dissenting.
Oliver Cochran contends the New Jersey Department of Corrections discriminated against him in violation of Title II of the Americans with Disabilities Act, requiring us to determine whether Title II is a valid exercise of Congress’ authority to abrogate New Jersey’s sovereign immunity under § 5 of the Fourteenth Amendment. In Tennessee v. Lane, the Supreme Court reiterated that Congress has the power to enact prophylactic measures in response to difficult and intractable problems of discrimination, such as the unconstitutional treatment of disabled persons. 541 U.S. 509, 124 S.Ct. 1978, 1993, 158 L.Ed.2d 820 (2004). To the extent Title II is prophylactic, the question is whether it is “congruent and proportional” to the problem Congress sought to remedy. Here, Congress documented a pattern and *194practice of irrational discrimination against disabled persons and prisoners, and in response, exercised its prerogatives under § 5 to establish a prophylactic remedy. Because I believe Title II is a valid exercise of Congress’ power with respect to irrational discrimination against disabled prisoners, a congruent and proportional response, I respectfully dissent.
I.
As the majority sets forth, the three-part City of Boerne v. Flores framework governs whether § 5 legislation constitutes an appropriate remedial measure or whether it impermissibly works a “substantive change in the governing law.” 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The majority finds fault with Title II under the third part of the Boeme analysis, stating that “Title II’s remedies are not congruent and proportional to claims brought under the Equal Protection Clause.” According to the majority, because a violation of Title II does not necessarily rise to the level of a violation of the Equal Protection Clause, the congruent and proportional test is not satisfied.
Title II may prohibit some conduct that would otherwise pass muster under the Equal Protection Clause. But this fact alone does not mean that Title II is an unconstitutional abrogation of States’ sovereign immunity. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 88, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (“That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our § 5 inquiry.”). The Supreme Court has affirmed that “Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 727-28, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (upholding the Family Medical Leave Act as a valid exercise of Congress’ § 5 power to combat unconstitutional sex discrimination, notwithstanding the apparent constitutionality of the State’s leave policy); see also City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (“Legislation 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.’ ”) (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)); Fitzpatrick, 427 U.S. at 455, 96 S.Ct. 2666 (upholding Congress’ power to proscribe facially constitutional voting requirements in order to combat racial discrimination). Congress’ § 5 power is a “broad power indeed.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (citing Ex parte Va., 100 U.S. 339, 346, 25 L.Ed. 676 (1880)); see also Boerne, 521 U.S. at 517, 117 S.Ct. 2157 (1997) (“It is for Congress in the first instance to ‘deter-min[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, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)). With respect to Title II, Lane held that it was “an appropriate subject for prophylactic legislation” in light of the “extensive record of disability discrimination that underlies it[.]” 124 S.Ct. at 1992.
That said, Congress’ § 5 power is not boundless — “[wjhether Congress’ abrogation of a State’s sovereign immunity is proper depends upon whether its proposed remedial and preventative measures work a ‘substantive change in the governing *195law.’ ” Lane, 124 S.Ct. at 1986 (citing Boerne, 521 U.S. at 519, 117 S.Ct. 2157). This is determined by whether the § 5 legislation exhibits “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Lane, 124 S.Ct. at 1986 (citing Boerne, 521 U.S. at 520, 117 S.Ct. 2157). The Court has recognized that “the line between remedial legislation and substantive redefinition is ‘not easy to discern,’ and that ‘Congress must have wide latitude in determining where it lies.’ ” Lane, 124 S.Ct. at 1986 (quoting Boerne, 521 U.S. at 519-520, 117 S.Ct. 2157).
In applying the “congruence and proportionality” test, the critical relationship is between the scope of the remedy and the evidence of the States’ unconstitutional conduct to which it is directed.4 See Fla. Prepaid Postsecondary Ed. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 646-47, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (holding remedy unconstitutional because its scope was incongruous to the scant history of unconstitutional state action); Kimel, 528 U.S. 62, 88-90, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (holding Age Discrimination in Employment Act unconstitutional because its remedy was not proportional to the problem as documented by the evidence in the legislative record).
In Board of Trustees of University of Alabama v. Garrett, the Court held that Title I of the ADA exceeded Congress’ § 5 power because Congress did not have before it sufficient evidence of unconstitutional state discrimination against disabled employees. 531 U.S. at 368, 374, 121 S.Ct. 955.5 The Court suggested that even “were it possible to squeeze out of out of these examples a pattern of unconstitutional discrimination by the States,” the scope of Title I’s remedy would likely have been incongruously broad. Id. at 372, 121 S.Ct. 955. By contrast, the Court in Lane found that in passing Title II, Congress had before it sufficient evidence of the history and pattern of the States’ constitutional violations of disabled persons. Lane, 124 S.Ct. at 1992 (holding that the legislative record “makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation”).
Under the existing case law, and Lane in particular, it is not sufficient to find that Title II proscribes some conduct that otherwise would pass Equal Protection muster. Rather the question is whether Title II’s remedy as it applies to disabled prisoners is congruent and proportional to the evidence of harms that Congress sought to remedy.
A. Evidence
In assessing whether Title II is a valid exercise of § 5 power, we take account of the large body of evidence the Court identified in Lane that satisfied step two of the Boerne analysis. In addition, we consider the congruity of Title II’s remedy to specific evidence regarding States’ unconstitutional discrimination against disabled prisoners. See Lane, 124 S.Ct. at 1993 *196(examining congruity of remedy with respect to specific evidence of unequal treatment of disabled persons in the administration of judicial services).
In Lane, the Court specifically called attention to evidence of States’ discrimination against disabled prisoners. Lane noted that decisions of lower courts “document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system [.]” 124 S.Ct. at 1989 (emphasis added). In support of this observation, the court cited three cases, id. at 1989, n. 4: LaFaut v. Smith, 834 F.2d 389, 394 (4th Cir.1987) (paraplegic inmate unable to access toilet facilities); Schmidt v. Odell, 64 F.Supp.2d 1014 (D.Kan.1999) (double amputee forced to crawl around the floor of jail); and Key v. Grayson, 179 F.3d 996 (6th Cir.1999) (deaf inmate denied access to sex offender therapy program allegedly required as precondition for parole).
In addition, Congress had before it considerable evidence regarding discrimination in the provision of public services, including the treatment of disabled persons in prisons and jails. See Garrett, 531 U.S. at 391-424, 121 S.Ct. 955 (Appendix C to Justice Breyer’s dissent): (citing Alaska 00055) (“jail failed to provide person with disability medical treatment”); (citing IL 572) (“deaf people arrested and held in jail overnight without explanation because of failure to provide interpretive services”); (citing MD 00787) - (public libraries, state prison, and- other state offices lacked [telecommunications for the deaf]); (citing NM 01091) (“prisoners with developmental disabilities subjected to longer terms and abused by other prisoners in state correctional system”); (citing North Carolina 01161) (“police arrested and jailed deaf person without providing interpretive services”).6
The United States as Intervenor cites several other cases illustrating a pattern of unequal treatment of disabled prisoners.7 See, e.g., Kiman v. N.H. Dep’t of Corr., 301 F.3d 13, 15-16 (1st Cir.2002) (recognizing inmate’s claim for denial of accommodations- for Lou Gehrig’s disease); Armstrong v. Davis, 275 F.3d 849 (9th Cir.2001) (enjoining California’s failure to conduct parole hearings in a manner in which disabled inmates, including the visually impaired, could participate); Bradley v. Puckett, 157 F.3d 1022, 1025-1026 (5th Cir.1998) (holding amputee inmate stated Eighth Amendment claim regarding allegations for state prison’s alleged failure to provide adequate bathing facility); Parrish v. Johnson, 800 F.2d 600, 603, 605 (6th Cir.1986) (holding paraplegic prisoners were entitled to damages for state prison guard’s assault of them with a knife and forcing them to sit in their own feces); Kaufman v. Carter, 952 F.Supp. 520 (W.D.Mich.1996) (holding Title II claim survived summary judgment where amputee was allegedly hospitalized after fall in inaccessible jail shower in county prison); Bonner v. Ariz. Dep’t of Corr., 714 F.Supp. 420 (1989) (holding that deaf, mute, and vision-impaired inmate had constitutional right to a sign language interpreter where state prison had denied communication as*197sistance in disciplinary proceedings, counseling sessions, and medical treatment).
B. Remedy
Title II requires reasonable measures or modifications to allow disabled inmates to participate in prison services, programs, and activities. 42 U.S.C. § 12131(2); see also 42 U.S.C. § 12112(b)(5) (defining discrimination to include the failure to provide “reasonable accommodations”). This remedy only applies when the person seeking modification or accommodation is otherwise eligible for the service. Lane, 124 S.Ct. at 1993. Title II does not require a fundamental alteration to the nature of the service provided, and a prison need not employ any and all means to accommodate. Id. Furthermore, a public entity is not required to take actions that would result in “undue financial and administrative burdens.” Lane, 124 S.Ct. at 1994 (citing 28 C.F.R. §§ 35.150(a)(3)). Title II only requires modification or accommodation where it is reasonable to do so. By requiring only reasonable modifications, Title II’s remedy is limited, lending support to the conclusion that it is congruent and proportional response to the harm it seeks to prevent.
The Supreme Court has addressed the Equal Protection rights of disabled persons in Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In Cleburne, the Court held that a legislative classification based on disability does not violate the Equal Protection Clause if the classification is rationally related to a legitimate state interest. Furthermore, the Court has addressed the competing interests and balance between the responsibility to administer prisons and jails and prisoner’s constitutional rights. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89, 107 S.Ct. 2254; see also Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“prisoners [should] be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration”). In applying this standard to a given case, a court considers four factors: whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it,” “whether there are alternative means of exercising the right that remain open to prison inmates,” “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and “the absence of ready alternatives.” Turner, 482 U.S. at 90, 107 S.Ct. 2254.
Like Cleburne and Turner, Title II balances the interests of disabled inmates and the burden on prison administration. Just as Turner requires consideration of the impact on prison resources, Title II’s reasonable modification requirement allows for consideration of cost and other burdens as well as whether the accommodation affects a fundamental alteration in the nature of the service. Just as Turner considers available alternatives, Title II considers whether there are “other methods for meeting the requirements.” 28 C.F.R. § 35.150(b).
Title II not only requires a balancing of interests similar to Cleburne and Turner, but those cases inform what constitutes a reasonable measure under Title II. In a Title II case, a court should consider whether the government would be obligated to accommodate under Cleburne and Turner, taking account of the state’s peno-*198logical, financial, and administrative interests. What is reasonable under Title II bears a relation to whether the government would be required to accommodate under Cleburne and Turner. This suggests that Title II, as it applies to irrational discrimination against disabled prisoners, does not substantively rewrite the Fourteenth Amendment. That said, while Cleburne and Turner inform the Title II analysis, they do not necessarily control it. There may be instances in which Title II calls for measures that Cleburne and Turner would not. In my view, this constitutes the prophylactic element of Title II, which should be assessed under the “congruent and proportional” test.
C. Remedy Congruent and Proportional to Evidence
I believe Title II’s remedy is congruent and proportional to the substantial body of evidence of states’ unconstitutional treatment of disabled prisoners, as well as the evidence Lane held satisfied step two of the Boeme analysis for Title II as a whole. Judged against this evidence, Title II’s required reasonable modifications to programs, services and activities is a reasonable prophylactic measure, appropriately targeted to a legitimate end.
As noted, the unequal treatment of disabled prisoners has a substantial history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Lane, 124 S.Ct. at 1993. “Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in concluding that this ‘difficult and intractable proble[m]’ warranted ‘added prophylactic measures in response.’ ” Id. (quoting Hibbs, 538 U.S., at 737, 123 S.Ct. 1972). Also relevant are Lane’s observations regarding the limited scope of Title II’s remedy as applied to accessibility of judicial services:
But'Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs. It requires only “reasonable modifications” that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service. As Title II’s implementing regulations make clear, the reasonable modification requirement can be satisfied in a number of ways.
Lane, 541 U.S. 509, 124 S.Ct. 1978, 1993-94, 158 L.Ed.2d 820. Title II does not require prisons to employ any and all means to make available its programs, services, and activities. Nor does it require prisons to make those activities available to a disabled inmate who would otherwise not be eligible to participate. Title II only requires reasonable modifications, taking into account considerations of cost and other burdens, which a prison can satisfy in a number of ways, and which would not fundamentally alter the nature of the service provided. In short, it is not “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Boerne, 521 U.S. at 532, 117 S.Ct. 2157.8
*199Conclusion
Title II’s remedy, as applied to irrational discrimination against disabled prisoners, is congruent and proportional to the evidence of the history and pattern of States’ discrimination against disabled persons and disabled prisoners.
I would remand to the District Court to evaluate the merits of Cochran’s Title II claim.
. In assessing the third step of Boerne, Lane employed an "as applied” approach, limiting the scope of its analysis to the class of cases implicating the accessibility of judicial services. Id. at 1993, 1999. Following Lane, I would limit the scope of the analysis to the class of cases implicating irrational discrimination against disabled prisoners.
. The "overwhelming majority” of evidence that Congress had before it related to "the provision of public services and public accommodations, which areas are addressed in Titles II and III[.]” Garrett, 531 U.S. at 371, n. 7, 121 S.Ct. 955.
. Evidence was also presented to the House and Senate Subcommittees that called attention to the "[(Inadequate treatment and rehabilitation programs [afforded the disabled] in penal and juvenile facilities,” and the "[(Inadequate ability to deal with physically handicapped accused persons and convicts (e.g., accessible jail cells and toilet facilities).” U.S. Comm’n on Civil Rights, Accommodating the Spectrum of Individual Abilities, Sept. 1983, App. A at 168.
. Many of these cases came after the passage of the ADA and thus were not before Congress.
. I believe this case is distinguishable from the Eleventh Circuit's recent decision in Miller v. King, 384 F.3d 1248 (11th Cir.2004). In Miller, the plaintiff, a paraplegic inmate, alleged that the Georgia State Prison’s failure to make accommodations for his disability constituted a violation of Title II, as applied to claims rooted in the Eighth Amendment. Id. at 1272. The court rejected the claim but limited its holding to the intersection of Title II and the Eighth Amendment. Miller recognized that the Eighth Amendment (punish*199ment) bears little relation to Title II's application to a disabled prisoner’s participation in prison services, programs, or activities. Id. Cochran's claims, by contrast, are not rooted in the Eighth Amendment.