United States Court of Appeals
For the First Circuit
No. 05-1376
IVÁN TOLEDO,
Plaintiff - Appellee,
UNITED STATES,
Intervenor,
v.
JORGE L. SÁNCHEZ, Deputy President; GEORGE V.
HILLYER, Chancellor; JOHN HERTZ, Dean; PEDRO PADILLA,
Counselor; SONIA BAZÁN, Design Professor; NATHANIEL
FUSTER, Design Professor/Design Committee Director;
UNIVERSITY OF PUERTO RICO,
Defendants - Appellants.
UNIVERSITY OF PUERTO RICO, Río Piedras Campus;
UNIVERSITY OF PUERTO RICO, Río Piedras Campus-Resource
Office for the Disabled; LUDIM DÍAZ; UNIVERSITY OF
PUERTO RICO, Río Piedras Campus, Legal Advisor’s
Office; LUIS M. VÁZQUEZ, Director; MARÍA LUGO,
Legal Advisor; UNIVERSITY OF PUERTO RICO, Río Piedras
Campus - School of Architecture; MANUEL GARCÍA;
LIZETTE COLÓN, Student Affairs Administrator,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
John R. Gibson, Senior Circuit Judge*
and Howard, Circuit Judge.
Julio Nigaglioni Arrache, for Appellants.
Víctor P. Miranda-Corrada, for Appellee.
Sarah E. Harrington, Department of Justice, Civil Rights
Division, with whom Bradley J. Schlozman and Jessica Dunsay Silver
were on brief, for the United States as Intervenor.
Jennifer Mathis, Bazelon Center for Mental Health Law, with
whom Debra Gardner, Roscoe Jones, Jr., and Suzanne Sangree, Public
Justice Center, were on brief, for AARP, Bazelon Center, Public
Justice Center, and 23 other organizations representing people with
disabilities, as Amici Curiae in support of appellee.
July 6, 2006
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
JOHN R. GIBSON, Circuit Judge. This appeal raises the
question of whether the Eleventh Amendment prevents a disabled
student from suing a state university for damages under Title II of
the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§
12131-12165. Iván Toledo, a student at the University of Puerto
Rico who has schizoaffective disorder, brought an action under
Title II of the ADA alleging that the University and various
University officials discriminated against him on the basis of his
disability and failed to reasonably accommodate his disability.
The University moved to dismiss the Title II claims under Fed. R.
Civ. P. 12(b)(6) and the Eleventh Amendment. The district court
granted the motion on Eleventh Amendment immunity grounds, but
later reinstated the claims in the wake of the Supreme Court's
decision in Tennessee v. Lane, 541 U.S. 509 (2004). The University
filed an interlocutory appeal to this court. We have jurisdiction
under Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139 (1993), and we affirm.
I.
Because this case is at the motion to dismiss stage, we
accept as true the facts alleged in the complaint and draw all
reasonable inferences in Toledo's favor. Educadores
Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 62 (1st Cir.
2004); Neo Gen Screening, Inc. v. New England Newborn Screening
Program, 187 F.3d 24, 25 (1st Cir. 1999). Toledo began his studies
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at the University of Puerto Rico School of Architecture in the fall
of 1999, but during the first semester his mental condition
deteriorated, causing him to experience anxiety, panic, and
depression. Because of his condition and the required treatment,
he was unable to attend classes regularly for part of the semester.
When Toledo returned to a regular schedule, one of his professors
refused to accommodate his situation; because of the professor's
refusal to make any accommodation, Toledo turned in an incomplete
assignment which the professor ridiculed in front of the class.
Toledo continued to request accommodation from the professor and
school administrators. However, these requests were denied and he
completed the semester with a grade of D in the course.
During the summer after his first year, Toledo suffered
an emotional crisis, attempted suicide, and was hospitalized for
some time. He was absent from school during the fall semester of
his second year for another hospital stay. When he returned to
classes, the school still refused to provide accommodation. Toledo
often arrived up to 45 minutes late to class because of side
effects from his medication, and despite presenting medical
certificates and explaining his situation, his design professor
treated him differently from other students who arrived late. The
professor also refused to grant him any additional time to complete
his work, causing Toledo to receive a failing grade in the class.
Later, the dean reprimanded him for complaining about this
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professor on an evaluation form. Toledo had difficulty registering
for classes the following semester due to his poor academic
standing. When the University refused to allow him to take courses
at another university to preserve his standing, Toledo dropped out
of school entirely.
After filing an administrative complaint with the United
States Department of Justice, Toledo filed a pro se complaint in
the United States District Court of Puerto Rico asserting claims
under 42 U.S.C. § 1983; the Rehabilitation Act of 1973, 29 U.S.C.
§ 794; the ADA, 42 U.S.C. § 12101 et seq.; and the Constitution of
the United States, among other claims. The University and
University officials, who were sued in their official capacity,
moved to dismiss the Title II claims under Fed. R. Civ. P. 12(b)(6)
and on Eleventh Amendment immunity grounds. The district court
initially granted this motion, but reinstated the claims upon
Toledo's motion after the Supreme Court's decision in Tennessee v.
Lane, 541 U.S. 509 (2004). The University filed a motion for
reconsideration under Rule 59(e), which was denied, and then filed
this interlocutory appeal.
II.
Congress enacted Title II of the ADA to combat
discrimination by governmental entities in the operation of public
services, programs, and activities. It provides that "no qualified
individual with a disability shall, by reason of such disability,
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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. The statute authorizes private suits against public
entities to enforce its provisions. See 42 U.S.C. § 12133
(incorporating by reference 29 U.S.C. § 794a).
The Eleventh Amendment guarantees that private
individuals may not sue nonconsenting states1 in federal court.
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363
(2001). Nevertheless, Congress can abrogate this immunity so long
as it makes "its intention to abrogate unmistakably clear in the
language of the statute" and acts "pursuant to a valid exercise of
its power under § 5 of the Fourteenth Amendment." Nevada Dep't of
Human Res. v. Hibbs, 538 U.S. 721, 726 (2003). With respect to
Title II, Congress has met the first requirement of unequivocally
expressing its intent to abrogate state sovereign immunity. See
Tennessee v. Lane, 541 U.S. 509, 518 (2004) (citing 42 U.S.C. §
12202). As to the second requirement, the Supreme Court has held
that Title II of the ADA validly abrogates sovereign immunity as to
1
We have held on numerous occasions that Puerto Rico is a
state for Eleventh Amendment immunity purposes. See, e.g., De Leon
Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 121 (1st
Cir. 1991); Ramírez v. Puerto Rico Fire Serv., 715 F.2d 694, 697
(1st Cir. 1983) ("Puerto Rico, despite the lack of formal
statehood, enjoys the shelter of the Eleventh Amendment in all
respects."). The University of Puerto Rico is considered an arm of
the state within the purview of the Eleventh Amendment. Pinto v.
Univ. of P.R., 895 F.2d 18, 18 (1st Cir. 1990).
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(1) state conduct that actually violates the Constitution, United
States v. Georgia, 126 S. Ct. 877, 882 (2006), and (2) some classes
of state conduct that do not facially violate the Constitution but
are prohibited by Title II in order to "prevent and deter
unconstitutional conduct." Lane, 541 U.S. at 518, 529. Thus, in
order to decide whether Toledo can sue the University for damages
we must determine "on a claim-by-claim basis, (1) which aspects of
the state's alleged conduct violated Title II; (2) to what extent
such misconduct also violated the Fourteenth Amendment; and (3)
insofar as such misconduct violated Title II but did not violate
the Fourteenth Amendment, whether Congress's purported abrogation
of sovereign immunity as to that class of conduct is nevertheless
valid." Georgia, 126 S. Ct. at 882.
III.
Pursuant to the Supreme Court's direction in United
States v. Georgia, we first must ascertain if any aspect of the
University's alleged conduct states a claim for a violation of
Title II.2 To state a claim for a violation of Title II, a
plaintiff must allege: (1) that he is a qualified individual with
2
The United States, intervenor in this case, submitted a
supplemental letter brief after the Supreme Court's decision in
Georgia urging us to remand the case to the district court for the
determination of whether Toledo validly alleged violations of Title
II and whether those claims would independently state
constitutional violations. However, as this analysis simply
requires a legal determination under the standard set out in Fed.
R. Civ. P. 12(b)(6), and because a remand would further prolong the
lengthy course of this litigation, we will address these questions.
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a disability; (2) that he was either excluded from participation in
or denied the benefits of some public entity's services, programs,
or activities or was otherwise discriminated against; and (3) that
such exclusion, denial of benefits or discrimination was by reason
of his disability. Parker v. Universidad de Puerto Rico, 225 F.3d
1, 4 (1st Cir. 2000); 42 U.S.C. § 12132. Title II imposes an
affirmative obligation on public entities to make their programs
accessible to qualified individuals with disabilities, except where
compliance would result in a fundamental alteration of services or
impose an undue burden. Parker, 225 F.3d at 5 (citing 28 C.F.R. §
35.150).
Toledo's Third Amended Complaint alleges that the
University violated Title II of the ADA both by discriminating
against him based on his disability and by failing to provide him
with reasonable accommodation.3 Toledo properly alleges that he is
a qualified individual with a disability as he alleges that he has
a mental impairment, schizoaffective disorder, that substantially
limits the major life activity of learning, and that save for his
disability he was qualified to participate in the architecture
3
Toledo's Third Amended Complaint also claims that the
University retaliated against him for demanding his rights under
the ADA, which would violate Title V of the ADA, 42 U.S.C. §
12203. The district court did not evaluate this claim in the
motion to dismiss below and this interlocutory appeal only concerns
the reinstatement of Toledo's Title II claims. Accordingly, we do
not address whether Title V of the ADA validly abrogates state
sovereign immunity.
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program at the University. See 42 U.S.C. § 12131; 28 C.F.R. §
35.104. He also sufficiently alleges that the University, a public
entity governed by the ADA, engaged in conduct that violated Title
II. Toledo claims that he failed his design course as a result of
"discriminatory animus" on the part of his professor and the dean,
and that his design professor ignored him when he arrived late to
class unlike other tardy students without disabilities. Toledo
also avers that he was unable to fulfill the requirements of his
courses because of his disability and that his professors, his
advisor, and the dean all refused to provide reasonable
accommodation so that he could complete his course work and
register for classes. For example, he states that his design
professor suggested that he abandon his prescription medication
because it was preventing him from arriving on time to class and
advised him that she would not grant him exceptions or any
additional time to complete his work.
The University may ultimately be able to negate the
charges of discrimination or show that the two instances of
"discrimination" in fact were simply the application of neutral
criteria that applied to disabled and nondisabled students alike.
See, e.g., Baird ex rel. Baird v. Rose, 192 F.3d 462, 467-68 (4th
Cir. 1999). The University may also be able to show that it
considered Toledo's accommodation requests but determined as a
matter of professional, academic judgment that such requests were
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not reasonable because they would lower academic standards or
substantially alter the degree program. See Darian v. Univ. of
Mass. Boston, 980 F. Supp. 77, 88-89 (D. Mass. 1997). However, at
this stage in the litigation, Toledo's complaint sufficiently
alleges state conduct that violated Title II of the ADA.
IV.
The next step under United States v. Georgia is to
evaluate whether any of the University's conduct that violated
Title II independently states a violation of the Fourteenth
Amendment. 126 S. Ct. at 882. There are two potential sources of
constitutional rights in the context of discrimination or a failure
to accommodate a disability in public education: the Due Process
and the Equal Protection Clauses of the Fourteenth Amendment.
The Due Process Clause guarantees some notice and an
opportunity to be heard before a student can be suspended or
expelled from school. Goss v. Lopez, 419 U.S. 565, 574 (1975).
These rights are implicated when a student's future attendance at
a public institution of higher education is in jeopardy.
See Gorman v. Univ. of R.I., 837 F.2d 7 (1st Cir. 1988). However,
because Toledo voluntarily left the architecture program at the
University, his Title II claims raise no due process concerns.
The Equal Protection Clause requires states to treat
alike all persons similarly situated. Plyler v. Doe, 457 U.S. 202,
216 (1982). To assess whether the University's conduct violated
-10-
this guarantee, we must determine the appropriate level of scrutiny
to be applied to Toledo's claims. Unless state action burdens a
suspect class or impinges upon a fundamental right, we review equal
protection claims for a rational relationship between the disparity
of treatment and a legitimate government purpose. Heller v. Doe,
509 U.S. 312, 319 (1993).
The disabled are not a suspect class for equal protection
purposes. City of Cleburne, Texas v. Cleburne Living Ctr., 473
U.S. 432, 439, 448-50 (1985). In addition, public education is not
a fundamental right. San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 35 (1973). However, neither is education "merely some
governmental 'benefit' indistinguishable from other forms of social
welfare legislation." Plyler, 457 U.S. at 221. The Supreme Court
has "repeatedly acknowledged the overriding importance of preparing
students for work and citizenship, describing education as pivotal
to 'sustaining our political and cultural heritage' with a
fundamental role in maintaining the fabric of society." Grutter v.
Bollinger, 539 U.S. 306, 331 (2003) (quoting Plyler, 457 U.S. at
221); see also Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954);
Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954). Therefore, the
Supreme Court struck down under heightened scrutiny the exclusion
of a discrete group of children from a free public education
offered to other resident children as violative of equal
protection. Plyler, 457 U.S. at 230.
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Nonetheless, aside from outright exclusion, the Supreme
Court continues to employ rational basis review for classifications
that burden the educational opportunities of a non-suspect class.
See Kadrmas v. Dickinson Public Sch., 487 U.S. 450, 459 (1988).
Therefore, states may treat disabled students differently or refuse
to make special accommodations for the disabled so long as the
states' actions are rationally related to some legitimate
governmental purpose. Bd. of Trs. of the Univ. of Ala. v. Garrett,
531 U.S. 356, 366-68 (2001). States may not, however, treat
disabled students differently solely out of "irrational prejudice."
Cleburne, 473 U.S. at 450.
With respect to Toledo's claims that the University
failed to accommodate his disability, he must allege that these
decisions were irrational and not motivated by any conceivable
legitimate reason. See Garrett, 531 U.S. at 367-68; Heller, 509
U.S. at 320. Even reading Toledo's complaint generously, he has
failed to allege that the University's failure to accommodate his
situation was due to irrational prejudice and, indeed, rational
bases for the actions are apparent from the face of the complaint.
Toledo alleges that the University failed to accommodate his
disability in the following ways: his design professor refused to
allow him to regularly arrive late to class and made class
participation a substantial part of the grading scheme, two
professors would not extend deadlines for written work, and the
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University declined to open an afternoon section of a required
course when Toledo informed the Dean that he was unable to attend
morning sessions due to his medication. All of these actions are
rationally related to the University's academic mission and
budgetary constraints and thus do not rise to the level of
constitutional violations. See Heller, 509 U.S. at 320.
Toledo also contends that the University actively
discriminated against him on the basis of his disability, rather
than merely failing to make accommodation. Toledo claims that the
Dean and his professor gave him a failing grade in his design class
because of their "discriminatory animus" and that his design
professor treated him differently from other students who arrived
late to class. Although there is no heightened pleading standard
for civil rights claims, mere conclusory allegations of
discrimination unsupported by any facts are insufficient for notice
pleading purposes. See Educadores Puertorriqueños en Acción v.
Hernández, 367 F.3d 61, 68 (1st Cir. 2004). In order to state a
claim for discrimination that violates equal protection, Toledo
must allege that he was intentionally treated differently from
others similarly situated and there was no rational basis for the
difference in treatment. Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam). However, Toledo admits in his
complaint that he was repeatedly 45 minutes late to his design
class, absent for several weeks due to a hospital stay, and that
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many of his assignments were late or incomplete. He does not
allege that any other students who had similar records received
better than a failing grade. Nor does he allege that any other
late-arriving students had the same record of repeated tardiness.
See Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 56-57 (1st Cir.
2006). Toledo has therefore failed to allege state conduct that
independently states a claim for a violation of the Equal
Protection Clause.
V.
Because Toledo has stated a claim that the University
violated Title II but not the Fourteenth Amendment, we must address
whether Congress's abrogation of sovereign immunity as to that
class of conduct is valid as a prophylactic measure within
Congress's § 5 power. United States v. Georgia, 126 S. Ct. 877,
882 (2006). "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.'" City of Boerne v. P.F.
Flores, 521 U.S. 507, 518 (1997) (quoting Fitzpatrick v. Bitzer,
427 U.S. 445, 455 (1976)); see also Nevada Dep't of Human Res. v.
Hibbs, 538 U.S. 721 (2003) (upholding Family and Medical Leave Act
as valid prophylactic legislation designed to combat
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unconstitutional sex discrimination although the state's leave
policy itself was constitutional).
To determine whether prophylactic legislation under § 5
is valid, a court must consider: (1) the constitutional right or
rights that Congress sought to protect when it enacted the statute;
(2) whether there was a history of constitutional violations to
support Congress's determination that prophylactic legislation was
necessary; and (3) whether the statute is a congruent and
proportional response to the history and pattern of constitutional
violations. See Tennessee v. Lane, 541 U.S. 509, 522-31 (2004)
(describing the elements of the test first established by the
Supreme Court in City of Boerne, 521 U.S. at 529-36).
In applying the first two steps of the City of Boerne
test, the Court in Lane discussed the range of constitutional
guarantees implicated by Title II and the history of constitutional
violations in all areas of public services, including health care,
zoning, marriage, jury service, the penal system, public education,
and voting. Id. at 522-26. The Court concluded that the "sheer
volume of evidence demonstrating the nature and extent of
unconstitutional discrimination against persons with disabilities
in the provision of public services," made it "clear beyond
peradventure that inadequate provision of public services and
access to public facilities was an appropriate subject for
prophylactic legislation." Id. at 528-29. Then, at the third
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step of the analysis, the Court chose to focus on the congruence
and proportionality of Title II as applied only to judicial
services, declining to consider Title II as an "undifferentiated
whole." Id. at 530.
Some appellate courts have chosen to interpret this
approach in Lane as conclusively establishing that Title II
survives the first two steps of the City of Boerne inquiry, leaving
only the congruence and proportionality of Title II at issue for
future cases that concern other areas of government conduct. See,
e.g., Constantine v. Rectors and Visitors of George Mason Univ.,
411 F.3d 474, 487 (4th Cir. 2005); Cochran v. Pinchak, 401 F.3d
184, 191 (3d Cir.), vacated pending decision in United States v.
Georgia, 412 F.3d 500 (3d Cir. 2005); Ass'n for Disabled Americans,
Inc. v. Fla. Int'l Univ., 405 F.3d 954, 958 (11th Cir. 2005).
Indeed, we stated in Badillo-Santiago, M.D. v. Naveira-Merly, 378
F.3d 1, 5-6 (1st Cir. 2004), that the Lane opinion establishes that
Title II as a whole satisfies the first two steps of City of
Boerne. However, that case was brought by a litigant who claimed
that a state court had failed to accommodate his hearing
impairment, and so our decision involved a direct application of
the access to the courts holding of Lane. Therefore, our statement
was only dictum for purposes of Title II's application to other
areas of government conduct.
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We believe the sounder approach is to focus the entire
City of Boerne test on the particular category of state conduct at
issue. As recognized by the Court in Lane, Title II "reaches a
wide array of official conduct in an effort to enforce an equally
wide array of constitutional guarantees," applying "not only to
public education and voting booth access but also to seating at
state-owned hockey rinks." 541 U.S. at 530. The history of
discrimination and the need for prophylaxis will vary greatly in
these different contexts. It is necessary to understand the
specific constitutional rights and the history of constitutional
violations in the particular area at issue in order to determine
the congruence and proportionality of Title II's measures in that
area. While the Lane opinion does speak broadly about Title II in
its discussion of the first two steps of the City of Boerne
inquiry, the opinion separately addresses the particular rights at
stake and the record of constitutional violations in the context of
judicial services and later draws on that discussion in buttressing
its argument that Title II is congruent and proportional
legislation as applied to judicial services. See Lane, 541 U.S. at
523, 527, 531-32.
In order to apply the City of Boerne test to the class of
conduct at issue here, we must ascertain the level of generality at
which to conduct our inquiry. The University contends that we
should limit our decision to the validity of Title II as it applies
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to the conduct of public universities, while the United States
contends that we should consider government conduct at all levels
of public education. In Lane, the Court decided the validity of
Title II as it applied to the class of cases implicating the
"accessibility of judicial services," including applications to
criminal defendants, civil litigants, jurors, public spectators,
the press, and witnesses. 514 U.S. at 531, 522-23. A number of
these statutory applications and the corresponding constitutional
rights that they implicated were neither presented by the
plaintiffs in Lane nor directly related to the facts of the case.
The Supreme Court's broad treatment of judicial services suggests
that we should consider Title II as it applies to public education
in general. The Lane opinion covered an even more varied range of
government conduct than the United States urges in this case, so we
conclude that our analysis should be applied to public education
generally.
A.
The first step of the City of Boerne analysis is
identifying the constitutional rights that Congress sought to
protect by enacting Title II and applying it to public educational
institutions. Lane, 541 U.S. at 522. The Supreme Court's Equal
Protection Clause and Due Process Clause jurisprudence places a
special emphasis on the constitutional rights implicated by
discrimination in public education, and Title II seeks to enforce
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those rights by prohibiting discrimination against the disabled and
providing for accommodations of their special needs.
The Supreme Court has recognized the vital importance of
all levels of public education in preparing students for work and
citizenship as well as the unique harm that occurs when some
students are denied that opportunity. See, e.g., Brown v. Bd. of
Educ., 347 U.S. 483, 493 (1954) ("[I]t is doubtful that any child
may reasonably be expected to succeed in life if he is denied the
opportunity of an education"); Grutter v. Bollinger, 539 U.S. 306,
331 (2003) ("[T]he diffusion of knowledge and opportunity through
public institutions of higher education must be accessible to all
individuals"). The Court's decisions under the Equal Protection
Clause suggest that states cannot categorically deny disabled
students access to public education. See Plyler v. Doe, 457 U.S.
202, 221-22 (1982) (striking down on equal protection grounds the
complete exclusion of the children of illegal aliens from public
schools and noting that "the benefits of education are not reserved
to those whose productive utilization of them is a certainty"); Bd.
of Educ. v. Rowley, 458 U.S. 176, 200 (1982) (describing the
Education for All Handicapped Children Act, which requires states
to assure disabled students access to public education, as
providing "a 'basic floor of opportunity' consistent with equal
protection"). In addition, the Due Process Clause protects against
the arbitrary exclusion of disabled students from public
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educational institutions, in light of the property and liberty
interest in receiving a public education. See Bolling v. Sharpe,
347 U.S. 497, 499-500 (1954); Goss v. Lopez, 419 U.S. 565, 574
(1975); Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988)
(student's interest in pursuing a higher education is included
within the Fourteenth Amendment's protection of liberty and
property). Finally, with respect to the disabled students already
attending public schools and universities, the Equal Protection
Clause prohibits "irrational disability discrimination," therefore
forbidding states from relying on irrational fears and prejudice to
discriminate against disabled students or to deny them reasonable
accommodation. Lane, 541 U.S. at 522; Bd. of Trs. of the Univ. of
Ala. v. Garrett, 531 U.S. 356, 367 (2001).
B.
Having identified the constitutional rights implicated by
the states' treatment of the disabled in the area of public
education, we next consider whether there is a history of a
violation of those rights by the states. Lane, 541 U.S. at 523.
Moreover, we evaluate how grave and how widespread the
constitutional violations were in order to judge the
appropriateness of prophylactic legislation. See Hibbs, 538 U.S.
at 729. We rely on the types of sources that the Supreme Court
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approved of in Lane: state statutes, court decisions, and examples
from the legislative history of the ADA.4
Historically, children with mental disabilities were
labeled "ineducable" and were categorically excluded from public
schools to "protect nonretarded children from them." Cleburne, 473
U.S. at 463 (Marshall, J., concurring). Congress first addressed
the education of the disabled in 1966, when it amended the
Elementary and Secondary Education Act of 1965 to provide grants
for states to initiate and improve programs for the education of
handicapped children. Pub. L. 89-750 § 161. Yet by statute, a
number of states continued to exclude children with disabilities
from public education entirely. See, e.g., Ala. Code § 21-1-10
(1975); Del. Const. art. X, § 1 (1975); Neb. Rev. Stat. § 79-202
(1971); N.C. Gen. Stat. § 115-165 (1966); Nev. Rev. Stat. § 392.050
(1967); Tex. Code Ann. § 3260 (1990).
Numerous lower court decisions demonstrate that the
states were violating the Due Process and Equal Protection rights
of disabled children by completely denying them educational
opportunities. See, e.g., Pa. Ass'n for Retarded Children v.
Commonwealth, 343 F. Supp. 279, 293, 297 (E.D. Pa. 1972) (finding
4
The Court recognized that many of the examples of
constitutional violations concerned the conduct of non-state
governments. Nevertheless, the Court stated that "our cases have
recognized that evidence of constitutional violations on the part
of nonstate governmental actors is relevant to the § 5 inquiry."
541 U.S. at 527 n. 16.
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the state's treatment of mentally retarded children "crass and
summary" and expressing "serious doubts" about any rational basis
for the state's exclusion of approximately 75,000 mentally retarded
children from any public education services); Mills v. Bd. of Ed.
of D.C., 348 F. Supp. 866, 876 (D.D.C. 1972) (holding that District
of Columbia violated due process by denying handicapped students a
publicly supported education and suspending or expelling such
children from regular schooling or special instruction without a
hearing); Harrison v. Michigan, 350 F. Supp. 846, 847 (E.D. Mich.
1972) (noting that the state's denial of an education to
handicapped children until 1971 raised serious equal protection
issues); Fialkowski v. Shapp, 405 F. Supp. 946, 958 (E.D. Pa. 1975)
(mentally retarded children who were completely denied an
educational opportunity had stated a valid equal protection claim).
Congressional studies in the early 1970s revealed that of
the roughly eight million handicapped children in the United
States, one million were "excluded entirely from the public school
system" and more than half were not receiving appropriate
educational services. See Bd. of Educ. v. Rowley, 458 U.S. 176,
189 (1982) (citing 89 Stat. 774, note following § 1401). Congress
found that the disabled children who were not excluded from public
education were "simply 'warehoused' in special classes or were
neglectfully shepherded through the system until they were old
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enough to drop out." Honig v. Doe, 484 U.S. 305, 309-11 (1988)
(citing H.R. Rep. No. 94-332, p.2 (1975)).
In response, in 1973 Congress enacted the Rehabilitation
Act, 29 U.S.C. § 794, which forbids any program receiving federal
aid from discriminating against an individual by reason of a
handicap. And in 1975 Congress went even further by enacting the
Education for All Handicapped Children Act, later renamed the
Individuals with Disabilities Education Act, which requires states
receiving federal funding for education to assure all handicapped
children the right to a "free appropriate public education." 20
U.S.C. § 1412(1). The Supreme Court characterized this latter
legislation as intending to "aid the States in complying with their
constitutional obligations to provide public education for
handicapped children." Smith v. Robinson, 468 U.S. 992, 1009
(1984).
Even after this early federal legislation, states
continued to violate the constitutional rights of disabled
students. See, e.g., Hairston v. Drosick, 423 F. Supp. 180, 184
(S.D.W.Va. 1976) (public school violated Due Process Clause by
excluding a student with spina bifida from regular public classroom
without procedural safeguards); Cuyahoga County Ass'n for Retarded
Children & Adults v. Essex, 411 F. Supp. 46, 58-59 (N.D. Ohio 1976)
(finding Ohio regulations governing the placement and dismissal of
mentally retarded children violated due process); Panitch v.
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Wisconsin, 444 F. Supp. 320, 322 (E.D. Wis. 1977) (holding that
Wisconsin violated equal protection rights of handicapped children
by denying them an education at public expense); N.Y. State Ass'n
for Retarded Children, Inc. v. Carey, 466 F. Supp. 487, 504
(E.D.N.Y. 1979) (segregation of mentally retarded students with
hepatitis B found to be without rational basis). In addition, a
number of cases brought under the Rehabilitation Act and the
Education of All Handicapped Children Act discuss the persistent
negative attitudes and irrational public fears that led to the
exclusion of students with AIDS (who qualify as "handicapped") from
public schools, despite the lack of evidence of AIDS transmission
in school settings. See, e.g., Thomas v. Atascadero Unified Sch.
Dist., 662 F.Supp. 376 (C.D.Cal. 1986); Robertson v. Granite City
Cmty. Unit Sch. Dist. No. 9, 684 F.Supp. 1002 (S.D. Ill. 1988); Doe
v. Dolton Elem. Sch. Dist. No. 148, 694 F. Supp. 400 (N.D. Ill.
1988).
A report before Congress in 1983 indicated that tens of
thousands of disabled children continued to be excluded from public
schools or placed in inappropriate programs. U.S. Civil Rights
Commission, Accommodating the Spectrum of Individual Abilities 28-
29 (1983). Testimony before the House Committee on Education and
Labor and the Senate Subcommittee on Disability Policy included
statements by numerous disabled individuals who had been excluded
from participation or faced irrational prejudice at all levels of
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public education. See generally, Staff of House Comm. on Education
and Labor, 101st Cong., Legislative History of Pub. L. No. 101-336:
The Americans with Disabilities Act (Comm. Print 1990).
In sum, the thirty years preceding the enactment of the ADA
evidence a widespread pattern of states unconstitutionally
excluding disabled children from public education and irrationally
discriminating against disabled students within schools. Faced
with this record of persistent unconstitutional state action,
coupled with the inability of earlier federal legislation to solve
this "difficult and intractable problem," Congress was justified in
enacting prophylactic § 5 legislation in response. See Hibbs, 538
U.S. at 735, 737.
C.
The remaining question is whether the provisions of Title
II, as applied to public educational institutions, are a congruent
and proportional response to this history and pattern of
unconstitutional discrimination. Lane, 541 U.S. at 530. We must
determine whether the application of Title II to public educational
institutions is "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." City of Boerne,
521 U.S. at 532.
Title II provides that otherwise qualified disabled
students may not be excluded from educational programs or
-25-
activities or otherwise discriminated against because of their
disabilities. 42 U.S.C. § 12132. Schools and universities must
make "reasonable modifications to rules, policies, or practices" to
ensure that disabled students are able to participate in the
educational program. In addition, they must remove "architectural,
communication, or transportation barriers" and provide "auxiliary
aids and services." Lane, 541 U.S. at 531-32 (discussing
implication of 42 U.S.C. § 12131(2)).
By requiring states to make special accommodations for
the disabled, Title II does impose a greater burden on states than
the Fourteenth Amendment itself. Garrett, 531 U.S. at 367.
Nonetheless, Title II protects against the categorical exclusion
and discrimination born of irrational fears that characterized past
state action with respect to disabled students. Title II directs
states to make reasonable changes to their programs so that
otherwise qualified disabled students can participate in public
education. In addition, Title II addresses the fact that physical
barriers historically perpetuated the exclusion of disabled
students. See Garrett, 531 U.S. at 391 (App. C. to opinion of
Breyer, J., dissenting) (collecting dozens of reports of the
inaccessible facilities and programs at public schools and state
universities) (cited in Lane, 541 U.S. at 526).
Title II's implementing regulations and the case law
interpreting the Act demonstrate that the obligations imposed by
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Title II are limited in several ways that minimize the compliance
costs imposed on states. States need not make structural changes
to existing physical facilities if other methods can make the
program or service accessible. 28 C.F.R. § 35.150(b) (2006).
Furthermore, Title II requires only "reasonable modifications" to
programs and facilities and "in no event is the entity required to
undertake measures that would impose an undue financial or
administrative burden, threaten historic preservation interests, or
effect a fundamental alteration in the nature of the service."
Lane at 532 (citing 28 C.F.R. § § 35.150(a)(2), (a)(3) (2003)); 28
C.F.R. § 35.130(b)(7). A state may take into account its limited
resources as well as the needs of other students with disabilities
in determining what sorts of reasonable modifications are
appropriate under Title II. Olmstead v. L.C. ex rel. Zimring, 527
U.S. 581, 604, 607 (1999). Finally, the ADA does not require
public schools and universities to accommodate disabled students if
the accommodation would substantially alter their programs or lower
academic standards, and courts give due deference to the judgment
of education officials on these matters. See Bercovitch v. Baldwin
Sch., Inc., 133 F.3d 141, 152-53 (1st Cir. 1998); Darian v. Univ.
of Mass. Boston, 980 F. Supp. 77, 88-89 (D. Mass. 1997).
The other appellate courts that have considered whether
Title II validly abrogates state sovereign immunity in the context
of public education have concluded that it satisfies the City of
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Boerne inquiry. See Ass'n for Disabled Americans v. Fla. Int'l
Univ., 405 F.3d 954, 959 (11th Cir. 2005); Constantine v. Rectors
and Visitors of George Mason Univ., 411 F.3d 474, 490 (4th Cir.
2005). As the Eleventh Circuit emphasized in reaching its holding,
"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." Ass'n
for Disabled Americans, 405 F.3d at 959.
We are similarly persuaded that Title II's prophylactic
measures are justified by the persistent pattern of exclusion and
irrational treatment of disabled students in public education,
coupled with the gravity of the harm worked by such discrimination.
Title II's provisions are consonant with the recognition in Plyler
v. Doe that, without an education, individuals are deprived of "the
ability to live within the structure of our civil institutions" and
therefore foreclosed from "any realistic possibility that they will
contribute in even the smallest way to the progress of our Nation."
457 U.S. at 223. Title II creates an affirmative obligation for
states to "reasonably modify" their programs so as to accommodate
the "otherwise qualified" disabled students of this nation. This
obligation is not disproportionate to the need to protect against
the outright exclusion and irrational disability discrimination
that such students experienced in the recent past.
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VI.
For the above reasons, we conclude that Title II, as it
applies to the class of cases implicating the right of access to
public education, constitutes a valid exercise of Congress' § 5
authority to enforce the guarantees of the Fourteenth Amendment.
Accordingly, state sovereign immunity is not a defense to this
action, and we affirm the district court's decision to reinstate
Toledo's Title II claims. Without a doubt, the district court will
face further issues in evaluating Toledo's claim for relief, but as
the University is not entitled to sovereign immunity, those issues
must be addressed in further proceedings.
Affirmed.
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Toledo v. Sanchez-Rivera
Court: Court of Appeals for the First Circuit
Date filed: 2006-07-06
Citations: 454 F.3d 24
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