[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
3
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
4
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).
8
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
9
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.
5
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).
10