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[page 12] ARGUMENT

The Attorney General, construing the regulations adopted pursuant to express implementing authority, has concluded that community integration is required as long as it is appropriate for an individual (as it undisputedly is here), subject to a defense based on "fundamental alteration." The Attorney General is due deference not only in construing her own regulations (see Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 95 (1995); Martin v. OSHRC, 499 U.S. 144, 151 (1991)) but in construing the ADA (Bragdon v. Abbott, 118 S. Ct. 2196, 2209 (1998)). Cf. Auer v. Robbins, 117 S. Ct. 905, 912 (1997) (deference where there is "no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question"). As long as the mandate is understood not to deprive individuals of institutional services when such services are needed, and the determination of appropriateness reflects professional judgment, which is all that this case presents, the Attorney General’s position is a reasonable and therefore valid construction and application of the ADA.

I. The Americans With Disabilities Act Is Reasonably Applied To Preclude Discrimination By The State As A Whole, Not Just Individual "Programs" Or "Services," In The Conditions Attached To Receipt Of Government Services

Petitioners’ principal contention is that Title II of the ADA is limited to intra-program or intra-service discrimination, so that, as long as a program or service that is limited to persons with disabilities does not unjustifiably exclude or deny its benefits to other qualified persons with disabilities, Title II is automatically satisfied. Pet. Br. 19-21. There are strong reasons for rejecting this contention based on the statutory directive to the Attorney [page 13] General to promulgate regulations consistent with the Act as a whole and with the pre-existing "coordination" regulations. Quite apart from any such basis, however, petitioners’ view that the Attorney General’s construction is impermissible under the ADA should be rejected on the basis of the fundamental statutory prohibition set forth in Section 12132.

A. Reading Section 12132 to bar discrimination only by a particular agency within the confines of a particular "program" or "service" is neither required nor perhaps even natural. Instead, the provision is readily read to apply to the State as a whole and to bar discrimination by the government in its overall provision of services. Most strikingly, the proscription expressly applies to "any public entity," which is defined to include the "State" itself. It is not just particular agencies, or their programs, that are covered by the prohibition.

An intra-program or intra-service limitation cannot be discerned from other aspects of the statutory language either. Even the initial proscription on exclusion from or denial of the benefits of "the services, programs, or activities of a public entity" is not written in terms of each particular program or service considered separately, but refers generically to a public entity’s "services, programs, or activities" in the plural. § 12132. And in any event, the availability of a broader non-program-specific construction is made clear by the catchall phrase that concludes the provision, which directly bars "discrimination by any such entity" without mention of, or limitation to, any "services, programs, or activities." § 12132.

The discrimination bar, of course, applies only to a "qualified individual with a disability," which requires that the individual "meet[] the essential eligibility requirements [page 14] for the receipt of services or the participation in programs or activities provided by a public entity." § 12131(2). That precondition sets limits on who may claim discrimination: only persons–like respondents in this case–who meet the "essential" eligibility requirements of services provided by the State. But this precondition does not serve the distinct function of then defining what constitutes discrimination. In particular, it does not specify that the comparison class, for purposes of determining whether individuals with a disability are unjustifiably being treated worse than individuals without, is always restricted to persons eligible for a specific program. The precondition of a "qualified individual with a disability," accordingly, does not immunize from Section 12132 scrutiny all unjustified differences in treatment between two groups of persons receiving government services (although not the same service).

Petitioners’ insistence on a service-by-service or program-by-program application of Section 12132 thus hardly follows from the statutory language, which readily admits a broader perspective consistent with the comprehensive congressional policy and findings. Most simply, if persons with a disability must unjustifiably sacrifice important interests as the price of receiving a government service, while other persons need not make such a sacrifice, there is "discrimination" between groups of "similarly situated" persons (Pet. Br. 21) because of disability. For that reason alone, Section 12132 is (presumptively) violated. It also makes sense, given the broad congressional aims, to conclude, under the first part of the section, that such differential treatment is a forbidden denial of the full intended benefits of, and access to, the government’s services,when the sacrifice required is unnecessary. Regardless, the proper inquiry under Section 12132 is simply whether the required sacrifice is justified.

[page 15] This reading is not just textually sound. In selecting the level of specificity at which to apply the statute’s anti-discrimination bar, both the fundamental policy of the Act and practical interests in workable application and administration may rightly play a large role. See Pet. Br. 20 (whether an interpretation is "administratively awkward" is a negative consideration in statutory construction); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 275 (1995) (construing statute not only to promote "basic purpose" of law but to avoid "unnecessarily complicating the law and breeding litigation"); Cedar Rapids Community School Dist. v. Garret F., No. 96-1793 (Mar. 3, 1999), slip op. at 9 ("workable interpretation"). Given that the ADA applies sweepingly to government services of almost every stripe, different judgments about the balance of relevant considerations may well be warranted from context to context or issue to issue. Indeed, Congress indicated the need for context-sensitive choices in carrying out the ADA by enacting a classically broad authorization for executive implementation (§ 12134), the usual means for working out the application of broad principles to diverse circumstances in a complex world. See, e.g., AT&T Corp. v. Iowa Utilities Bd., 119 S. Ct. 721, 730 n.6, 733 n.10 (1999).

For the particular issue presented here, both fundamental statutory policy and a strong practicability consideration support a rule broadly forbidding unjustified segregation. As discussed below, ending unjustified separation of persons with disabilities from the life of the community at large, and thus reducing the wounding stigma often associated with such separation, is basic to the aims of the ADA. That policy does not easily accommodate an artificial limitation of the discrimination bar to the confines of particular agency "programs" or "services."

[page 16] In addition, the Attorney General’s general presumptive integration mandate is supported by a reasonable assessment of the serious workability difficulties with petitioners’ proposed alternative of a "service"- or "program"-specific perspective. There is nothing self-evident or easy about defining what is the precise "service" or "program" to be used for purposes of determining, as petitioners would require, whether that service or program is being provided in a discriminatory fashion. This case illustrates the difficulty, because Georgia has been providing care for mentally retarded and mentally ill individuals in both community and institutional settings. Does Georgia have one overall service or program or several separate programs? Petitioners’ view makes the applicability of Section 12132 turn on the answer to such questions. Given the large measure of arbitrariness involved, it is eminently reasonable to reject the effort to delineate the boundaries of a "service" or "program," at every governmental level in every State, at the threshold of the ADA analysis, at least when the interest at stake is so fundamental to individuals and to the Act. In this circumstance, there is nothing unreasonable about concluding that the line-drawing game is not worth the candle and, instead, applying the anti-discrimination principle to the government entity as a whole.

B. This construction of Section 12132 is in no way precluded by arguments to the effect that Congress, in enacting the ADA, ratified a clear contrary pre-ADA interpretation–either of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), or of the "coordination" regulations on which the Attorney General modeled the ADA regulations. For one thing, Congress was not re-enacting a pre-existing statute, but writing a new one with a new [page 17] context and a new agency "delegation." Moreover, Congress used broadened language in the ADA, omitting Section 504's limitation to discrimination "solely" by reason of the disability; set forth detailed findings about and definitions of discrimination; and made a far more sweeping commitment to reform of public treatment of persons with disabilities than it ever had done before. In addition, the demanding premise for any such preclusion–a settled clear meaning or an "unwavering line" of authority (Bragdon, 118 S. Ct. at 2208; Fogerty v. Fantasy, Inc., 510 U.S. 517, 531-32 (1994))–is lacking.

In particular, petitioners include a string citation of various lower court decisions under Section 504. See Pet Br. 26. Their very failure to lay out precisely what those decisions held confirms their limited import. As the court of appeals below explained (Pet. App. 19a-20a), those decisions, while rejecting various claims under Section 504 (including demands for the provision of new government services), do not constitute anything like the clear line of construction-limiting authority that would rule out a reading of the ADA, with its consciously comprehensive findings and policies, as reaching cross-program discrimination (or, more narrowly, a presumptive integration requirement). Moreover, the language of the pre-ADA "coordination" regulations (Pet. Br. App. 1a-5a) readily can support such a construction, and petitioners themselves indicate (Pet. Br. 28-29) that there was no judicial construction of those regulations, limiting them to intra-program or intra-service discrimination, that Congress might have ratified.

Petitioners also mistakenly rely on a statement of this Court in Traynor v. Turnage, 485 U.S. 535, 549-50 (1988), to support their limited, intra-program view of [page 18] the ADA. See Pet. Br. 23. In the relied-on passage, Traynor says only that Section 504 imposes no blanket requirement "that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons." 485 U.S. at 549. This case involves no such asserted requirement of universal extension to all persons with disabilities of all services provided to some persons with disabilities–an assertion that would have to confront the "qualified individual with a disability" precondition that is plainly satisfied here (§ 12131(2)). Rather, unlike Traynor, where no handicapped individual was treated worse than any non-handicapped individual, this case involves a core claim of discrimination between persons with disabilities and persons without: the former, to receive critical government services, must sacrifice the important life benefits and opportunities of community integration, while the latter need not. There is no basis for concluding that Congress decisively approved such discrimination, foreclosing an otherwise-reasonable construction of the statutory language under the broad authority it granted to the Attorney General to implement a statute intended to have transformative effects on public and private action alike.


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