OLMSTEAD V. L. C. (98-536) 527 U.S. 581 (1999)
138 F.3d 893, affirmed in part, vacated in part, and remanded.
[ Ginsburg ]
[ Stevens ]
[ Kennedy ]
[ Thomas ]
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Thomas, J., dissenting


No. 98—536



[June 22, 1999]

Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.

Title II of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 337, 42 U.S.C. § 12132 provides:

“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (Emphasis added.)

The majority concludes that petitioners “discriminated” against respondents–as a matter of law–by continuing to treat them in an institutional setting after they became eligible for community placement. I disagree. Temporary exclusion from community placement does not amount to “discrimination” in the traditional sense of the word, nor have respondents shown that petitioners “discriminated” against them “by reason of” their disabilities.

Until today, this Court has never endorsed an interpretation of the term “discrimination” that encompassed disparate treatment among members of the same protected class. Discrimination, as typically understood, requires a showing that a claimant received differential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic. This interpretation comports with dictionary definitions of the term discrimination, which means to “distinguish,” to “differentiate,” or to make a “distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit.” Random House Dictionary 564 (2d ed. 1987); see also Webster’s Third New International Dictionary 648 (1981) (defining “discrimination” as “the making or perceiving of a distinction or difference” or as “the act, practice, or an instance of discriminating categorically rather than individually”).

Our decisions construing various statutory prohibitions against “discrimination” have not wavered from this path. The best place to begin is with Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, the paradigmatic anti-discrimination law.1 Title VII makes it “an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—2(a)(1) (emphasis added). We have explained that this language is designed “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” Griggs v. Duke Power Co., 401 U.S. 424, 429—430 (1971).2

Under Title VII, a finding of discrimination requires a comparison of otherwise similarly situated persons who are in different groups by reason of certain characteristics provided by statute. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 683 (1983) (explaining that Title VII discrimination occurs when an employee is treated “ ‘in a manner which but for that person’s sex would be different’ ”) (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978)). For this reason, we have described as “nonsensical” the comparison of the racial composition of different classes of job categories in determining whether there existed disparate impact discrimination with respect to a particular job category. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 651 (1989).3 Courts interpreting Title VII have held that a plaintiff cannot prove “discrimination” by demonstrating that one member of a particular protected group has been favored over another member of that same group. See, e.g., Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (CA7 1993), cert. denied, 511 U.S. 1071 (1994) (explaining that under Title VII, a fired black employee “had to show that although he was not a good employee, equally bad employees were treated more leniently by [his employer] if they happened not to be black”).

Our cases interpreting §504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, which prohibits “discrimination” against certain individuals with disabilities, have applied this commonly understood meaning of discrimination. Section 504 provides:

“No otherwise qualified handicapped individual … shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

In keeping with the traditional paradigm, we have always limited the application of the term “discrimination” in the Rehabilitation Act to a person who is a member of a protected group and faces discrimination “by reason of his handicap.” Indeed, we previously rejected the argument that §504 requires the type of “affirmative efforts to overcome the disabilities caused by handicaps,” Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979), that the majority appears to endorse today. Instead, we found that §504 required merely “the evenhanded treatment of handicapped persons” relative to those persons who do not have disabilities. Ibid. Our conclusion was informed by the fact that some provisions of the Rehabilitation Act envision “affirmative action” on behalf of those individuals with disabilities, but §504 itself “does not refer at all” to such action. Ibid. Therefore, “[a] comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.” Id., at 411.

Similarly, in Alexander v. Choate, 469 U.S. 287, 302 (1985), we found no discrimination under §504 with respect to a limit on inpatient hospital care that was “neutral on its face” and did not “distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having,” id., at 302. We said that §504 does “not … guarantee the handicapped equal results from the provision of state Medicaid, even assuming some measure of equality of health could be constructed.” Id., at 304.

Likewise, in Traynor v. Turnage, 485 U.S. 535, 548 (1988), we reiterated that the purpose of §504 is to guarantee that individuals with disabilities receive “evenhanded treatment” relative to those persons without
disabilities. In Traynor, the Court upheld a Veterans’ Administration regulation that excluded “primary alcoholics” from a benefit that was extended to persons disabled by alcoholism related to a mental disorder. Id., at 551. In so doing, the Court noted that, “[t]his litigation does not involve a program or activity that is alleged to treat handicapped persons less favorably than nonhandicapped persons.” Id., at 548. Given the theory of the case, the Court explicitly held: “There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons.” Id., at 549.

This same understanding of discrimination also informs this Court’s constitutional interpretation of the term. See General Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997) (noting with respect to interpreting the Commerce Clause, “[c]onceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities”); Yick Wo v. Hopkins, 118 U. S 356, 374 (1886) (condemning under the Fourteenth Amendment “illegal discriminations between persons in similar circumstances”); see also Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 223—224 (1995); Richmond v. J. A. Croson Co., 488 U.S. 469, 493—494 (1989) (plurality opinion).

Despite this traditional understanding, the majority derives a more “capacious” definition of “discrimination,” as that term is used in Title II of the ADA, one that includes “institutional isolation of persons with disabilities.” Ante, at 13—14. It chiefly relies on certain congressional findings contained within the ADA. To be sure, those findings appear to equate institutional isolation with segregation, and thereby discrimination. See ante, at 14 (quoting §§12101(a)(2) and 12101(a)(5), both of which explicitly identify “segregation” of persons with disabilities as a form of “discrimination”); see also ante, at 2—3. The congressional findings, however, are written in general, hortatory terms and provide little guidance to the interpretation of the specific language of §12132. See National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 260 (1994) (“We also think that the quoted statement of congressional findings is a rather thin reed upon which to base a requirement”). In my view, the vague congressional findings upon which the majority relies simply do not suffice to show that Congress sought to overturn a well-established understanding of a statutory term (here, “discrimination”).4 Moreover, the majority fails to explain why terms in the findings should be given a medical content, pertaining to the place where a mentally retarded person is treated. When read in context, the findings instead suggest that terms such as “segregation” were used in a more general sense, pertaining to matters such as access to employment, facilities, and transportation. Absent a clear directive to the contrary, we must read “discrimination” in light of the common understanding of the term. We cannot expand the meaning of the term “discrimination” in order to invalidate policies we may find unfortunate. Cf. NLRB v. Highland Park Mfg. Co., 341 U.S. 322, 325 (1951) (explaining that if Congress intended statutory terms “to have other than their ordinarily accepted meaning, it would and should have given them a special meaning by definition”).5

Elsewhere in the ADA, Congress chose to alter the traditional definition of discrimination. Title I of the ADA, §12112(b)(1), defines discrimination to include “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee.” Notably, however, Congress did not provide that this definition of discrimination, unlike other aspects of the ADA, applies to Title II. Ordinary canons of construction require that we respect the limited applicability of this definition of “discrimination” and not import it into other parts of the law where Congress did not see fit. See, e.g., Bates v. United States, 522 U.S. 23, 29—30 (1997) (“ ‘Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). The majority’s definition of discrimination–although not specifically delineated–substantially imports the definition of Title I into Title II by necessarily assuming that it is sufficient to focus exclusively on members of one particular group. Under this view, discrimination occurs when some members of a protected group are treated differently from other members of that same group. As the preceding discussion emphasizes, absent a special definition supplied by Congress, this conclusion is a remarkable and novel proposition that finds no support in our decisions in analogous areas. For example, the majority’s conclusion that petitioners “discriminated” against respondents is the equivalent to finding discrimination under Title VII where a black employee with deficient management skills is denied in-house training by his employer (allegedly because of lack of funding) because other similarly situated black employees are given the in-house training. Such a claim would fly in the face of our prior case law, which requires more than the assertion that a person belongs to a protected group and did not receive some benefit. See, e.g., Griggs, 401 U.S., at 430—431 (“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group”).

At bottom, the type of claim approved of by the majority does not concern a prohibition against certain conduct (the traditional understanding of discrimination), but rather imposition of a standard of care.6 As such, the majority can offer no principle limiting this new species of “discrimination” claim apart from an affirmative defense because it looks merely to an individual in isolation, without comparing him to otherwise similarly situated persons, and determines that discrimination occurs merely because that individual does not receive the treatment he wishes to receive. By adopting such a broad view of discrimination, the majority drains the term of any meaning other than as a proxy for decisions disapproved of by this Court.

Further, I fear that the majority’s approach imposes significant federalism costs, directing States how to make decisions about their delivery of public services. We previously have recognized that constitutional principles of federalism erect limits on the Federal Government’s ability to direct state officers or to interfere with the functions of state governments. See, e.g., Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). We have suggested that these principles specifically apply to whether States are required to provide a certain level of benefits to individuals with disabilities. As noted in Alexander, in rejecting a similar theory under §504 of the Rehabilitation Act: “[N]othing … suggests that Congress desired to make major inroads on the States’ longstanding discretion to choose the proper mix of amount, scope, and duration limitations on services … .” 469 U.S., at 307; see also Bowen v. American Hospital Assn., 476 U.S. 610, 642 (1986) (plurality opinion) (“[N]othing in [§504] authorizes [the Secretary of Health and Human Services (HHS)] to commandeer state agencies … . [These] agencies are not field offices of the HHS bureaucracy and they may not be conscripted against their will as the foot soldiers in a federal crusade”). The majority’s affirmative defense will likely come as cold comfort to the States that will now be forced to defend themselves in federal court every time resources prevent the immediate placement of a qualified individual. In keeping with our traditional deference in this area, see Alexander, supra, the appropriate course would be to respect the States’ historical role as the dominant authority responsible for providing services to individuals with disabilities.

The majority may remark that it actually does properly compare members of different groups. Indeed, the majority mentions in passing the “[d]issimilar treatment” of persons with and without disabilities. Ante, at 15. It does so in the context of supporting its conclusion that institutional isolation is a form of discrimination. It cites two cases as standing for the unremarkable proposition that discrimination leads to deleterious stereotyping, ante, at 15 (citing Allen v. Wright, 468 U.S. 737, 755 (1984); Manhart, 435 U.S., at 707, n. 13)), and an amicus brief which indicates that confinement diminishes certain everyday life activities, ante, at 15 (citing Brief for American Psychiatric Association et al. 20—22). The majority then observes that persons without disabilities “can receive the services they need without” institutionalization and thereby avoid these twin deleterious effects. Ante, at 15. I do not quarrel with the two general propositions, but I fail to see how they assist in resolving the issue before the Court. Further, the majority neither specifies what services persons with disabilities might need, nor contends that persons without disabilities need the same services as those with disabilities, leading to the inference that the dissimilar treatment the majority observes results merely from the fact that different classes of persons receive different services–not from “discrimination” as traditionally defined.

Finally, it is also clear petitioners did not “discriminate” against respondents “by reason of [their] disabili[ties],” as §12132 requires. We have previously interpreted the phrase “by reason of” as requiring proximate causation. See, e.g., Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 265—266 (1992); see also id., at 266, n. 11 (citation of cases). Such an interpretation is in keeping with the vernacular understanding of the phrase. See American Heritage Dictionary 1506 (3d ed. 1992) (defining “by reason of ” as “because of ”). This statute should be read as requiring proximate causation as well. Respondents do not contend that their disabilities constituted the proximate cause for their exclusion. Nor could they–community placement simply is not available to those without disabilities. Continued institutional treatment of persons who, though now deemed treatable in a community placement, must wait their turn for placement, does not establish that the denial of community placement occurred “by reason of” their disability. Rather, it establishes no more than the fact that petitioners have limited resources.

* * *

For the foregoing reasons, I respectfully dissent.


1. We have incorporated Title VII standards of discrimination when interpreting statutes prohibiting other forms of discrimination. For example, Rev. Stat. §1977, as amended, 42 U.S.C. § 1981 has been interpreted to forbid all racial discrimination in the making of private and public contracts. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987). This Court has applied the “framework” developed in Title VII cases to claims brought under this statute. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989). Also, the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S.C. § 623(a)(1), prohibits discrimination on the basis of an employee’s age. This Court has noted that its “interpretation of Title VII … applies with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII.’ ” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 584 (1978)). This Court has also looked to its Title VII interpretations of discrimination in illuminating Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U.S.C. § 1681 et seq., which prohibits discrimination under any federally funded education program or activity. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75 (1992) (relying on Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), a Title VII case, in determining that sexual harassment constitutes discrimination).

2. This Court has recognized that two forms of discrimination are prohibited under Title VII: disparate treatment and disparate impact. See Griggs, 401 U.S., at 431 (“The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”). Both forms of “discrimination” require a comparison among classes of employees.

3. Following Wards Cove, Congress enacted the Civil Rights Act of 1991, Pub. L. 102—166, 105 Stat. 1071, as amended, which, inter alia, altered the burden of proof with respect to a disparate impact discrimination claim. See id., §105 (codified at 42 U.S.C. § 2000e—2(k)). This change highlights the principle that a departure from the traditional understanding of discrimination requires congressional action. Cf. Field v. Mans, 516 U.S. 59, 69—70 (1995) (Congress legislates against the background rule of the common law and traditional notions of lawful conduct).

4. If such general hortatory language is sufficient, it is puzzling that this or any other court did not reach the same conclusion long ago by reference to the general purpose language of the Rehabilitation Act itself. See 29 U.S.C. § 701 (1988 ed.) (describing the statute’s purpose as “to develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living, for individuals with handicaps in order to maximize their employability, independence, and integration into the workplace and the community” (emphasis added)). Further, this section has since been amended to proclaim in even more aspirational terms that the policy under the statute is driven by, inter alia, “respect for individual dignity, personal responsibility, self-determination, and pursuit of meaningful careers, based on informed choice, of individuals with disabilities,” “respect for the privacy, rights, and equal access,” and “inclusion, integration, and full participation of the individuals.” 29 U.S.C. § 701(c)(1) — (3).

5. Given my conclusion, the Court need not review the integration regulation promulgated by the Attorney General. See 28 CFR § 35.130(d) (1998). Deference to a regulation is appropriate only “ ‘if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable.’ ” Reno v. Bossier Parish School Bd., 520 U.S. 471, 483 (1997) (quoting Presley v. Etowah County Comm’n, 502 U.S. 491, 508 (1992)). Here, Congress has expressed its intent in §12132 and the Attorney General’s regulation–insofar as it contradicts the settled meaning of the statutory term–cannot prevail against it. See NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 94 (1995) (explaining that courts interpreting a term within a statute “must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of that term”) (internal quotation marks omitted).

6. In mandating that government agencies minimize the institutional isolation of disabled individuals, the majority appears to appropriate the concept of “mainstreaming” from the Individuals with Disabilities Education Act (IDEA), 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq. But IDEA is not an antidiscrimination law. It is a grant program that affirmatively requires States accepting federal funds to provide disabled children with a “free appropriate public education” and to establish “procedures to assure that, to the maximum extent appropriate, children with disabilities … are educated with children who are not disabled.” §§1412(1), (5). Ironically, even under this broad affirmative mandate, we previously rejected a claim that IDEA required the “standard of care” analysis adopted by the majority today. See Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 198 (1982) (“We think … that the requirement that a State provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child’s potential commensurate with the opportunity provided other children”) (internal quotation marks omitted).