concurring.
I concur in the judgment of the court and Part II of the majority opinion, but I write separately with respect to Part I. The court relies on the Supreme Court’s holding in Board, of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), that state employees may not recover money damages for the state’s failure to comply with Title I of the Americans with Disabilities Act (“ADA”) to foreclose equal protection claims for money damages against the state under Title II of the ADA. I believe that Garrett does not control this court’s disposition of this case. Moreover, I would conclude, based on the significant differences between Titles I and II, that Congress validly enacted the latter pursuant to its enforcement authority under § 5 of the Fourteenth Amendment to remedy or to prevent violations of both the Due Process and Equal Protection Clauses.
Although classifications based on disability are not subject to heightened scrutiny, the Supreme Court has recognized that the Equal Protection Clause prohibits arbitrary and invidious discrimination against individuals with disabilities. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (holding that “the [disabled], like others, have and retain their substantive constitutional rights in addition to the right to be treated equally by the law”). As correctly noted in Part I of the majority opinion, the Supreme Court held in Garrett that Congress had exceeded its § 5 enforcement authority in abrogating state sovereign immunity from suits for money damages under Title I of the ADA. 531 U.S. at 374, 121 S.Ct. 955. In so holding, the Garrett Court observed that the legislative record of the ADA “fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.” Id. at 368, 121 S.Ct. 955 (emphasis added). However, the Court expressly reserved the question whether Title II of the ADA was appropriate legislation under § 5 of the Fourteenth Amendment. Id. at 360 n. 1, 121 S.Ct. 955.1 Because Garrett did not address whether Congress identified a history and pattern of unconstitutional discrimination by the states against persons with disabilities in the provision of public services, I would not read the decision to be determinative in the context of Title II.2 *819Rather than rely on authority that is at best merely implied, I would analyze the constitutionality of Title II on its own merits.
In rejecting the equal protection claim in this case, the court discounts the significant differences between Titles I and II of the ADA. First, Congress made express findings, based on an extensive study and record,3 of a pattern of unconstitutional discrimination by the states against individuals with disabilities in the areas covered by Title II.4 These findings appear in the text of the statute itself, where Congress specifically noted that “discrimination against individuals with disabilities persists in such critical areas as ... education ... institutionalization ... voting, and access to public services.” 42 U.S.C. § 12101(a)(3). The findings also appear in the legislative history of Title II. H.R.Rep. No. 101-485, pt. 2, at 28-29 (1990), U.S. Code Cong. & Admin. News at 303, 309-10; S.Rep. No. 101-116, at 6 (1989).5
*820The fact that Title II implicates constitutional violations in areas ranging from education to voting also suggests that heightened judicial scrutiny under both the Due Process and Equal Protection Clauses is appropriate. Title II’s general mandate covers all “of the services, programs, or activities of a public entity.” 42 U.S.C. § 12132. In this case, which involves the right of a hearing-impaired person to have adequate hearing assistance in a child custody proceeding, the court concludes that “the essential constitutional right sounds most clearly not in equal protection but in due process.” Maj. op. at 813. However, in finding widespread unconstitutional discrimination against persons with disabilities, Congress heard extensive testimony not only about the states’ failure to make courtrooms accessible to all persons but also about the states’ discrimination against the disabled in areas such as voting6 and education,7 which clearly implicate the Equal Protection Clause.
Finally, I believe, given the extensive record of constitutional violations in the states’ provision of public services to persons with disabilities, that Title II is a more congruent and proportional remedy than Title I. Although Title II does require the states to take some affirmative steps to ensure that the disabled have access to governmental programs, it targets discrimination that is unreasonable. Title II requires reasonable modifications only when a disabled individual is otherwise eligible for a public service and the modifications would not fundamentally alter the nature of the service. The states therefore maintain their discretion over the provision of public services so long as they do not arbitrarily discriminate against the disabled. I recognize that a subset of discriminatory state action may be rational under the Constitution but unreasonable under Title II. In other words, Title II may “prohibit[ ] conduct which is not itself unconstitutional and intrude[ ] into ‘legislative spheres of autonomy previously reserved to the States.’ ” City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). However, this possibility does not necessarily mean that Title II exceeds Congress’s enforcement power under § 5 of the Fourteenth Amendment. The Supreme Court has instructed that Congress may enact “reasonably prophylactic legislation” when faced with “[djifficult and intractable problems[, which] often require powerful remedies.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 88, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). In enacting the ADA, Congress noted that discrimination against individuals with disabilities was “a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). The record indicates that the states have discriminated against the disabled in many aspects of governmental operations and that they may continue to do so. Confronted with this record of unconstitutional treatment, I conclude that the accommodations that Title II requires are necessary to fulfill Congress’s purpose *821“to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).
For the foregoing reasons, I would hold that the Eleventh Amendment does not bar Title II actions for money damages against the states based on violations of the Equal Protection Clause.
. Indeed, the Garrett Court acknowledged that ''[t]he overwhelming majority of [the hundreds of accounts compiled by Justice Breyer in his dissent] pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA.” 531 U.S. at 371 n. 7, 121 S.Ct. 955.
. Cf. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 111-12 (2d Cir.2001) (holding that Title II actions for money damages may be brought by plaintiffs who can "establish that the Title II violation was motivated by discriminatory animus or ill will based on the plaintiff's disability”); see also Thompson v. Colorado, 258 F.3d 1241, 1249, 1255 (10th Cir.2001) (stating, post-Garreii, *819that "this court now writes on a clean slate in addressing whether Title II of the ADA is a valid abrogation of the states’ Eleventh Amendment immunity" and holding that it is not).
I also find instructive the procedural history of Dare v. California, 191 F.3d 1167 (9th Cir.1999), cert. denied, 531 U.S. 1190, 121 S.Ct. 1187, 149 L.Ed.2d 103 (2001), in which a divided panel of the Ninth Circuit noted that "Congress made extensive factual findings regarding the widespread arbitrary and invidious discrimination which disabled people face” and held that Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment powers in enacting Title II of the ADA. Id. at 1175. The Supreme Court's denial of certiorari in Dare came a week after the Court announced Garrett.
. Congress itself held no less than thirteen hearings; it also created the Task Force on the Rights and Empowerment of Americans with Disabilities ("Task Force”), which held sixty-three public forums in every state that were attended by thousands of people. Garrett, 531 U.S. at 377-78, 121 S.Ct. 955 (Breyer, J., dissenting). The Task Force eventually submitted "several thousand documents” that evidenced "massive discrimination and segregation in all aspects of life” and "the most extreme isolation, unemployment, poverty, psychological abuse and physical deprivation experienced by any segment of our society.” 2 Staff of House Comm, on Educ. and Labor, 101st Cong., Legislative History of Pub.L. No. 101-336; The Americans with Disabilities Act 1324-25 (Comm. Print 1990) ("2 Legis. Hist.").
. In contrast, the Garrett Court emphasized that Congress had mentioned the private sector — but not the states — in its legislative findings about employment discrimination against persons with disabilities. 531 U.S. at 371-72, 121 S.Ct. 955.
.Furthermore, the caselaw contains some evidence of "extensive litigation and discussion of the constitutional violations,” Garrett, 531 U.S. at 376, 121 S.Ct. 955 (Kennedy, J., concurring), in the provision of public services to the disabled. See, e.g., Leach v. Shelby County Sheriff, 891 F.2d 1241, 1243, 1248 (6th Cir. 1989) (fifteen paraplegics received "deplorable treatment” at a county jail — they were not bathed for several days and forced to remain in their human waste), cert. denied, 495 U.S. 932, 110 S.Ct. 2173, 109 L.Ed.2d 502 (1990); Philadelphia Police & Fire Ass’n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 158 (3d Cir.1989) (city and state did not violate the Fourteenth Amendment in reducing or eliminating services to mentally retarded persons living at home); LaFaut v. Smith, 834 F.2d 389, 392-94 (4th Cir.1987) (paraplegic inmate was denied adequate toilet facilities for three months and necessary physical therapy); Gallagher v. Pontiac Sch. Dist., 807 F.2d 75, 78-79 (6th Cir.1986) (schools did not violate the Fourteenth Amendment by failing to provide "additional special services” to a deaf and mentally handicapped student who was enrolled in special education programs); Parrish v. Johnson, 800 F.2d 600, 603, 605 (6th Cir.1986) (prison guard repeatedly assaulted two paraplegic inmates with a knife, caused them to sit in their own feces, and taunted them with remarks like "crippled bastard”); cf. Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1376 (10th Cir.1981) (doctor alleged that state university excluded him from its Psychiatric Residency Program in violation of the Rehabilitation Act because he suffered from multiple sclerosis).
. See, e.g., S.Rep. No. 101-116, at 12 (citing testimony about state discrimination in making polling places accessible to the disabled and forcing votes by absentee ballot before candidates participated in key debates); 2 Legis. Hist. 1219-20 (the chairperson of the Rhode Island Governor's Commission on the Handicapped testified about impediments to a disabled individual's ability to register as a voter and to vote).
. See, e.g., S.Rep. No. 101-116, at 7 (finding illustrative the testimony of a paraplegic who “was promptly refused admission [to the local public school] because the principal ruled that [she] was a fire hazard’’ due to her wheelchair); 2 Legis. Hist. 1224 (a legally blind student at the State University of New York "had to drop a required theory course because [she] was unable to read the photo-reduced score of a Bach cantata”).