Pennsylvania Department of Corrections v. Yeskey

PETITIONER:Pennsylvania Department of Corrections
RESPONDENT:Yeskey
LOCATION:United States Department of State

DOCKET NO.: 97-634
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 524 US 206 (1998)
ARGUED: Apr 28, 1998
DECIDED: Jun 15, 1998

ADVOCATES:
Donald Specter – Argued the cause for the respondent
Irving L. Gornstein – On behalf of the United States, as amicus curiae, supporting the respondent
Paul A. Tufano – Argued the cause for the petitioners

Facts of the case

After being sentenced to 18 to 36 months in prison, Ronald Yeskey was recommended as a candidate for a Motivational Boot Camp for first-time offenders. Successful completion of the Boot Camp could have resulted in Yeskey’s early parole after just six months. When the Pennsylvania Department of Corrections discovered Yeskey’s medical history of hypertension, he was denied admission to the Boot Camp. Yeskey challenged the refusal as discriminatory. On appeal from a reversal of a district court’s dismissal of the claim, the Supreme Court granted certiorari.

Question

Did the Pennsylvania Department of Corrections’ refusal to allow a prison inmate to participate in a motivational boot camp, because of the inmate’s history of hypertension, violate Title II of the Americans with Disabilities Act of 1990 (ADA) prohibiting disability-based discrimination against qualified individuals?

William H. Rehnquist:

We’ll hear argument now in Number 97-634, Pennsylvania Department of Corrections v. Yeskey, Ronald Yeskey.

Mr. Tufano.

Paul A. Tufano:

Mr. Chief Justice, and may it please the Court:

Applying the Americans With Disabilities Act to State prisoners goes against the intent of Congress and violates the Constitution.

It also allows Congress to alter the Federal-State balance of power without first giving States notice and then opportunity to be heard, and it ignores this Court’s clear mandate that State prison administrators who have difficult and dangerous jobs be given great deference.

William H. Rehnquist:

Well, Mr.–

–Mr. Tufano, did you make your constitutional argument in the courts below?

Paul A. Tufano:

Your Honor, we did make constitutional arguments in that we have always argued in this case as a matter of statutory construction, federalism issues, and the issue of the clear statement rule, and as a matter of statutory construction we believe that the Court is to be guided by possible serious and grave constitutional questions which could arise from an interpretation of the Americans With Disabilities Act as applying to prisoners.

William H. Rehnquist:

Did you make that argument below, that the statute should be construed a particular way because to construe it another way would get into constitutional difficulties?

Paul A. Tufano:

We did not, Your Honor.

We argued below, as we have always, the issues of federalism and the same arguments that we’ve raised below regarding federalism go to the arguments which we have made as a matter of statutory construction regarding the Fourteenth Amendment and the Commerce Clause as well.

Sandra Day O’Connor:

Mr. Tufano, the language of the statute says that public entity means any State or local government, any department, agency, district or other instrumentality of a State or States or local government.

That’s very broad language, is it not?

Paul A. Tufano:

Yes, it is, Your Honor.

Sandra Day O’Connor:

Now, what about the application of the ADA… disabilities act… to employees of prisons?

Does it apply there?

Paul A. Tufano:

Yes, it does, Your Honor.

Sandra Day O’Connor:

How about to visitors at prisons?

Paul A. Tufano:

We would take the position that it does apply to visitors, Your Honor.

Sandra Day O’Connor:

Well then, what, in the language that I read, gets you off the hook for prisoners?

Paul A. Tufano:

We don’t dispute the fact that the Department of Corrections is a public entity within the meaning of the ADA and in title II, but there is a difference between the Department of Corrections being considered a public entity and whether a prison is a public entity or a program, activity, or service.

When the Department of Corrections wears its–

Sandra Day O’Connor:

Well, a prison might not itself be a program, but it might have within the prison context a program or activity.

In this very case it’s alleged that the particular program, the boot camp, is a sort of program or activity of the prison.

Paul A. Tufano:

–We believe, Your Honor, that program, activity, and service have different meanings in the context of a prison, that it is not the… it was not the intent of Congress to cover something like prisoners, that prisoners are not part of the public, and that–

Sandra Day O’Connor:

I can understand an argument that in complying with the statute and the regulations, that the prison only has to make reasonable modifications based on the circumstances.

Now, surely the circumstance that it’s a prison and there are great security concerns would affect that determination, would it not?

Paul A. Tufano:

–It would affect it, Your Honor, but again, you have to look at the fact that Congress’ findings in enacting the ADA talked about employment, housing, voting, medical services, and it talked about access to public services, and it talked about people having… being able to live independently, and they talked about living in a free society, and the fact that they based their findings in large part on the U.S. Commission on Civil Rights Report of 1983, which they lifted the conclusions almost verbatim, except for one, on involuntary sterilization, and they chose a couple of more which were not in the conclusions–

Ruth Bader Ginsburg:

Mr. Tufano, which Civil Rights Act did you say?

Paul A. Tufano:

–The U.S. Commission on Civil Rights Report of 1983, Your Honor.

Ruth Bader Ginsburg:

And that is of the same genre, I believe, as title VI, which, as you know, covers race discrimination, and I think the language is almost identical, so would you say, then, on your reasoning about prisoners, that title VI would not apply either to prisoners?

Paul A. Tufano:

That’s correct, Your Honor.

The Congress specifically chose two or three findings, or list of areas in the appendix to this report which did not discuss them as areas where discriminatory practices occur, and they specifically left behind the criminal justice system, where–

Antonin Scalia:

Who is they?

Was this report approved by the whole Congress?

Who is it a report of?

Paul A. Tufano:

–It was a report of the U.S. Commission on Civil Rights, and it was, I believe, introduced into both committees of Congress, Your Honor.

Antonin Scalia:

And you want to attribute that to the whole Congress?

Paul A. Tufano:

Well, Justice O’Connor’s question about public entity, and whether a prison is a program, statutory construction, as this Court has held, is a holistic endeavor, and you look not only at individual sentences, but you also look at the whole purpose of the law, and the purpose of the ADA was to provide for the assimilation in free society of American citizens in employment–

Ruth Bader Ginsburg:

Well, what about the background of the Rehabilitation Act, which has been on the books since the seventies, and as I understand it, the ADA is modeled precisely on that, and there is some 20 years of Department of Justice regulations saying that prisons are covered.

Paul A. Tufano:

–In… that’s correct, Your Honor.

In… the Rehab Act regulations which were promulgated by the Justice Department referred to prisons, and in 1990, when Congress enacted the ADA, and the States were to supposed to have been given a clear statement that the historic sovereign function of State prison management was about to be entered into by the Congress, the… what Congress was aware of at best was Rehabilitation Act regulations promulgated by the agency, nothing in the act, and there were… there was a Circuit Court decision and two district court decisions, and in the ADA, it refers back to parts of the Rehab Act regulations, part 39 and part 41.

Part 41 doesn’t say anything about prisons, and the respondent and the Federal Government argue that the States were to know that in part 42 there is mention about prisons.

Part 39 talks about the Justice Department and Federal prisons very much into the fine print, and that’s what’s wrong with the ADA.

The ADA… the argument of the respondent in the Federal Government as to what the clear statement was in the ADA is to read the fine print.

The problem is that the fine print is in another set of regulations under a different law, and it does not appear in the four corners of the document, and it’s our position that–

Antonin Scalia:

What does appear in the four corners of the document that enables you to exclude prisons?

What language do you rely upon that excludes… it doesn’t really exclude prisons entirely, just excludes those programs in prisons that relate to prisoners?

Paul A. Tufano:

–You start with the findings, Your Honor, by Congress, in the findings section of the ADA, where they talk about the different areas where they have found problems with discrimination and the… they don’t talk about the criminal–

Antonin Scalia:

So any area that is not mentioned in the finding is not covered by the text of the act, even though the words otherwise would cover it.

Is that the principle you want us to apply?

Paul A. Tufano:

–Well, that’s part of the principle I’d want you to apply.

The other part would to be… to look at the meanings of the words in the statute regarding a qualified individual who meets the essential eligibility requirement.

John Paul Stevens:

May I go back to the findings for a minute?

What is it in the findings that excludes prisons?

It starts out, some 43 million Americans have one or more physical or mental disability.

Are you saying that’s 43 million not counting prisoners?

Paul A. Tufano:

Yes, I am, Your Honor, because if you look below that they talk about discrimination in such areas as employment, housing, public accommodations, education, transportation, communication, and recreation.

John Paul Stevens:

Such areas as.

Institutionalization is also in there.

Paul A. Tufano:

Institutionalization is there, but again–

John Paul Stevens:

And this is an institution.

Paul A. Tufano:

–It’s a correctional institution, but–

John Paul Stevens:

Yes.

Paul A. Tufano:

–we believe that the meaning of institutionalization, which again these areas were lifted, that that sentence in 12101(a)(3) is almost verbatim language from the U.S. Commission Report, where institutionalization is not discussed in the criminal justice context.

John Paul Stevens:

Well, but just staying within the four corners of the document is what we started to do.

I would have thought institutionalization includes being institutionalized in a prison or a mental institution or whatever kind of institution, just without knowing the background of your argument.

Paul A. Tufano:

I understand, Your Honor, but again, if you look at the language in the ADA which talks about qualified individuals who meet essential eligibility requirements… and it’s in the context of title II, which is about public services, and I don’t think that you can reasonably conclude that meeting the eligibility requirements to receive food stamps, or to get into a library or a museum, is the same as meeting the eligibility requirements to get into prison.

Antonin Scalia:

It isn’t a matter of getting into prison, but once you’re in prison, the eligibility requirements to use the prison exercise facilities, right?

I guess not everybody’s allowed to use them.

I suppose the guards can’t use them.

Aren’t there eligibility requirements for various activities in the prison?

Paul A. Tufano:

There are eligibility requirements within a prison, but the difference is that public services are provided to the public for their benefit, and not all of the programs and activities and services of a prison are primarily for the benefit of the prisoner.

David H. Souter:

Okay, but you don’t… the word public, I take it, you don’t have a textual argument on that.

The word public is not defined anywhere so as to say it means free people rather than incarcerated people, so you… am I correct?

Paul A. Tufano:

That’s correct that that’s our position, Your Honor.

David H. Souter:

Well then, public apparently means, I assume from the act, any person in relation to the Government.

Wouldn’t that be the normal significance of the term?

If Government is being bound, public is that which is not Government, so public I presume would include prisoners.

Paul A. Tufano:

Well, the public in the context of the ADA, which talks about assimilation of people immediately into free society, is very different from what happens with prisoners, where we take them out of society.

David H. Souter:

It is very different, but is it defined in the ADA anywhere?

Paul A. Tufano:

The word public is not defined anywhere, Your Honor.

Ruth Bader Ginsburg:

You said not all prison programs are for the benefit of the prisoner, but the very one we have before us surely is, this boot camp that allows a prisoner to save many, many months of incarceration, isn’t that right?

Wouldn’t you call that for the benefit of the prisoner?

Paul A. Tufano:

Certainly there’s a incidental benefit for the prisoner, but if you look at the Boot Camp Act, the General Assembly in Pennsylvania was seeking to deal with the problem of overcrowding in prison, and to deal with the problems of riots in prison, and that was the purpose of the statute.

It was not to give inmates an early way out of prison.

Antonin Scalia:

What about mental, State mental institutions?

Are they public institutions?

Are the residents of mental institutions members of the public?

Paul A. Tufano:

Yes, they are, Your Honor.

Antonin Scalia:

Why is that different from prisons?

I don’t understand that.

I mean, they’re certainly separated from the public just as well.

Paul A. Tufano:

But in mental institutions, Your Honor, they’re there because they need help, because they can’t make decisions for themselves, and in many cases the court makes–

Antonin Scalia:

Well, that’s all very true, but how does that bear upon the word public?

Paul A. Tufano:

–Because–

Antonin Scalia:

I don’t see any element of voluntary, or you know, having committed criminal acts in… there’s just nothing in the word public that makes that distinction.

Paul A. Tufano:

–I think that a couple of differences.

One, that public does not imply someone who, when they go through a prison gate, gives up or has curtailed many of their rights, unlike somebody who is in a mental institution who is there at times against their will because they can’t… they don’t have the capacity to make a decision for themselves.

Antonin Scalia:

Well, but they’ve given… they’re certainly deprived of rights.

Paul A. Tufano:

They are, Your Honor–

Antonin Scalia:

The basic right to walk out of the institution.

Paul A. Tufano:

–They are, but they’re there for their own help.

They’re there for their benefit, and a prisoner is not in prison for his or her benefit.

Antonin Scalia:

That’s all very true, but how do you read that into the word public?

I–

Paul A. Tufano:

I–

Antonin Scalia:

–You have to give me a text to… as the doorway to what you want to achieve.

I don’t see a single word in the act that has any of these notions.

They may make a lot of sense.

Paul A. Tufano:

–Again, looking at what the goals of Congress were in implementing the ADA and what they talked about, the different areas that there, had problems with, knowing that for 25 years and more this Court has consistently talked about the problems unique to prison management and have not applied the same constitutional analysis to prisoners, so I believe that when you look at the way prisoners are treated in the eyes of the Constitution, if you look at the–

Sandra Day O’Connor:

Well, let me ask you this.

Do you think that this Court would sanction a prison policy that said black prisoners can’t eat in the dining hall with white prisoners because they don’t have any constitutional rights?

Paul A. Tufano:

–I don’t think this Court would sanction it.

Sandra Day O’Connor:

I don’t think so, either, and if Congress were enacting legislation based on its perception that handicapped people suffer from discriminatory attitudes and practices, then Congress might think that that should be stopped, just like the thing I just asked you about.

I think that’s possible.

Paul A. Tufano:

It’s possible, Your Honor, but again, what Congress has done in… if they have tried to apply the ADA to State prisons, what they’ve done is applied a different standard now to how prison management have to deal with the disabled, and in your example of blacks in the cafeteria, this Court has held that the normal strict scrutiny analysis doesn’t apply in the prison context when fundamental rights or a suspect class are involved.

You look at whether it’s reasonably related to a legitimate penalogical interest, and with the disabled, this Court has held that they’re not a suspect class, and that with prisoners, even in the most strictest of scrutiny situations, you wouldn’t normally apply that, so now we have–

Sandra Day O’Connor:

You wouldn’t normally apply what?

We don’t have an as-applied challenge here in–

Paul A. Tufano:

–I understand.

Sandra Day O’Connor:

–the context that you are concerned about, I think, and as I suggested before it’s quite possible that concerns for prison security would be relevant in deciding what specific action a prison has to take with regard to a specific handicapped prisoner.

Paul A. Tufano:

Again, Your Honor, the problem is that applying the ADA in title II to State prisoners will shift the burden.

Currently, the actions or policies of a Department of Corrections are presumed to be valid.

Under the ADA, the standard will be that prison administrators with… only with regard to the disabled will have to show that there weren’t any other means by which they could have accommodated this person, that any other… this was the only way–

William H. Rehnquist:

What sort of things practically, Mr. Tufano, do you envision happening if the Third Circuit opinion is upheld, or what sort of things are the prison administrators going to be confronted with?

Paul A. Tufano:

–Well, one of the things, and we cite it in our brief, Your Honor, is in the Purcell case, where an inmate was told that he had a doctor’s appointment, and he refused to go to the doctor’s appointment because he wanted to go into a cell and release his tics because he had Tourette’s Syndrome.

William H. Rehnquist:

Release his what?

Paul A. Tufano:

His tics, his… the emotional outbursts which are–

William H. Rehnquist:

Oh, t-i-c-s.

Paul A. Tufano:

–Yes.

William H. Rehnquist:

Okay.

[Laughter]

Paul A. Tufano:

A different kind of tics.

He told the guard that–

Antonin Scalia:

I still don’t understand the expression, to release the tics, but–

–if it satisfies the Chief Justice–

[Laughter]

Go ahead.

Paul A. Tufano:

–But in that case… in that case, a simple situation where an inmate is telling a corrections guard, I don’t have to go to my medical appointment, and he was given the opportunity to sign a release if he didn’t go to the appointment.

He didn’t want to do either because, I have Tourette’s Syndrome and I’m allowed to go into my cell and release my tics at my leisure.

Now we’re facing in that case the possibility of punitive damages for the guards telling the inmate either go to your doctor’s appointment… he wasn’t sending him to the rock pile.

He was sending him to his medical appointment… or sign this release that you refuse to go to your medical appointment, and he said no, I don’t have to do that, and we were not able to get the court in that case to agree with us that that did not state a claim under the Americans With Disabilities Act.

And the problem is, in a prison environment, where you have murderers, rapists, the worst people in society, if the disabled are going to be able to put a guard on his defensive, that he’s now got to think unlike he has to think with regard to any other type of inmate, but just with the disabled, that he has to start thinking almost from a litigation avoidance perspective about whether if he’s going to be sued under the ADA, the institution’s going to get dragged into court, and–

Ruth Bader Ginsburg:

Why is it different than under title VI, with race discrimination?

Paul A. Tufano:

–I’m sorry, Your Honor?

Ruth Bader Ginsburg:

Why is it any different… Congress has said, here’s a class, and thou shalt not discriminate, but we recognize the need for reasonable regulations.

Congress says, thou shalt not discriminate in prisons, you’ve conceded, even though they didn’t use the word prisons, on the basis of race, and apparently the prison authorities are able to cope with that.

Paul A. Tufano:

The difference is, Your Honor, it’s one thing to say, thou shalt not discriminate on the basis of race, it’s another thing, in the Americans With Disabilities Act, to say you shall not discriminate on the basis of disability in a program activity or service and you shall affirmatively make accommodations for this person, and you shall only pick your course of action if you can show that there wasn’t anything else available according to what the inmate wanted.

Sandra Day O’Connor:

Well now, Mr. Tufano, the Federal regulations dealing with the application of this act say things such as the following:

Sandra Day O’Connor:

A public entity shall make reasonable modifications in policies, practices, or procedures where necessary to avoid discrimination on the basis of disability, and unless the entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.

Now, that seems on its face to leave room for prisons to say, it’s not a reasonable modification that’s being sought, and it would alter the program or activity that’s necessary in the prison context.

Paul A. Tufano:

It might at first glance, Your Honor, but a couple of points.

One is that that is a standard which prison officials do not have to apply with regard to any other inmate, including inmates that would be in a suspect class.

The other is that if you look at the regulations it talks about the head of the agency or his or her designee having to put in writing the fact that there were no other ways of doing this without fundamentally altering the program.

And recently some corrections officials asked the Justice Department to exempt certain types of programs, including boot camps, because clearly, to be in a boot camp, given the physical regimen there would be… they talked about boot camps, and I believe they talked about firing ranges.

And the Justice Department’s response was to deny the request for exemption and said, only physical and structural issues will be a reason for an exemption for that–

Antonin Scalia:

Mr. Tufano, what responsibility does the Justice Department have for the administration of this law?

Does it have any responsibility, other than issuing regulations interpreting the law?

Paul A. Tufano:

–I believe that they–

Antonin Scalia:

Does it do anything else?

Paul A. Tufano:

–I believe that they have responsibility in the compliance section, Your Honor, with regard to complaints under the ADA.

Antonin Scalia:

What is that?

Complaints are made to them?

Paul A. Tufano:

They could be made to them, if not brought into court.

Antonin Scalia:

And what do they do when complaints are made to them?

They bring suit?

Paul A. Tufano:

They can, is my understanding, but again–

Antonin Scalia:

I mean, that’s the same with any criminal law, isn’t it?

Paul A. Tufano:

–Well, it’s not the same with any criminal law, and that’s part of our concern about the ADA, Your Honor, is that–

Antonin Scalia:

We usually don’t let the Justice Department say what our criminal laws mean by issuing regulations interpreting those criminal laws.

So why… why is that?

What’s your problem, and I’m not saying you don’t have one, because I hear this kind of problem quite a lot.

What Justice O’Connor said, I thought was the case.

The law requires reasonable accommodation, and so you produce examples where it seems they’re requiring unreasonable accommodation, so why don’t you say to the court or whoever, reasonable is what it requires, what we’re doing is reasonable, and if you’re right, you can do it, and if you’re wrong, you shouldn’t do it?

I’m not saying it’s that simple, but I want to know what the problem is.

Paul A. Tufano:

–The problem is, Your Honor, in attempting to do that under either the section 5 enforcement powers of the Fourteenth Amendment or under the Commerce Clause, there’s no basis to do that to lift the standard above which this Court has held.

Stephen G. Breyer:

But now you’re getting–

–I’m not… that isn’t my question.

My question is, is there any practical problem in applying it to prisons that wouldn’t exist in any other institution in society?

Stephen G. Breyer:

Of course people can disagree about what’s reasonable, but ultimately, if you’re reasonable you should be permitted to do it and if you’re not reasonable you shouldn’t be.

Is there some kind of special problem?

What is it?

Paul A. Tufano:

Well, the special problem is the unique situation of prisons.

I mean–

Stephen G. Breyer:

They should be able to be unreasonable but nobody else should?

Paul A. Tufano:

–They should be able to, as they have with issues of people’s First Amendment Rights, whether it’s the free exercise of religion or freedom of speech, they should be able to at least be able to treat the disabled under… at a minimum under the same standard or the way they’ve had to treat other classes of inmates who, like the disabled, are not in a suspect class, and the fact that they’re now going to have to treat prisoners who are disabled different–

Stephen G. Breyer:

They’ll have to treat them reasonably, in light of their disability.

Are you arguing that they should be able to treat them unreasonably?

I mean, I’m getting to the same point over and over, but I’m trying to find out what is your real problem here.

Paul A. Tufano:

–The real problem is having the Federal Government involved in State prison management.

That’s the basic problem, having to have… for the first time treating disabled inmates different from everyone else, knowing, as this Court has held, that preferential treatment for inmates poses security problems in a prison.

Stephen G. Breyer:

Why didn’t anyone make this argument to Congress?

Paul A. Tufano:

Well, because I believe that… Congress I don’t believe made a clear statement in the ADA.

In over 70 hearings and public forums in 50 States we have not been able to find one instance where a State correctional officer or official testified, or provided any written testimony or comments.

Ruth Bader Ginsburg:

But since the position has been taken by some courts, by the Department of Justice, that first under the Rehabilitation Act, now under the Disabilities Act, prisons are covered, have any States, Pennsylvania or any others, said to Congress please amend this statute?

Whatever you meant, please amend it so that we don’t have this litigation.

Paul A. Tufano:

I’m not aware, Your Honor, of anyone after the fact doing that, but again, to rely on the ADA regulations, and to allow this fine print in other regulations under another law become the clear statement, goes from where the States are supposed to have notice and opportunity to be heard by Congress before the law is enacted as opposed to–

Ruth Bader Ginsburg:

Are you making the argument that even though Congress says all and any, prisons are out, unless Congress specifically mentions prisons, even though all or any will cover any other kind of institution?

Paul A. Tufano:

–I do believe that when it comes to prison management, which is a fundamental aspect of our sovereignty, that Congress could have spoken a lot more clearly.

They could have put the word prisons or correctional facilities in their findings of areas where discrimination persists.

They might have–

Ruth Bader Ginsburg:

But they didn’t put in anything… they used all, as Justice O’Connor said.

They used any.

They used sweepingly encompassing, inclusive language, and you’re saying they have to single out prisons, I take it–

Paul A. Tufano:

–Yes, Your Honor.

Ruth Bader Ginsburg:

–as apart from all other institutions.

Paul A. Tufano:

Yes, Your Honor.

I’d like to reserve the rest of my time, Your Honor.

William H. Rehnquist:

Very well, Mr. Tufano.

William H. Rehnquist:

Mr. Specter, we’ll hear from you.

Donald Specter:

Mr. Chief Justice, and may it please the Court:

Whether the ADA applies to State prisoners is not a close question.

The words of the ADA are clear.

The words are plain, and they cover State prisoners.

The ADA was enacted for one overriding purpose, and that purpose was to eliminate discrimination in a clear and comprehensive manner wherever it occurs in our society, and that includes prisons.

John Paul Stevens:

May I ask you, Mr. Specter, one question just to straighten me out.

Does the statute apply to Federal prisons?

Donald Specter:

Yes.

It applies under section 504 to the Federal prisons, Your Honor.

John Paul Stevens:

Under 504?

Donald Specter:

Yes.

Sandra Day O’Connor:

Does the Rehab Act apply to Federal prisons?

Donald Specter:

Yes, it does, Your Honor.

Sandra Day O’Connor:

Yes, and it’s basically the same provision?

Donald Specter:

Yes, Your Honor.

Antonin Scalia:

What is section 504?

Donald Specter:

That’s the Rehabilitation Act, Your Honor.

Antonin Scalia:

Oh, the Rehabilitation Act.

Donald Specter:

I’m sorry.

Antonin Scalia:

The Rehabilitation Act covers Federal facilities and… which came first, the Rehabilitation Act?

Donald Specter:

The Rehabilitation Act came in 1973, Your Honor.

Antonin Scalia:

Which covers only federally funded programs in the Federal Government, and then the ADA essentially extended the same thing more generally to all State and public institutions.

Donald Specter:

I couldn’t have said it any more clearly.

Sandra Day O’Connor:

What’s been the history of litigation from prisoners in the Federal system under the Rehab Act?

Donald Specter:

To my knowledge, Your Honor, there haven’t been very many reported cases of Federal prisoners suing under the Rehabilitation Act.

I know the Federal Government and the Bureau of Prisons has policies which prohibit discrimination based on disability.

Anthony M. Kennedy:

Is the Federal Government liable for punitive damages in the event of default?

Donald Specter:

I don’t think it is, Your Honor.

Sandra Day O’Connor:

So that’s the big difference.

Sandra Day O’Connor:

There’ll be a big damages component under the ADA.

Donald Specter:

I don’t know if big is the right word, Your Honor, but there will–

David H. Souter:

Well, punitive–

–Maybe huge.

[Laughter]

Donald Specter:

–It depends on your perspective.

Sandra Day O’Connor:

And attorney’s fees recoverable?

Donald Specter:

Yes, they are, Your Honor, just as they’re recoverable–

Sandra Day O’Connor:

Under ADA.

Donald Specter:

–Yes, but I would like to mention, Your Honor–

Sandra Day O’Connor:

Now, is there a federal enforcement arm under the Justice Department or not?

Donald Specter:

–The Justice Department has the authority to enforce the ADA.

They have authority to investigate, to seek alternative dispute resolution of the issues, and to bring lawsuits, Your Honor.

William H. Rehnquist:

Is that by statute?

Donald Specter:

That’s by statute, yes.

William H. Rehnquist:

By provisions of the ADA?

Donald Specter:

Yes, Your Honor, and I would like to mention in response to Justice O’Connor’s question about the potential for litigation under this act, the provisions of the Prison Litigation Reform Act, many of the provisions of the Prison Litigation Reform Act which would drastically limit the abilities of prisoners to sue State officials, applies to many of the provisions of the act, Your Honor.

Sandra Day O’Connor:

Well, how do you think that they drastically limit it?

Donald Specter:

They impose filing fees, they have certain–

Sandra Day O’Connor:

Well, but if some lawyer thought there was the potential for attorney’s fees and punitive damages in a case, I assume the attorney would pay filing fees.

Donald Specter:

–That is true, Your Honor, but I can tell you from 20 years of experience in prison litigation that there are very few lawyers out there who are willing to take these cases, so… but your theoretical concern is a real one, but practically, there aren’t that many prison lawyers out in the real world.

William H. Rehnquist:

Supposing, Mr. Specter, that a criminal defendant in Pennsylvania has just been convicted and he’s going to be in prison for a long period of time, and the judge sentences him to a regular prison, can he make an argument that, you know, I’ve got a heart condition and therefore I should go to a special… to a more lenient prison for that reason?

Donald Specter:

I wouldn’t call it more lenient, Your Honor.

He could go to a special prison.

Even under the Eighth Amendment he would have that argument, that, as you say, if he’s otherwise disabled, such as he’s a person who uses a wheelchair–

William H. Rehnquist:

I’m not talking about somebody who uses a wheelchair.

Supposing he says, you know, I had a heart attack 6 years ago, I just should get special consideration, and the regime in the prison you’re going to send me to is just too rigorous.

Donald Specter:

–If his heart condition would substantially limit his… any major life activity, then that would be an issue at the prison he was being sent to.

Then he could make that argument.

In the real world, with all due respect, Your Honor, that type of scenario is not likely to occur very often.

William H. Rehnquist:

Why not?

Donald Specter:

Because most prison systems have medical facilities for people who have medical conditions.

They go to those situations, and in the real world… in prisons, there aren’t… if you have a heart condition and you can’t do strenuous exercise, for example, you’re usually classified for what’s called light duty, in which you’d be given a job sitting at a desk, or some such–

William H. Rehnquist:

Without benefit of the ADA?

Donald Specter:

–Even without the benefit of the ADA.

Antonin Scalia:

The ADA only requires reasonable accommodation, isn’t that right?

Donald Specter:

Yes, Your Honor.

Antonin Scalia:

And what would constitute reasonable accommodation in a prison is not necessarily the same thing that would constitute reasonable accommodation in some other public facility, isn’t that so?

Donald Specter:

I agree with that completely, Your Honor.

Ruth Bader Ginsburg:

And in this case we didn’t get into any of that.

He made a claim, but there’s nothing exploring whether he has any right to be in this boot camp, is that so?

Donald Specter:

Yes, Justice Ginsburg, that’s exactly correct.

That would be decided upon remand to the district court if the court affirms the Third Circuit’s opinion.

Petitioners do not dispute in this case that… at least in their brief that the Department of Correct–

Sandra Day O’Connor:

Now, what if the medical condition is such that the prison says, if you participate in the boot camp program–

Donald Specter:

–Yes.

Sandra Day O’Connor:

–it will be a severe hazard to your health?

Donald Specter:

If the–

Sandra Day O’Connor:

And it’s a serious risk to you to engage in this program in any meaningful way.

Donald Specter:

–If they can prove that, Your Honor, and they can prove that the person’s participation in the program in that way is an essential requirement of the program, then they have no liability.

Sandra Day O’Connor:

And they’re not a qualified individual, I assume–

Donald Specter:

Exactly.

Sandra Day O’Connor:

–under the statute.

They just don’t qualify.

Donald Specter:

That’s exactly right.

Sandra Day O’Connor:

And you share, I take it, my concern that the requirements of the statute should be interpreted in light of the prison need for security.

Donald Specter:

I do, Your Honor.

I… we have said in our brief and we endorse the lower court decisions that have made that statement, that prison is different.

The ADA was developed to be a very flexible statute.

It was developed and enacted to cover a very wide range of programs, and it has to be applied when considering the particular factual circumstance of that program, and we do not deny that prisons are different than many other programs.

Anthony M. Kennedy:

Suppose the prison official said, this person can really participate in only about half of our program.

He can do a half a day of the strenuous running, getting up early, marching, and calisthenics and so forth.

He can do this for half a day but not a full day, and we think that the program really operates best with a full day.

And it’s just a matter of money, and they could have a program so that… say, if three or four prisoners could do the half-day program, it might work, it might not work.

We’re not sure how well boot camp programs work.

That’s about the evidence.

What would the district judge do with a case like that?

Donald Specter:

Well, Your Honor, if you go to the appendix of, the last page of the appendix of our brief, you’ll find the boot camp schedule, and you’ll notice that the physical activity covers about 40 minutes of–

Anthony M. Kennedy:

Well, use my hypothetical.

Donald Specter:

–Okay.

Anthony M. Kennedy:

Use my hypothetical.

Donald Specter:

Yes, Your Honor.

In that circumstance the district judge may very well conclude that the physical activity is an essential part of the program and it would let the Department of Corrections off the hook if there was no other way that they could reasonably modify the program.

Anthony M. Kennedy:

Well, suppose they could have a twotrack program, for some people do it half-a-day, some people do it a full day, would they have to do that?

Donald Specter:

They don’t have to operate a separate program, Your Honor, but they do have to make reasonable accommodations.

For example, for… well, they do have to make whatever accommodations that the district court finds reasonable.

Stephen G. Breyer:

How does that work in the statute?

That is, one of the things that was worrying me is that in section 12131(2) it uses… you know, that’s the one that says… defines qualified individual with a disability.

Donald Specter:

Yes, Your Honor.

Stephen G. Breyer:

Well, it uses the word reasonable in respect to modification to rules, policies, or practices, and then when you get to the provision of auxiliary aids and services the word reasonable doesn’t easily fit there, but it wouldn’t make sense not to have it fit, so how… and it similarly wouldn’t make… I mean, I don’t think the statute intends to make people do things that are not reasonable.

Donald Specter:

It doesn’t.

Stephen G. Breyer:

So how is that worked out in the interpretation?

Donald Specter:

Well, auxiliary aids and services is, the difference is because in auxiliary aids and services you cannot participate in a program without them.

If you’re deaf and you don’t have an assisted–

Stephen G. Breyer:

Well, why isn’t a… is auxiliary service like an extra boot camp?

I mean, suppose somebody said–

Donald Specter:

–No, no.

An auxiliary aid, or auxiliary service can mean an assisted listening device, for example.

Stephen G. Breyer:

–Yes, but suppose the person argues, in my case what it requires is the following, because of the boot camp something costs $1 billion.

I mean–

Donald Specter:

Okay.

Stephen G. Breyer:

–Which would be totally unreasonable.

I’m looking for something that’s totally unreasonable and then asking you how does that work.

Donald Specter:

Oh, surely, Your Honor.

Stephen G. Breyer:

How does the word reasonable come into it?

Donald Specter:

Well, the regulations, which were specifically incorporated into the statute within the text of the act itself that were promulgated under section 504 and carried over to section (a) have an undue burden defense, so when the prison can say, this would be an undue financial or administrative burden, they have a defense to liability.

Stephen G. Breyer:

And is that true also of architectural barriers?

Donald Specter:

Architectural barriers in existing facilities, I believe it’s true.

In new facilities, they have to build new facilities so that they’re accessible.

Stephen G. Breyer:

Even if it costs $10 billion to build a one-room shack.

Donald Specter:

Well, it doesn’t.

Stephen G. Breyer:

But I mean, if it did.

[Laughter]

My question is, is reasonableness there coming into it?

Donald Specter:

I would think so, Your Honor.

Stephen G. Breyer:

But you’re not sure.

Donald Specter:

But I can’t point to any part of the regulation, because this is not a structural accessibility case.

Ruth Bader Ginsburg:

Mr. Specter, the reasonable accommodation standard crops up in various places in the law, and one is in title VII in reasonable accommodation to religious practices.

Donald Specter:

Yes, Your Honor.

Ruth Bader Ginsburg:

Are there other examples that one would look to if we want to understand this concept of reasonableness and how it relates to expense?

Donald Specter:

Well, I think the clearest way to look to read what Congress meant about reasonableness in the ADA is to look at the great body of law that’s developed under section 504, which has applied the reasonable… basically the same regulations that are… were incorporated into the ADA.

And I think that’s one of the ways that Congress was being flexible and sensitive to the needs of the State agencies, including Department of Corrections, by using a word with which district court judges and other courts are familiar and know how to apply in a sensible fashion, and I think that’s an appropriate way to cover such a broad range of activities.

Ruth Bader Ginsburg:

Mr. Tufano told us what he’s concerned about is turning all these matters into Federal cases.

Donald Specter:

Yes, Your Honor.

Well, I would hope that that would not be necessary, because many of the accommodations or reasonable modifications that would be made would be made as a matter of course by prison officials anyway.

That’s the first thing.

Secondly, I think many of them are very easy to make.

Putting up some grab bars, for example, is very inexpensive.

It’s very… a quick procedure, and it allows a person who doesn’t have the use of his legs an easy access to the facilities, to toilet facilities or shower facilities or the like.

Many of these things are not very difficult to accomplish.

Donald Specter:

The petitioners do not dispute that the Department of Corrections is a public entity, but they contend that it’s ambiguous whether the boot camp is a service, program, or activity, and our contention is that the State… I wanted to clear up one thing Mr. Tufano said, is that… or, Justice Ginsburg, you hinted at, is the State boot camp statute which establishes the boot camp, establishes it and defines it, describes this as a program itself, so we believe that it’s very clear that program, service, or activity basically covers anything that a State agency does.

The words program and activity were statutorily defined by the Rehabilitation Act to cover all of the operations of a prison, and those words were taken from the Rehabilitation Act and put into the ADA so Congress would ensure that they would have the same meaning.

We believe that the universal language of the statute, its foundation in the Rehabilitation Act, and the regulations which cover prisons, which were expressly incorporated into the act, make it plain that there is no statutory exception for prisoners, which is what the State is arguing for.

We do not believe, and we don’t think it would be… we think it would be an impossible burden for the… for Congress to have to list every single entity which it wanted to cover.

I don’t think it could even… it would be very difficult.

I think it would be an impossible burden for Congress to do that.

William H. Rehnquist:

Mr. Specter–

Donald Specter:

Yes.

William H. Rehnquist:

–do you agree with Mr. Tufano that the State did not raise any constitutional argument in the lower courts?

Donald Specter:

Emphatically, Your Honor.

Since… we believe that the case is clear, that the language of the statute is clear, that this is a plain meaning case, that the Court, because this case arises from a motion to dismiss, that the Court must assume that Mr. Yeskey has been discriminated against on the basis of his disability, and he should not be denied relief because the disability discrimination that occurred, or is alleged to have occurred, occurred in a prison and while Mr. Yeskey was a prisoner.

We believe, for all the reasons that I’ve stated and those in our brief, that the judgment of the Third Circuit should be affirmed.

Thank you.

Clarence Thomas:

Just one question.

The cases of ramps and some of the fixtures are fairly easy and straightforward cases, but we both know that in the employment context there’s such a thing… reasonable accommodation includes reassignment.

It also includes redesigning of jobs.

Now, would you see… seek in this case a redesigning of the boot camp to accommodate a… an individual who is disabled in some way?

Donald Specter:

Well, that might even not be necessary in this case, Your Honor.

Clarence Thomas:

Well, if it was necessary.

Donald Specter:

If it was necessary and they could make reasonable modifications–

Clarence Thomas:

Sort of on the scale of light duty in the post office or something like that.

Donald Specter:

–Yes, Your Honor, with one major qualification, and that… two major qualifications, and that are… they are that it didn’t fundamentally alter the essential requirements of the program and that it didn’t cause an undue financial or administrative burden.

Clarence Thomas:

Yes, and… I understand that, but that’s… we both know that that’s tough.

The… you can redesign jobs that fundamentally do the same thing, but with half the efficiency, so we know there’s a problem there.

Let me ask you one other question.

Even though the accommodation may be different or reasonableness may take on a different meaning in the remedial context, the definition, very personalized definition of what is a disability, let’s say someone has a disability, of course, of a psychological nature.

That would have to be accommodated in prison, right?

Donald Specter:

If it substantially limited their major life activities, yes.

Clarence Thomas:

Well, let’s say it’s in Pennsylvania in the employment context some… you can prove, this individual can prove that claustrophobia is my disability, and let’s say this person has a history of claustrophobia as a disability, and the… as soon as he’s sentenced by the judge he says, I have claustrophobia.

Now, how do you accommodate that?

Donald Specter:

You might not be able to.

It might not be a… it might not be reasonable, and it would certainly make a fundamental alteration in the nature of cells.

[Laughter]

Clarence Thomas:

But we both know it’s a little bit more… reasonable accommodation is a bit more difficult than our discussion’s been so far.

Donald Specter:

I don’t think the task that Congress gave to district courts is necessarily easy in every case, but I think–

Clarence Thomas:

But we know under 504 it’s pretty difficult.

Donald Specter:

–Yes.

Clarence Thomas:

Okay.

Donald Specter:

I think it’s a task–

William H. Rehnquist:

Well–

Donald Specter:

–that the district courts are up to.

William H. Rehnquist:

–Did Congress give the task to district courts or to prison administrators?

Donald Specter:

Well, hopefully they… district courts will not have to deal with this.

I believe that in the first instance the prison administrators are the ones charged with being responsible for making these decisions.

If there are no other questions I will–

William H. Rehnquist:

Very well, Mr. Specter.

Donald Specter:

–yield the rest of my time to Mr. Gornstein.

William H. Rehnquist:

Mr. Gornstein.

Irving L. Gornstein:

Mr. Chief Justice, and may it please the Court:

The court of appeals correctly held that the ADA prohibits State prisons from discriminating against disabled inmates in their programs, services, and activities that they provide to inmates for three reasons:

First, the text of the act unambiguously prohibits such discrimination, second, the application of the ADA to prisons was a logical… State prisons was a logical extension of section 504 of the Rehabilitation Act’s application to Federal prisons and to State prisons that receive Federal funding, and third, the interpretive principles that are relied on by petitioner do not support the creation of a nontextually based exemption to the act.

Beginning with the text, the act applies to any public entity that provides programs, services, or activities and, since the act defines a public entity to include any agency or department to a State, the State Department of Corrections is clearly covered.

Nor is there any question that–

Sandra Day O’Connor:

I think I’m very interested, Mr. Gornstein, if it does apply, how you interpret the accommodation that’s required in the prison context.

Irving L. Gornstein:

–Well, there would be two things you would look to.

First of all, the backdrop of section 504, which this Court interpreted in Southeastern Community College v. Davis not to require accommodations that impose undue burdens and not to require accommodations that would lead to a fundamental alteration in the program, which in that case included lowering standards and substantially modifying a nursing program, and second of all you would look to a general principle that this Court has applied in section 504(2), to deferring to the reasonable medical judgments of health professionals.

By a parity of reasoning, in the prison context you would defer to the reasonable security judgments of correctional officials in the context of an ADA case.

Ruth Bader Ginsburg:

Mr. Gornstein, how much litigation has there been on the section 504, because that’s been around for a couple of decades, involving prisons, either Federal prisons or State prisons receiving Federal assistance?

Irving L. Gornstein:

There has not been a lot relating to prisons, very little.

Sandra Day O’Connor:

Are damages available under the Rehab Act?

Irving L. Gornstein:

Damages are available under the Rehab Act with respect to State prisons, not federally assisted prisons, but not with respect to Federal correctional–

Sandra Day O’Connor:

Right, so that might indicate why there’s less litigation, and no punitive damages.

Irving L. Gornstein:

–It might, but the thing that I wanted to add about that is that the Prison Litigation Reform Act now does have a prison that… a provision that relates to damages, which can only be recovered when there is physical injury.

That is, psychological damages and damages of that sort can only be recovered when there is physical injury under the Prison Litigation Reform Act.

Sandra Day O’Connor:

But under… and that would cover the ADA–

Irving L. Gornstein:

It would.

Sandra Day O’Connor:

–as well?

Irving L. Gornstein:

It would.

Anthony M. Kennedy:

Tell us a little bit more about how the boot camp might work.

Let’s suppose that a high school had a physical conditioning program, very rigorous, for its students 2 or 3 hours a day, and that a disabled student wanted to participate, and it would cost $5,000 a year per disabled student increase to run a separate track program for the disabled student.

The same with the boot camp.

A disabled prisoner wants to participate in boot camp.

It would cost $5,000 a year for the second track for the disabled prisoner.

Would the judge make the same determination in each case, or would he say, prison budgets are such that $5,000 is more significant for a prison than it is for schools?

Irving L. Gornstein:

I think that the real difference would not come in in measuring undue burden but would come in in the question of security, deferring to security interests.

I’m not sure the case would look that much different when the question is just a financial one.

But I would add in response to your hypothetical–

Anthony M. Kennedy:

Well, let’s say in each case you can do it for $5,000, second track, a second track for the school $5,000, second track for the prisoners.

Irving L. Gornstein:

–There’s a question–

Anthony M. Kennedy:

Is the calculus just the same?

Irving L. Gornstein:

–There would be a question that would arise whether you have to do any sort of new and separate program at all, whether that… regardless of how much it might cost.

Whether you would have to run a separate or new program, that would be a question.

Anthony M. Kennedy:

Why wouldn’t you in the boot camp hypothetical, if it’s feasible to do for $5,000 a prisoner, or $5,000 a student?

Irving L. Gornstein:

I think that the question is whether you’re being denied access to services or a program that is being provided by the institution.

Here, the program or service is the boot camp program, and the question would be, would admission to that require fundamentally altering that program.

Anthony M. Kennedy:

$5,000.

Irving L. Gornstein:

If rigorous physical exercise is an essential part of that program, and there is no… it wouldn’t matter how much money it would cost to construct another one, it would be a different program.

Anthony M. Kennedy:

Let’s assume that we think it might work if it’s altered for this person.

We’re not sure, but we’re pretty sure it will work.

It won’t be as good, but it will certainly have some benefits.

Anthony M. Kennedy:

The same with the high school.

Irving L. Gornstein:

If it doesn’t substantially change the nature of the program, then if it’s not costly, then it may have to be provided under the ADA and section 504 as well.

On… now, there is no question that States provide programs, services, or activities.

State prisons do.

They provide medical services to inmates.

They provide recreational activities, and they also provide many programs like the boot camp program at issue in this case, so there’s no basis for an exemption in the terms, programs, services, or activities.

I wanted to add that there’s nothing unusual at all about applying the ADA to State prisons.

Prior to the enactment of the ADA, the section 504 of the Rehabilitation Act already applied through the Department of Justice’s regulations to State prisons receiving Federal funding and to the Federal Bureau of Prisons.

Antonin Scalia:

Through the regulations, or through the statute?

That doesn’t… I thought the statute was clear enough.

I mean–

Irving L. Gornstein:

The statute–

Anthony M. Kennedy:

–It’s as clear as this one, you say.

[Laughter]

Irving L. Gornstein:

–It’s perfectly clear what the–

Antonin Scalia:

You wouldn’t disagree with that.

Irving L. Gornstein:

–I would not disagree with that.

I would only add that they didn’t specifically mention prisons, but the Department of Justice regulations did.

The final point I wanted to make was that petitioners’ reliance on Gregory v. Ashcroft and the principles of constitutional doubt is misplaced in this case.

Each of those principles only comes into play when there is genuine ambiguity in a statute to resolve and here there is no genuine ambiguity.

The text of the act clearly and unambiguously prohibits State prisons from discriminating against disabled inmates, so the court of appeals’ judgment should be affirmed.

If there aren’t any further questions–

William H. Rehnquist:

Thank you, Mr. Gornstein.

Mr. Tufano, you have 3 minutes remaining.

Paul A. Tufano:

Your Honor, I have no further rebuttal.

William H. Rehnquist:

Very well.

The case is submitted.