawmaking authority
under § 5 because it "prevent[s] states from making decisions tailored to meet specific
local needs and instead impos[es] upon them the amorphous requirement of providing
reasonable modifications in every program, service, and activity they provide." Id. at
17. However, both of these concerns were anticipated and dispelled by the Supreme
Court when it stated in City of Boerne that "[l]egislation which deters or remedies
constitutional violations can fall within the sweep of Congress's enforcement power
[under § 5 of the Fourteenth Amendment] 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.'" 521 U.S. at 518 (emphasis added) (quoting
Fitzpatrick v. Bitzer, 427 U.S. at 455).24

       24
         The majority additionally criticizes the "reasonable modifications" standard set
forth in § 12131 on the ground that the term "reasonable modifications" is not defined
in the statute itself, which, the majority reasons, contributes to "[t]he specter of open-
ended obligations for a state under Title II." Supra at 16. If anything, this appears to
be a vagueness argument, which was not asserted by appellants. In any event, it lacks
merit because, as the majority points out, id. at 16, the relevant term has been defined
in the applicable federal regulations. See 28 C.F.R. § 35.130(b)(7)(1998) (defining
"reasonable modifications" to mean modifications that are "necessary to avoid
discrimination on the basis of disability, unless the public entity can demonstrate that
making the modifications would fundamentally alter the nature of the service, program,
or activity being offered") (cited and interpreted, in the context of discussing the states’
                                           -29-
       Finally, I note the majority's comment that "[w]e do not think that the legislative
record of the ADA supports the proposition that most state programs and services
discriminate arbitrarily against the disabled." Supra at 17-18. The majority apparently
assumes that, in order for Congress to abrogate the states' Eleventh Amendment
immunity through an exercise of legislative authority under § 5 of the Fourteenth
Amendment, there must be evidence in the legislative record supporting the proposition
that "most state programs and services" are responsible for the constitutional injury to
be remedied or deterred. To my knowledge, no such requirement is constitutionally
imposed. In any event, I think Congress's express findings in the ADA lead
inescapably to the conclusion that Congress found the states to be partly responsible
for the “various forms of discrimination” suffered by individuals with disabilities. 42
U.S.C. § 12101(a)(5). As noted above, Congress specifically found that
"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." Id. § 12101(a)(3) (emphasis added). Each of these "critical areas"
of our society is, by its very nature, partially or entirely under the control of state or
local government. Therefore, I think it fair to conclude that Congress had before it
ample evidence indicating that state programs and services bear some responsibility for
the constitutional injury that Title II of the ADA is designed to remedy and deter.

       In sum, I would hold that Congress properly exercised its authority under § 5 of
the Fourteenth Amendment in enacting the relevant provisions of Title II of the ADA
and, consequently, appellants are not protected by Eleventh Amendment immunity from
Alsbrook's ADA claim.25


responsibilities vis-a-vis the mentally disabled, in Olmstead v. Zimring, No. 98-536,
1999 WL 407380, at *12-13 (U.S. June 22, 1999)).
      25
         My conclusion on this issue is unaffected by the Supreme Court's recent trilogy
of cases holding invalid Congress's attempts to abrogate the Eleventh Amendment and
                                          -30-
       A true copy.

              Attest:

                 U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



subject the states to suit under the following legislation: the overtime provisions of the
Fair Labor Standards Act, see Alden v. Maine, No. 98-436, 1999 WL 412617 (U.S.
June 23, 1999) (Alden); the Trademark Remedy Clarification Act, see College Sav.
Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., No. 98-149, 1999 WL
412639 (U.S. June 23, 1999) (College Savings I); and the Patent and Plant Variety
Protection Remedy Clarification Act, see Florida Prepaid Postsecondary Educ. Expense
Bd. v. College Sav. Bank, No. 98-531, 1999 WL 412723 (U.S. June 23, 1999)
(College Savings II). Each of these cases is distinguishable from the case at bar. In
Alden, the Supreme Court considered Congress's power to abrogate the Eleventh
Amendment through legislation enacted pursuant to Article I of the Constitution and
concluded that "the States retain immunity from private suit in their own courts, an
immunity beyond the congressional power to abrogate by Article I legislation." 1999
WL 412617, at *31. The present case, by contrast, involves Congress's lawmaking
authority under § 5 of the Fourteenth Amendment. In College Savings I, the Supreme
Court held that Congress had exceeded its authority to enforce the due process clause
through legislation enacted pursuant to § 5 of the Fourteenth Amendment because no
legally cognizable property interest was at stake and, thus, the legislation did not
remedy or deter a judicially recognized due process violation. 1999 WL 412639, at *5-
6. As discussed above, the ADA responds to a judicially recognized equal protection
violation. Finally, in College Savings II, which also involved legislation intended to
enforce the due process clause, the Supreme Court found that a judicially recognized
property interest was at stake, but, much like that in City of Boerne, the legislative
record failed to show "'a history of widespread and persisting deprivation of
constitutional rights' of the sort Congress has faced in enacting proper prophylactic § 5
legislation." 1999 WL 412723, at *11 (quoting City of Boerne, 521 U.S. at 526). In
the present case, by contrast, Congress enacted the ADA upon a legislative record and
specific legislative findings showing a history of widespread and persisting
discrimination against individuals with disabilities, in violation of their rights under the
equal protection clause.
                                           -31-
