May 17, 2004

    Justice Stevens delivered the opinion of the Court.

    Title II of the Americans with Disabilities Act of 1990 (ADA or Act) provides 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.” The question presented in this case is whether Title II exceeds Congress’ power under §5 of the Fourteenth Amendment.

I

    In August 1998, respondents George Lane and Beverly Jones filed this action against the State of Tennessee and a number of Tennessee counties, alleging past and ongoing violations of Title II. Respondents, both of whom are paraplegics who use wheelchairs for mobility, claimed that they were denied access to, and the services of, the state court system by reason of their disabilities. Lane alleged that he was compelled to appear to answer a set of criminal charges on the second floor of a county courthouse that had no elevator. At his first appearance, Lane crawled up two flights of stairs to get to the courtroom. When Lane returned to the courthouse for a hearing, he refused to crawl again or to be carried by officers to the courtroom; he consequently was arrested and jailed for failure to appear. Jones, a certified court reporter, alleged that she has not been able to gain access to a number of county courthouses, and, as a result, has lost both work and an opportunity to participate in the judicial process. Respondents sought damages and equitable relief.

    The State moved to dismiss the suit on the ground that it was barred by the Eleventh Amendment.... On April 28, 2000, after the appeal had been briefed and argued, the Court of Appeals for the Sixth Circuit entered an order holding the case in abeyance pending our decision in Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).  In Garrett, we concluded that the Eleventh Amendment bars private suits seeking money damages for state violations of Title I of the ADA. We left open, however, the question whether the Eleventh Amendment permits suits for money damages under Title II.... 

    A panel of the Court of Appeals entered an order affirming the District Court’s denial of the State’s motion to dismiss in this case.  The order explained that respondents’ claims were not barred because they were based on due process principles. It explained that the Due Process Clause protects the right of access to the courts, and that the evidence before Congress when it enacted Title II “established that physical barriers in government buildings, including courthouses and in the courtrooms themselves, have had the effect of denying disabled people the opportunity to access vital services and to exercise fundamental rights guaranteed by the Due Process Clause.”  We granted certiorari, and now affirm.

II

    The ADA was passed by large majorities in both Houses of Congress after decades of deliberation and investigation into the need for comprehensive legislation to address discrimination against persons with disabilities....

    Title II prohibits any public entity from discriminating against “qualified” persons with disabilities in the provision or operation of public services, programs, or activities. The Act defines the term “public entity” to include state and local governments, as well as their agencies and instrumentalities.... Title II’s enforcement provision incorporates authorizes private citizens to bring suits for money damages.

III

    The Eleventh Amendment renders the States immune from “any suit in law or equity, commenced or prosecuted … by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Even though the Amendment “by its terms … applies only to suits against a State by citizens of another State,” our cases have repeatedly held that this immunity also applies to unconsented suits brought by a State’s own citizens. Our cases have also held that Congress may abrogate the State’s Eleventh Amendment immunity. To determine whether it has done so in any given case, we “must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.” 

    The first question is easily answered in this case. The Act specifically provides: “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 of competent jurisdiction for a violation of this chapter.”  The question, then, is whether Congress had the power to give effect to its intent.

    In Fitzpatrick v. Bitzer (1976), we held that Congress can abrogate a State’s sovereign immunity when it does so pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment. This enforcement power, as we have often acknowledged, is a “broad power indeed.”  It includes “the authority both to remedy and to deter violation of rights guaranteed by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.”  We have thus repeatedly affirmed that “Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” The most recent affirmation of the breadth of Congress’ §5 power came in Hibbs, in which we considered whether a male state employee could recover money damages against the State for its failure to comply with the family-care leave provision of the Family and Medical Leave Act of 1993. We upheld the FMLA as a valid exercise of Congress’ §5 power to combat unconstitutional sex discrimination, even though there was no suggestion that the State’s leave policy was adopted or applied with a discriminatory purpose that would render it unconstitutional. When Congress seeks to remedy or prevent unconstitutional discrimination, §5 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.

    Congress’ §5 power is not, however, unlimited. While Congress must have a wide berth in devising appropriate remedial and preventative measures for unconstitutional actions, those measures may not work a “substantive change in the governing law.” In Boerne, we recognized that the line between remedial legislation and substantive redefinition is “not easy to discern,” and that “Congress must have wide latitude in determining where it lies.” But we also confirmed that “the distinction exists and must be observed,” and set forth a test for so observing it: 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.” 

    In Boerne, we held that Congress had exceeded its §5 authority when it enacted the Religious Freedom Restoration Act of 1993 (RFRA). We began by noting that Congress enacted RFRA “in direct response” to our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), for the stated purpose of “restor[ing]” a constitutional rule that Smith had rejected. Though the respondent attempted to defend the statute as a reasonable means of enforcing the Free Exercise Clause as interpreted in Smith, we concluded that RFRA was “so out of proportion” to that objective that it could be understood only as an attempt to work a “substantive change in constitutional protections.”  Indeed, that was the very purpose of the law....

    Applying the Boerne test in Garrett, we concluded that Title I of the ADA was not a valid exercise of Congress’ §5 power to enforce the Fourteenth Amendment’s prohibition on unconstitutional disability discrimination in public employment. Although the dissent pointed out that Congress had before it a great deal of evidence of discrimination by the States against persons with disabilities, the Court’s opinion noted that the “overwhelming majority” of that evidence related to “the provision of public services and public accommodations, which areas are addressed in Titles II and III,” rather than Title I. We also noted that neither the ADA’s legislative findings nor its legislative history reflected a concern that the States had been engaging in a pattern of unconstitutional employment discrimination....Taken together, the historical record and the broad sweep of the statute suggested that Title I’s true aim was not so much to enforce the Fourteenth Amendment’s prohibitions against disability discrimination in public employment as it was to “rewrite” this Court’s Fourteenth Amendment jurisprudence.

    In view of the significant differences between Titles I and II, however, Garrett left open the question whether Title II is a valid exercise of Congress’ §5 enforcement power. It is to that question that we now turn.

IV

    The first step of the Boerne inquiry requires us to identify the constitutional right or rights that Congress sought to enforce when it enacted Title II. In Garrett we identified Title I’s purpose as enforcement of the Fourteenth Amendment’s command that “all persons similarly situated should be treated alike.” As we observed, classifications based on disability violate that constitutional command if they lack a rational relationship to a legitimate governmental purpose. 

    Title II, like Title I, seeks to enforce this prohibition on irrational disability discrimination. But it also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review.  These rights include some, like the right of access to the courts at issue in this case, that are protected by the Due Process Clause of the Fourteenth Amendment. The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant such as respondent Lane the “right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” The Due Process Clause also requires the States to afford certain civil litigants a “meaningful opportunity to be heard” by removing obstacles to their full participation in judicial proceedings. We have held that the Sixth Amendment guarantees to criminal defendants the right to trial by a jury composed of a fair cross section of the community, noting that the exclusion of “identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.”  And, finally, we have recognized that members of the public have a right of access to criminal proceedings secured by the First Amendment. 

    Whether Title II validly enforces these constitutional rights is a question that “must be judged with reference to the historical experience which it reflects.”  While §5 authorizes Congress to enact reasonably prophylactic remedial legislation, the appropriateness of the remedy depends on the gravity of the harm it seeks to prevent.

    It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. For example, “[a]s of 1979, most States … categorically disqualified ‘idiots’ from voting, without regard to individual capacity.  The majority of these laws remain on the books, and have been the subject of legal challenge as recently as 2001. Similarly, a number of States have prohibited and continue to prohibit persons with disabilities from engaging in activities such as marrying and serving as jurors. The historical experience that Title II reflects is also documented in this Court’s cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment, the abuse and neglect of persons committed to state mental health hospitals, and irrational discrimination in zoning decisions. The decisions of other courts, too, document 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.   Notably, these decisions also demonstrate a pattern of unconstitutional treatment in the administration of justice....

    With respect to the particular services at issue in this case, Congress learned that many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities. A report before Congress showed that some 76% of public services and programs housed in state-owned buildings were inaccessible to and unusable by persons with disabilities, even taking into account the possibility that the services and programs might be restructured or relocated to other parts of the buildings.  And its appointed task force heard numerous examples of the exclusion of persons with disabilities from state judicial services and programs, including exclusion of persons with visual impairments and hearing impairments from jury service, failure of state and local governments to provide interpretive services for the hearing impaired, failure to permit the testimony of adults with developmental disabilities in abuse cases, and failure to make courtrooms accessible to witnesses with physical disabilities.

    Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services, the dissent’s contention that the record is insufficient to justify Congress’ exercise of its prophylactic power is puzzling, to say the least....

    The conclusion that Congress drew from this body of evidence is set forth in the text of the ADA itself: “[D]iscrimination against individuals with disabilities persists in such critical areas as … education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” This finding, together with the extensive record of disability discrimination that underlies it, makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.

V

    The only question that remains is whether Title II is an appropriate response to this history and pattern of unequal treatment. At the outset, we must determine the scope of that inquiry. Title II reaches a wide array of official conduct in an effort to enforce an equally wide array of constitutional guarantees. Petitioner urges us both to examine the broad range of Title II’s applications all at once, and to treat that breadth as a mark of the law’s invalidity. According to petitioner, the fact that Title II applies not only to public education and voting-booth access but also to seating at state-owned hockey rinks indicates that Title II is not appropriately tailored to serve its objectives. But nothing in our case law requires us to consider Title II, with its wide variety of applications, as an undifferentiated whole.  Whatever might be said about Title II’s other applications, the question presented in this case is not whether Congress can validly subject the States to private suits for money damages for failing to provide reasonable access to hockey rinks, or even to voting booths, but whether Congress had the power under §5 to enforce the constitutional right of access to the courts. Because we find that Title II unquestionably is valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further. 

    Congress’ chosen remedy for the pattern of exclusion and discrimination described above, Title II’s requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in concluding that this “difficult and intractable proble[m]” warranted “added prophylactic measures in response.” 

   This duty to accommodate is perfectly consistent with the well-established due process principle that, “within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard” in its courts.... 

    For these reasons, we conclude that Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ §5 authority to enforce the guarantees of the Fourteenth Amendment. The judgment of the Court of Appeals is therefore affirmed.

    Justice Scalia, dissenting.

  In City of Boerne v. Flores (1997), we confronted Congress’s inevitable expansion of the Fourteenth Amendment, as interpreted in Morgan, beyond the field of racial discrimination. There Congress had sought, in the Religious Freedom Restoration Act of 1993 to impose upon the States an interpretation of the First Amendment’s Free Exercise Clause that this Court had explicitly rejected. To avoid placing in congressional hands effective power to rewrite the Bill of Rights through the medium of §5, we formulated the “congruence and proportionality” test for determining what legislation is “appropriate.” When Congress enacts prophylactic legislation, we said, there must be “proportionality or congruence between the means adopted and the legitimate end to be achieved.”

    I joined the Court’s opinion in Boerne with some misgiving. I have generally rejected tests based on such malleable standards as “proportionality,” because they have a way of turning into vehicles for the implementation of individual judges’ policy preferences.  Even so, I signed on to the “congruence and proportionality” test in Boerne, and adhered to it in later cases.

    But these cases were soon followed by Nevada Dept. of Human Resources v. Hibbs, in which the Court held that the Family and Medical Leave Act of 1993, which required States to provide their employees up to 12 work weeks of unpaid leave (for various purposes) annually, was “congruent and proportional to its remedial object [of preventing sex discrimination], and can be understood as responsive to, or designed to prevent, unconstitutional behavior.”  I joined Justice Kennedy’s dissent, which established (conclusively, I thought) that Congress had identified no unconstitutional state action to which the statute could conceivably be a proportional response. And now we have today’s decision, holding that Title II of the ADA is congruent and proportional to the remediation of constitutional violations, in the face of what seems to me a compelling demonstration of the opposite by The Chief Justice’s dissent.

    I yield to the lessons of experience. The “congruence and proportionality” standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress’s taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress’s homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test (“congruence and proportionality”) that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed. As I wrote for the Court in an earlier case, “low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” 

    I would replace “congruence and proportionality” with another test–one that provides a clear, enforceable limitation supported by the text of §5. Section 5 grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. Morgan notwithstanding, one does not, within any normal meaning of the term, “enforce” a prohibition by issuing a still broader prohibition directed to the same end. One does not, for example, “enforce” a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour speed limit–even though that is indeed directed to the same end of automotive safety and will undoubtedly result in many fewer violations of the 55-mile-per-hour limit. And one does not “enforce” the right of access to the courts at issue in this case, see ante, at 19, by requiring that disabled persons be provided access to all of the “services, programs, or activities” furnished or conducted by the State. That is simply not what the power to enforce means–or ever meant.  Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or “remedy” conduct that does not itself violate any provision of the Fourteenth Amendment. So-called “prophylactic legislation” is reinforcement rather than enforcement....

    The major impediment to the approach I have suggested is stare decisis. A lot of water has gone under the bridge since Morgan, and many important and well-accepted measures, such as the Voting Rights Act, assume the validity of Morgan and South Carolina. As Prof. Archibald Cox put it in his Supreme Court Foreword: “The etymological meaning of section 5 may favor the narrower reading. Literally, ‘to enforce’ means to compel performance of the obligations imposed; but the linguistic argument lost much of its force once the South Carolina and Morgan cases decided that the power to enforce embraces any measure appropriate to effectuating the performance of the state’s constitutional duty.”

    However, South Carolina and Morgan, all of our later cases except Hibbs that give an expansive meaning to “enforce” in §5 of the Fourteenth Amendment, and all of our earlier cases that even suggest such an expansive meaning in dicta, involved congressional measures that were directed exclusively against, or were used in the particular case to remedy, racial discrimination. Giving §5 more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the Fourteenth Amendment a priority of attention that this Court envisioned from the beginning, and that has repeatedly been reflected in our opinions....

    I shall also not subject to “congruence and proportionality” analysis congressional action under §5 that is not directed to racial discrimination. Rather, I shall give full effect to that action when it consists of “enforcement” of the provisions of the Fourteenth Amendment, within the broad but not unlimited meaning of that term I have described above. When it goes beyond enforcement to prophylaxis, however, I shall consider it ultra vires. The present legislation is plainly of the latter sort.