Toledo v. Sanchez-Rivera

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

-19-
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

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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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