Civil Rights of Individuals with Disabilities: The Opinions of Judge Alito

CRS Report for Congress
Civil Rights of Individuals with Disabilities:
The Opinions of Judge Alito
Updated January 5, 2006
Nancy Lee Jones
Legislative Attorney
American Law Division


Congressional Research Service ˜ The Library of Congress

Civil Rights of Individuals with Disabilities: The Opinions
of Judge Alito
Summary
Judge Samuel Alito Jr. was nominated by President Bush to the U.S. Supreme
Court on October 31, 2005. This report examines the opinions written by Judge
Alito relating to civil rights for individuals with disabilities and includes a discussion
of cases relating to the Americans with Disabilities Act (ADA), the Individuals with
Disabilities Education Act (IDEA), section 504 of the Rehabilitation Act of 1973,
and the Fair Housing Amendments Act. In addition, Judge Alito’s federalism
decisions are briefly analyzed and their potential impact on disability related issues
is discussed. Decisions authored by Judge Alito, as well as selected dissents and
decisions where he joined the majority are examined.



Contents
In troduction ......................................................1
The Americans with Disabilities Act (ADA).............................1
Overview ....................................................1
Decisions on the Definition of Disability...........................2
Statutory Definition and Supreme Court Interpretations............2
Decisions Written and Joined by Judge Alito....................3
Title I — Employment .........................................6
Statutory Provisions and Relevant Supreme Court Decisions........6
Decisions Written and Joined by Judge Alito....................7
Title II — Public Services.......................................8
Statutory Language and Relevant Supreme Court Decision.........8
Decision Joined by Judge Alito...............................9
Community Based Services.................................10
Title III — Public Accommodations and Services Operated by
Private Entities...........................................10
Statutory Language.......................................10
Decisions Written and Joined by Judge Alito...................10
Title V — Insurance...........................................12
Statutory Language.......................................12
Concurrence by Judge Alito.................................13
The Individuals with Disabilities Education Act (IDEA)..................13
Overview of IDEA............................................13
Judicial Decisions Written and Joined by Judge Alito................14
Provision of a Free Appropriate Public Education...............14
Procedural Issues.........................................16
Section 504 of the Rehabilitation Act.................................17
Statutory Provisions ..........................................17
Judge Alito’s Opinions, Concurrences and Dissents..................17
Fair Housing Act Amendments......................................19
Statutory Provisions...........................................19
Judicial Decision Joined by Judge Alito...........................19
Federalism ......................................................20
Overview ...................................................20
Judge Alito’s Decisions........................................21



Civil Rights of Individuals with Disabilities:
The Opinions of Judge Alito
Introduction
Judge Samuel Alito Jr. was nominated by President Bush to the U.S. Supreme
Court on October 31, 2005. This report examines the opinions written by Judge
Alito relating to civil rights for individuals with disabilities and includes a discussion
of cases relating to the Americans with Disabilities Act (ADA), the Individuals with
Disabilities Education Act (IDEA), section 504 of the Rehabilitation Act of 1973,
and the Fair Housing Amendments Act. In addition, Judge Alito’s federalism
decisions are briefly analyzed and their potential impact on disability related issues
is discussed. Decisions authored by Judge Alito, as well as selected dissents and
decisions where he joined the majority are examined.
The Americans with Disabilities Act (ADA)
Overview
The Americans with Disabilities Act has often been described as the most1
sweeping nondiscrimination legislation since the Civil Rights Act of 1964. As stated
in the act, its purpose is “to provide a clear and comprehensive national mandate for2
the elimination of discrimination against individuals with disabilities.” It provides
broad nondiscrimination protection for individuals with disabilities and is divided
into five titles: employment (title I), public services (title II), public accommodation
and services operated by private entities (title III), telecommunications (title IV) and
miscellaneous provisions (title V).
Judge Alito has written or joined in numerous ADA decisions while on the third
circuit. His decisions rely heavily on the facts presented and indicate a reliance on
judicial precedent and regulatory interpretations. In many of the cases he has found
for individuals with disabilities and has emphasized the necessity of a good faith


1 For a more detailed discussion of the ADA see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues, by Nancy Lee Jones.
2 42 U.S.C. §12102(b)(1).

interactive process.3 However, several of his decisions have been criticized as
limiting the rights of individuals with disabilities.4
Decisions on the Definition of Disability
Statutory Definition and Supreme Court Interpretations. The
threshold issue in any ADA case is whether the individual alleging discrimination is
an individual with a disability and issues involving the definition have been heavily
litigated. The ADA definition is a functional one and does not list specific
disabilities. It defines the term disability with respect to an individual as “(A) a
physical or mental impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such an impairment; or (C) being5
regarded as having such an impairment.”
The first Supreme Court ADA case to address the definitional issue was
Bragdon v. Abbott, a 1998 case involving a dentist who refused to treat an HIV6
infected individual outside of a hospital. In Bragdon, the Court found that the
plaintiff’s asymptomatic HIV infection was a physical impairment impacting on the
major life activity of reproduction. Two other Supreme Court cases decided in 1999
involved whether the effects of medication or assistive devices should be taken into
consideration in determining whether or not an individual has a disability. The Court
in the landmark decision of Sutton v. United Airlines7 and in Murphy v. United8
Parcel Service, Inc., held the “determination of whether an individual is disabled
should be made with reference to measures that mitigate the individual’s9
impairment....”


3 See Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998); Shapiro v. Township
of Lakewood, 292 F.3d 249 (3d Cir. 2001).
4 See e.g., Doe v. National Board of Medical Examiners, 199 F.3d 146 (3d Cir. 1999).
5 42 U.S.C. §12102. The Equal Employment Opportunities Commission (EEOC) has
promulgated regulations discussing the definition of disability. 29 C.F.R. §§1630 et seq.
6 524 U.S. 624 (1998). For a more detailed discussion of this decision see CRS Report 98-
599, The Americans with Disabilities Act: HIV Infection is Covered Under the Act, by
Nancy Lee Jones.
7 527 U.S. 471 (1999).
8 527 U.S. 516 (1999).
9 Sutton v. United Airlines, supra. See also Murphy v. United Parcel Service, supra, where
the Court held that the determination of whether the petitioner’s high blood pressure
substantially limits one or more major life activities must be made considering the
mitigating measures he employs, and Albertsons Inc. v. Kirkingburg, 527 U.S. 555 (1999),
where the Court held unanimously that the ADA requires proof that the limitation on a
major life activity by the impairment is substantial.

The Supreme Court in the 2002 case of Toyota Motor Manufacturing v.
Williams10 examined whether the plaintiff was an individual with a disability under
the first prong of the definition of individual with a disability; that is, whether she
had a physical or mental impairment that substantially limits a major life activity.
Justice O’Connor, writing for the unanimous Court, determined that the word
substantial “clearly precluded impairments that interfere in only a minor way with the
performance of manual tasks.” Similarly, the Court found that the term “major life
activity” “refers to those activities that are of central importance to daily life.”
Finding that these terms are to be “interpreted strictly,”11 the Court held that “to be
substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that
are of central importance to most people’s daily lives.” Significantly, the Court also
stated that “[t]he impairment’s impact must also be permanent or long-term.”
Decisions Written and Joined by Judge Alito. Not surprisingly given
the number of judicial decisions regarding the definition of disability, Judge Alito has
written and joined in opinions on several cases on this issue. Generally, his decisions
rely heavily on the facts presented and indicate a reliance on judicial precedent and
regulatory interpretations.
In Mondzelewski v. Pathmark Stores, Inc.,12 Judge Alito found that a butcher
who had injured his back was an individual with a disability because he was
substantially limited in the major life activity of working. The plaintiff, a 55 year old
with a sixth grade education, had worked at Pathmark, a supermarket, for 35 years,
first as a bagger and then as a meat cutter. In March 1992, he injured his back lifting
boxes of meat and was treated and restricted from lifting objects weighing more than
25 pounds. He reinjured his back in December 1993 and was again treated and
restricted from lifting objects weighing more than 25 pounds. He claimed that when
he returned to work after his second injury, he was retaliated against for asserting his
right to a reasonable accommodation under the ADA by being assigned “punishment
shifts” and being given retaliatory reprimands.
The district court held that Mr. Mondzelewski was not disabled under the ADA
because his back injury did not substantially limit him in the major life activities of
lifting or working and that he could not assert a retaliation claim because he is not
disabled. In reversing this decision, Judge Alito concluded, referencing the ADA
regulations, that a court should consider an individual’s training, skills and abilities
in determining whether the individual is substantially limited in the major life activity
of working. Judge Alito observed: “We accept this approach — under which an


10 534 U.S. 184 (2002).
11 Confirmation of the need for strict interpretation was found by the Court in the ADA’s
statement of findings and purposes where Congress stated that “some 43,000,000 Americans
have one or more physical or mental disabilities.” [42 U.S.C. §12101(a)(1)] Justice
O’Connor observed that “if Congress had intended everyone with a physical impairment that
precluded the performance of some isolated, unimportant, or particularly difficult manual
task to qualify as disabled, the number of disabled Americans would surely have been much
higher.”
12 162 F.3d 778 (3d Cir. 1998).

individual’s training, skills, and abilities are taken into account in determining
whether the individual is substantially limited in the major life activity of working
— because we owe ‘substantial deference’ to the EEOC regulation in which it is set
out....and because it is entirely reasonable. Indeed, because the effect that a particular
impairment will have on a person’s ability to work varies depending on that person’s
background and skills, it is not easy to envision how any other approach could be
taken.”13
Judge Alito also found that the district court had erred in rejecting Mr.
Mondzelewshi’s claim of retaliation. Relying on a third circuit opinion issued after
the district court’s decision, Judge Alito found that a person’s status as an individual
with a disability was irrelevant to assessing a retaliation claim as the ADA statutory
provision uses the phrase “any individual” and does not limit its retaliation
prohibitions to individuals with disabilities.
In Fiscus v. Wal-Mart Stores,14 a woman with kidney failure was found to be an
individual with a disability. Cathy Fiscus, an employee of Wal-Mart, had end-stage
renal disease and while undergoing dialysis requested a reasonable accommodation
from her employer. Wal-Mart denied the request and placed Ms. Fiscus on leave.
After undergoing a kidney transplant, she was unable to return to work for five and
one half months. While on leave, Wal-Mart fired Ms. Fiscus because she had not
returned to work within one year. The district court found that Ms. Fiscus could not
bring suit under the ADA since it held that she was not a person with a disability.
The third circuit court of appeals in a decision authored by Judge Chertoff and joined
by Judge Alito, rejected the district court’s reasoning that “impaired elimination of
waste and blood cleansing are nothing more than characteristics of kidney
failure....Rather, they are the effect of kidney failure in the same way that impaired
thinking is the effect of organic brain disease. And the fact that the effect of kidney
failure is felt on an internal autonomous organic activity is, under Bragdon, not
incompatible with a finding of substantial limitation of a major life activity.”15
In Kelly v. Drexel University,16 the third circuit upheld the district court’s grant
of summary judgment to the employer, finding that the plaintiff was not a person
with a disability. Francis Kelly had fractured his hip and had a limp and a
degenerative joint disease which limited his walking and ability to climb stairs.
When his employer, Drexel University, eliminated his position six years after the hip
fracture, Mr. Kelly alleged discrimination under the ADA. The district court found
that Mr. Kelly did not have a disability and the third circuit in an opinion written by
Judge Greenberg and joined by Judge Alito, agreed stating: “While we are not
unfeeling with respect to Kelly’s condition, still we simply cannot regard it as a


13 Id. at 784.
14 385 F.3d 378 (3d Cir. 2004).
15 Id. at 384.
16 94 F.3d 102 (3d Cir. 1996).

disability under the ADA as it does not substantially limit him in the relevant major
life activity, walking.”17
Similarly, in Katekovich v.Team Rent a Car of Pittsburgh,18 an unpublished
opinion written by Judge Barry and joined by Judge Alito, the third circuit affirmed
the district court’s summary judgment, finding that an employee with sleep disorders
and depression was not an individual with a disability under the ADA. The court
found that the plaintiff had not proved that these impairments substantially limited
one or more of her major life activities. The court observed that Ms. Katekovich’s
physicians had indicated she did not have substantial limitations and that
“Katekovich’s own testimony did not demonstrate that she was substantially
impai red.”19
The third prong of the definition of disability is “being regarded as having a
disability.” Two cases were found where Judge Alito wrote or joined in opinions
reversing summary judgment orders which had rejected arguments that an individual
was “regarded as” having a disability. In Polini v. Lucent Technologies,20 an
unpublished opinion by Judge Alito, the district court’s decision for summary
judgment for the employer was vacated and the case was remanded. The third circuit
held that the rejection of a recalled worker based on a determination that she had
failed the vision test created a genuine issue concerning whether Ms. Polini was
regarded as having a disability. Similarly, in Deane v. Pocono Medical Center,21 an
en banc third circuit decision by Chief Judge Becker, joined by Judge Alito, the court
reversed and remanded the district court grant of summary judgment for the
employer. In Deane, the plaintiff, a nurse, had been injured while lifting a patient.
When she sought to return to light duty, her employer discharged her. Stacy Deane
alleged that this was because the employer had regarded her as having a disability and
had failed to make reasonable accommodations. The third circuit held: “Deane has
thus adduced sufficient evidence that PMC regarded her as substantially more
physically impaired than she actually was”22 and that she did not need to perform all
the functions of her former job but only the essential job functions. After parsing the
legal issues and examining the EEOC’s interpretive guidance, the court of appeals
emphasized the need for communication between the parties and an “interactive
process” observing that “an employer who fails to engage in the interactive process
runs a serious risk that it will erroneously overlook an opportunity to accommodate
a statutorily disabled employee, and thereby violate the ADA.”23


17 Id. at 108.
18 36 Fed. Appx 688 (3d Cir. 2002).
19 Id. at 689.
20 100 Fed. Appx 112 (3d Cir. 2004).
21 142 F.3d 138 (3d Cir. 1998).
22 Id. at 145.
23 Id. at 148.

However, in Parker v. Port Authority of Allegheny County24 the third circuit in
an unpublished per curiam decision joined by Judge Alito rejected an employee’s
claim that she was “regarded as” having a disability that substantially limited her in
the major life activity of working. An employer’s requirement that an employee
provide medical information concerning her ability to drive a bus was not found to
support the employee’s claim.
Title I — Employment
Statutory Provisions and Relevant Supreme Court Decisions. Title
I of the ADA provides that no covered entity shall discriminate against a qualified
individual with a disability because of the disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.25 The term employer is defined as a person engaged in an industry26
affecting commerce who has 15 or more employees. If the issue raised under the
ADA is employment related, and the threshold issues of meeting the definition of an
individual with a disability and involving an employer employing over fifteen
individuals are met, the next step is to determine whether the individual is a qualified
individual with a disability who, with or without reasonable accommodation, can
perform the essential functions of the job.
The Supreme Court in U.S. Airways v. Barnett27 held that an employer’s
showing that a requested accommodation by an employee with a disability conflicts
with the rules of a seniority system is ordinarily sufficient to establish that the
requested accommodation is not “reasonable” within the meaning of the ADA.
However, Justice Breyer found that there were some exceptions to this rule for
“special circumstances.” The Supreme Court applied a two prong approach to
determining whether accommodation is reasonable: first the employee must show
that the accommodation is a type that is reasonable and if it is found reasonable, then
the burden shifts to the employer to show that granting the accommodation would
impose an undue hardship.
The relationship between the receipt of SSDI benefits and the ability of an
individual to pursue an ADA employment claim was the issue in Cleveland v. Policy28
Management Systems Corp. The Supreme Court unanimously held that pursuit and
receipt of SSDI benefits does not automatically stop a recipient from pursuing an
ADA claim or even create a strong presumption against success under the ADA.
Observing that the Social Security Act and the ADA both help individuals with
disabilities but in different ways, the Court found that “despite the appearance of
conflict that arises from the language of the two statutes, the two claims do not


24 90 Fed. Appx. 600 (3d Cir. 2004).
25 42 U.S.C. §12112(a).
26 42 U.S.C. §12111(5).
27 535 U.S. 391 (2002).
28 526 U.S. 795 (1999).

inherently conflict to the point where courts should apply a special negative
presumption like the one applied by the Court of Appeals here.” The fact that the
ADA defines a qualified individual as one who can perform the essential functions
of the job with or without reasonable accommodation was seen as a key distinction
between the ADA and the Social Security Act.
Decisions Written and Joined by Judge Alito. In Shapiro v. Township
of Lakewood,29 Judge Alito held that the fact the employee did not formally apply for
vacant positions but wrote letters regarding them, did not excuse the township of
Lakewood from its ADA obligations to engage in a good-faith interactive process to
reach an accommodation. Howard Shapiro had injured his back while employed as
an EMT and requested reasonable accommodation, suggesting several vacant
positions to which he could be transferred. Since he had not formally applied for
these positions, the district court granted summary judgment to the employer.
However, the third circuit applied the two prong approach of determining whether
an accommodation is reasonable enunciated in U.S. Airways, Inc. v. Barnett, supra,
and concluded “the District Court’s decision in this case — entering summary
judgment against Shapiro simply because he did not comply with Lakewood’s policy
regarding transfer applications — cannot be reconciled with Barnett and must
therefore be reversed.”30
Qualifications for a job were at issue in another ADA employment case, Smith31
v. Davis. Rodney Smith was an alcoholic who alleged a violation of the ADA and
title VII of the Civil Rights Act of 1964 when he was terminated from his
employment as a county probation enforcement officer. The district court granted a
motion for summary judgment finding that Mr. Smith had a history of absenteeism
which rendered him unqualified to perform his job. The third circuit in an opinion
by Judge Schwarzer, joined by Judge Alito, reversed and remanded the case
regarding the ADA claim stating: “The record thus raises an issue of fact as to
whether Smith’s termination was for a legitimate, nondiscriminatory reason or
whether it was a pretext for discrimination in violation of the ADA. Because the
explanation provided by defendants — violations of the drug and alcohol policy —
(apart from not being the ground on which summary judgment was granted) did not
tell Smith what he did to bring about his termination, it is not legally sufficient to32
entitle defendants to judgment as a matter of law.”
In Straining v. AT&T Wireless Services,33 the third circuit in an unreported
decision by Judge Aldisert, joined by Judge Alito, found there was no genuine issue
of fact and affirmed the district court’s grant of summary judgment for the employer.
Linda Straining had rheumatoid arthritis and applied for a job by taking written tests.
Based on these tests and without knowledge of her disability, a decision was made


29 292 F.3d 356 (3d Cir. 2002).
30 Id. at 361.
31 248 F.3d 249 (3d Cir. 2001).
32 Id. at 252.
33 144 Fed. App. 229 (3d Cir. 2005).

not to hire her. The court found no evidence on which a reasonable fact finder could
rely to find that discrimination was likely to be a motivating or determinative cause
of the employment decision.
In Dewyer v. Temple University34 Judge Alito joined in an unpublished opinion
affirming the district court’s decision rejecting Judith DeWyer’s ADA claims. The
third circuit held that she failed to present sufficient evidence concerning her request
for accommodation and that the evidence presented suggested that the employer
attempted to accommodate her.
ADA issues regarding essential functions and a good faith interactive process
for accommodations were considered in McLaughlin v. City of Atlantic City,35 an
unpublished per curiam decision in which Judge Alito joined. In McLaughlin,
although the court noted that the employee had a disability (epilepsy), he did not
participate in good faith in the interactive process since he ignored the employer’s
requests for further evaluation to determine whether suitable accommodations could
be made. Although the employer had accommodated the employee by allowing him
to start work an hour later, the record indicated that he repeatedly did not show up
and therefore failed to perform the essential functions of his job, which in part
required regular attendance.
Similarly, Motley v. New Jersey State Police36 an opinion by Judge Nygaard and
joined by Judge Alito, held that a former state trooper who had been injured on the
job could not perform the essential functions of the job. The state trooper had
applied for an accidental disability pension and declared that he was permanently and
totally incapacitated. Noting that the Supreme Court in Cleveland37 had held that the
receipt of Social Security Disability Insurance benefits did not automatically bar an
ADA claim but that any apparent inconsistencies must be explained, the third circuit
held that the state trooper’s disabilities as discussed in his pension application were
inconsistent with his ability to perform the essential functions of the job.
Title II — Public Services
Statutory Language and Relevant Supreme Court Decision. Title II
of the ADA provides that no qualified individual with a disability shall 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.38 “Public
entity” is defined as state and local governments, any department or other
instrumentality of a state or local government and certain transportation authorities.


34 89 Fed. Appx. 811 (3d Cir. 2004).
35 143 Fed. Apps. (3d Cir. 2005).
36 196 F.3d 160 (3d Cir. 1999).
37 526 U.S. 795 (1999).
38 42 U.S.C. §§12131-12133.

In Olmstead v. Georgia,39 the Supreme Court examined issues raised by state
mental health institutions and held that Title II of the ADA requires states to place
individuals with mental disabilities in community settings rather than institutions
when the State’s treatment professionals have determined that community placement
is appropriate, community placement is not opposed by the individual with a
disability, and the placement can be reasonably accommodated.40 “Unjustified
isolation...is properly regarded as discrimination based on disability.”41
Decision Joined by Judge Alito. In a complicated case involving
allegations of discrimination under title II of the ADA and section 504 of the4243
Rehabilitation Act as well as Title VI of the Civil Rights Act of 1964 (prohibiting
racial discrimination), the third circuit in a decision by Judge Fuentes, joined by
Judge Alito, reversed a grant of summary judgment by the district court for the
defendant county. The main issue in Doe v. County of Centre Pennsylvania,44
concerned whether Centre County had violated the ADA, section 504, and Title VI
by not allowing an interracial couple to become foster parents because their son has
HIV and AIDS. After being presented with the request, the county adopted a policy
providing that foster families, one of whose members has a “serious infectious
disease,” may only care for children with the same disease unless the biological
parents are informed of the potential foster parents’ child’s condition and execute a
written consent releasing the county from potential liability. The couple filed suit
alleging discrimination and the district court granted summary judgment to the
county finding that the policy was appropriate under the ADA’s exception regarding
direct threat “since foster children placed with the Does could sexually assault Adam45
and contract HIV.” Rejecting this reasoning, the third circuit found that there was
not enough evidence to support summary judgment because “a reasonable fact finder
could not find, based on the summary judgment record, that an individual with HIV
would always pose a significant risk to a foster child placed by the County in that
individual’s home. This generalization fails to address, for example, the placement
of tender-aged and disabled foster children. The County therefore failed to conduct
the ADA-mandated individualized determination, and the District Court erred in
concluding that the ADA’s direct threat exception applied.”46


39 527 U.S. 581 (1999).
40 Olmstead has focused federal and state attention on the development of policies that
would expand home and community-based care for individuals with disabilities. For a
discussion of these policy issues and legislation see CRS Report RS20992, Long Term Care:th

107 Congress Legislation, by Carol O’Shaughnessy and Bob Lyke.


41 527 U.S. 581, 597 (1999).
42 29 U.S.C. §794.
43 42 U.S.C. §2000d(1)(7).
44 242 F.3d 437 (3d Cir. 2001).
45 Id. at 441.
46 Id. at 451.

Community Based Services. In Helen L. v.. DiDario47 the third circuit in
a 1995 pre-Olmstead decision held that the Pennsylvania Department of Public
Welfare violated the ADA by requiring a nursing home resident to receive care in a
nursing home rather than in her own home with attendant care. The third circuit held
that the ADA “clearly” defined unnecessary segregation as illegal discrimination and
reversed the district court’s decision. Although Judge Alito took no part in this
decision, a petition for rehearing en banc was filed. The majority of judges voted not
to rehear the case but Judge Alito, along with several other judges, would have voted48
to grant the rehearing. There were no reasons given for the votes so it cannot be
determined exactly why Judge Alito voted for a rehearing. In addition, Judge Alito’s
vote for a rehearing was prior to the Supreme Court’s determination of rights to
community based services in Olmstead. This vote, however, has been seen by some
disability advocates as potentially indicative of a more restrictive view of title II of
the ADA and since Justice O’Connor had voted with the majority in Olmstead, it
could be argued that if Judge Alito had been presented with the issue, he might have
decided it differently from Justice O’Connor.49 On the other hand, it could be argued
that these views are speculative since it is not known why Judge Alito voted to rehear
the case and the facts in Helen L. and Olmstead may have also lent themselves to
differing interpretations.
Title III — Public Accommodations and Services Operated by
Private Entities
Statutory Language. Title III provides that no individual shall be
discriminated against on the basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or leases to), or operates
a place of public accommodation.50 Entities that are covered by the term “public
accommodation” are listed, and include, among others, hotels, restaurants, theaters,
auditoriums, laundromats, museums, parks, zoos, private schools, day care centers,51
professional offices of health care providers, and gymnasiums.
Decisions Written and Joined by Judge Alito. In Caruso v. Blockbuster-
Sony Music Entertainment Centre,52 Judge Alito addressed the issue of the ADA’s
requirements concerning lines of sight and access to a place of public
accommodation. William Caruso sued the entertainment facility alleging it violated
the ADA because the wheelchair areas in the pavilion did not provide wheelchair


47 46 F.3d 325 (3d Cir. 1995).
48 1995 U.S. App. LEXIS 3896 (3d Cir. Feb. 24. 1995).
49 One disability group has stated: “While we cannot know exactly what Judge Alito’s
reasoning was, his vote to vacate and rehear one of the most important victories for people
with disabilities does not bode well.” [http://www.bazelon.org/takeaction/
alerts/alitosrecord-details.htm]
50 42 U.S.C. §12182.
51 42 U.S.C. §12181.
52 193 F.3d 730 (3d Cir. 1999).

users with lines of sight over standing spectators and the lawn area was not
wheelchair accessible. Judge Alito found no violation of the ADA relating to lines
of sight. The language in the Access Board’s guidelines as adopted by the Justice
Department (DOJ) requires lines of sight comparable to those for the general public.
Judge Alito read this language with the requirement for the dispersal of wheelchair
locations in facilities with fixed seating plans to require that “if a facility’s seating
plan provides members of the general public with different lines of sight to the field
or stage, ....it must also provide wheelchair users with a comparable opportunity to
view the field or stage from a variety of angles.”53 This language, Judge Alito found,
did not require that there be vertical lines of sight despite language in the DOJ
technical assistance manual requiring lines of sight over spectators who stand.54
Judge Alito rejected the Entertainment Centre’s arguments that (1) it could not
provide wheelchair access to the lawn area due to structural impracticability, (2) the
DOJ standards only require wheelchair seating to be provided when there is fixed
seating for the general public and (3) that the Centre had provided “equivalent
facilitation” for individuals using wheelchairs. With regard to the “equivalent
facilitation” argument, Judge Alito stated: “The principal problem with the E-
Centre’s ‘equivalent facilitation’ argument is that it treats the ADA’s requirement of
equal access for people with disabilities as a ‘particular technical and scoping
requirement.’ This is simply not the case. Rather, equal access is an explicit
requirement of both the statute itself and the general provisions of the DOJ’s
regu lations.”55
In the same year as the Caruso decision, Judge Alito joined in a decision by
Judge Becker holding that flagging the medical licensing examination of a medical
student with multiple sclerosis to indicate that the student had been given an
accommodation did not violate the ADA. The ADA generally prohibits
discrimination on the basis of disability “in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or leases to), or operates
a place of public accommodation.”56 More specifically, the ADA provides that “any
person that offers examinations or courses related to applications, licensing,
certification, or credentialing for secondary or post-secondary education,
professional, or trade purposes shall offer such examinations or courses in a place
and manner accessible to persons with disabilities or offer alternative accessible
arrangements for such individuals.”57 The third circuit in Doe v. National Board of
Medical Examiners58 concluded that the specific ADA provision on examinations did
not prohibit flagging a score and that “in the absence of a statutory proscription
against annotating the test scores of examinees who receive accommodations, we do


53 Id. at 732.
54 1994 DOJ Technical Assistance Manual Supp. P III-7.5180, Conditional App. At 49.
55 193 F.3d 730, 739 (3d Cir. 1999).
56 42 U.S.C. §12182.
57 42 U.S.C. §12189.
58 199 F.3d 146 (3d Cir. 1999).

not view the annotation of Doe’s score ....as itself constituting a denial of access.”59
Similarly, the arguments raised concerning a violation of the ADA’s general title III
prohibition of discrimination were rejected. “Doe has not demonstrated that flagging
his score makes the service that the NBME provided to him substantively unequal
to the service it provides to other examinees. Like other examinees, Doe took the
exam and received a score. Doe has not demonstrated that this score is comparable
to the scores of candidates who take the exam under standard conditions and thus that
flagging his score imposes an inequality on him.”60 This decision has been seen as
problematic by the Bazelon Center for Mental Health Law which argued that
“Congress meant the ADA to cover a broad range of circumstances, and did not spell
out each specific practice that might be prohibited by the law. The Doe v. National
Board of Medical Examiners decision would have serious consequences for people
with disabilities who experience the many types of discrimination that are not
explicitly spelled out in the ADA.”61
Title V — Insurance
Statutory Language. Title V contains an amalgam of provisions several of
which generated considerable controversy during ADA debate. Section 501
concerns the relationship of the ADA to other statutes and bodies of law. Subpart
(c) of Section 501 limits the application of the act with respect to the coverage of
insurance; however, the subsection may not be used as a subterfuge to evade the
purposes of Titles I and III. Subsection (c) states:
(c) Insurance. — Title I through IV of this Act shall not be construed to prohibit
or restrict — (1) an insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that administers benefit plans,
or similar organizations from underwriting risks, classifying risks, or
administering such risks that are based on or not inconsistent with State law; or
(2) a person or organization covered by this Act from establishing, sponsoring,
observing or administering the terms of a bona fide benefit plan that are based
on underwriting risks, classifying risks, or administering such risks that are based
on or not inconsistent with State law; or (3) a person or organization covered by
this Act from establishing, sponsoring, observing or administering the terms of
a bona fide benefit plan that is not subject to State laws that regulate insurance.
Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the62
purposes or title I and III.
The exact parameters of insurance coverage under the ADA are somewhat
uncertain. As the EEOC has stated: “the interplay between the nondiscrimination


59 Id. at 156.
60 Id. at 157.
61 [http://www.bazelon.org/takeaction/alerts/alitosrecord-details.htm]
62 42 U.S.C. §12201(c).

principles of the ADA and employer provided health insurance, which is predicated
on the ability to make health-related distinctions, is both unique and complex.”63
Concurrence by Judge Alito. In Ford v. Schering-Plough Corp.,s64 the
third circuit, in an opinion by Judge Cowen, upheld the district court’s dismissal of
a suit alleging a violation of the ADA due to a disparity between coverage of mental
and physical disabilities in the provision of disability benefits. Judge Alito wrote a
concurrence agreeing with the conclusion that the plaintiff failed to state a claim but65
basing his conclusion on the insurance “safe harbor” provision in title V. He stated:
“Given the effect of section 501(c) on Ford’s claims, I do not think that it is
necessary for the court to conclude that distinguishing between people with different
disabilities for insurance purposes is not discrimination based on disability.....In fact,
it would seem that making such distinctions does constitute discrimination in the
most basis sense of the word.....However, we need not wrestle with the question of
what might or might not constitute unlawful insurance discrimination under the ADA
had Congress not addressed the issue; Congress did address the issue and provided66
an explicit answer in section 501(c).”
The Individuals with Disabilities Education Act
(IDEA)
Overview of IDEA
The Individuals with Disabilities Education Act67 is both a grants statute and a
civil rights statute. It provides federal funding for the education of children with
disabilities and requires, as a condition for the receipt of such funds, the provision
of a free appropriate public education (FAPE) in the least restrictive environment
(LRE). The statute also contains detailed due process provisions to ensure the
provision of FAPE. Originally enacted in 1975, the act responded to increased
awareness of the need to educate children with disabilities, and to judicial decisions


63 EEOC, “Interim Policy Guidance on ADA and Health Insurance,” BNA’s Americans
with Disabilities Act Manual 70:1051 (June 8, 1993). This guidance deals solely with the
ADA implications of disability-based health insurance plan distinctions and states that
“insurance distinctions that are not based on disability, and that are applied equally to all
insured employees, do not discriminate on the basis of disability and so do not violate the
ADA.”
64 145 F.3d 601 (3d Cir. 1998).
65 42 U.S.C. §12201(c).
66 Id. at 615.
67 20 U.S.C. §1400 et seq. For a detailed discussion of IDEA as amended by the 2004
reauthorization, see CRS Report RL32716, Individuals with Disabilities Education Act
(IDEA): Analysis of Changes Made by P.L. 108-446, by Richard N. Apling and Nancy Lee
Jones.

requiring that states provide an education for children with disabilities if they
provided an education for children without disabilities.68
Judicial Decisions Written and Joined by Judge Alito
Provision of a Free Appropriate Public Education. In Shore Regional
High School v. PS,69 Judge Alito reversed a district court opinion on whether the
school district had failed to provide a free appropriate public education. The child,
P.S., attended public school and had been the victim of “relentless physical and70
verbal harassment as well as social isolation by his classmates.” The harassment
led to poor school work and depression and on the advice of the school psychologist,
P.S. received psychiatric counseling and medication. He was evaluated and
determined eligible for special education based on a perceptual impairment. After
continuing harassment, P.S. attempted suicide in the eighth grade and after a period
of home schooling was found eligible for special education services due to emotional
disturbance. P.S.’s parents determined that he should not attend the local high
school, Shore Regional High, with the same children who had been harassing him but
asked for placement in a neighboring district. Shore Regional High disagreed and
at the due process hearing the administrative law judge concluded that Shore
Regional High School could not provide P.S. with a free appropriate education
because of the legitimate fear of continued bullying. The district court reversed the
administrative law judge’s decision, rejecting testimony from a psychologist and a
member of the special education child study team.
Judge Alito held that the district court did not give due weight to the
administrative law judge’s decision. Deference should be accorded to these
decisions, Judge Alito opined, especially if the state administrative agency has heard
live testimony and found the testimony of one witness to be more convincing than
that of another. In sum, Judge Alito concluded, the rulings of hearing officers should
be given “essentially the same standard of review given to a trial court’s findings of
fact by a federal appellate court.”71
In T.R. v. Kingwood Township Board of Education,72 the plaintiffs asked for the
reimbursement of private school tuition and support services claiming that the board
of education had failed to provide a free appropriate public education (FAPE) in the
least restrictive environment (LRE). The third circuit, in an opinion by Judge Alito,
affirmed the district court’s decision that sufficient educational benefit was provided
to meet the standard of a free appropriate public education. However, the district
court’s holding regarding the least restrictive environment was vacated and remanded


68 For a more detailed discussion of the congressional intent behind the enactment of P.L.

94-142 see CRS Report 95-669, The Individuals with Disabilities Education Act:


Congressional Intent, by Nancy Lee Jones.
69 381 F.3d 194 (3d Cir. 2004).
70 Id. at 195.
71 Id. at 199.
72 205 F.3d 572 (3d Cir. 2000).

for a determination of whether the board of education failed to consider any
appropriate placements.
In examining the district court’s finding concerning the provision of FAPE,
Judge Alito noted that the most recent case discussing the issue in the third circuit,
Ridgewood Board of Education v. N.E.,73 held that the FAPE standard was not met
by “the provision of merely ‘more than a trivial educational benefit.’”74 Although the
district court was found to apply the incorrect legal standard by not inquiring into
whether the school’s proposed individualized educational placement (IEP) met the
standard enunciated by Ridgewood, the evidence on which the district court relied
was seen as satisfying this more stringent meaningful benefit test and was upheld.
With regard to the LRE requirement, Judge Alito examined previous third
circuit decisions, including Oberti v. Board of Education,75 which adopted a two part
test to determine compliance with LRE. Under Oberti, first a court must determine
“whether education in the regular classroom with the use of supplementary aids and
services can be achieved satisfactorily”76 and then must evaluate “whether the school
has mainstreamed the child to the maximum extent appropriate.”77 Judge Alito found
that the “peculiar facts” of the T.R. case made “a mechanical application of the
Oberti test difficult.”78 The school district in T.R. ran a preschool program that was
half children with disabilities and half children without disabilities which Judge Alito
described as “under the terms of the IDEA, more restrictive than a ‘regular’, fully-
mainstreamed preschool class would be.”79 This meant, Judge Alito determined, that
the district court “erred in not inquiring into whether regular classroom options were
available within a reasonable distance to implement ... (the child’s) IEP, and we
remand so the District Court may consider this question.80
In another decision regarding the provision of FAPE, Falzett v. Pocono81
Mountain School District, Judge Alito joined an unpublished per curiam decision
holding that the child had been provided a meaningful educational benefit. In
Falzett, the child had contracted an illness that required him to stay at home. The
school district provided home instruction but the child’s parents alleged that it was
provided sporadically and that the school district should pay for the tutors they had
hired. The court examined the facts, noting the child had received straight A’s, and


73 172 F.3d 238 (3d Cir. 1999).
74 Ridgewood Board of Education v. N.E., 172 F.3d 238, 247 (3d Cir. 1999), cited by T.R.
v. Kingwood Township Board of Education,205 F.3d 572, 577 (3d Cir. 2000).
75 995 F.2d 1204 (3d. Cir. 1993).
76 Oberti v. Board of Education, 995 F.2d 1204, 1215 (3d. Cir. 1993).
77 Id.
78 205 F.3d 572, 579 (3d Cir. 2000).
79 Id.
80 Id. at 580.
81 2005 U.S. App. LEXIS (3d Cir. October 11, 2005).

had increased his standardized test scores, and concluded that FAPE had been
provided.
Tallman v. Barnegat Board of Education82 upheld a grant of summary judgment
for the defendant school system in a case involving numerous allegations of IDEA
violations including the failure to develop an IEP. In a per curiam decision joined
by Judge Alito, the court examined the factual issues involving the education of an
emotionally disturbed child who died after being restrained at a residential school
where he had been placed. Although the court lamented the tragedy, it rejected the
argument that if the school had not failed to adopt an IEP, the child would not have
died and observed that the parents had entered into a settlement about the delayed
IEP prior to the child’s placement in the residential facility.
Procedural Issues. In Beth V. v. Carroll,83 Judge Alito joined in a decision
by Chief Judge Sloviter which reversed a grant of summary judgment and held that
the plaintiffs had an express right of action under IDEA. The plaintiffs, learning
disabled children and their mothers, had filed complaints with the Pennsylvania
Department of Education alleging that the state had failed to maintain a timely and
effective state-level complaint resolution system as required by IDEA. The court of
appeals noted that “the issue of the plaintiffs’ right to sue under IDEA based on a
claim that the state has failed to implement DOE’s regulations for a complaint
resolution procedure is an important one in the effectuation of the substantive rights84
established under IDEA.”
In C.M. & R.M. v. Board of Education of the Union County Regional High
School District,85 an unpublished per curium decision in which Judge Alito joined,
the third circuit held that IDEA claims were not moot due to the child’s graduation
and remanded the case for consideration of the requests for declaratory and injunctive
relief. The dismissal of damage claims by the district court was upheld.
Attorneys’ fees were at issue in several decisions joined by Judge Alito. In
Maria C. v. School District of Philadelphia,86 the third circuit in an unpublished
decision by Judge Rosenn in which Judge Alito joined, found that the plaintiff was
not a prevailing party, and therefore not entitled to attorneys’ fees, with the exception
of proceedings occurring in 2000. The arguments for attorneys’ fees were rejected
in years other than 2000 since the revisions to the child’s IEP in those years were
brought about by negotiations and voluntary agreements. In another fee related case,
L.L. v. Vineland Board of Education,87 a per curiam decision was joined by Judge
Alito found that if, on remand, the district court was to determine that the plaintiff


82 43 Fed. Appx. 490 (3d Cir. 2002).
83 87 F.3d 80 (3d Cir. 1996).
84 Id. at 85.
85 128 Fed. Appx. 876 (3d Cir. 2005).
86 142 Fed. Appx. 78 (3d Cir. 2005).
87 128 Fed. Appx. 916 (3d Cir. 2005).

was a prevailing party, she would be entitled to receive costs for a lay advocate for
educational consulting but not for lay advocacy.
Section 504 of the Rehabilitation Act
Statutory Provisions
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against
an otherwise qualified individual with a disability, solely on the basis of the
disability, in any program or activity that receives federal financial assistance, the
executive agencies, or the U.S. Postal Service.88 Many of the concepts used in the
ADA originated in Section 504 and its interpretations; however, there is one major
difference. While Section 504’s prohibition against discrimination is tied to the
receipt of federal financial assistance, the ADA also covers entities not receiving
such funds. In addition, the federal executive agencies and the U.S. Postal Service
are covered under Section 504, not the ADA.
Judge Alito’s Opinions, Concurrences and Dissents
In Donahue v. Consolidated Rail Corporation,89 Judge Alito found that the
failure to employ an individual with significant heart problems as a train dispatcher
was not a violation of section 504. In addition, Judge Alito found that the employer
had not failed to provide a reasonable accommodation. Charles Donahue had sued
the railway company under §504 of the Rehabilitation Act alleging that the company
had violated the act by failing to accommodate him by offering to transfer him to a
position he could perform. He had had one heart attack and had twice passed out at
work in less than a year. Donahue’s cardiologist had refused to clear him to work
near trains. The district court found that the plaintiff failed to show there was a
vacant funded position that he could have performed without presenting a significant
safety risk. The court of appeals affirmed, holding that employing Donahue as a train
dispatcher would have created a significant risk to others.
In another employment case, Antol v. Perry,90 Judge Alito concurred with the
majority opinion reversing and remanding a summary judgment on the disability
discrimination claims of a Vietnam era veteran. In his concurrence, Judge Alito
clarified his position on the significance of the agency’s violations of its Vietnam Era
Veterans Readjustment Assistance Act (VEVRA)91 affirmative action plan. He
stated: “The VEVRA affirmative action plan required the Agency to give Antol more
favorable treatment than either (a) an identical applicant without a disability or (b)
an identical applicant with a disability who did not fall within VEVRA’s coverage.
While I agree that evidence of the Agency’s violation of the VEVRA affirmative


88 29 U.S.C. §794.
89 224 F.3d 226 (3d Cir. 2000).
90 82 F.3d 1291 (3d Cir. 1996).
91 38 U.S.C. §4214.

action plan meets the low standard of relevance set out in Fed.R. Evid. 401, this
evidence seems to me to have very little probative value for the purpose of proving
intentional discrimination against Antol. However, even without this evidence, I
think that the proof in the record is sufficient to defeat summary judgment for the
Agency....”92
In Nathanson v. Medical College of Pennsylvania,93 a complicated section 504
case alleging a failure to accommodate the disability of a medical student at the
Medical College of Pennsylvania (MCP) and tortious interference with contract, the
third circuit upheld the district court’s summary judgment ruling regarding the
tortious interference with contract but reversed the summary judgment regarding the
section 504 issue and remanded the case. Judge Alito agreed with the majority on
upholding the summary judgment regarding tortious interference with contract but
also would have upheld the summary judgment regarding the section 504 claim. He
examined the complex facts at issue and noted that “In my judgment, Nathanson
failed to provide sufficient evidence that MCP acted unreasonably during any of the
three periods leading up to her second voluntary withdrawal on September 5, 1986,
and therefore the district court properly granted summary judgment in favor of MCP
on Nathanson’s Section 504 claim....I would affirm the judgment of the district court
in all respects. MCP should not be compelled to bear the expense and risk of further
litigation in this case.”94 The majority for the third circuit took issue with Judge
Alito’s dissent, noting that they believed he had resolved several issues of disputed
fact while the issue to be dealt with was whether the plaintiff had provided sufficient
evidence to raise a genuine issue of material fact to be determined on remand. The
third circuit majority further stated: “We believe, however, that few if any
Rehabilitation Act cases would survive summary judgment if such an analysis were
applied to each handicapped individual’s request for accommodation. Under the
dissent’s approach, an institution could justify rejecting an ‘otherwise qualified’
applicant’s reasonable request by rationalizing that even if such accommodations
were provided, the applicant still might not be able to continue in a particular
program and thus would eventually withdraw.”95 Disability advocates have criticized
Judge Alito’s dissent in Nathanson finding his reasoning, especially his statement
that the Medical College should not be compelled to bear the expense and risk of
further litigation, to be unduly supportive of business interests.96
Judge Alito joined in other third circuit §504 decisions as well. In Mengine v.
Runyon,97 a section 504 case alleging a failure to accommodate a disability, the third
circuit in an opinion by Judge Scirica, joined by Judge Alito, upheld a summary
judgment in favor of the U.S. Postal Service. The employee, a letter carrier for the


92 82 F.3d 1291, 1303 (3d Cir. 1996).
93 926 F.2d 1368 (3d Cir. 1991).
94 Id. at 1396.
95 Id. at 1397, footnote 13.
96 For a detailed discussion of this case from a disability rights perspective see
[ ht t p: / / www.r a gge dedgemagazine.com/ bl ogs/ edgecent r i c / a r c hi ve s/ 2005/ 11/ a_speci al _chai r ]
97 114 F.3d 415 (3d Cir. 1997).

U.S. Postal Service, was no longer able to carry out his duties following hip surgery.
He requested a job reassignment but no permanent, vacant funded position was
identified and suit was filed alleging that the Postal Service impeded his search for
such a position. The court of appeals rejected this argument finding that “Mengine
and the Postal Service engaged in the interactive process contemplated by the federal
regulations. The uncontradicted evidence shows the parties exchanged many letters
in their mutual attempt to identify a vacant, funded position for reassignment....The
Postal Service made reasonable efforts to assist Mengine, communicated with him
in good faith, and did not act to impede his investigation.”98
In ADAPT v. Department of Housing and Urban Development,99 organizations
that represent and advocate for individuals with disabilities brought suit against the
U.S. Department of Housing and Urban Development (HUD) alleging that HUD
failed to comply with the Fair Housing Act or its own regulations under section 504
of the Rehabilitation Act. Judge Nygaard, in an opinion joined by Judge Alito, held
that the presumption that HUD investigative and enforcement policies were not
subject to judicial review was not rebutted and the claims were not subject to review
under the Administrative Procedure Act (APA).
Fair Housing Act Amendments
Statutory Provisions
The Fair Housing Act (FHA) was enacted “to provide, within constitutional
limitations, for fair housing throughout the United States.”100 The original 1968 Act
prohibited discrimination on the basis of “race, color, religion, or national origin” in
the sale or rental of housing, the financing of housing, or the provision of brokerage
services.101 In 1974, the act was amended to add sex discrimination to the list of
prohibited activities102 and in 1988 the act was amended to prohibit discrimination
in housing on the additional grounds of physical or mental disability, as well as
familial status.103
Judicial Decision Joined by Judge Alito
In addition to ADAPT v. Department of Housing and Urban Development,
which was discussed in the preceding section on section 504 of the Rehabilitation
Act, Judge Alito also joined in the third circuit opinion in Lapid-Laurel v. Zoning


98 Id. at 421.
99 170 F.3d 381 (3d Cir. 1999).
100 42 U.S.C. §3601. For a detailed discussion of this act see CRS Report 95-710, The Fair
Housing Act: A Legal Overview, by Jody Feder.
101 42 U.S.C. §§3604-3606.
102 P.L. 93-383.
103 P.L. 100-430.

Board of Adjustment of the Township of Scotch Plains.104 In an opinion by Chief
Judge Becker, joined by Judge Alito, the third circuit rejected a claim under the Fair
Housing Amendments Act holding (1) that the development firm failed to produce
sufficient evidence that the accommodations it requested were necessary to afford
individuals with disabilities an equal opportunity to housing and (2) that the
requested accommodations were unreasonable. The requested accommodations were
found to be unreasonable based largely on problems with traffic safety and access for
emergency vehicles. The court observed: “While a plaintiff is in the best position
to show what it necessary to afford its clients (i.e. the handicapped population that
it wishes to serve) an equal opportunity to use and enjoy housing, a defendant
municipality is in the best position to provide evidence concerning what is reasonable
or unreasonable within the context of its zoning scheme.”105
Federalism
Overview
The U.S. Constitution delineates the authority between the federal and state
governments and requires that laws enacted by Congress be based on a constitutional
grant of power.106 Many of the statutes discussed above, such as section 504 and the
Individuals with Disabilities Education Act, are based at least in part on the spending
power since they provide funds. However, the ADA and the Fair Housing Act were
enacted based on other constitutional provisions. The ADA specifically states as its
constitutional authority the Fourteenth Amendment and the commerce clause.107 The
commerce power is, then, significant to the discussion of disability issues since it is
specifically mentioned as the constitutional basis of the ADA and limitations on its
reach could effect the constitutionality of the ADA.
The Eleventh Amendment provides for state sovereign immunity but can be
abrogated in certain circumstances by section 5 of the Fourteenth Amendment which
states: “The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article.” The exact circumstances where the Eleventh Amendment
may be abrogated have been the subject of a much discussed line of Supreme Court
decisions which have generally restrained congressional authority. Several of these
cases have been brought under the ADA.108 This issue is significant since if the


104 284 F.3d 442 (3d Cir. 2002).
105 Id. at 458.
106 For a detailed discussion of federalism and recent Supreme Court decisions see CRS
Report RL30315, Federalism, State Sovereignty and the Constitution: Basis and Limits of
Congressional Power, by Kenneth R. Thomas.
107 42 U.S.C. §12101(b)(4).
108 See Tennessee v. Lane, 541 U.S. 509 (2004), and Garrett v. University of Alabama,

531 U.S. 356 (2001). The Supreme Court granted certiorari in another case Goodman v.


Ray, 120 Fed. Appx. 785, cert. granted, 161 L.Ed. 2d 1057, 125 S. Ct. 2256 (2005). For a
(continued...)

Eleventh Amendment is not found to be successfully abrogated, limitations may be
imposed on the ability of individuals with disabilities to sue the states for damages
under the ADA.
Judge Alito’s Decisions
Although Judge Alito has not addressed federalism issues in the context of the
ADA, two of his decisions give some insight into how he might approach such
cases.109 In Chittister v. Department of Community and Economic Development,110
Judge Alito was presented with the issue of whether Congress had validly abrogated
the states’ Eleventh Amendment immunity when it enacted the Family and Medical
Leave Act of 1993 (FMLA).111 Finding no valid abrogation, Judge Alito noted that
in the FMLA Congress identified the unconstitutional conduct as the potential for
employment discrimination on the basis of sex. Therefore, based on City of Boerne
v. Flores,112 he reasoned there must be a congruence and proportionality between the
potential for employment discrimination of the basis of sex and the FMLA’s
provision of 12 weeks of leave to eligible employees in order to find the Eleventh
Amendment validly abrogated. Judge Alito concluded: “It is apparent that this
standard cannot be met here....Congress did not find that public employers refused
to permit as much sick leave as the FMLA mandates with the intent of
disadvantaging employees of one gender....Nor are we aware of any substantial
evidence of such violations in the legislative record.”113
In United States v. Rybar,114 the third circuit, in an opinion by Chief Judge
Sloviter, upheld the constitutionality of a federal law prohibiting the transfer or
possession of a machine gun, finding that the law was within constitutional authority
under the Commerce Clause. Judge Alito dissented, finding that United States v.
Lopez,115 limited the federal power to impose such limitations. The majority’s
opinion was seen by Judge Alito as going “far toward converting Congress’s
authority to regulate interstate commerce into a ‘plenary police power.’”116 Judge
Alito concluded: “In sum, we are left with no congressional findings and no


108 (...continued)
more detailed discussion of the ADA and the Eleventh Amendment see CRS Report 98-921,
The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues, by
Nancy Lee Jones.
109 For a more detailed discussion of the federalism decisions of Judge Alito see CRS
Report RL33214, “Federalism: Selected Opinions of Judge Samuel Alito,” by Kenneth R.
Thomas and Todd B. Tatelman.
110 226 F.3d 223 (3d Cir. 2000).
111 29 U.S.C. §2601 et seq.
112 521 U.S. 507 (1997).
113 Id. at 228.
114 103 F.3d 273 (3d Cir. 1996), cert denied, 522 U.S. 807 (1997).
115 514 U.S. 549 (1995).
116 103 F.3d 273, 291 (3d Cir. 1996).

appreciable empirical support for the proposition that the purely intrastate possession
of machine guns, by facilitating the commission of certain crimes, has a substantial
effect on interstate commerce, and without such support I do not see how the
statutory provisions at issue here can be sustained — unless, contrary to the lesson
that I take from Lopez, the ‘substantial effects’ test is to be drained of all practical
significance. As Lopez reminded us, the ‘constitutionally mandated division of
authority [between the federal government and the states] ‘was adopted by the
Framers to ensure protection of our fundamental liberties.’”117 However, Judge Alito
also indicated that Congress could have negated this conclusion. Judge Alito stated
he “would view this case differently if Congress as a whole or even one of the
responsible congressional committees had made a finding that intrastate machine gun
possession, by facilitating the commission of certain crimes, has a substantial effect
on interstate commerce.”118
Judge Alito’s record in these two cases has been described by disability groups
as troubling. The Bazelon Center for Mental Health Law stated that Judge Alito’s
rulings “demonstrate cramped views of Congress’s powers that would put critical
disability rights laws at risk. Justice Sandra Day O’Connor, whose seat on the court
Alito is nominated to fill, was frequently the pivotal vote in cases about Congress’
power to pass the ADA, the FMLA and other important laws. If Judge Alito is
confirmed, there is every reason to expect that many important decisions about
federal power would come out differently — against people with disabilities. His
record suggests he would become the critical fifth vote to strike down portions of
these laws as unconstitutional.”119 However, it could also be argued that in the case
of Chittister, Judge Alito was continuing in the line of Supreme Court cases and did
not anticipate the Supreme Court’s subsequent decision in Nevada Dept. of Human
Resources v. Hibbs,120 which upheld the Family and Medical Leave Act as a valid
exercise of congressional power pursuant to section 5 of the Fourteenth
Amendment.121 In addition, the opinion in Chittister dealt with a different provision
of the FMLA than was at issue in Hibbs; it could be argued that the cases could
therefore be distinguished.122


117 Id. at 294 (citing United States v. Lopez).
118 Id. at 292.
119 [http://www.bazelon.org/takeaction/alerts/alitosrecord-details.htm] See also
[http://www.adaction.org/ AlitoInfo.htm]
120 103 F.3d 273 (3d Cir. 1996), cert denied, 522 U.S. 807 (1997).
121 One commentator observed concerning the Chittister decision, that “this seemed at the
time like a natural consequence of the damage the Supreme Court had done; indeed, other
circuits ruled the same way. But then, the Supreme Court backtracked, unexpectedly
distinguishing a different provision of the leave act from the previous cases. This move
gives opponents certain rhetorical ammunition against Judge Alito. But it actually saysth
more about the inconsistency of the high court’s own approach to the 11 Amendment than
it does about any of the lower-court judges caught in its bait-and-switch.” “Judge Alito on
the States,” Washington Post A14 (November 21, 2005).
122 For a more detailed discussion of this argument, see CRS Report RL33214, Federalism:
Selected Opinions of Judge Samuel Alito, by Kenneth R. Thomas and Todd B. Tatelman.

Judge Alito’s dissent in United States v. Rybar has been criticized as “an
extremely restrictive view of Congress’s power to regulate interstate commerce.”123
The Supreme Court denied review in Rybar and subsequently used similar arguments
to those Judge Alito rejected in determining in Gonzales v. Raich that Congress could
regulate marijuana even if it did not cross state lines and was grown only for personal
use.124 Like Chittister v. Department of Community and Economic Development,
Judge Alito’s dissent was prior to the Supreme Court’s subsequent ruling in Gonzales
and it could be argued that he was only following the Supreme Court’s decision in
United States v. Lopez and that he left open the possibility of a different decision if
a congressional committee had made the appropriate findings. However, a
distinction could be drawn in that Judge Alito was dissenting in Rybar, which
indicated that other judges did not view the Supreme Court’s Lopez decision as
restrictively.


123 [http://www.bazelon.org/takeaction/alerts/alitosrecord-details.htm]
124 Gonzales v. Raich, 125 S.Ct. 2195 (2005).