Rehearing en banc granted by order
filed 12/28/99; published opinion
issued 6/24/99 is vacated.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRANVILLE AMOS; HARVEY W.
BLOXOM; MICHAEL A. HOLT; TEDDY
T. JONES; CHARLES MADISON;
HOWARD MEGGINSON; BORIS
PRYMERMAN; GARY RALPH; JOHN
SMITH; MICHAEL HILMAN SMITH;
WILLIAM LEWIS SMITH; CALVIN J.
WHITING; DENNIS BRIAN ABSHER,
Plaintiffs-Appellants,

UNITED STATES OF AMERICA,
Intervenor,

and

WINFRIED LEE RHODES,
Plaintiff,
                                        No. 96-7091
v.

MARYLAND DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONAL SERVICES;
ROXBURY CORRECTIONAL INSTITUTION,
Hagerstown, Maryland; RICHARD
LANHAM, SR., in his official capacity
as Commissioner, Maryland
Division of Correction; JOHN P.
GALLEY, in his official capacity as
Warden, Roxbury Correctional
Institution; RONALD MOATS, Warden,
Roxbury Correctional Institution;
WILLIAM SMITH, Warden, Maryland
House of Correction,
Defendants-Appellees.
NATIONAL ADVISORY GROUP FOR
JUSTICE; THE ASSOCIATION OF STATE
CORRECTIONAL ADMINISTRATORS,
Amici Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-91-508-JFM, CA-95-524-JFM)

Argued: December 4, 1998

Decided: June 24, 1999

Before MURNAGHAN and WILLIAMS, Circuit Judges,
and CLARKE, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Senior Judge Clarke
wrote the opinion. Judge Murnaghan wrote a concurring opinion.
Judge Williams wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marjorie Lynn Rifkin, National Prison Project, ACLU
FOUNDATION, Washington, D.C., for Appellants. Seth Michael
Galanter, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Intervenor. Maureen Mullen Dove, Assistant Attor-
ney General, Baltimore, Maryland, for Appellees. Marci A. Hamilton,
Professor of Law, BENJAMIN N. CARDOZO SCHOOL OF LAW,
New York, New York, for Amicus Curiae ASCA. ON BRIEF: Mar-
garet Winter, Elizabeth Alexander, Jerome W. Wesevich, National
Prison Project, ACLU FOUNDATION, Washington, D.C., for Appel-

                     2
lants. Bill Lann Lee, Acting Assistant Attorney General, Jessica Dun-
say Silver, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Intervenor. J. Joseph Curran, Jr., Attorney
General of Maryland, Stephanie Lane-Weber, Assistant Attorney
General, David P. Kennedy, Assistant Attorney General, Baltimore,
Maryland, for Appellees. Barbara E. Ransom, Kirsten E. Keefe, THE
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA, Phila-
delphia, Pennsylvania, for Amicus Curiae Advisory Group.

_________________________________________________________________

OPINION

CLARKE, Senior District Judge:

Thirteen disabled Maryland state prisoners (collectively Appel-
lants) incarcerated at Roxbury Correctional Institution (RCI) at
Hagerstown, Maryland, brought suit against RCI, the Maryland
Department of Public Safety and Correctional Services (MDPSCS),
Richard Lanham, the Commissioner of the Maryland Division of Cor-
rection, and John P. Galley, the Warden of RCI (collectively Appel-
lees), alleging that Appellees violated Title II of the Americans with
Disabilities Act (ADA), see 42 U.S.C.A.§§ 12131-12165 (West 1995
& Supp. 1997); and § 504 of the Rehabilitation Act of 1973, see 29
U.S.C.A. § 794 (West Supp. 1997). This case was originally before
the Court on appeal from a grant of summary judgment in favor of
Appellees. Based on our analysis of the statutes under the clear state-
ment rule, and in light of our decision in Torcasio v. Murray, 

(4th Cir. 1995), we found that the ADA and the Rehabilitation
Act do not apply to state prisons. We affirmed the judgment of the
district court, see Amos v. Md. Dept. of Pub. Safety & Corr. Serv., 

(4th Cir. 1997) (Amos I), and Appellants petitioned the
Supreme Court of the United States for certiorari. On June 22, 1998,
the Supreme Court granted certiorari, vacated our opinion in Amos I,
and remanded in light of the Supreme Court's decision in
Pennsylvania Dept. of Corr. v. Yeskey, 

(1998). See
Amos v. Md. Dept. of Pub. Safety & Corr. Serv., 

(1998).1
_________________________________________________________________
1 Appellants also brought claims based on alleged violations of their
constitutional rights under the Eighth Amendment of the United States

                    3
I.

In Yeskey, a state prisoner had been denied admission to a Motiva-
tional Boot Camp Program because of his medical history of hyper-
tension. The Supreme Court affirmed the Third Circuit's opinion that
the ADA does apply to state prisons, stating explicitly that Congress
drafted the ADA in unambiguous terms. Based on the unambiguous
text of the statute, the Court held that Congress clearly intended to
include state prisons within the scope of the ADA. See 

. Although the Court ruled that Congress intended for
the ADA and Rehabilitation Act to apply to state prisons, the Court
expressly declined to rule on the issue of whether application of the
ADA to state prisons is a constitutional exercise of Congress' legisla-
tive power, either under § 5 of the Fourteenth Amendment or the
Commerce Clause. 

By Order of July 10, 1998, after this Court regained jurisdiction
over Amos I on remand, we directed both parties to file supplemental
briefs addressing the issue of the constitutionality of the application
of the ADA and Rehabilitation Act to state prisons. Both Appellants
and Appellees, as well as the United States as intervenor and several
amicus curiae, filed briefs addressing the issue. 2 Being bound to reject
_________________________________________________________________
Constitution. The district court granted summary judgment in favor of
Appellees on that claim, as well, and we affirmed. See Amos 

. Since Appellants did not petition the Supreme Court for certiorari
on this Court's ruling on the Eighth Amendment claims, these claims are
no longer before the Court and will not be addressed further.
2 Although the issue of the constitutionality of applying the ADA and
Rehabilitation Act to state prisons was not raised below, we exercise our
limited discretion to consider the issue on appeal in light of the fact that
the constitutionality of this federal statute is purely a question of law,
both parties have fully briefed the issue, and its resolution at this stage
will advance and expedite the progress of this litigation. See United
States v. Presley, 

, 67 (4th Cir.), cert. denied, 

(1995); Pinney Dock & Transport Co. v. Penn Cent. Corp., 

, 1461 (6th Cir.), cert. denied, 

(1988) (when resolution
of issue not presented below will "materially advance the progress of
[the] already protracted litigation, [courts of appeal] should address it" if
the issue has been "presented with sufficient clarity and completeness");
Hormel v. Helvering, 

, 557 (1941) (court of appeals has dis-
cretion to deviate from normal rule of procedure and hear issues not
raised below in exceptional cases or particular circumstances).

                    4
our panel's previous opinion in Amos I, and to follow instead the
direction of the Supreme Court,3 we must now base our analysis of
the statutes' constitutionality on the premise that Congress did intend
for the ADA and the Rehabilitation Act to apply to state prisons.
Under such analysis, we hold that Congress did in fact act constitu-
tionally when it enacted the ADA and the Rehabilitation Act pursuant
to its enforcement powers under § 5 of the Fourteenth Amendment
with the intent that the statutes apply to state prisons.

Before we go further, however, we note that with our holding
today, we continue to have our reservations, stated in Torcasio and
Amos I, about the far-reaching and serious implications for the man-
agement of state prisons that will result from application of these Acts
to those institutions. We agree with the Seventh Circuit that

          [i]t might seem absurd to apply the Americans with Disabil-
          ities Act to prisoners. Prisoners are not a favored group in
          society; the propensity of some of them to sue at the drop
          of a hat is well known; prison systems are strapped for
          funds; the practical effect of granting disabled prisoners
          rights of access that might require costly modifications of
          prison facilities might be the curtailment of educational, rec-
          reational, and rehabilitative programs for prisoners, in which
          event everyone might be worse off . . . .

Crawford v. Indiana Dept. of Corrections, 

, 486 (7th Cir.
1997). Our job today, however, is simply to decide whether Congress,
in pursuing its clear objective, exceeded its constitutional authority.
Since we hold that Congress acted constitutionally under its Four-
teenth Amendment enforcement powers, our opinion as to the pru-
_________________________________________________________________

3 See Ethridge v. Norfolk & Western Ry. Co., 

, 1090 (4th
Cir. 1993) ("A decision of a panel of this court becomes the law of the
circuit and is binding on other panels unless it is overruled by a subse-
quent en banc opinion of this court or a `superceding contrary decision
of the Supreme Court'") (quoting Busby v. Crown Supply, Inc., 

, 840-41 (4th Cir. 1990)).

                    5
dence of Congress' choice to make the statutes applicable to state
prisons is irrelevant.4

II.

When Congress enacted the ADA, it "invoke[d] the sweep of con-
gressional authority, including the power to enforce the fourteenth
amendment . . . in order to address the major areas of discrimination
faced day-to-day by people with disabilities." 42 U.S.C.A.
§ 12101(b)(4) (West 1995). Thus, we begin our analysis with the
Equal Protection Clause and § 5 of the Fourteenth Amendment, not-
ing, as we did in Amos I, that "because Congress has directed that
Title II of the ADA be interpreted in a manner consistent with §504
of the Rehabilitation Act, see 42 U.S.C.A.§§ 12134(b), 12201(a)
(West 1995), we combine the analysis of the prisoners' ADA and
Rehabilitation Act claims." Amos 

, n.2 (citing
Shafer v. Preston Mem'l Hosp., 

, 276, n.3 (4th Cir.
1997); Doe v. University of Md. Med. Sys. Corp. , 

, 1264,
n.9 (4th Cir. 1995); Tyndall v. National Educ. Ctrs., Inc., 

,
213, n.1 (4th Cir. 1994)). We also note that although § 504 of the
Rehabilitation Act does not state explicitly that it was enacted pursu-
ant to § 5 of the Fourteenth Amendment, the Supreme Court has
stated in dicta that "[t]he Rehabilitation Act was passed pursuant to
§ 5 of the Fourteenth Amendment." Welch v. Texas Dept. of High-
ways & Pub. Transp., 

, 472, n.2 (1987) (citing
Atascadero State Hospital v. Scanlon, 

, 244-45, n.4
(1985)).

A.

Congress has the power to protect classes of persons from arbitrary
discrimination by the States. This power is rooted in the Equal Protec-
_________________________________________________________________
4 Also irrelevant to our determination of the statutes' constitutionality
is the possibility of an increase in frivolous prisoner litigation. As the
United States aptly states in its supplemental reply brief, "Congress has
elected to address that separate problem of frivolous prisoner suits by
enacting the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat, 1321 (1996), instead of by excluding prisoners from the ADA's
protections." (Intervenor S. Reply Br. at 16, n.10).

                    6
tion Clause of § 1 of the Fourteenth Amendment to the United States
Constitution which guarantees that no State shall"deny to any person
within its jurisdiction the equal protection of the laws." The Supreme
Court has stated that the Equal Protection Clause"is essentially a
direction that all persons similarly situated should be treated alike."
City of Cleburne v. Cleburne Living Center, 

, 439
(1985). The Supreme Court has specifically found that the Equal Pro-
tection Clause protects the physically and mentally disabled from
arbitrary discrimination by the States, even though the disabled do not
themselves constitute a suspect or quasi-suspect class of persons. 

Section 5 of the Fourteenth Amendment grants to Congress the
power to enforce the mandates of the Equal Protection Clause through
legislation that is aimed at remedying or preventing violations of the
Amendment. This remedial power has traditionally been quite broad,
not only in the context of racial discrimination and voting rights, but
in other areas of discrimination as well. See , e.g., City of Rome v.
United States, 

, reh'g denied , 

(1980);
Fitzpatrick v. Bitzner, 

(1976); Oregon v. Mitchell, 

(1970), reh'g denied, 

(1971); Katzenbach v.
Morgan, 

(1966); South Carolina v. Katzenbach, 

(1966); Ex parte Virginia, 

, 345-46 (1879). In
the voting rights context, the Supreme Court has declared § 5 to be
"a positive grant of legislative power authorizing Congress to exercise
its discretion in determining whether and what legislation is needed
to secure the guarantees of the Fourteenth Amendment." Katzenbach
v. 

.

Congress' enforcement power is not without limits, and the
Supreme Court has recently attempted to define and clarify the limits
of Congress' § 5 power in the case of City of Boerne v. Flores, 

, 

(1997), where the Court stated that under
§ 5, "Congress' discretion is not unlimited, however, and the courts
retain the power, as they have since Marbury v. Madison, to deter-
mine if Congress has exceeded its authority under the Constitution."

. In Boerne, the Supreme Court struck down
the Religious Freedom Restoration Act of 1993 (RFRA), see 42
U.S.C.A. § 2000bb et seq. (West 1994 & Supp. 1998), an act which
Congress passed pursuant to its Fourteenth Amendment enforcement

                    7
powers, and in direct response to the Supreme Court's decision of
Employment Div., Dept. of Human Resources of Oregon v. Smith, 

, reh'g denied, 

(1990). In Smith, the Court had
held that the Free Exercise Clause of the First Amendment does not
require States to justify by a compelling interest generally applicable,
neutral laws that coincidentally burden religious practices. See 

. Thus, Smith essentially lowered the standard for
judicial review of generally applicable, neutral laws that burden reli-
gion. In direct response to Smith, and in an attempt to remedy sup-
posed harms to the free exercise of religion, Congress passed RFRA,
which required all laws that burden a group's religion, even neutral
laws of general applicability, to be narrowly tailored and justified by
a compelling interest. See 42 U.S.C. § 2000bb-1.

In striking down RFRA, the Supreme Court admonished that § 5
of the Fourteenth Amendment grants Congress only the power to
enforce the Fourteenth Amendment and not the power to define the
substance of the Amendment since "[t]he design of the Amendment
and the text of § 5 are inconsistent with the suggestion that Congress
has the power to decree the substance of the Fourteenth Amendment's
restrictions on the States." 

. Thus, Congress'
power is remedial and not substantive in nature. The Boerne Court
had the foresight to recognize that distinguishing between laws that
remedy or prevent unconstitutional conduct and laws that operate to
define constitutional rights substantively is a difficult task, and in an
effort to guide lower courts in analyzing laws passed under § 5, the
Court crafted its "congruence and proportionality" test for deciding
whether Congress has acted outside the scope of the Fourteenth
Amendment. In order for laws to qualify as remedial under the Four-
teenth Amendment, according to Boerne, "[t]here must be a congru-
ence and proportionality between the injury to be prevented or
remedied and the means adopted to that end." 

and citation omitted). Thus, as the Tenth Circuit has aptly interpreted
Boerne, "[i]f the legislation at issue imposes burdens far greater than
the seriousness of any demonstrated constitutional injury requiring
such measures, then the legislation does not remediate the constitu-
tional violation but creates substantive change in constitutional pro-
tections." Migneault v. Peck, 

, 1137 (10th Cir. 1998)
(citing 

).

                     8
The Court applied its congruence and proportionality test to RFRA
and found that the broad sweeping and constitutionally demanding
tests set up by RFRA totally lacked the necessary congruence and
proportionality to the harm the statute purported to remedy. Finding
no evidence in the record of "modern instances of generally applica-
ble laws passed because of religious bigotry," 

, the Court found the statute to be "so out of proportion to a sup-
posed remedial or preventative object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior." 

Thus, by creating substantive and not remedial legislation,
Congress exceeded its remedial legislative powers under § 5 of the
Fourteenth Amendment.

Since Congress purported to exercise its Fourteenth Amendment
enforcement powers when enacting the ADA, see 42 U.S.C.A.
§ 12101(a)(7), (b)(4) (West 1995), we analyze the question of its con-
stitutionality under Boerne's test for congruence and proportionality.
Having examined, among other things, the statute itself, portions of
its legislative history, see 42 U.S.C. § 12101; S. Rep. No. 101-116,
at 7-8 (1989); H.R. Rep. No. 101-485, pt. 2, at 28-31 (1990); H.R.
Rep. No. 101-485, pt.1, at 24 (1990), and the opinions of our sister
circuits that have addressed the issue, see Crawford v. Indiana Dep't
of Corrections, 

(7th Cir. 1997); Clark v. California, 

(9th Cir. 1997), cert. denied, 

(1998);
Coolbaugh v. Louisiana, 

(5th Cir.), cert. denied, 

(1998); Kimel v. Florida Bd. of Regents , 

(11th
Cir. 1998), cert. granted, 

(U.S. Jan. 25, 1999) (No.
98-791); Seaborn v. Florida, 

(11th Cir. 1998), cert.
denied, 

(1999); see also Autio v. AFSCME Local
3139, 

(8th Cir. 1998) (en banc), we hold that Congress
did not exceed its authority under § 5 of the Fourteenth Amendment
when it enacted the ADA to remedy discrimination against disabled
persons, including disabled state prisoners.

B.

The first question to be decided is whether the ADA, as enacted,
is remedial or substantive in nature. We note again that the Supreme
Court has found that the Equal Protection Clause protects the physi-
cally and mentally disabled from arbitrary discrimination by the

                    9
States. City of 

. It also protects prisoners
from arbitrary discrimination. See Turner v. Safley, 

, 84
(1987) ("Prison walls do not form a barrier separating prison inmates
from the protections of the Constitution."). As the Seventh Circuit has
aptly noted, "[a]lthough the special conditions of the prison setting
license a degree of discrimination that would not be tolerated in a free
environment, there is no general right of prison officials to discrimi-
nate against prisoners on grounds of race, sex, religion, and so forth."

(7th Cir. 1997) (internal citations omitted).
Thus, if arbitrary discrimination against disabled inmates exists, then
Congress has the power to enact legislation that remedies or prevents
such violations of disabled inmates' equal protection rights.

When enacting the ADA, Congress made several findings of both
past and present discrimination against the disabled in the country's
general population that it determined violated the Equal Protection
Clause. See 42 U.S.C. § 12101(a)(2)-(a)(3), (a)(5)-(a)(6); H.R.Rep.
No. 101-485, pt.2, at 22, 30, 42 (1990), reprinted in 1990
U.S.C.C.A.N. 267, 303, 311-12, 324. Congress determined that "the
exclusion of persons with disabilities from government facilities, pro-
grams, and benefits was a result of past and on-going discrimination."
(Intervenor S. Br. at 18). We are compelled to give some deference
to the record of Congress' factual findings, and to Congress' determi-
nation that the ADA is an appropriate remedy to the harms it found
to exist. We reiterate the Supreme Court's observation that "the line
between measures that remedy or prevent unconstitutional actions and
measures that make a substantive change in the governing law is not
easy to discern" and as such "Congress must have wide latitude in
determining where it lies. . . ." 

. Further,
with respect to the disabled, the Court has stated that "[h]ow this large
and diversified group is to be treated under the law is a difficult and
often a technical matter, very much a task for legislators guided by
qualified professionals and not by the perhaps ill-informed opinions
of the judiciary." City of 

. Thus, while
we are mindful that our deference to the judgment of Congress must
not be blind, we are also aware that even after Boerne, a great deal
of deference must still be given to Congress, especially in the face of
a fully developed evidentiary record of discrimination. Such a record
exists with respect to the ADA. Unlike RFRA, which the Court found
to be totally unsupported by evidence or examples of present-day reli-

                    10
gious discrimination by States, see 

, the
ADA's legislative history is replete with examples of discrimination
against the disabled in the free world.

Even if the legislative record lacked specific findings of discrimi-
nation with regard to state prison inmates, that would not change our
finding that the ADA is remedial and not substantive legislation with
respect to state prisons.5 It would be obtuse for us to believe that the
discrimination Congress found to be so pervasive in the free world
automatically stops at the prison gates. Furthermore, as the Seventh
Circuit has noted,

          [disabled prisoners] have the same interest in access to the
          programs, services and activities available to the other
          inmates of their prison as disabled people on the outside
          have to the counterpart programs, services, and activities
          available to free people. They have no right to more services
          than the able-bodied inmates, but they have a right, if the
          Act is given its natural meaning, not to be treated even
          worse than those more fortunate inmates.

.

In light of the legislative history and the stated purpose of the
ADA, we must conclude that the ADA, even with respect to state
prison inmates, is indeed adequately justified as remedial legislation
and therefore fully within the scope of Congress' enforcement power
under the Fourteenth Amendment.
_________________________________________________________________
5 In any event, Congress did gather evidence on arbitrary discrimina-
tion against the disabled in prisons. Several House and Senate subcom-
mittees received into evidence the United States Commission on Civil
Rights Report, Accommodating the Spectrum of Individual Abilities
(1983). See Sen. Rep. No. 101-116 at 6 (1989); H.R. Rep. No. 101-485
(II) at 28 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 310. This report
pointed to "[i]nadequate treatment and rehabilitation programs [for the
disabled] in penal and juvenile facilities," and "[i]nadequate ability to
deal with physically handicapped accused persons and convicts (e.g.,
accessible jail cells and toilet facilities)."

                     11
We cannot, however, stop our inquiry with the mere conclusion
that the ADA is remedial in nature. We must also decide whether the
sweep of the ADA's remedy takes it outside the scope of the Four-
teenth Amendment. We believe it does not. The scope of the ADA is
limited to the unconstitutional conduct that it is aimed at preventing.
It does not, as RFRA did, "[displace] laws and [prohibit] official
actions of almost every description and regardless of subject matter."

. Even if, however, the application of the
ADA to state prisons may incidentally affect some conduct by prison
officials that is otherwise constitutional, such an incidental burden
does not necessarily invalidate the statute. As the Boerne Court stated,
"[l]egislation which deters or remedies constitutional violations can
fall within the sweep of Congress' enforcement power even if in the
process it prohibits conduct which is not itself unconstitutional and
intrudes into `legislative spheres of autonomy previously reserved to
the States.'" 

(quoting Fitzpatrick v. Bitzner, 

,
455 (1976)). That penal institutions may have to modify some of their
otherwise constitutional practices in order to comply with the ADA
does not make the ADA unconstitutional in light of the discrimination
it aims to curtail.

We cannot lose sight of the fact that the ADA limits itself by only
requiring that a penal institution make "reasonable" accommodations
for the disabled that are not unduly burdensome. The ADA, unlike
RFRA, is not attempting to impose a strict scrutiny standard on all
state laws or actions in the absence of evidence of discrimination. The
Supreme Court objected in large part to RFRA because"[t]he strin-
gent test RFRA demands of state laws reflects a lack of proportional-
ity or congruence between the means adopted and the legitimate end
to be achieved." 

. The ADA dictates no such
stringent test. Rather, the ADA seeks to impose a scheme that will
adequately prevent or remedy a well-documented problem of discrim-
ination without unduly burdening the state prison system. It subjects
some laws and official actions to a "reasonable accommodation"
requirement only to the point that the accommodation is not unduly
burdensome. Such a scheme, unlike RFRA, does not redefine or
expand prisoners' constitutional protections, but simply proportion-
ally acts to remedy and prevent documented constitutional wrongs.

                    12
C.

Appellees agree that in design, the ADA passes muster as remedial
and not substantive legislation, but they argue that the effect of apply-
ing the ADA to state prison inmates will take it out of the scope of
§ 5 unless this Court follows the lead of the Ninth Circuit and holds
that the ADA is only constitutional if it is limited by the holding in
Turner v. Safley, 

(1987).6 See Gates v. Rowland, 

(9th Cir. 1994).

This Court has already commented unfavorably on the Ninth Cir-
cuit's approach in Gates. See Amos 

. We still
decline to use that approach now. For us to graft the standards for
review of prisoners' constitutional claims onto these statutes would be
for us essentially to rewrite what the Supreme Court has deemed to
be unambiguous statutory language. See Yeskey , 118 S.Ct. at 1953-53.
We cannot engage in such apractice. See, e.g., Seminole Tribe of Flor-
ida v. Florida, 

, 75 (1996) ("Nor are we free to rewrite
the statutory scheme in order to approximate what we think Congress
might have wanted had it known that [the provision at issue] was
beyond its authority. If that effort is to be made, it should be made
by Congress, and not by the federal courts."); Honig v. Doe, 

, 323 (1988) ("The language of [the statute] is unequivocal. . . .
Faced with this clear directive, . . . we decline petitioner's invitation
to rewrite the statute."); Louisiana Public Service Com'n v. F.C.C.,

, 376 (1986) ("As we so often admonish, only Congress
can rewrite this statute."). Our failure to borrow the Turner standard
does not condemn the ADA in the prison context. For the reasons dis-
cussed above, even as applied to prisons we find that the ADA is a
valid exercise of Congress' Fourteenth Amendment enforcement
power under the Boerne congruence and proportionality test.

Appellees next contend that the Department of Justice Regulations
(regulations) accompanying the ADA and § 504 of the Rehabilitation
_________________________________________________________________
6 Turner addressed the standard of judicial review of state prison
inmates' constitutional claims of violations of equal protection. The
Court held that "when a prison regulation impinges on inmates' constitu-
tional rights, the regulation is valid if it is`reasonably related' to legiti-
mate penological interests." Turner v. 

.

                    13
Act render the statutes too broad-sweeping to survive analysis under
Boerne, and urge us to reject the regulations as they apply to state
prisons. (Appellants' S. Br. at 23, n.14).

With regard to the amount of deference due to regulations promul-
gated by administrative agencies, the Supreme Court has stated that
if, in an unambiguous statute, Congress makes "an express delegation
of authority to [an] agency to elucidate a specific provision of [a] stat-
ute" then "[s]uch legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the stat-
ute." Chevron v. Natural Resources Defense Council, 

,
843-44 (1984) (citations omitted).

In the case of the ADA and § 504 of the Rehabilitation Act, statutes
the Supreme Court has declared to be unambiguous, Congress has
made an express delegation by directing the Department of Justice
(DOJ) to promulgate implementing regulations for the statutes. See 29
U.S.C.A. § 794(a) (West 1999); 42 U.S.C.A.§ 12134 (West 1995).
Congress incorporated § 504 of the Rehabilitation Act's implement-
ing regulations into Title II of the ADA. See 42 U.S.C.A. § 12201(a)
(West 1995). As such, this Court must afford a great deal of deference
to the DOJ's interpretation of these statutes, even if that interpretation
is somewhat detailed and intrusive into the normal operations of pris-
ons. We cannot reject the regulations wholesale because they are nei-
ther clearly contrary to Congress' "unambiguous" intent that these
statutes apply to state prisons, nor are they arbitrary or capricious. In
fact, many of the regulations have a certain degree of flexibility that
will allow state prison authorities the latitude to exercise their own
judgment in devising a scheme that will satisfy both prison authori-
ties' concerns for issues such as safety and Congress' demand for rea-
sonable accommodation. The regulations provide methods by which
entities will be sure to come into compliance with the statutes, but
they allow for entities such as state prisons to develop their own
methods of complying with the statutes.7 This is not to say that all the
_________________________________________________________________
7 As United States correctly points out in its supplemental reply brief,
(Intervenor S. Reply Br. at 14), Regulation 28 C.F.R. § 35.151(a) states
that construction or alterations made after January 26, 1992, should be
"readily accessible to and usable by individuals with disabilities." The

                     14
regulations promulgated under the ADA will be constitutional. The
constitutionality of each regulation will require a careful case-by-case
analysis of each regulation as challenges to specific regulations arise.8

In finding that the regulations in general do not extend the reach
of the ADA too far, we are mindful of the traditional policy of judicial
restraint with regard to decisions involving prison administration in
the context of constitutional rights, see Procunier v. Martinez, 

, 405 (1974), overruled on other grounds by Thornburgh v.
Abbott, 

(1989); Turner v. 

, and
the deference due to prison authorities with regard to their decisions
on how best to administer their institutions. In counseling deference
to appropriate prison authorities in the context of prisoners' constitu-
tional rights, the Supreme Court has recognized that"[r]unning a
_________________________________________________________________
regulation states construction that complies with either of two codes will
comply with the ADA. The regulation also dictates, however, that
"[d]epartures from particular requirements of either standard by the use
of other methods shall be permitted when it is clearly evident that equiv-
alent access to the facility or part of the facility is thereby provided." 28
C.F.R. § 35.151(c).
8 We feel compelled to note here that since this panel heard this case,
the Fourth Circuit has announced its opinion in the case of Brown v.
North Carolina Div. of Motor Vehicles, 

, 705 (4th Cir.
1999), reh'g en banc denied. In Brown , the Fourth Circuit struck down
as unconstitutional a regulation promulgated under the ADA. After care-
ful consideration of the opinion in Brown, we conclude that the decision
in Brown does not control the issue before us in Amos. The panel in
Brown considered the validity of a specific regulation promulgated under
the ADA, and not the constitutionality of the ADA itself as applied to
state agencies. Although the majority in Brown does question Congress'
authority with respect to the ADA itself, see 

, the
majority does not go so far as to hold that the ADA is unconstitutional.
Therefore, we continue to adhere to our position that Congress acted
within its § 5 authority when it enacted the ADA with the intent that it
apply to state prisons. We emphasize again, however, that in affirming
Congress' general exercise of its authority in adopting the ADA with the
intent that it apply to state prisons, we do not automatically affirm the
constitutionality of all regulations promulgated under the ADA by the
DOJ.

                    15
prison is an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are pecu-
liarly within the province of the legislative and executive branches of
the government." Turner v. 

.

While in the case of the ADA and the Rehabilitation Act we are
concerned with the interpretation of statutory and not constitutional
rights, and while we still decline to graft the standard for constitu-
tional claims onto the ADA and Rehabilitation Act, we nonetheless
feel that in the special context of prison administration, prison offi-
cials' judgments of what is "reasonable" or"undue" with regard to
prisons are due some amount of deference. We find it appropriate to
note here our agreement with the Seventh Circuit's statement that

          [t]erms like "reasonable" and "undue" are relative to circum-
          stances, and the circumstances of a prison are different from
          those of a school, an office, or a factory, as the Supreme
          Court has emphasized in the parallel setting of prisoner'
          constitutional rights. E.g., Turner v. Safley . . 

, 107 S.Ct. at 2259-63.

. Thus, while courts deciding the meaning
of "reasonable" and "undue" should afford the necessary amount of
deference to the DOJ and its regulations, the courts should also con-
sider the learned opinions of the prison experts charged with running
the prisons.

This permissible deference to prison authorities, however, must be
balanced with the great deal of deference due the DOJ in this area,
since Congress has spoken through the DOJ with respect to interpreta-
tion of the ADA. We note, however, that the courts cannot simply
defer blindly to either the decisions of the DOJ or to those of prison
officials. We emphasize that neither the DOJ nor prison authorities
themselves ultimately determine what type of accommodation is "rea-
sonable" or when an accommodation becomes an"undue burden" on
a particular institution. Certainly there will be conflicts between the
views of the DOJ and prison authorities with respect to what is a "rea-
sonable accommodation," but it is and always has been the job of the
courts to reconcile such conflicting interpretations by considering all
the unique surrounding facts and circumstances and attempting to bal-

                     16
ance the interests at stake in making the ultimate statutory interpreta-
tion.

D.

For the reasons stated above, we hold that Congress acted within
its constitutionally granted powers when it enacted the ADA and
§ 504 of the Rehabilitation Act pursuant to§ 5 of the Fourteenth
Amendment.

III.

We next come to the issue of whether the application of the ADA
and § 504 of the Rehabilitation Act is a valid exercise of Congress'
authority under the Commerce Clause. We find it unnecessary to
reach this issue, however, since we have already found the statutes to
be a valid exercise of Congress' authority under the Fourteenth
Amendment.9

IV.

Finally, we reach the issue of sovereign immunity. The State of
Maryland is entitled under the 11th Amendment of the United States
Constitution to immunity from suit under the ADA unless Congress
has validly abrogated that immunity. The analysis is a two step pro-
cess, since "[i]n order to determine whether Congress has abrogated
the States' sovereign immunity, we ask two questions: first, whether
Congress has unequivocally expressed its intent to abrogate the
immunity; . . . and second, whether Congress has acted pursuant to
a valid exercise of power." Seminole Tribe of Florida v. 

(internal quotations and citations omitted).

The defense of sovereign immunity is not available to Appellees in
this case, as Appellees concede in their brief. (Appellees' S. Reply Br.
_________________________________________________________________
9 Appellants urge us to rule on the constitutionality of § 504 of the
Rehabilitation Act under the Spending Clause. Even if we did find it nec-
essary to rule on this issue, which we do not, we would be unable to do
so due to the lack of evidence in the record on the status of federal fund-
ing made available to and accepted by RCI.

                     17
at 37). Since neither party disputes that Congress, through 42 U.S.C.
§ 12202, unequivocally expressed its intent to abrogate the States'
sovereign immunity under the ADA, and since we have held today
that the ADA is a valid exercise of Congress' power under the Four-
teenth Amendment, we rule that the State of Maryland's sovereign
immunity has been validly abrogated and the State is subject to suit
in this case. Since the District Court granted summary judgment in
this case based on the incorrect conclusion that the ADA and Rehabil-
itation Act do not apply to state prisons, we do not have an adequately
developed record of the facts surrounding the Appellants' statutory
claims to make a determination about whether Appellees violated
Appellants' statutory rights. We must, therefore, remand to the Dis-
trict Court for determination of the Appellants' statutory claims on
their merits.

V.

For the foregoing reasons, we find that application of the ADA and
the Rehabilitation Act to state prisons is a valid exercise of Congress'
legislative powers under § 5 of the Fourteenth Amendment and that
the Appellees are validly subject to suit under these statutes.

REVERSED AND REMANDED

MURNAGHAN, Circuit Judge, concurring:

I join Judge Clarke's judgment and opinion. I write separately only
to recall the powerful sentiments of Justice Marshall and the grave
nature of the discrimination at issue in this case. In his separate opin-
ion in City of Cleburne v. Cleburne Living Center, 

(1985), Justice Marshall argued that the courts should pay special def-
erence to evolving standards of equality as embodied in acts of Con-
gress:

          history makes clear that constitutional principles of equality,
          like constitutional principles of liberty, property, and due
          process, evolve over time; what once was a "natural" and
          "self-evident" ordering later comes to be seen as an artificial
          and invidious constraint on human potential and freedom.

                     18
          Shifting cultural, political, and social patterns at times come
          to make past practices appear inconsistent with fundamental
          principles upon which American society rests, an inconsis-
          tency legally cognizable under the Equal Protection Clause.
          It is natural that evolving standards of equality come to be
          embodied in legislation. When that occurs, courts should
          look to the fact of such change as a source of guidance on
          evolving principles of equality.

(Marshall, J., concurring in the judgment in part and dis-
senting in part) (citations omitted). This deference is especially appro-
priate in the often fact-based equal protection context1 and given the
command in City of Boerne v. Flores, 

, 

(1997), that we give wide latitude to Congressional judgments as to
what legislation is needed to secure the guarantees of the Fourteenth
Amendment, 

& 2171.

In enacting the ADA, Congress gathered extensive evidence recog-
nizing that the disabled had long been subjected to invidious discrimi-
nation, and had not enjoyed the equal protection under the law
guaranteed by the Constitution. U.S. Const. amend. XIV, § 1. On sev-
eral occasions in its argument the Appellees pointed out that the ADA
often mandates changes based on differences of only a few inches --
e.g., in the width of a door frame or in the height of a toilet seat. By
this argument the Appellees unwittingly revealed the accuracy of
Congress' determination that unconstitutional invidious discrimina-
tion against the disabled abounds. Appellees are correct; often the dif-
ference between accommodating the disabled and leaving them
segregated and excluded is only a difference of a few inches. But, for
the disabled, "almost" is not good enough. From the perspective of a
disabled American, the absence of these accommodations in a build-
ing, a hallway, a bathroom, or a state-run program is tantamount to
a sign that says, "No disabled allowed." A state's failure to consider
_________________________________________________________________
1 Cf. Clark v. State of California , 

, 1271 (9th Cir. 1997)
(concluding that the Supreme Court's level of scrutiny for purposes of
Equal Protection review does not define the boundaries of Congress' § 5
enforcement powers); Kimel v. State of Fla. Bd. of Regents, 

, 1441 (11th Cir. 1998) (Hatchett, C.J., concurring in the judgment
in part and dissenting in part) (same).

                     19
these necessary and often minor accommodations when designing
buildings and programs is invidious discrimination in a most perni-
cious form -- willful blindness. The state effectively tells the dis-
abled, "As far as we are concerned you do not exist." Like so many
in the rest of society, the state simply averts its eyes when confronted
with a member of the disabled, and tries to ignore the person as the
state goes about its business.

But this deliberate ignorance is unreasonable and irrational. The
disabled are as much a part of society as are those of us fortunate
enough not to be challenged. The need to have a ramp for a building
and accessible toilets and showers is as evident as the need to have
doors and bathrooms in the first place.2 A state's decision to construct
facilities and design programs as if the disabled are not a part of soci-
ety stems from attitudes formed during a "`lengthy and tragic history'
of segregation and discrimination," City of 

(Marshall, J., concurring in the judgment in part and dissenting in
part) (quoting Univ. of Cal. Regents v. Bakke , 

, 303
(1978)), which continues to affect the daily lives of the disabled. Such
considerations should not be overlooked.

WILLIAMS, Circuit Judge, dissenting:

By enacting the Americans with Disabilities Act (ADA) and the
Rehabilitation Act, Congress has, in my opinion, attempted to expand
the scope of substantive constitutional rights under the Fourteenth
Amendment by subjecting state action that incidentally burdens the
disabled to a higher level of judicial scrutiny than what the Supreme
Court held to be required by the Constitution in City of Cleburne v.
Cleburne Living Ctr. Inc., 

, 446 (1985) (holding that
state action affecting the disabled is constitutional if "rationally
related to a legitimate government purpose"). In light of the Supreme
_________________________________________________________________
2 For instance, we would have no problem finding that the absence of
bathrooms or programs accessible to women in a state facility open to
women constitutes irrational discrimination. We would come to this con-
clusion not because distinctions based on gender are subject to height-
ened equal protection scrutiny, but because it is simply unreasonable to
ignore the needs of this group, whether by "oversight" or design, when
such needs can be reasonably accommodated.

                     20
Court's landmark decision in City of Boerne v. Flores, 

, 2164 (1997) (reaffirming that Congress cannot expand the sub-
stantive scope of the Fourteenth Amendment), and this Court's recent
decision in Brown v. North Carolina Div. of Motor Vehicles, 

, 705 (4th Cir. 1999) (striking down a regulation promulgated
under the ADA in light of Boerne and Cleburne), I am constrained to
conclude that Congress exceeded its power under Section 5 of the
Fourteenth Amendment in enacting the ADA and the Rehabilitation
Act. Because Congress has failed validly to abrogate the State of
Maryland's Eleventh Amendment immunity, and the State of Mary-
land has not waived its Eleventh Amendment immunity by accepting
federal funds, I respectfully dissent.1

I.

It is well established that immunity under the Eleventh Amendment
affects our subject matter jurisdiction. See Brown v. North Carolina
_________________________________________________________________

1 In enacting the ADA, Congress announced its intent "to invoke the
sweep of congressional authority, including the power to enforce the
[F]ourteenth [A]mendment and to regulate commerce, in order to address
the major areas of discrimination faced day-to-day by people with dis-
abilities." 42 U.S.C.A. § 12101(b)(4) (West 1995). Because of the pos-
ture of this case, however, I need not address whether Congress has the
authority to apply the ADA to state prisons under the Commerce Clause.
In their suit, Plaintiffs sought monetary damages and injunctive relief. It
is undisputed, however, that Plaintiffs sued Defendants in their official
capacities only. As a result, only the State of Maryland is potentially lia-
ble for monetary damages. As noted above, Congress cannot abrogate the
State of Maryland's Eleventh Amendment immunity when enacting leg-
islation pursuant to the Commerce Clause. See Seminole Tribe of Florida
v. Florida, 

, 59-73 (1996). In addition, none of the Plaintiffs,
most of whom are no longer incarcerated by the State of Maryland, are
currently housed at the Roxbury Correctional Institution (RCI) in
Hagerstown, Maryland, the institution to which all of Plaintiffs' claims
were directed. As a result, Plaintiffs' claims for injunctive relief are
moot. See Williams v. Griffin, 

, 823 (4th Cir. 1991) (holding
that prisoner's transfer to another facility mooted his claims for injunc-
tive relief); Taylor v. Rogers, 

, 1048 n.1 (4th Cir. 1986)
(holding that prisoner's transfer mooted a request for declaratory and
injunctive relief).

                    21
Div. of Motor Vehicles, 

, 701 (4th Cir. 1999). Thus,
when raised by a State, as it was here by the State of Maryland, this
Court must first address whether Eleventh Amendment immunity is
applicable.2 See Wisconsin Dep't of Corrections v. Schacht, 

, 2052 (1998) (holding that a court can ignore Eleventh Amend-
ment immunity only if a state fails to raise the question). For the rea-
sons that follow, I conclude that this suit should have been dismissed
for lack of subject matter jurisdiction. See Steel Co. v. Citizens for a
Better Environment, 

, 1012 (1998) ("Jurisdiction is
power to declare the law, and when it ceases to exist, the only func-
tion remaining to the court is that of announcing the fact and dismiss-
ing the cause." (internal quotation marks omitted)).

The Eleventh Amendment provides as follows:

          The Judicial power of the United States shall not be con-
          strued to extend to any suit in law or equity, commenced or
          prosecuted against one of the United States by Citizens of
          another State, or by Citizens or Subjects of any Foreign
          State.

U.S. Const. amend. XI. The Eleventh Amendment not only prohibits
suits brought against States in federal court by citizens of other States,
but also prohibits suits, such as the one here, brought against a State
in federal court by its own citizens. See Hans v. Louisiana, 

, 15-16 (1890). Thus, whether this Court has subject matter jurisdic-
tion depends on whether the State of Maryland's Eleventh Amend-
ment immunity has been either abrogated or waived.
_________________________________________________________________
2 The majority erroneously states that the State of Maryland has con-
ceded that "[t]he defense of sovereign immunity is not available." Ante
at 17 (citing Appellees' S. Br. at 37). Although the State of Maryland has
conceded that "[t]he defense of qualified immunity is not available,"
(Appellees' S. Br. at 37), the State of Maryland specifically argues that
if "neither the ADA nor the Rehabilitation Act can constitutionally be
extended to state prisons as an exercise of Congress' enforcement power
under § 5 of the Fourteenth Amendment, . . . then the Inmates' claims
in federal court are barred in their entirety by the Eleventh Amendment,"
(Appellees' S. Br. at 37).

                    22
A.

In Seminole Tribe v. Florida, 

(1996), the Supreme
Court recently considered the issue of when Congress can properly
abrogate a State's Eleventh Amendment immunity. In Seminole, the
Supreme Court specifically held that Congress had no authority to
abrogate a State's sovereign immunity under the Eleventh Amend-
ment when it enacted legislation pursuant to the Commerce Clause.
See 

In contrast, Congress may abrogate a State's sover-
eign immunity when it enacts valid legislation pursuant to Section 5
of the Fourteenth Amendment.3See Fitzpatrick v. Bitzer, 

, 456 (1976) ("[T]he Eleventh Amendment, and the principle of
state sovereignty which it embodies, are necessarily limited by the
enforcement provisions of § 5 of the Fourteenth Amendment." (cita-
tion omitted)). Thus, whether Congress had the authority to abrogate
the State of Maryland's Eleventh Amendment immunity turns on
whether Congress had the authority under Section 5 of the Fourteenth
Amendment to enact the ADA and the Rehabilitation Act. See
Atascadero State Hosp. v. Scanlon, 

, 238 (1985) (holding
that the courts must ensure that Congress was "acting pursuant to § 5
of the Fourteenth Amendment").

The Fourteenth Amendment provides, in pertinent part, as follows:

           Section 1. . . . . No State shall make or enforce any law
           which shall abridge the privileges or immunities of citizens
           of the United States; nor shall any State deprive any person
_________________________________________________________________
3 In addition, Congress must express its intent to abrogate the States'
Eleventh Amendment immunity by providing "a clear legislative state-
ment," i.e., by "making its intention unmistakably clear in the language
of the statute." Seminole Tribe v. Florida , 

, 54 (1996) (citing
Blatchford v. Native Village of Noatak & Circle Village, 

,
785 (1991), and Dellmuth v. Muth, 

, 224-25 (1989)). Both
parties agree that the ADA, see 42 U.S.C.A. § 12202 (West 1995) ("A
State shall not be immune under the [E]leventh[A]mendment . . . ."), and
the Rehabilitation Act, see 42 U.S.C.A.§ 2000d-7(a)(1) (West 1994) ("A
State shall not be immune under the Eleventh Amendment . . . ."),
include clear statements of Congress's intent to abrogate the States'
Eleventh Amendment immunity.

                   23
          of life, liberty, or property, without due process of law; nor
          deny to any person within its jurisdiction the equal protec-
          tion of the laws.

          ....

          Section 5. The Congress shall have power to enforce, by
          appropriate legislation, the provisions of this article.

U.S. Const. amend. XIV, §§ 1, 5. Section 5"is a positive grant of leg-
islative power authorizing Congress to exercise its discretion in deter-
mining whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment." Katzenbach v. Morgan,

, 651 (1966). In fact, "when properly exercising its
power under § 5, Congress is not limited by the same Tenth Amend-
ment constraints that circumscribe the exercise of its Commerce
Clause powers." EEOC v. Wyoming, 

, 243 n.18 (1983)
(emphasis added) (citing City of Rome v. United States, 

,
179 (1980)). Congress's power to enact legislation under the Four-
teenth Amendment is not unlimited, however. See, e.g., City of
Boerne v. Flores, 

, 2171-72 (1997) (holding that the
Religious Freedom Restoration Act is "a considerable congressional
intrusion into the States' traditional prerogatives," and that Congress
exceeded its power under the Fourteenth Amendment in enacting the
statute); Gregory v. Ashcroft, 

, 469 (1991) (stating that
"the Fourteenth Amendment does not override all principles of feder-
alism"); Oregon v. Mitchell, 

, 128 (1970) (noting that
"[a]s broad as the congressional enforcement power is, it is not unlim-
ited"). For instance, Congress's power "extends only to enforcing the
provisions of the Fourteenth Amendment." 

(emphasis added) (internal quotation marks and alteration omitted).
Of perhaps equal importance, Congress does not possess "the power
to determine what constitutes a constitutional violation." 

words, Congress has the power to remedy violations of constitutional
rights, not [the power] to define the substance of those rights." 

.

The standard for determining whether an exercise of Congress's
Section 5 power is appropriate was set forth in Boerne: The injury to
be prevented or remedied must be a "constitutional violation[ ],"

                    24


, and the means employed must be congru-
ent and proportional to any such violation, see 

Although
Congress has the power to remedy violations of constitutional rights,
it bears repeating that the Supreme Court in Boerne specifically
rejected the notion that Congress can expand or define the substantive
scope of constitutional rights using its Section 5 powers:

          Congress does not enforce a constitutional right by changing
          what the right is. It has been given the power "to enforce,"
          not the power to determine what constitutes a constitutional
          violation. Were it not so, what Congress would be enforcing
          would no longer be, in any meaningful sense, the"provi-
          sions of [the Fourteenth Amendment]."

(alteration in original).

In Boerne, the Supreme Court decided that, in enacting the Reli-
gious Freedom Restoration Act (RFRA), Congress had impermissibly
attempted to expand the scope of substantive constitutional rights
under the Fourteenth Amendment by subjecting generally applicable
state laws that had the effect of burdening religion to a higher level
of judicial scrutiny than that required by the Supreme Court in
Employment Division v. Smith, 

, 887-88 (1990). In sum,
the Supreme Court held that Congress could not create a substantive
constitutional right to "strict scrutiny" for state action to which the
Supreme Court had already determined that a lower standard of
review should apply. See 

. In so holding,
the Supreme Court made the following observation about RFRA:

          The stringent test RFRA demands of state laws reflects a
          lack of proportionality or congruence between the means
          adopted and the legitimate end to be achieved. If an objector
          can show a substantial burden on his free exercise, the State
          must demonstrate a compelling governmental interest and
          show that the law is the least restrictive means of furthering
          its interest. . . . Laws valid under Smith would fall under
          RFRA without regard to whether they had the object of sti-
          fling or punishing free exercise. We make these observa-
          tions . . . to illustrate the substantive alteration of [Smith's]
          holding attempted by RFRA. Even assuming RFRA would

                     25
          be interpreted in effect to mandate some lesser test, say one
          equivalent to intermediate scrutiny, the statute nevertheless
          would require searching judicial scrutiny of state law with
          the attendant likelihood of invalidation. This is a consider-
          able congressional intrusion into the States' traditional pre-
          rogatives and general authority to regulate for the health and
          welfare of their citizens.

In City of Cleburne v. Cleburne Living Ctr., Inc., 

(1985), the Supreme Court expressly rejected an attempt to make the
mentally disabled a suspect, or quasi-suspect, class for Equal Protec-
tion purposes:

          [W]e conclude for several reasons that the Court of Appeals
          erred in holding mental retardation a quasi-suspect classifi-
          cation calling for a more exacting standard of judicial
          review than is normally accorded economic and social legis-
          lation.

. The Supreme Court determined that state
action placing incidental burdens on the mentally disabled would be
subject to rational basis scrutiny. See 

(holding that state
action affecting the mentally disabled is constitutional if "rationally
related to a legitimate governmental purpose"); see also Doe v. Uni-
versity of Md. Medical Sys. Corp., 

, 1267 (4th Cir. 1995)
(extending rational basis scrutiny to all disabilities). As the First Cir-
cuit recently noted:

          Congress' section five enforcement power, as it pertains to
          the Equal Protection Clause in cases not involving suspect
          or quasi-suspect classes or fundamental interests, is limited
          to the elimination of arbitrariness or the effects of arbitrary
          government action, and does not permit Congress to prohibit
          or otherwise target reasonable state decisions or practices.

Mills v. Maine, 

, 47 (1st Cir. 1997); see also 

(noting that arbitrary and irrational discrimination vio-
lates the Equal Protection Clause under rational basis scrutiny).

                     26
A careful review of the Supreme Court's decisions in Boerne and
Cleburne, reveals an amazing similarity between the ADA and
RFRA. As Judge Smith recently noted:

          Both RFRA and the ADA purport to establish greater rights
          for individuals against the states by increasing the measure
          of judicial scrutiny for conflicting state actions to a level
          higher than the Supreme Court has found appropriate under
          the Fourteenth Amendment. . . . [T]he ADA increases the
          judicial scrutiny level applicable for disabled persons by
          requiring a closer nexus between the governmental purpose
          and the governmental means than presently exists under
          rational basis scrutiny. The ADA mandates an affirmative
          justification for a state action that has the effect of inciden-
          tally burdening these non-suspect classes of persons; a
          state's actions are no longer presumptively valid if rationally
          related to the interests that they serve. Instead, the state must
          make "reasonable accommodations" for the disabled -- and
          only once the state can show that it cannot "reasonably
          accommodate" will the courts validate the state's chosen
          policy.

Coolbaugh v. Louisiana, 

, 440-41 (5th Cir. 1998)
(Smith, J., dissenting) (internal citation omitted). A panel of this
Court recently came to the same conclusion, i.e. , the ADA, like
RFRA, impermissibly attempts to subject state action to higher level
of judicial scrutiny than the Supreme Court has found appropriate
under the Fourteenth Amendment. See 

.

Although the panel in Brown considered the validity of a regulation
promulgated under the ADA, rather than the ADA itself, I believe that
the panel's reasoning controls the issue before us today. In holding
that the regulation at issue did not lie within the scope of Congress's
enforcement power under the Fourteenth Amendment, the panel in
Brown specifically held that the level of judicial scrutiny required by
the ADA was incompatible with the more lenient rational basis test
established in Cleburne. See 

as this Court noted, the ADA
was simply not intended to remedy violations of the standard estab-
lished in Cleburne. See 

ADA was intended to effect a
"`substantive alteration of [Cleburne's] holding.'" 

). As a result, State actions that are ratio-
nally based and perfectly constitutional under Cleburne are invalid
under the ADA. In that crucial respect, the ADA is nearly indistin-
guishable from RFRA, i.e., the ADA is definitional rather than reme-
dial. Indeed, as Judge Smith observed, by changing but a few words
in Boerne, the Supreme Court could well have been speaking about
the ADA:

          The stringent test [the ADA] demands of state laws
          reflects a lack of proportionality or congruence between the
          means adopted and the legitimate end to be achieved. If an
          objector can show a substantial burden [of his rights under
          the ADA], the State must [show that it cannot reasonably
          accommodate him]. . . . Laws valid under [Cleburne] would
          fall under [the ADA] without regard to whether they [were
          rationally related to a legitimate governmental purpose]. We
          make these observations . . . to illustrate the substantive
          alteration of [Cleburne's] holding attempted by [the ADA].
          Even assuming [the ADA] would be interpreted in effect to
          mandate some lesser test, say one equivalent to intermediate
          scrutiny, the statute nevertheless would require searching
          judicial scrutiny of state law with the attendant likelihood of
          invalidation. This is a considerable congressional intrusion
          into the States' traditional prerogatives and general authority
          to regulate for the health and welfare of their citizens.

.

Prior to this Court's decision in Brown, five Circuits published
opinions upholding the ADA as a valid exercise of Congress's Sec-
tion 5 powers. See Kimel v. Florida Bd. of Regents, 

,
1433 (11th Cir. 1998), cert. granted, 

(1999); Autio v.
AFSCME, Local 3139, 

, 806 (8th Cir. 1998), vacated,

, reh'g en banc, 

(affirming district court's
decision upholding the ADA by an evenly divided vote); Coolbaugh
v. Louisiana, 

, 432 (5th Cir.), cert. denied, 

(1998); Clark v. California, 

, 1270 (9th Cir. 1997), cert.
denied, 

(1998); and Crawford v. Indiana Dep't of
Corrections, 

, 487 (7th Cir. 1997). Despite that fact, it
is worth noting that a number of appellate and district court judges

                    28
have come to the opposite conclusion. See Autio , 157 F.3d at 1141
(Bowman, C.J., & Wollman, Beam, Loken, Hansen, & Morris Shep-
pard Arnold, JJ.) (concluding that Congress exceeded its power under
Section 5 of the Fourteenth Amendment in enacting the ADA); 

(Cox, J., dissenting) (noting that the disabled enjoy
no special rights under the Equal Protection Clause); 

(Smith, J., dissenting) (noting that in the wake of Boerne,
Congress could not, consistent with the Fourteenth Amendment,
increase the level of scrutiny for states' actions that incidently burden
disabled persons); Kilcullen v. New York State Dep't of Trans., 33 F.
Supp.2d 133 (N.D.N.Y. 1999) (same); Hedgepeth v. Tennessee, 33 F.
Supp.2d 668, 675 (W.D. Tenn. 1998) (same); Garrett v. Board of
Trustees of University of Ala. in Birmingham, 

(N.D. Ala. 1998) (same); Brown v. North Carolina Div. of Motor
Vehicles, 

(E.D.N.C. 1997) (same); Nihiser v. Ohio
E.P.A., 

, 1170-76 (S.D. Ohio 1997) (same). Like
the aforementioned judges, I conclude -- and would so conclude even
without this Court's recent decision in Brown , which I believe to be
controlling here -- that Congress exceeded its power under Section
5 of the Fourteenth Amendment by enacting the ADA.

Congress does not possess the power under Section 5 of the Four-
teenth Amendment to supersede a Supreme Court decision construing
the substantive rights embodied by the Constitution. See United States
v. Dickerson, 

, 687 (4th Cir. 1999). In Cleburne, the
Supreme Court held that the disabled are not a class entitled to
increased Fourteenth Amendment protection. In light of the Supreme
Court's decision in Cleburne, Congress does not have the power to
declare otherwise in the ADA. See Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803). Following this Court's decision in Brown, which
faithfully applied the dictates of Boerne and Cleburne, I am con-
strained to conclude that Congress exceeded its authority under Sec-
tion 5 of the Fourteenth Amendment in attempting to abrogate
Maryland's sovereign immunity with the ADA.

B.

In Atascadero State Hosp. v. Scanlon, 

(1985), the
Supreme Court considered whether a State waives its Eleventh
Amendment immunity by accepting federal funds under a federal pro-

                    29
gram enacted pursuant to the Spending Clause. In Atascadero, the
Supreme Court specifically held that "the mere receipt of federal
funds cannot establish that a State has consented to suit in federal
court." 

Rather, the statute in question must expressly
"condition participation in the program funded under the Act on a
State's consent to waive its constitutional immunity." 

In response to the Supreme Court's decision in Atascadero, Con-
gress amended the Rehabilitation Act as follows:

          (1) A State shall not be immune under the Eleventh
          Amendment of the Constitution of the United States from
          suit in Federal court for a violation of section 504 of the
          Rehabilitation Act of 1973 . . . or the provisions of any other
          Federal statute prohibiting discrimination by recipients of
          Federal financial assistance.

          (2) In a suit against a State for a violation of a statute
          referred to in paragraph (1), remedies (including remedies
          both at law and in equity) are available for such a violation
          to the same extent as such remedies are available for such
          a violation in the suit against any public or private entity
          other than a State.

42 U.S.C.A. § 2000d-7(a) (West 1994). Without question, Congress,
by enacting § 2000d-7(a), has expressed its intent to abrogate the
States' Eleventh Amendment immunity. See Franklin v. Gwinnett
County Pub. Sch., 

, 72 (1992) (noting that Congress, by
enacting § 2000d-7, expressed its intent to"abrogate" the States'
Eleventh Amendment immunity under the Rehabilitation Act). I ques-
tion, however, whether the language of § 2000d-7 sufficiently "condi-
tions" a State's receipt of federal funds under the Rehabilitation Act
on that State's "consent" to waive its Eleventh Amendment immunity.

As the Supreme Court recently noted, the doctrines of abrogation
and waiver are "completely unrelated." Seminole 

. With respect to the Eleventh Amendment, abrogation deals with
Congress's power under Section 5 of the Fourteenth Amendment to
subject unconsenting States to federal court jurisdiction. See

. In contrast, waiver deals with, among

                    30
other things, Congress's power under the Spending Clause to condi-
tion the receipt of federal funds on a State's consent to federal juris-
diction. See 

Thus, while statutory language may be
sufficient to satisfy the demands of abrogation, it may nonetheless fail
to satisfy the demands of waiver. Here, the language in question sim-
ply placed the State of Maryland on notice that it could be sued in
federal court if the Rehabilitation Act was a valid exercise of Con-
gress's power under Section 5 of the Fourteenth Amendment. Indeed,
the statute did not use the type of words or phrases, e.g. "if," "pro-
vided that," "when," "after," "as soon as," and "subject to," that would
indicate that the receipt of funds had been made conditional. Because
§ 2000d-7(a) did not, as the Supreme Court requires, "expressly con-
dition" the State of Maryland's receipt of federal funds under the
Rehabilitation Act on its consent to waive its constitutional immunity,
there is no indication that the State of Maryland knowingly and vol-
untarily waived its Eleventh Amendment immunity.

II.

Because the State of Maryland's Eleventh Amendment immunity
was neither abrogated nor waived, this case should have been dis-
missed for lack of subject matter jurisdiction. Accordingly, I respect-
fully dissent.

                    31