Ass'n for Disabled Americans, Inc. v. Florida International University

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 6, 2005
No. 02-10360
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 99-03513-CV-AJ

ASSOCIATION FOR DISABLED AMERICANS, INC.,
MICHELLE CALDERON,
STEVE BROTHER,
JORGE LUIS RODRIGUEZ,

Plaintiffs-Appellants,

UNITED STATES OF AMERICA,

Intervenor,

versus

FLORIDA INTERNATIONAL UNIVERSITY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(April 6, 2005)
Before BIRCH, KRAVITCH and GIBSON *, Circuit Judges.

KRAVITCH, Circuit Judge:

The issue presented in this case is whether the Eleventh Amendment

prevents a disabled person from suing a state university under Title II of the

Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“Title II of the ADA”).

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiffs-appellants, Association for Disabled Americans, Inc., Michelle

Calderon, Steve Brother, and Jorge Rodriguez (collectively “appellants”), filed a

complaint against defendant-appellee Florida International University (FIU),1

alleging that FIU violated Title II of the ADA by, inter alia, failing to provide

qualified sign language interpreters, failing to provide adequate auxiliary aids and

services such as effective note takers, and failing to furnish appropriate aids to its

students with disabilities such as physical access to certain programs and facilities

at FIU. The complaint sought injunctive relief to prevent the discrimination. FIU

alleged that the appellants’ claim was barred by the Eleventh Amendment.

The district court granted FIU’s motion to dismiss, finding that the Eleventh

Amendment barred appellants’ claims. The appellants appealed and the United

*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
1
FIU is a public university funded by the State of Florida.

2
States intervened pursuant to 28 U.S.C. § 2403(a) to defend the constitutionality of

the abrogation of Eleventh Amendment immunity in Title II of the ADA.

This appeal was stayed pending the Supreme Court’s decision in Tennessee

v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), which concerned

the constitutionality of Title II of the ADA as applied to cases implicating the right

of access to the courts by disabled citizens. In light of Lane, we now turn to the

question of whether the Eleventh Amendment bars appellants from suing FIU.

II. DISCUSSION

A. Standard of Review

The granting of a motion to dismiss based upon Eleventh Amendment

Immunity is subject to de novo review. Seminole Tribe of Florida v. Florida, 11

F.3d 1016 (11th Cir. 1994), aff’d 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252

(1996); McDonald v. Hillsborough County School Bd., 821 F.2d 1563 (11th Cir.

1987).

B. Eleventh Amendment Immunity as applied to a Public Education Institution

Title II of the ADA prescribes that “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. 42 U.S.C. § 12132 (emphasis

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added).

The Eleventh Amendment grants States immunity to suits brought by private

citizens in federal court. U.S. Const. amend. XI. Congress can abrogate that

immunity where (1) Congress “unequivocally expressed its intent to abrogate” the

States’ sovereign immunity in the statute at issue and (2) “Congress acted pursuant

to a valid grant of constitutional authority.” Kimel v. Florida Bd. of Regents, 528

U.S. 62, 73, 120 S.Ct. 631, 640, 145 L.Ed.2d. 522 (2000). Congress satisfied the

first requirement by writing the following language into Section 12202 of the

ADA: “[a] State shall not be immune under the eleventh amendment to the

Constitution of the United States from an action in Federal or State court . . . for a

violation of” the ADA. 42 U.S.C. § 12202. This appeal, therefore, involves the

second requirement, i.e. whether the statutory provision removing Eleventh

Amendment immunity for private suits under Title II of the ADA is a valid

exercise of Congress’s authority under Section 5 of the Fourteenth Amendment.

“When Congress seeks to remedy or prevent unconstitutional discrimination,

§ 5 [of the Fourteenth Amendment] authorizes it to enact prophylactic legislation

proscribing practices that are discriminatory in effect, if not in intent, to carry out

the basic objectives of the Equal Protection Clause.” Lane, 124 S.Ct. at 1986. In

City of Boerne v. Flores, 521 U.S. 507, 519-20, 117 S.Ct. 2157, 2164, 138 L.Ed.2d

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624 (1997), the Supreme Court held that Section 5 legislation is valid if it exhibits

“a congruence and proportionality between the injury to be prevented or remedied

and the means adopted to that end.” (Emphasis added).

In order to establish whether Congress’s enactment of Title II of the ADA

satisfies the Boerne “congruence and proportionality” requirements in the context

of a public education institution, we follow a three-step analysis. See Board of

Trustees v. Garrett, 531U.S. 356, 365-70, 121 S.Ct. 955, 963-66, 148 L.Ed.2d 866

(2001); Boerne, 521 U.S. at 519. Under this analysis, we must determine: (1) the

constitutional right or rights that Congress sought to enforce when it enacted the

ADA, (2) whether there was a history of unconstitutional discrimination to support

Congress’s determination that prophylactic legislation was necessary; and (3)

whether Title II is an appropriate response to this history and pattern of unequal

treatment. Id. We will discuss each step in turn.

(1) The Constitutional Right or Rights that Congress Sought to Enforce

In Tennessee v. Lane, the Supreme Court identified that Title II seeks to

enforce the Fourteenth Amendment’s “prohibition on irrational disability

discrimination.” 124 S.Ct. at 1998. Additionally, the Court noted that Title II

seeks to enforce the constitutional guarantees under the Due Process Clause of the

Fourteenth Amendment and the Confrontation Clause of the Sixth Amendment in

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the context of access to the courts. Id. The Lane Court concluded that these

heightened rights are subject to “more searching judicial review.” Id.2

Here, although classifications relating to education only involve rational

basis review under the Equal Protection Clause, “[b]oth the importance of

education in maintaining our basic institutions, and the lasting impact of its

deprivation on the life of the child,” distinguishes public education from other

rights subject to rational basis review. Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct.

2382, 2396-97, 72 L.Ed.2d 786 (1982). The Supreme Court long has recognized

that even when discrimination in education does not abridge a fundamental right,

the gravity of the harm is vast and far reaching. See Brown v. Board of Educ., 347

U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) (“education is perhaps the

most important function of state and local governments” because “it is doubtful

that any child may reasonably be expected to succeed in life if he is denied the

opportunity of an education”).3 Thus, the constitutional right to equality in

2
Although the rights at stake in Lane were fundamental, we note that the Court did not
specify the need for a fundamental right to be at stake in order to satisfy this prong of the
inquiry.
3
See also San Antonio Independent School Dist. v. Rodriguez, 411 U.S.1, 29-30, 93
S.Ct.1278, 1295, 36 L.Ed.2d 16 (1973) (“the grave significance of education both to the
individual and to society cannot be doubted”); Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct.
1526, 1532, 32 L.Ed.2d 15 (1972) (“Providing public schools ranks at the very apex of the
function of a State”); Abington Sch. Dist. v. Schempp, 374 U.S.203, 230, 83 S.Ct.1560, 1576, 10
L.Ed.2d 844 (1963) (Brennan, J., concurring) (“Americans regard the public schools as a most
vital civic institution for the preservation of a democratic system of government”).

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education, though not fundamental, is vital to the future success of our society.

(2) There was a History of Unconstitutional Discrimination

The Lane Court, in analyzing the second prong of the Boerne congruence

and proportionality test, specifically noted that Congress “document[ed] a pattern

of unequal treatment in the administration of a wide range of public services,

programs and activities, including the penal system, public education, and voting.”

Lane, 124 S.Ct. at 1989 (emphasis added). Under its analysis of this prong, the

Supreme Court considered the record supporting Title II as a whole, and

conclusively held that Congress had documented a sufficient historical predicate of

unconstitutional disability discrimination in the provision of public services to

justify enactment of a prophylactic remedy pursuant to Congress’s authority under

Section 5 of the Fourteenth Amendment. Id. at 1992. Therefore, the Supreme

Court ruled that the second Boerne inquiry was satisfied. Id.; see also, Miller v.

King, 384 F.3d 1248, 1271 n.25 (11th Cir. 2004) (“the Supreme Court in Lane in

effect has decided the step-two inquiry as to Title II, and we must follow the

Supreme Court’s lead.”). Thus, the second Boerne inquiry is satisfied in this case.

(3) Title II is an Appropriate Response to This History and Pattern of
Unequal Treatment

The Supreme Court in Lane held that Title II of the ADA, as applied

specifically to cases implicating the fundamental right of access to the courts,

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constitutes a valid exercise of Congress’s enforcement power under the Fourteenth

Amendment. 124 S.Ct. at 1992-93. In coming to this conclusion, the Court

emphasized that the congruence and proportionality of the remedies in Title II

should be judged on an individual or “as-applied” basis in light of the particular

constitutional rights at stake in the relevant category of public services. Id.

Therefore, we now turn to the question of whether Title II of the ADA, as applied

to access to public education, constitutes a valid exercise of Congress’s

enforcement power under Section 5 of the Fourteenth Amendment. For the

following reasons, we conclude that it does.

Like the discrimination at issue in Lane, the “unequal treatment of disabled

persons in the administration of” education has a “long history, and has persisted

despite several legislative efforts to remedy the problem of disability

discrimination.”4 124 S.Ct. at 1993. In response to this history, Congress chose a

4
In footnote 12 of the Lane opinion, the Court cited the following examples of state
sanctioned public school disability discrimination: New York State Assn. for Retarded Children,
Inc. v. Carey, 466 F. Supp. 487, 504 (E.D.N.Y. 1979) (segregation of mentally retarded students
with hepatitis B); Mills v. Board of Ed. of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972)
(exclusion of mentally retarded students from public school system); Robertson v. Granite City
Community Unit School District No. 9, 684 F. Supp. 1002 (S.D.Ill. 1998) (elementary-school
student with AIDS excluded from attending regular education classes or participating in
extracurricular activities); Thomas v. Atascadero Unified School District, 662 F. Supp. 376 (C.D.
Cal. 1986) (kindergarten student with AIDS excluded from class). Lane, 124 S.Ct. at 1990 n.12.
Justice Souter, in concurrence, also pointed to another administrative action that was judicially
approved where a child was excluded from public school “as a justified precaution against the
very sight of a child with cerebral palsy, lest he ‘produc[e] a depressing and nauseating effect’
upon others.” State ex rel. Beattie v. Board of Ed. Antigo, 169 Wis. 231, 232, 172 N.W. 153
(1919).

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limited remedy. Title II only prohibits discrimination by reason of disability. 42

U.S.C. 12132. Therefore, States retain their discretion to exclude persons from

programs, services, or benefits for any lawful reason unconnected with their

disability.

In light of the long history of state discrimination against students with

disabilities, Congress reasonably concluded that there was a substantial risk for

future discrimination. Title II’s prophylactic remedy acts to detect and prevent

discrimination against disabled students that could otherwise go undiscovered and

unremedied. By prohibiting insubstantial reasons for denying accommodation to

the disabled, Title II prevents invidious discrimination and unconstitutional

treatment in the actions of state officials exercising discretionary powers over

disabled students. See Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736,

123 S.Ct. 1972, 1982, 155 L.Ed.2d 953 (perceptions based on stereotypes “lead to

subtle discrimination that may be difficult to detect on a case-by-case basis”).

Furthermore, Title II requires only “reasonable modifications that would not

fundamentally alter the nature of the service provided.” Lane, 124 S.Ct. at 1993.

For example, in its attempt to equalize physical access to public buildings,

Congress imposed reasonable architectural standards for new construction and

allowed for less costly measures for older facilities. See 28 C.F.R. § 35.151; 28

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C.F.R. § 35.150(b)(1).5

Discrimination against disabled students in education affects disabled

persons’ future ability to exercise and participate in the most basic rights and

responsibilities of citizenship, such as voting and participation in public programs

and services. The relief available under Title II of the ADA is congruent and

proportional to the injury and the means adopted to remedy the injury.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s grant of FIU’s

motion to dismiss based on Eleventh Amendment immunity and REMAND the

case for further proceedings consistent with this opinion.

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Regulations pursuant to Title II of the ADA create an obligation for a public entity to
make reasonable modifications to ensure accessibility to a service, program, or activity. 28
C.F.R. § 35.150(a). A public entity is excused from this obligation if the proposed action would
fundamentally alter the “service, program or activity or [would result in] undue financial and
administrative burdens.” 28 C.F.R. § 35.150(a)(3).

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