The opinion of the court was delivered by: Bartle, District Judge
Plaintiff Michael Jones filed this action against the Commonwealth of
Pennsylvania for violations of 42 U.S.C. § 1983 and Title II of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. In
a Memorandum and Order dated January 5, 2000, this court granted the
Commonwealth's motion to dismiss plaintiff's § 1983 claims on
Eleventh Amendment immunity grounds. Jones v. Pennsylvania, Civ. A. No.
99-4212, 2000 WL 15073, at *1 (E.D.Pa. Jan. 5, 2000). However, persuaded
by "a strong majority of circuits," we determined that Congress had
effectively abrogated this immunity with respect to claims pursuant to
Title II of the ADA. Therefore, certain of plaintiff's claims were
allowed to proceed.*fn1 Before the court is defendant's motion for
The facts giving rise to plaintiff's complaint need not be reiterated
here. See Jones, 2000 WL 15073, at *1. The procedural history of this
case, however, requires brief explanation. As noted above,
on January 5, 2000, we granted in part and denied in part defendant's
motion to dismiss. Defendant then sought and obtained leave to file a
motion for reconsideration of that decision in light of the Supreme Court's
January 11, 2000 opinion in Kimel v. Florida Board of Regents, 528 U.S. 62
(2000).*fn2 Before the Commonwealth filed its motion, however, the
Supreme Court granted petitions for a writ of certiorari in two cases
which specifically addressed application of Eleventh Amendment immunity
in ADA cases.*fn3 We therefore stayed all proceedings in this case
pending future action from the high Court. On February 21, 2001, the Court
announced its decision Board of Trustees of the University of Alabama v.
Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), holding that "Congress did
not validly abrogate the States' sovereign immunity from suit by private
individuals for money damages under Title I [of the ADA]." Id. at 968 n.
9. Removing this case from the civil suspense docket, we then ordered
defendant to file a motion for reconsideration. The Commonwealth filed
the instant motion on April 30, 2001.
"[A] judgment may be altered or amended if the party seeking
reconsideration shows . . . an intervening change in the controlling
law. . . ." Max's Seafood Café ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co.
v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The
Commonwealth asserts that recent Supreme Court holdings, including the
Garrett opinion, require this court to reverse its prior decision that
states are not immune from ADA claims.
It is now well-settled that Congress can abrogate a state's sovereign
immunity only if it unequivocally expresses its intent to do so and if it
acts pursuant to a valid exercise of power under § 5 of the
Fourteenth Amendment. Garrett, 121 S.Ct. at 962. See Kimel v. Florida
Bd. of Regents, 528 U.S. 62, 73, 79 (2000); Florida Prepaid Postsecondary
Ed. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 636 (1999); Alden v.
Maine, 527 U.S. 706, 730-733 (1999); Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 55, 72-73 (1996); Fitzpatrick v. Bitzer,
427 U.S. 445, 456 (1976). Section 12202 clearly states Congress' intent
to hold states liable for violations of the ADA.*fn4 See Lavia v.
Pennsylvania, 224 F.3d 190, 196 (3d Cir. 2000). Thus, the only question
before us is whether Congress' enactment of Title II is a valid exercise
of § 5 power.
Section 5 is the enforcement provision of the Fourteenth Amendment
which allows Congress to enact "appropriate legislation" to remedy or
deter violations of the Amendment's due process and equal protection
guarantees. Garrett, 121 S.Ct. at 963 (citing City of Boerne v. Flores,
521 U.S. 507, 536 (1997)). See U.S. Const. amend XIV, §§ 1, 5. Such
legislation may prohibit conduct which does not itself constitute a
constitutional violation. Kimel, 528 U.S. at 81. However, "it is the
responsibility of [the Supreme] Court, not Congress, to define the
substance of constitutional guarantees. Accordingly, § 5 legislation
reaching beyond the scope of [the Fourteenth Amendment's] actual
guarantees must exhibit `congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.'"
Garrett, 121 S.Ct. at 963 (quoting City of Boerne, 521 U.S. at 519-24).
Thus, if the activity which the legislation purports to address is too
distantly related to that which is constitutionally forbidden, Congress
has exceeded its limited authority under § 5.
We acknowledge that the Supreme Court expressly declined to decide in
Garrett whether Title II of the ADA is "appropriate legislation under
§ 5." Id. at 960 n. 1. Garrett dealt with Title I of the ADA. That
decision, therefore, is not dispositive of the question before this
court. See, e.g., Wroncy v. Oregon Dep't of Transp.,
(Table, Text in WESTLAW), Unpublished Disposition, 2001 WL 474550, at *1
(9th Cir. May 04, 2001). Nevertheless, we believe that the analytical
framework established by the Court is clearly applicable to this case and
requires a reversal of our earlier conclusion that Congress abrogated
states' Eleventh Amendment immunity under Title II of the ADA. We now
hold that Title II is not a valid exercise of Congress' § 5 power and
that the Commonwealth is immune from plaintiff's ADA claim.
The first step in determining whether the remedies provided by Title II
are congruent and proportional to the problem of disability
discrimination by the states is to identify "the scope of the
constitutional right at issue." Garrett, 121 S.Ct. at 963. In this case,
the constitutional demand is that "all persons similarly situated should
be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985) (citation omitted). This equal protection guarantee requires
the states to pursue rationally a legitimate government interest.
"Thus, . . . States are not required by the Fourteenth Amendment to make
special accommodations for the disabled, so long as their actions toward
such individuals are rational." Garrett, 121 S.Ct. at 964.
Title II, however, does not merely proscribe irrational or intentional
discrimination against individuals with a disability. Rather, the statute
and its accompanying regulations address a much broader scope of
otherwise constitutional activity by requiring public entities, including
states, to provide affirmative accommodations for the disabled. Thompson
v. Colorado, No. 99-1045, 2001 WL 883305, at *6-*7 (10th Cir. Aug. 7,
2001) (citations omitted).
We next examine whether Congress "identified a history and pattern of
unconstitutional  discrimination by the States against the disabled."
Garrett, 121 S.Ct. at 964. Congress explicitly found that:
discrimination against individuals with disabilities
persists in such critical areas as employment,
housing, public accommodations, education,
transportation, communication, recreation,
institutionalization, health services, voting, and
access to public services; . . .
individuals with disabilities continually encounter
various forms of discrimination, including outright
exclusion, the discriminatory effects of
architectural, transportation, and communication
barriers, overprotective rules and policies, failure
to make modifications to existing facilities and
practices, exclusionary qualification standards and
criteria, segregation, and relegation to lesser
services, programs, activities, benefits, jobs, or
42 U.S.C. § 12101 (a)(3), (5).
While the historical record contains some evidence to support these
findings, "most of these occurrences involve local officials and not the
states." Thompson v. Colorado, No. 99-1045, 2001 WL 883305, at *10 (10th
Cir. Aug. 7, 2001) (citation and footnote omitted). Because only states
are entitled to Eleventh Amendment protection, "[i]t would make no sense
to consider" the actions of cities or counties when deciding whether
Congress validly abrogated that immunity. Garrett, 121 S.Ct. at 965. In
addition, the incidents in the record mostly describe the ...