Coolbaugh v. La State ( 1998 )


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  •                         REVISED, March 25, 1998
    
                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit
    
    
    
                                 No. 96-30664
    
    
    
                            STAFFORD J. COOLBAUGH,
    
                                                    Plaintiff - Appellant,
    
    
                                    VERSUS
    
    
                              STATE OF LOUISIANA,
                                                      Defendant - Appellee.
    
    
    
    
              Appeal from the United States District Court
                  For the Western District of Louisiana
    
                               February 27, 1998
    
    
    Before DAVIS, SMITH and DUHÉ, Circuit Judges.
    
    DAVIS, Circuit Judge:
    
         Stafford J. Coolbaugh, a quadriplegic, filed this action
    
    against the State of Louisiana in federal court alleging that the
    
    State violated Title II of the Americans with Disabilities Act of
    
    1990, 42 U.S.C. §§ 12131-12165 (1994), by discriminating against
    
    him on the basis of his disability.         The district court denied
    
    Coolbaugh’s motion for summary judgment and the jury eventually
    
    returned a verdict in favor of the State.       Coolbaugh has appealed
    
    the district court’s denial of his summary judgment motion, as well
    
    as the take nothing judgment entered on the jury’s verdict. Before
    turning to the merits, we consider whether jurisdiction was proper.
    
    Specifically, we consider whether the ADA represents an appropriate
    
    Congressional exercise of its Section 5 enforcement power so as to
    
    override the State of Louisiana’s Eleventh Amendment immunity.    In
    
    light of the Supreme Court's decisions in Seminole Tribe of Florida
    
    v. Florida, 
    116 S. Ct. 1114
     (1996), City of Boerne v. Flores, 
    117 S. Ct. 2157
     (1997), and City of Cleburne, Texas v. Cleburne Living
    
    Center, Inc., 
    473 U.S. 432
     (1985), we hold that the provisions of
    
    the ADA are enforceable against a state because the enactment of
    
    this legislation was a valid exercise of Congress’ Section 5
    
    enforcement power, and for that reason does not infringe upon
    
    Louisiana’s rights under the Eleventh Amendment. On the merits, we
    
    find no error and affirm.
    
                                     I.
    
         Coolbaugh and his family moved to Louisiana in 1993 after
    
    living in California for many years.    While he was a California
    
    resident, Coolbaugh received a driver’s license permitting him to
    
    operate   a   specially   equipped,   hand-controlled    automobile.
    
    Coolbaugh’s testimony revealed that he had used his California
    
    license for identification purposes, but not to drive.    Upon their
    
    arrival in Louisiana, Coolbaugh and his wife went to the local
    
    Office of Motor Vehicles to obtain Louisiana driver’s licenses.
    
         Generally, a new Louisiana resident may obtain a Louisiana
    
    driver’s license by presenting a valid out-of-state license and
    
    passing an eye exam.      Coolbaugh’s wife, who was not disabled,
    
    followed this procedure and obtained a Louisiana driver’s license.
    
    
                                     2
    An   employee    of   the     Office   of       Motor       Vehicles     told   Coolbaugh,
    
    however, that in addition to the usual requirements, he must
    
    complete a special medical form and pass a road test in his own
    
    hand-controlled vehicle.           Although Coolbaugh’s doctor certified
    
    that    Coolbaugh     could    safely       drive       a    “handicapped       controlled
    
    vehicle,”      Coolbaugh    failed     to    supply          his   own   hand-controlled
    
    vehicle or otherwise to take and pass the required road test.                           As
    
    a    result,   Louisiana      declined      to    issue       Coolbaugh     a    Louisiana
    
    driver’s license.
    
           Coolbaugh brought the current action against the State of
    
    Louisiana in federal court alleging that the State violated Title
    
    II of the ADA by treating him and his nondisabled wife differently
    
    with respect to the issuance of Louisiana driver’s licenses.                           The
    
    district court denied Coolbaugh’s motion for summary judgment, and
    
    the case proceeded to trial.            The jury returned a verdict in favor
    
    of Louisiana, finding that the State had not discriminated against
    
    Coolbaugh on the basis of a disability.                     Coolbaugh appeals both the
    
    district court’s denial of his motion for summary judgment and the
    
    jury’s verdict.
    
                                             II.
    
           The Eleventh Amendment provides immunity to states from suits
    
    in federal court by private persons. The Eleventh Amendment states
    
    that:
    
           The Judicial power of the United                     States shall not be
           construed 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.
    
    
                                                3
    U.S. Const. amend. XI. The Supreme Court has broadly construed the
    
    Eleventh    Amendment’s   narrow   language,   to   embrace   the   larger
    
    principle that a state is granted immunity from suits initiated by
    
    private entities or persons in federal court, if the state has not
    
    consented to such suits. Seminole Tribe of Florida v. Florida, 
    116 S. Ct. 1114
    , 1122 (1996) (“[W]e have understood the Eleventh
    
    Amendment to stand not so much for what it says, but for the
    
    presupposition . . . which it confirms.”) (quoting Blatchford v.
    
    Native Village of Noatak, 
    501 U.S. 775
    , 779 (1991)).
    
         Congress has the authority to abrogate states’ immunity in
    
    certain circumstances pursuant to Congress’ powers under Section 5
    
    of the Fourteenth Amendment.        Section 5 provides that "Congress
    
    shall have power to enforce, by appropriate legislation, the
    
    provisions of this article."       U.S. Const. amend. XIV, § 5.      Among
    
    the provisions is Section 1's mandate that
    
         [n]o 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 of
         life, liberty, or property, without due process of law;
         nor deny to any person within its jurisdiction the equal
         protection of the laws.
    
    Id., § 1.
    
         Seminole Tribe established a two-pronged test for determining
    
    the validity of Congress’ abrogation of state immunity through the
    
    exercise of its Section 5 enforcement power.        First, a court must
    
    determine whether Congress “unequivocally expresse[d] its intent to
    
    abrogate the immunity.”      116 S. Ct. at 1123 (quoting Green v.
    
    Mansour, 
    474 U.S. 64
    , 68 (1985)).        Second, a court must determine
    
    whether Congress acted “pursuant to a valid exercise of power.”
    
                                         4
    Id. (quoting Green, 474 U.S. at 68).
    
         The first prong--Congress’ intent to abrogate state immunity--
    
    is patently clear in the ADA.     Section 12202 of the ADA provides
    
    that “[a] State shall not be immune under the eleventh amendment
    
    [sic] to the Constitution of the United States from an action in
    
    Federal or State court of competent jurisdiction for a violation of
    
    this chapter.”   42 U.S.C. § 12202.        See also Clark v. California,
    
    
    123 F.3d 1267
    , 1269 (9th Cir. 1997) (finding that in the ADA,
    
    Congress   “unequivocally   expressed      its   intent   to   abrogate   the
    
    State’s immunity”).
    
         The   second   prong--whether       Congress   has   abrogated   state
    
    immunity in the ADA through a valid exercise of its enforcement
    
    power--is less clear.   The Constitution allows Congress to enforce
    
    the Fourteenth Amendment, and the Supreme Court held in City of
    
    Cleburne, Texas v. Cleburne Living Center, Inc. that disabled
    
    persons are protected by the Equal Protection Clause.1 
    473 U.S. 1
            We recognize that Cleburne specifically addressed the
    mentally disabled, and not the physically disabled. However, we
    are persuaded that its reasoning applies to the physically disabled
    as well. In arguing against extension of heightened scrutiny to
    mentally disabled individuals, the Court pointed out the difficulty
    of “distinguish[ing] a variety of other groups who have perhaps
    immutable disabilities setting them off from others, who cannot
    themselves mandate the desired legislative responses, and who can
    claim some degree of prejudice from at least part of the public at
    large.” Cleburne, 473 U.S. at 445.     The Court then listed such
    indistinguishable groups, naming “the aging, the disabled, the
    mentally ill, and the infirm.”       Id. at 446.     Rejecting the
    eligibility of these groups for heightened scrutiny, the Court
    stated, “[w]e are reluctant to set out on that course, and we
    decline to do so.” Id. This assignment of rational basis review
    to physically disabled persons has been recognized and applied by
    numerous courts after Cleburne. See Hansen v. Rimel, 
    104 F.3d 189
    ,
    190 n.3 (8th Cir. 1997) (“Although protected by statutory
    enactments such as the [ADA], the disabled do not constitute a
    
                                         5
    432, 450 (1985).
    
          In Cleburne, the City of Cleburne denied a special use permit
    
    to a proposed operator of a group home for the mentally retarded.
    
    Id. at 435-37.      The plaintiffs challenged the denial, arguing that
    
    the   zoning    ordinance    requiring     a   permit   violated   the   equal
    
    protection rights of the mentally retarded.               Id. at 437.      The
    
    Supreme Court held that “legislation that distinguishes between the
    
    mentally retarded and others must be rationally related to a
    
    legitimate governmental purpose.”          Id. at 446.
    
          Thus, applying Cleburne, the disabled are protected by the
    
    Equal Protection Clause and Congress is entitled to enforce this
    
    protection against the states despite the Eleventh Amendment.              The
    
    Court last term, however, in City of Boerne v. Flores, declared
    
    that Congress’ power in this respect is not unlimited.             
    117 S. Ct. 2157
     (1997).
    
          Flores arose out of the City of Boerne’s rejection of the
    
    Archbishop     of   San   Antonio’s   permit    application   to   enlarge   a
    
    historically significant church.           Id. at 2160.       The Archbishop
    
    
    
    “suspect class” for purposes of equal protection analysis.”);
    Suffolk Parents of Handicapped Adults v. Wingate, 
    101 F.3d 818
    ,
    824-27 (2d Cir. 1996) (applying rational basis standard to claims
    of handicapped individuals who challenged a state’s denial of
    funding), cert. denied, 
    117 S. Ct. 1843
     (1997); Does v. Chandler,
    
    83 F.3d 1150
    , 1155 (9th Cir. 1996) (“For the purposes of equal
    protection analysis, the disabled do not constitute a suspect
    class.”); Spragens v. Shalala, 
    36 F.3d 947
    , 950 (10th Cir. 1994)
    (holding that “a classification applying to blind persons is not
    suspect, or even quasi-suspect, and we therefore apply the
    ‘rational basis’ standard, rather than some more strict one”); More
    v. Farrier, 
    984 F.2d 269
    , 271 (8th Cir.), cert. denied, 
    510 U.S. 819
     (1993) (holding that the wheelchair-bound are not a suspect
    class).
    
                                           6
    brought an action claiming, among other things, that rejection of
    
    the permit violated The Religious Freedom Restoration Act of 1993
    
    (“RFRA”).    107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to
    
    2000bb-4 (1994)).       The Court held that RFRA, legislation passed
    
    pursuant to Congress’ enforcement power under Section 5 of the
    
    Fourteenth Amendment, was unconstitutional because it exceeded
    
    Congress’ enforcement power.      Flores, 117 S. Ct. at 2172.
    
         The Flores Court declared that “§ 5 is ‘a positive grant of
    
    legislative power’ to Congress.”          Id. at 2163 (quoting Katzenbach
    
    v. Morgan, 
    384 U.S. 641
    , 651 (1966)).           The Flores Court restated
    
    its longstanding view that
    
         [w]hatever legislation is appropriate, that is, adapted
         to carry out the objects the amendments have in view,
         whatever tends to enforce submission to the prohibitions
         they contain, and to secure to all persons the enjoyment
         of perfect equality of civil rights and the equal
         protection of the laws against State denial or invasion,
         if not prohibited, is brought within the domain of
         congressional power.
    
    Id. at 2163 (quoting Ex parte Virginia, 
    100 U.S. 339
    , 345-46
    
    (1879)).    The Flores Court affirmed the historical principle that
    
    Congress    has   the    authority       to   both   remedy   and   prevent
    
    constitutional violations. Id. at 2164-67. In addition, the Court
    
    restated its historical view that
    
         [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.’
    
    Id. at 2163 (quoting Fitzpatrick v. Bitzer, 
    427 U.S. 445
    , 455
    
    (1976)).    In contrast to its affirmation of Congress’ Section 5
    
    
                                         7
    powers, the Court was clear in its mandate that Congress may not
    
    “determine what constitutes a constitutional violation.”              Id. at
    
    2164.
    
          The Flores Court explained Congress’ Section 5 authority to
    
    adopt   legislation      that    remedies    or    prevents    constitutional
    
    violations by reciting examples from earlier cases.              Id. at 2166-
    
    67.     For example, the Supreme Court “upheld a suspension of
    
    literacy tests and similar voting requirements under Congress’
    
    parallel power to enforce the provisions of the Fifteenth Amendment
    
    . . . to combat racial discrimination in voting.”                Id. at 2163
    
    (citing South Carolina v. Katzenbach, 
    383 U.S. 301
    , 308 (1966))
    
    (citation omitted).      The Court upheld this legislation to prevent
    
    violations     despite     its     earlier        decision    upholding   the
    
    constitutionality of the literacy tests in Lassiter v. Northampton
    
    County Bd. of Elections, 
    360 U.S. 45
     (1959).           The Supreme Court has
    
    “also concluded that other measures protecting voting rights are
    
    within Congress’ power to enforce the Fourteenth and Fifteenth
    
    Amendments, despite the burdens those measures placed on the
    
    States.”    Flores, 117 S. Ct. at 2163.
    
          In Flores, the Court stated 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 Congress must have wide latitude in determining where
    
    it lies.”      Id. at 2164.        The Court held that to be a valid
    
    exercise of power under Section 5, “[t]here must be a congruence
    
    and proportionality between the injury to be prevented or remedied
    
    
                                          8
    and the means adopted to that end.”               Id. (emphasis added).      As
    
    guidance to applying this test, the Court stated that “[t]he
    
    appropriateness of remedial measures must be considered in light of
    
    the evil presented.”         Id. at 2169 (citation omitted).
    
            In summary, the Supreme Court has instructed us that Congress
    
    is authorized to adopt legislation that remedies or prevents
    
    unconstitutional conduct, provided there is a “congruence and
    
    proportionality between the injury to be prevented or remedied and
    
    the means adopted to that end.”         Id. at 2164.     This proportionality
    
    inquiry has two primary facets:              the extent of the threatened
    
    constitutional violations, and the scope of the steps provided in
    
    the legislation to remedy or prevent such violations.
    
            In making our proportionality review, as Flores directs, we
    
    must consider the ADA’s scope in light of the evil it addresses.
    
    We first turn to findings in the ADA where Congress detailed its
    
    understanding     of   the    extent   of   the   evil   it   was   addressing--
    
    discrimination against the disabled.2
    
            (1)   some 43,000,000 Americans have one or more physical
                  or mental disabilities, and this number is
                  increasing as the population as a whole is growing
                  older;
            (2)   historically, society has tended to isolate and
                  segregate individuals with disabilities, and,
                  despite   some   improvements,    such   forms   of
                  discrimination     against     individuals     with
                  disabilities continue to be a serious and pervasive
                  social problem;
            (3)   discrimination     against     individuals     with
                  disabilities persists in such critical areas as
    
        2
            The findings in the ADA distinguish it from RFRA, 42 U.S.C.
    §§ 2000bb to 2000bb-4, in which Congress made no specific findings
    regarding the seriousness or the scope of discrimination against
    religious persons.
    
                                            9
              employment,     housing,    public    accommodations,
              education,       transportation,      communication,
              recreation, institutionalization, health services,
              voting, and access to public services;
        (4)   unlike     individuals     who    have     experienced
              discrimination on the basis of race, color, sex,
              national origin, religion, or age, individuals who
              have experienced discrimination on the basis of
              disability have often had no legal recourse to
              redress such discrimination;
        (5)   individuals with disabilities continually encounter
              various forms of discrimination, including outright
              intentional exclusion, the discriminatory effects
              of architectural, transportation, and communication
              barriers,    overprotective    rules   and   policies,
              failure    to    make   modifications    to   existing
              facilities       and     practices,      exclusionary
              qualification standards and criteria, segregation,
              and relegation to lesser services, programs,
              activities, benefits, jobs, or other opportunities;
        (6)   census data, national polls, and other studies have
              documented that people with disabilities, as a
              group, occupy an inferior status in our society,
              and    are     severely    disadvantaged     socially,
              vocationally, economically, and educationally.3
    
        3
            The   principal findings regarding the existence of
    discrimination are listed above. Congress also found:
         (7) individuals with disabilities are a discrete and
              insular   minority   who    have  been faced   with
              restrictions and limitations, subjected to a
              history of purposeful unequal treatment, and
              relegated to a position of political powerlessness
              in our society, based on characteristics that are
              beyond the control of such individuals and
              resulting from stereotypic assumptions not truly
              indicative of the individual ability of such
              individuals to participate in, and contribute to,
              society;
         (8) the Nation’s proper goals regarding individuals
              with disabilities are to assure equality of
              opportunity,    full   participation,   independent
              living, and economic self-sufficiency for such
              individuals; and
         (9) the continuing existence of unfair and unnecessary
              discrimination and prejudice denies people with
              disabilities the opportunity to compete on an equal
              basis and to pursue those opportunities for which
              our free society is justifiably famous, and costs
              the   United   States    billions   of dollars   in
              unnecessary expenses resulting from dependency and
    
                                     10
    42 U.S.C. § 12101 (a) (1995).
    
         We    must     give    these      congressional      findings         substantial
    
    deference.        “In reviewing the constitutionality of a statute,
    
    ‘courts    must    accord       substantial    deference       to    the    predictive
    
    judgments of Congress.’”           Turner Broad. Sys., Inc. v. FCC (Turner
    
    II), 
    117 S. Ct. 1174
    , 1189 (1997) (quoting Turner Broad. Sys., Inc.
    
    v. FCC (Turner I), 
    512 U.S. 622
    , 665 (1994) (Kennedy, J. Op.)).
    
         The Court in Flores reaffirmed this bedrock principal when it
    
    stated    that    “[i]t    is    for   Congress     in   the   first       instance   to
    
    ‘determin[e] whether and what legislation is needed to secure the
    
    guarantees of the Fourteenth Amendment,’ and its conclusions are
    
    entitled to much deference.”            117 S. Ct. at 2172 (quoting Morgan,
    
    384 U.S. at 651).
    
         The Turner II Court instructs that the judiciary’s “sole
    
    obligation is ‘to assure that, in formulating its judgments,
    
    Congress has drawn reasonable inferences based on substantial
    
    evidence.’”       117 S. Ct. at 1189 (quoting Turner I, 512 U.S. at 666
    
    (Kennedy, J. Op.)).
    
         Deference       to    the    judgment     of   Congress        is     particularly
    
    appropriate in this case, because in Cleburne, the Court identified
    
    Congress as the ideal governmental branch to make findings and
    
    decisions regarding the legal treatment of the disabled.                       473 U.S.
    
    at 442-43.       In Cleburne, the Court stated: “How this large and
    
    diversified group is to be treated under the law is a difficult and
    
    
                nonproductivity.
    
    42 U.S.C. § 12101(a) (1995).
    
                                              11
    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.” Id.
    
           Before enacting the ADA, Congress considered a wide range of
    
    evidence and made findings.             Both the House and the Senate cited
    
    seven substantive studies or reports to support its conclusion that
    
    discrimination against the disabled is a serious and pervasive
    
    problem.      S. Rep. No. 101-116, at 6 (1989); H.R. Rep. No. 101-485,
    
    pt.    2,    at    28   (1990)     (Both   citing    National     Council     on   the
    
    Handicapped, On the Threshold of Independence (Jan. 1988) (updating
    
    the legislative changes recommended in Toward Independence); Report
    
    of the Presidential Commission on the Human Immunodeficiency Virus
    
    Epidemic (June 1988) (reviewing the medical, financial, ethical,
    
    policy, and legal issues that affect those afflicted with HIV);
    
    Louis Harris and Associates, The ICD (International Center for the
    
    Disabled)         Survey   II:       Employing      Disabled     Americans     (1987)
    
    (surveying         210 top managers, 301 equal employment managers, 210
    
    department        heads    and   line   managers,    and   200   top    managers    in
    
    companies employing 10-49 people); Louis Harris and Associates, The
    
    ICD (International Center for the Disabled) Survey of Disabled
    
    Americans:        Bringing Disabled Americans into the Mainstream (March
    
    1986) (surveying 1000 disabled persons); National Council on the
    
    Handicapped, Toward Independence (Feb. 1986) (reviewing different
    
    laws   and    programs      that    affect      disabled   persons     and   offering
    
    recommendations for legislative changes); U.S. Commission on Civil
    
    Rights, Accommodating the Spectrum of Individual Abilities (Sept.
    
    
                                               12
    1983) (reporting on, among other things, the history, nature, and
    
    extent    of    discrimination    against    the   disabled);   From     ADA   to
    
    Empowerment:       The Report of the Task Force on the Rights and
    
    Empowerment      of   Americans    with    Disabilities   (Oct.    12,    1990)
    
    (compiling findings and recommendations following the formation of
    
    a Task Force, which conducted 14 Washington, D.C., teleconference
    
    meetings with participants from across the country, held 63 public
    
    forums in the 50 states and some territories, held other meetings
    
    involving 25,000 participants, testified in congressional hearings,
    
    met with legislative and executive staff members, met with the
    
    President, Vice President and various Cabinet members, and met with
    
    opponents of the ADA)).          The legislative history also includes a
    
    wealth of testimonial and anecdotal evidence from a spectrum of
    
    parties    to     support   the    finding    of   serious   and   pervasive
    
    discrimination.4
    
         4
            See, e.g., S. Rep. No. 101-116, at 6 (1989)(quoting the
    testimony of Timothy Cook of the National Disability Action Center,
    regarding the mentally and emotionally debilitating effects of
    discrimination); id. at 6-7 (quoting the testimony of Judith
    Heumann of the World Institute on Disability, regarding her
    personal history of discrimination due to her disability); id. at
    7 (citing a Washington Post article in March, 1988, profiling a zoo
    keeper’s refusal to admit children with Downs Syndrome); id. at 8
    (citing testimony about a Kentucky woman who was fired because her
    son, ill with AIDS, moved into her home so she could provide care
    for him); id. at 7 (citing the discrimination apparent in the facts
    of Alexander v. Choate, 
    469 U.S. 287
     (1985), in which a child with
    cerebral palsy was excluded from the classroom because the teacher
    believed the child’s appearance nauseated classmates); id. at 9
    (citing the testimony of U.S. Attorney General Dick Thornburgh (on
    behalf of President Bush), profiling the isolation and dependence
    faced by the disabled); id. at 10 (citing the testimony of Harold
    Russell, Chair of the President’s Committee on Employment of People
    with Disabilities, that a majority of disabled persons require no
    reasonable accommodation, and many others require only an
    inexpensive one); id. at 12 (citing testimony regarding the
    
                                          13
          We are satisfied that the extensive record compiled in the
    
    legislative history fully supports Congress’ detailed findings of
    
    a serious and pervasive problem of discrimination against the
    
    disabled.       As   stated   above,   these    findings   are   entitled    to
    
    deference.      Because Congress found a significant likelihood of
    
    unconstitutional actions and therefore a significant “evil” to be
    
    addressed, the only remaining inquiry is whether the scope of the
    
    ADA   is   so   “sweeping”    that     the   statute   cannot    be   seen   as
    
    proportional to the evil Congress sought to address.
    
          We are persuaded that Congress’ scheme in the ADA to provide
    
    a remedy to the disabled who suffer discrimination and to prevent
    
    such discrimination is not so draconian or overly sweeping to be
    
    considered disproportionate to the serious threat of discrimination
    
    Congress perceived.       The ADA first sets forth broad provisions
    
    generally outlawing discrimination.5           In addition to these general
    
    
    
    inaccessibility of many polling places to disabled persons).
          5
            Title I and Title II each contain a broad mandate.               See,
    e.g., 42 U.S.C. § 12112(a):
    
          No covered entity shall discriminate against a qualified
          individual with a disability because of the disability of
          such individual in regard to job application procedures,
          the hiring, advancement, or discharge of employees,
          employee compensation, job training, and other terms,
          conditions, and privileges of employment.
    
    See also 42 U.S.C. § 12132:
    
          [N]o qualified individual with a disability shall, by
          reason of such disability, be excluded from participation
          in or be denied the benefits of the services, programs,
          or activities of a public entity, or be subjected to
          discrimination by any such entity.
    
    
                                           14
    provisions       outlawing    discrimination,            Congress       made       specific
    
    judgments in particular circumstances as to what it perceived to be
    
    reasonable        and     appropriate        to        prevent      unconstitutional
    
    discrimination.             For    example,        in     Title        I,     42       U.S.C.
    
    § 12112(b)(5)(A) declares it discriminatory to reject an employee
    
    whose mental or physical limitation may be reasonably accommodated,
    
    so   long   as    such    accommodation      does       not    cause    undue      burden;
    
    § 12112(d) declares it discriminatory to subject a potential
    
    employee to       medical    examinations         or    inquiries;      and        §    12113
    
    provides a defense to an entity that refuses employment to a
    
    disabled person when the refusal is “job-related and consistent
    
    with business necessity.”          Included in the provisions of Title II
    
    is 42 U.S.C. § 12142(a), which requires entities that purchase or
    
    renovate new buses or rail vehicles to ensure that such new or
    
    renovated vehicles be accessible to the disabled, and 42 U.S.C.
    
    § 12148(b), which requires that at least one car per train is
    
    accessible to the disabled.           Congress made these particularized
    
    judgments    after       hearing   testimony       on    the     reasonableness           and
    
    feasibility of these provisions. See, e.g., H.R. Rep. No. 101-485,
    
    pt. 2, at 44-45 (1990) (citing testimony that businesses will
    
    benefit from the ADA because the labor pool will improve); id. at
    
    45 (citing employee expertise and performance benefits that accrue
    
    to corporations that make accommodations); id. (citing testimony
    
    from a former CEO of small and large companies, arguing that the
    
    ADA is affordable and is “good business”); id. at 46 (citing
    
    testimony regarding the Marriott Corporation’s success as a result
    
    
                                            15
    of policies similar to those established in the ADA).
    
         In sum, the ADA represents Congress’ considered efforts to
    
    remedy   and    prevent   what   it    perceived        as   serious,   widespread
    
    discrimination against the disabled.                We recognize that in some
    
    instances, the provisions of the ADA will “prohibit[] conduct which
    
    is not itself unconstitutional and intrude[] into ‘legislative
    
    spheres of autonomy previously reserved to the States.’”                   Flores,
    
    117 S. Ct. at 2163 (quoting Fitzpatrick, 427 U.S. at 455).                         We
    
    cannot   say,    however,   in   light       of   the    extensive     findings   of
    
    unconstitutional      discrimination         made   by    Congress,     that    these
    
    remedies are too sweeping to survive the Flores proportionality
    
    test for legislation that provides a remedy for unconstitutional
    
    discrimination or prevents threatened unconstitutional actions.
    
         In concluding that Congress did not exceed its Section 5 power
    
    in adopting the ADA, we join the only other circuit that has
    
    considered the issue since the Court decided Flores.                  In Clark, the
    
    Ninth Circuit upheld the constitutionality of the ADA as a proper
    
    exercise of Congress' Section 5 power.                   123 F.3d at 1270.        The
    
    panel concluded that
    
         [i]n both acts, Congress explicitly found that persons
    
         with disabilities have suffered discrimination. Both the
    
         ADA and the Rehabilitation Act therefore are within the
    
         scope      of   appropriate      legislation        under   the    Equal
    
         Protection Clause as defined by the Supreme Court.                    At
    
         the same time, neither act provides remedies so sweeping
    
         that they exceed the harms that they are designed to
    
    
                                            16
          redress.
    
    Id.   For these reasons, the Ninth Circuit concluded that "both the
    
    ADA and the Rehabilitation Act were validly enacted under the
    
    Fourteenth Amendment."         Id.
    
          Congress' inclusion of detailed findings in the ADA is an
    
    important distinguishing feature between this case and Flores.             In
    
    contrast to the extensive findings Congress made in the ADA,
    
    Congress made no findings in RFRA of widespread unconstitutional
    
    treatment of religious persons. Indeed, the Flores Court concluded
    
    that "the emphasis of the hearings [related to RFRA] was on laws of
    
    general applicability which place incidental burdens on religion."
    
    Flores, 117 S. Ct. at 2169.          The detailed factual findings in the
    
    ADA, which require our deference, are critical to the application
    
    of the Flores proportionality review.
    
          Also, we are convinced that the threat posed by RFRA to our
    
    principles of separation of powers is not similarly posed by the
    
    ADA. In the ADA, Congress included no language attempting to upset
    
    the   balance    of   powers     and    usurp   the   Court's   function   of
    
    establishing a standard of review by establishing a standard
    
    different from the one previously established by the Supreme Court.
    
    Congress performed one of its traditional legislative functions by
    
    finding facts relating to proposed legislation.           The Supreme Court
    
    may in the future, if it chooses to do so, reconsider the Cleburne
    
    standard   of    review   in    light   of   the   Congressional   findings.
    
    However, this conflict is not a sufficient reason for us to
    
    invalidate the ADA.
    
    
                                            17
         The dissent seems to conclude that Congress does not have the
    
    power under § 5 to prohibit constitutional conduct.                 We disagree.
    
    The Flores 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.’
    
    Id. at 2163 (quoting Fitzpatrick, 427 U.S. at 455).
    
         We therefore hold that the ADA represents a proper exercise of
    
    Congress’    Section    5   enforcement       power    under   the    Fourteenth
    
    Amendment.    As a result, Louisiana is not entitled to Eleventh
    
    Amendment immunity from suits brought pursuant to the ADA.
    
                                          III.
    
         We now turn to the merits.              The record fully supports the
    
    jury’s finding that the state did not discriminate against Mr.
    
    Coolbaugh, who was a paraplegic, by requiring that he demonstrate
    
    his ability to drive on the state’s roadways by taking a driving
    
    test.   A number of plausible explanations may be offered for the
    
    verdict.    Perhaps the clearest one that is fully supported by the
    
    evidence is that the state’s refusal to issue Mr. Coolbaugh a
    
    driver’s license based on his possession of a California license
    
    was not motivated, even in part, by its desire to discriminate
    
    against him because of his disability.               Rather, its decision was
    
    motivated    by   a   desire   to   protect    the    public   on    the   state’s
    
    highways.    Mr. Coolbaugh's argument that, absent discrimination,
    
    the state would have accepted his California driver's license as
    
    sufficient evidence of his ability to drive was particularly
    
                                           18
    unpersuasive.     The evidence revealed that though Coolbaugh held a
    
    valid California driver’s license, he had not actually driven a
    
    vehicle since obtaining his license, and had used the license only
    
    for   identification   purposes.    Because   the   verdict   is   fully
    
    supported by the record and we find no reversible error, the
    
    judgment of the district court is affirmed.
    
          AFFIRMED.
    
    
    
    
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