BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, et al., PETITIONERS
v.
PATRICIA GARRETT et al.

REHNQUIST, C. J., delivered the opinion of the Court, in which O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, in which O’CONNOR, J., joined, post, p. 968. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined, post, p. 969.

Chief Justice REHNQUIST delivered the opinion of the Court.

We decide here whether employees of the State of Alabama may recover money damages by reason of the State’s failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U.S.C. §§ 12111–12117.¹ We hold that such suits are barred by the Eleventh Amendment.

The ADA prohibits certain employers, including the States, from “discriminat [ing] 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.” §§ 12112(a), 12111(2), (5), (7). To this end, the Act requires employers to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer’s] business.” § 12112(b)(5)(A).

“‘[R]easonable accommodation’ may include—

“(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” § 12111(9).

The Act also prohibits employers from “utilizing standards, criteria, or methods of administration ... that have the effect of discrimination on the basis of disability.” § 12112(b)(3)(A).

The Act defines “disability” to include “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” § 12102(2). A disabled individual is otherwise “qualified” if he or she, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” § 12111(8).

Respondent Patricia Garrett, a registered nurse, was employed as the Director of Nursing, OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham Hospital. See App. 31, 38. In 1994, Garrett was diagnosed with breast cancer and subsequently underwent a lumpectomy, radiation treatment, and chemotherapy. See id., at 38. Garrett’s treatments required her to take substantial leave from work. Upon returning to work in July 1995, Garrett’s supervisor informed Garrett that she would have to give up her Director position. See id., at 39. Garrett then applied for and received a transfer to another, lower paying position as a nurse manager. See ibid.

Respondent Milton Ash worked as a security officer for the Alabama Department of Youth Services (Department). See id., at 8. Upon commencing this employment, Ash informed the Department that he suffered from chronic asthma and that his doctor recommended he avoid carbon monoxide and cigarette smoke, and Ash requested that the Department modify his duties to minimize his exposure to these substances. See ibid. Ash was later diagnosed with sleep apnea and requested, again pursuant to his doctor’s recommendation, that he be reassigned to daytime shifts to accommodate his condition. See id., at 9. Ultimately, the Department granted none of the requested relief. See id., at 8–9. Shortly after Ash filed a discrimination claim with the Equal Employment Opportunity Commission, he noticed that his performance evaluations were lower than those he had received on previous occasions. See id., at 9.

Garrett and Ash filed separate lawsuits in the District Court, both seeking money damages under the ADA.² Petitioners moved for summary judgment, claiming that the ADA exceeds Congress’ authority to abrogate the State’s Eleventh Amendment immunity. See 989 F.Supp. 1409, 1410 (N.D.Ala.1998). In a single opinion disposing of both cases, the District Court agreed with petitioners’ position and granted their motions for summary judgment. See id., at 1410, 1412. The cases were consolidated on appeal to the Eleventh Circuit. The Court of Appeals reversed, 193 F.3d 1214 (1999), adhering to its intervening decision in Kimel v. State Bd. of Regents, 139 F.3d 1426, 1433 (C.A.11 1998), aff’d, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), that the ADA validly abrogates the States’ Eleventh Amendment immunity.

We granted certiorari, 529 U.S. 1065, 120 S.Ct. 1669, 146 L.Ed.2d 479 (2000), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court under the ADA.

I

The Eleventh Amendment provides:

“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.”

Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment’s applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72–73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 669–670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73, 120 S.Ct. 631.

We have recognized, however, that Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and “act[s] pursuant to a valid grant of constitutional authority.” 528 U.S., at 73, 120 S.Ct. 631. The first of these requirements is not in dispute here. See 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter”). The question, then, is whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA.

Congress may not, of course, base its abrogation of the States’ Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra, at 79, 120 S.Ct. 631 (“Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress’ Article I commerce power, the private petitioners in today’s cases cannot maintain their suits against their state employers”); Seminole Tribe, supra, at 72–73, 116 S.Ct. 1114 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction”); College Savings Bank, supra, at 672, 119 S.Ct. 2219; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 636, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); Alden v. Maine, 527 U.S. 706, 730–733, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), however, we held that “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.” Id., at 456, 96 S.Ct. 2666 (citation omitted). As a result, we concluded, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power. See ibid. Our cases have adhered to this proposition. See, e.g., Kimel, supra, at 80, 120 S.Ct. 631. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation.³

Section 1 of the Fourteenth Amendment provides, in relevant part:

“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 of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting “appropriate legislation.” See City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Congress is not limited to mere legislative repetition of this Court’s constitutional jurisprudence. “Rather, Congress’ power ‘to enforce’ the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Kimel, supra, at 81, 120 S.Ct. 631; City of Boerne, supra, at 536, 117 S.Ct. 2157.

City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U.S., at 519–524, 117 S.Ct. 2157. Accordingly, § 5 legislation reaching beyond the scope of § 1’s actual guarantees must exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id., at 520, 117 S.Ct. 2157.

II

The first step in applying these now familiar principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires us to examine the limitations § 1 of the Fourteenth Amendment places upon States’ treatment of the disabled. As we did last Term in Kimel,  see 528 U.S., at 83, 120 S.Ct. 631, we look to our prior decisions under the Equal Protection Clause dealing with this issue.

In Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), we considered an equal protection challenge to a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded. The specific question before us was whether the Court of Appeals had erred by holding that mental retardation qualified as a “quasi-suspect” classification under our equal protection jurisprudence. Id., at 435, 105 S.Ct. 3249. We answered that question in the affirmative, concluding instead that such legislation incurs only the minimum “rational-basis” review applicable to general social and economic legislation.⁴ Id., at 446, 105 S.Ct. 3249. In a statement that today seems quite prescient, we explained that

“if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish 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. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.” Id., at 445–446, 105 S.Ct. 3249.

Under rational-basis review, where a group possesses “distinguishing characteristics relevant to interests the State has the authority to implement,” a State’s decision to act on the basis of those differences does not give rise to a constitutional violation. Id., at 441, 105 S.Ct. 3249. “Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (citing Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) ). Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative “ ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” Heller, supra, at 320, 113 S.Ct. 2637 (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)).

Justice BREYER suggests that Cleburne stands for the broad proposition that state decisionmaking reflecting “negative attitudes” or “fear” necessarily runs afoul of the Fourteenth Amendment. See post, at 972 (dissenting opinion) (quoting Cleburne, 473 U.S., at 448, 105 S.Ct. 3249). Although such biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make. As we noted in Cleburne: “[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently ....” Id., at 448, 105 S.Ct. 3249 (emphases added). This language, read in context, simply states the unremarkable and widely acknowledged tenet of this Court’s equal protection jurisprudence that state action subject to rational-basis scrutiny does not violate the Fourteenth Amendment when it “rationally furthers the purpose identified by the State.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam).

Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly— and perhaps hardheartedly—hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.⁵

III

Once we have determined the metes and bounds of the constitutional right in question, we examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled. Just as § 1 of the Fourteenth Amendment applies only to actions committed “under color of state law,” Congress’ § 5 authority is appropriately exercised only in response to state transgressions. See Florida Prepaid, 527 U.S., at 640, 119 S.Ct. 2199 (“It is this conduct then—unremedied patent infringement by the States—that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act”); Kimel, 528 U.S., at 89, 120 S.Ct. 631 (“Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation”). The legislative record of the ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.

Respondents contend that the inquiry as to unconstitutional discrimination should extend not only to States themselves, but to units of local governments, such as cities and counties. All of these, they say, are “state actors” for purposes of the Fourteenth Amendment. Brief for Respondents 8. This is quite true, but the Eleventh Amendment does not extend its immunity to units of local government. See Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890). These entities are subject to private claims for damages under the ADA without Congress’ ever having to rely on § 5 of the Fourteenth Amendment to render them so. It would make no sense to consider constitutional violations on their part, as well as by the States themselves, when only the States are the beneficiaries of the Eleventh Amendment.

Congress made a general finding in the ADA that “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.” 42 U.S.C. § 12101(a)(2). The record assembled by Congress includes many instances to support such a finding. But the great majority of these incidents do not deal with the activities of States.

Respondents in their brief cite half a dozen examples from the record that did involve States. A department head at the University of North Carolina refused to hire an applicant for the position of health administrator because he was blind; similarly, a student at a state university in South Dakota was denied an opportunity to practice teach because the dean at that time was convinced that blind people could not teach in public schools. A microfilmer at the Kansas Department of Transportation was fired because he had epilepsy; deaf workers at the University of Oklahoma were paid a lower salary than those who could hear. The Indiana State Personnel Office informed a woman with a concealed disability that she should not disclose it if she wished to obtain employment.⁶

Several of these incidents undoubtedly evidence an unwillingness on the part of state officials to make the sort of accommodations for the disabled required by the ADA. Whether they were irrational under our decision in Cleburne is more debatable, particularly when the incident is described out of context. But even if it were to be determined that each incident upon fuller examination showed unconstitutional action on the part of the State, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based. See Kimel, supra, at 89–91, 120 S.Ct. 631; City of Boerne, 521 U.S., at 530–531, 117 S.Ct. 2157. Congress, in enacting the ADA, found that “some 43,000,000 Americans have one or more physical or mental disabilities.” 42 U.S.C. § 12101(a)(1). In 1990, the States alone employed more than 4.5 million people. U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 338 (119th ed. 1999) (Table 534). It is telling, we think, that given these large numbers, Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled.

Justice BREYER maintains that Congress applied Title I of the ADA to the States in response to a host of incidents representing unconstitutional state discrimination in employment against persons with disabilities. A close review of the relevant materials, however, undercuts that conclusion. Justice BREYER’s Appendix C consists not of legislative findings, but of unexamined, anecdotal accounts of “adverse, disparate treatment by state officials.” Post, at 970. Of course, as we have already explained, “adverse, disparate treatment” often does not amount to a constitutional violation where rational-basis scrutiny applies. These accounts, moreover, were submitted not directly to Congress but to the Task Force on the Rights and Empowerment of Americans with Disabilities, which made no findings on the subject of state discrimination in employment.⁷ See the Task Force’s Report entitled From ADA to Empowerment (Oct. 12, 1990). And, had Congress truly understood this information as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act’s legislative findings. There is none. See 42 U.S.C. § 12101. Although Justice BREYER would infer from Congress’ general conclusions regarding societal discrimination against the disabled that the States had likewise participated in such action, post, at 970, the House and Senate committee reports on the ADA flatly contradict this assertion. After describing the evidence presented to the Senate Committee on Labor and Human Resources and its subcommittee (including the Task Force Report upon which the dissent relies), the Committee’s Report reached, among others, the following conclusion: “Discrimination still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and telecommunications.” S.Rep. No. 101–116, p. 6 (1989) (emphasis added). The House Committee on Education and Labor, addressing the ADA’s employment provisions, reached the same conclusion: “[A]fter extensive review and analysis over a number of Congressional sessions, ... there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the areas of employment in the private sector, public accommodations, public services, transportation, and telecommunications.” H.R.Rep. No. 101–485, pt. 2, p. 28 (1990), U.S.Code Cong. & Admin.News 1990 pp. 303, 310 (emphasis added). Thus, not only is the inference Justice BREYER draws unwarranted, but t[T]here is also strong evidence that Congress’ failure to mention States in its legislative findings addressing discrimination in employment reflects that body’s judgment that no pattern of unconstitutional state action had been documented.

Even were it possible to squeeze out of these examples a pattern of unconstitutional discrimination by the States, the rights and remedies created by the ADA against the States would raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to “mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities.” 42 U.S.C. §§ 12112(5)(B), 12111(9). The ADA does except employers from the “reasonable accommodatio[n]” requirement where the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” § 12112(b)(5)(A). However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable but would fall short of imposing an “undue burden” upon the employer. The Act also makes it the employer’s duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer’s decision. See ibid.

The ADA also forbids “utilizing standards, criteria, or methods of administration” that disparately impact the disabled, without regard to whether such conduct has a rational basis. § 12112(b)(3)(A). Although disparate impact may be relevant evidence of racial discrimination, see Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny. See, e.g., ibid. (“[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact”).

The ADA’s constitutional shortcomings are apparent when the Act is compared to Congress’ efforts in the Voting Rights Act of 1965 to respond to a serious pattern of constitutional violations. In South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), we considered whether the Voting Rights Act was “appropriate” legislation to enforce the Fifteenth Amendment’s protection against racial discrimination in voting. Concluding that it was a valid exercise of Congress’ enforcement power under § 2 of the Fifteenth Amendment,⁸ we noted that “[b]efore enacting the measure, Congress explored with great care the problem of racial discrimination in voting.” Id., at 308, 86 S.Ct. 803.

In that Act, Congress documented a marked pattern of unconstitutional action by the States. State officials, Congress found, routinely applied voting tests in order to exclude African–American citizens from registering to vote. See id., at 312, 86 S.Ct. 803. Congress also determined that litigation had proved ineffective and that there persisted an otherwise inexplicable 50–percentage–point gap in the registration of white and African–American voters in some States. See id., at 313, 86 S.Ct. 803. Congress’ response was to promulgate in the Voting Rights Act a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States’ systematic denial of those rights was identified.

The contrast between this kind of evidence, and the evidence that Congress considered in the present case, is stark. Congressional enactment of the ADA represents its judgment that there should be a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act’s application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne.⁹ Section 5 does not so broadly enlarge congressional authority. The judgment of the Court of Appeals is therefore

Reversed.

Justice KENNEDY, with whom Justice O’CONNOR joins, concurring.

[omitted]

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature. There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will.

One of the undoubted achievements of statutes designed to assist those with impairments is that citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. The law works this way because the law can be a teacher. So I do not doubt that the Americans with Disabilities Act of 1990 will be a milestone on the path to a more decent, tolerant, progressive society.

It is a question of quite a different order, however, to say that the States in their official capacities, the States as governmental entities, must be held in violation of the Constitution on the assumption that they embody the misconceived or malicious perceptions of some of their citizens. It is a most serious charge to say a State has engaged in a pattern or practice designed to deny its citizens the equal protection of the laws, particularly where the accusation is based not on hostility but instead on the failure to act or the omission to remedy. States can, and do, stand apart from the citizenry. States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand. The failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

For the reasons explained by the Court, an equal protection violation has not been shown with respect to the several States in this case. If the States had been transgressing the Fourteenth Amendment by their mistreatment or lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the courts of the United States extensive litigation and discussion of the constitutional violations. This confirming judicial documentation does not exist. That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation.

It must be noted, moreover, that what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether the States can be subjected to liability in suits brought not by the Federal Government (to which the States have consented, see Alden v. Maine, 527 U.S. 706, 755, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)), but by private persons seeking to collect moneys from the state treasury without the consent of the State. The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity. That predicate, for reasons discussed here and in the decision of the Court, has not been established. With these observations, I join the Court’s opinion.

Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting.

Reviewing the congressional record as if it were an administrative agency record, the Court holds the statutory provision before us, 42 U.S.C. § 12202, unconstitutional. The Court concludes that Congress assembled insufficient evidence of unconstitutional discrimination, ante, at 965–966, that Congress improperly attempted to “rewrite” the law we established in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), ante, at 968, and that the law is not sufficiently tailored to address unconstitutional discrimination, ante, at 966–967.

Section 5, however, grants Congress the “power to enforce, by appropriate legislation,” the Fourteenth Amendment’s equal protection guarantee. U.S. Const., Amdt. 14, § 5. As the Court recognizes, state discrimination in employment against persons with disabilities might “ ‘run afoul of the Equal Protection Clause’ ” where there is no “ ‘rational relationship between the disparity of treatment and some legitimate governmental purpose.’ ” Ante, at 964 (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). See also Cleburne v. Cleburne Living Center, Inc., supra, at 440, 105 S.Ct. 3249 (stating that the Court will sustain a classification if it is “rationally related to a legitimate state interest”). In my view, Congress reasonably could have concluded that the remedy before us constitutes an “appropriate” way to enforce this basic equal protection requirement. And that is all the Constitution requires.

I

The Court says that its primary problem with this statutory provision is one of legislative evidence. It says that “Congress assembled only ... minimal evidence of unconstitutional state discrimination in employment.” Ante, at 965–966. In fact, Congress compiled a vast legislative record documenting “ ‘massive, society-wide discrimination’ ” against persons with disabilities. S.Rep. No. 101–116, pp. 8–9 (1989) (quoting testimony of Justin Dart, chairperson of the Task Force on the Rights and Empowerment of Americans with Disabilities). In addition to the information presented at 13 congressional hearings (see Appendix A, infra), and its own prior experience gathered over 40 years during which it contemplated and enacted considerable similar legislation (see Appendix B, infra ), Congress created a special task force to assess the need for comprehensive legislation. That task force held hearings in every State, attended by more than 30,000 people, including thousands who had experienced discrimination first hand. See From ADA to Empowerment, Task Force on the Rights and Empowerment of Americans with Disabilities 16 (Oct. 12, 1990) (hereinafter Task Force Report). The task force hearings, Congress’ own hearings, and an analysis of “census data, national polls, and other studies” led Congress to conclude that “people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally.” 42 U.S.C. § 12101(a)(6). As to employment, Congress found that “[t]wo-thirds of all disabled Americans between the age of 16 and 64 [were] not working at all,” even though a large majority wanted to, and were able to, work productively. S.Rep. No. 101–116, at 9. And Congress found that this discrimination flowed in significant part from “stereotypic assumptions” as well as “purposeful unequal treatment.” 42 U.S.C. § 12101(a)(7).

The powerful evidence of discriminatory treatment throughout society in general, including discrimination by private persons and local governments, implicates state governments as well, for state agencies form part of that same larger society. There is no particular reason to believe that they are immune from the “stereotypic assumptions” and pattern of “purposeful unequal treatment” that Congress found prevalent. The Court claims that it “make[s] no sense” to take into consideration constitutional violations committed by local governments. Ante, at 965. But the substantive obligation that the Equal Protection Clause creates applies to state and local governmental entities alike. E.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Local governments often work closely with, and under the supervision of, state officials, and in general, state and local government employers are similarly situated. Nor is determining whether an apparently “local” entity is entitled to Eleventh Amendment immunity as simple as the majority suggests—it often requires a “ ‘detailed examination of the relevant provisions of [state] law.’ ” Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 430, n. 6, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997) (quoting Moor v. County of Alameda, 411 U.S. 693, 719–721, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973)).

In any event, there is no need to rest solely upon evidence of discrimination by local governments or general societal discrimination. There are roughly 300 examples of discrimination by state governments themselves in the legislative record. See, e.g., Appendix C, infra. I fail to see how this evidence “fall[s] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based.” Ante, at 965.

The congressionally appointed task force collected numerous specific examples, provided by persons with disabilities themselves, of adverse, disparate treatment by state officials. They reveal, not what the Court describes as “half a dozen” instances of discrimination, ibid., but hundreds of instances of adverse treatment at the hands of state officials—instances in which a person with a disability found it impossible to obtain a state job, to retain state employment, to use the public transportation that was readily available to others in order to get to work, or to obtain a public education, which is often a prerequisite to obtaining employment. State-imposed barriers also frequently made it difficult or impossible for people to vote, to enter a public building, to access important government services, such as calling for emergency assistance, and to find a place to live due to a pattern of irrational zoning decisions similar to the discrimination that we held unconstitutional in Cleburne, 473 U.S., at 448, 105 S.Ct. 3249. See Appendix C, infra.

As the Court notes, those who presented instances of discrimination rarely provided additional, independent evidence sufficient to prove in court that, in each instance, the discrimination they suffered lacked justification from a judicial standpoint. Ante, at 965–966 (stating that instances of discrimination are “described out of context”). Perhaps this explains the Court’s view that there is “minimal evidence of unconstitutional state discrimination.” Ibid. But a legislature is not a court of law. And Congress, unlike courts, must, and does, routinely draw general conclusions—for example, of likely motive or of likely relationship to legitimate need—from anecdotal and opinion-based evidence of this kind, particularly when the evidence lacks strong refutation. See Task Force Report 16, 20 (task force “met many times with significant representatives of groups opposed to [the] ADA,” and as to the general public, although the task force received “about 2,000 letters” in support of the ADA, there was only “one letter in opposition”); S.Rep. No. 101–116, at 10 (summarizing testimony that many reasonable accommodations cost “less than $50,” and the expense of others, such as hiring employees who can interpret for the deaf, is “frequently exaggerated”). In reviewing § 5 legislation, we have never required the sort of extensive investigation of each piece of evidence that the Court appears to contemplate. Compare ante, at 965–966, with Katzenbach v. Morgan, 384 U.S. 641, 652–656, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (asking whether Congress’ likely conclusions were reasonable, not whether there was adequate evidentiary support in the record). Nor has the Court traditionally required Congress to make findings as to state discrimination, or to break down the record evidence, category by category. Compare ante, at 966 (noting statements in two congressional Reports that mentioned state discrimination in public services and transportation but not in employment), with Morgan, supra, at 654, 86 S.Ct. 1717 (considering what Congress “might” have concluded); 384 U.S., at 652, 86 S.Ct. 1717 (holding that likely discrimination against Puerto Ricans in areas other than voting supported statute abolishing literacy test as qualification for voting).

Regardless, Congress expressly found substantial unjustified discrimination against persons with disabilities. 42 U.S.C. § 12101(9) (finding a pattern of “unnecessary discrimination and prejudice” that “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity” (emphasis added)). See also 2 Legislative History of the Americans with Disabilities Act (Leg.Hist.) (Committee Print compiled for the House Committee on Education and Labor), Ser. No. 102–B, p. 1620 (1990) (testimony of Arlene B. Mayerson) (describing “unjustifiable and discriminatory loss of job opportunities”); id., at 1623 (citing study showing “ ‘strong evidence that employers’ fears of low performance among disabled workers are unjustified’ ”). Moreover, it found that such discrimination typically reflects “stereotypic assumptions” or “purposeful unequal treatment.” 42 U.S.C. § 12101(7). See also 2 Leg. Hist. 1622 (testimony of Arlene B. Mayerson) (“Outmoded stereotypes whether manifested in medical or other job ‘requirements’ that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified”). In making these findings, Congress followed our decision in Cleburne, which established that not only discrimination against persons with disabilities that rests upon “ ‘a bare ... desire to harm a politically unpopular group,’ ” 473 U.S., at 447, 105 S.Ct. 3249 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (omission in Cleburne )), violates the Fourteenth Amendment, but also discrimination that rests solely upon “negative attitude [s],” “fea[r],” 473 U.S., at 448, 105 S.Ct. 3249, or “irrational prejudice,” id., at 450, 105 S.Ct. 3249. Adverse treatment that rests upon such motives is unjustified discrimination in Cleburne’s terms.

The evidence in the legislative record bears out Congress’ finding that the adverse treatment of persons with disabilities was often arbitrary or invidious in this sense, and thus unjustified. For example, one study that was before Congress revealed that “most ... governmental agencies in [one State] discriminated in hiring against job applicants for an average period of five years after treatment for cancer,” based in part on coworkers’ misguided belief that “cancer is contagious.” 2 Leg. Hist. 1619–1620 (testimony of Arlene B. Mayerson). A school inexplicably refused to exempt a deaf teacher, who taught at a school for the deaf, from a “listening skills” requirement. Government’s Lodging 1503. A State refused to hire a blind employee as director of an agency for the blind—even though he was the most qualified applicant. Id., at 974. Certain state agencies apparently had general policies against hiring or promoting persons with disabilities. Id., at 1159, 1577. A zoo turned away children with Downs Syndrome “because [the zookeeper] feared they would upset the chimpanzees.” S.Rep. No. 101–116, at 7. There were reports of numerous zoning decisions based upon “negative attitudes” or “fear,” Cleburne, supra, at 448, 105 S.Ct. 3249, such as a zoning board that denied a permit for an obviously pretextual reason after hearing arguments that a facility would house “ ‘deviants’ ” who needed “ ‘room to roam,’ ” Government’s Lodging 1068. A complete listing of the hundreds of examples of discrimination by state and local governments that were submitted to the task force is set forth in Appendix C, infra. Congress could have reasonably believed that these examples represented signs of a widespread problem of unconstitutional discrimination.

II

The Court’s failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice KENNEDY’s empirical conclusion—which rejects that of Congress—rests heavily upon his failure to find “extensive litigation and discussion of the constitutional violations,” in “the courts of the United States.” Ante, at 968 (concurring opinion) (emphasis added). And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the “burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification.” Ante, at 964 (internal quotation marks omitted). Or as Justice Brandeis, writing for the Court, put the matter many years ago, “ ‘if any state of facts reasonably can be conceived that would sustain’ ” challenged legislation, then “ ‘there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing ... that the action is arbitrary.’ ” Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 80 L.Ed. 138 (1935) (quoting Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 79 L.Ed. 281 (1934)). Imposing this special “burden” upon Congress, the Court fails to find in the legislative record sufficient indication that Congress has “negative[d]” the presumption that state action is rationally related to a legitimate objective. Ante, at 964.

The problem with the Court’s approach is that neither the “burden of proof” that favors States nor any other rule of restraint applicable to judges applies to Congress when it exercises its § 5 power. “Limitations stemming from the nature of the judicial process ... have no application to Congress.” Oregon v. Mitchell, 400 U.S. 112, 248, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (Brennan, White, and Marshall, JJ., concurring in part and dissenting in part). Rational-basis review—with its presumptions favoring constitutionality—is “a paradigm of judicial restraint.” FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (emphasis added). And the Congress of the United States is not a lower court.

Indeed, the Court in Cleburne drew this very institutional distinction. We emphasized that “courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices.” 473 U.S., at 441, 105 S.Ct. 3249. Our invocation of judicial deference and respect for Congress was based on the fact that “[§ ]5 of the [Fourteenth] Amendment empowers Congress to enforce [the equal protection] mandate.” Id., at 439, 105 S.Ct. 3249 (emphasis added). Indeed, we made clear that the absence of a contrary congressional finding was critical to our decision to apply mere rational-basis review to disability discrimination claims—a “congressional direction” to apply a more stringent standard would have been “controlling.” Ibid. See also Washington v. Davis, 426 U.S. 229, 248, 96 S.Ct. 2040, 48 L.Ed.2d 597 1976) (refusing to invalidate a law based on the Equal Protection Clause because a disparate impact standard “should await legislative prescription”). Cf. Mitchell, supra, at 284, 91 S.Ct. 260 (Stewart, J., concurring in part and dissenting in part) (“Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records”). In short, the Court’s claim that “to uphold the Act’s application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne,” ante, at 968, is repudiated by Cleburne itself.

There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its § 5 authority, to adopt rules or presumptions that reflect a court’s institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. Cf. Cleburne, supra, at 442–443, 105 S.Ct. 3249 (addressing the problems of the “large and diversified group” of persons with disabilities “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”). Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have firsthand experience with discrimination and related issues.

Moreover, unlike judges, Members of Congress are elected. When the Court has applied the majority’s burden of proof rule, it has explained that we, i.e., the courts, do not “ ‘sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.’ ” Heller, 509 U.S., at 319, 113 S.Ct. 2637 quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) ). To apply a rule designed to restrict courts as if it restricted Congress’ legislative power is to stand the underlying principle—a principle of judicial restraint—on its head. But without the use of this burden of proof rule or some other unusually stringent standard of review, it is difficult to see how the Court can find the legislative record here inadequate. Read with a reasonably favorable eye, the record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment. And Congress could have found, in a significant number of instances, that this treatment violated the substantive principles of justification—shorn of their judicial-restraint-related presumptions—that this Court recognized in Cleburne.

III

The Court argues in the alternative that the statute’s damages remedy is not “congruent” with and “proportional” to the equal protection problem that Congress found. Ante, at 967–968 (citing City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)). The Court suggests that the Act’s “reasonable accommodation” requirement, 42 U.S.C. § 12112(b)(5)(A), and disparate-impact standard, § 12112(b)(3)(A), “far excee [d] what is constitutionally required.” Ante, at 967. But we have upheld disparate-impact standards in contexts where they were not “constitutionally required.” Compare Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), with Washington, supra, at 239, 96 S.Ct. 2040, and City of Rome v. United States, 446 U.S. 156, 172–173, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980), with Mobile v. Bolden, 446 U.S. 55, 62, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion).

And what is wrong with a remedy that, in response to unreasonable employer behavior, requires an employer to make accommodations that are reasonable? Of course, what is “reasonable” in the statutory sense and what is “unreasonable” in the constitutional sense might differ. In other words, the requirement may exceed what is necessary to avoid a constitutional violation. But it is just that power—the power to require more than the minimum that § 5 grants to Congress, as this Court has repeatedly confirmed. As long ago as 1880, the Court wrote that § 5 “brought within the domain of congressional power” whatever “tends to enforce submission” to its “prohibitions” and “to secure to all persons ... the equal protection of the laws.” Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1880). More recently, the Court added that § 5 ‘s “draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18.” Morgan, 384 U.S., at 650, 86 S.Ct. 1717 (citing M’Culloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819)).

In keeping with these principles, the Court has said that “[i]t is not for us to review the congressional resolution of ... the various conflicting considerations—the risk or pervasiveness of the discrimination in governmental services ..., the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected.” 384 U.S., at 653, 86 S.Ct. 1717. “It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Ibid. See also South Carolina v. Katzenbach, 383 U.S. 301, 324, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (interpreting the similarly worded Enforcement Clause of the Fifteenth Amendment to permit Congress to use “any rational means to effectuate the constitutional prohibition”). Nothing in the words “reasonable accommodation” suggests that the requirement has no “tend[ency] to enforce” the Equal Protection Clause, Ex parte Virginia, supra, at 346, that it is an irrational way to achieve the objective, Katzenbach, supra, at 324, 86 S.Ct. 803, that it would fall outside the scope of the Necessary and Proper Clause, Morgan, supra, at 650, 86 S.Ct. 1717, or that it somehow otherwise exceeds the bounds of the “appropriate,” U.S. Const., Amdt. 14, § 5.

The Court’s more recent cases have professed to follow the longstanding principle of deference to Congress. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (“Congress’ § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment.” Rather, Congress can prohibit a “somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text”); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 639, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (“ ‘Congress must have wide latitude’ ”) (quoting City of Boerne, supra, at 519–520, 117 S.Ct. 2157); City of Boerne, supra, at 528, 117 S.Ct. 2157 (reaffirming Morgan ); 521 U.S., at 536, 117 S.Ct. 2157 (Congress’ “conclusions are entitled to much deference”). And even today, the Court purports to apply, not to depart from, these standards. Ante, at 962–963. But the Court’s analysis and ultimate conclusion deprive its declarations of practical significance. The Court “sounds the word of promise to the ear but breaks it to the hope.”

IV

The Court’s harsh review of Congress’ use of its § 5 power is reminiscent of the similar (now-discredited) limitation that it once imposed upon Congress’ Commerce Clause power. Compare Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), with United States v. Darby, 312 U.S. 100, 123, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (rejecting Carter Coal’s rationale). I could understand the legal basis for such review were we judging a statute that discriminated against those of a particular race or gender, see United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996),or a statute that threatened a basic constitutionally protected liberty such as free speech, see Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); see also Post & Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L.J. 441, 477 (2000) (stating that the Court’s recent review of § 5 legislation appears to approach strict scrutiny); 1 L. Tribe, American Constitutional Law § 5–16, p. 959 (3d ed.2000) (same). The legislation before us, however, does not discriminate against anyone, nor does it pose any threat to basic liberty. And it is difficult to understand why the Court, which applies “minimum ‘rational-basis’ review” to statutes that burden persons with disabilities, ante, at 963, subjects to far stricter scrutiny a statute that seeks to help those same individuals.

I recognize nonetheless that this statute imposes a burden upon States in that it removes their Eleventh Amendment protection from suit, thereby subjecting them to potential monetary liability. Rules for interpreting § 5 that would provide States with special protection, however, run counter to the very object of the Fourteenth Amendment. By its terms, that Amendment prohibits States from denying their citizens equal protection of the laws. U.S. Const., Amdt. 14, § 1. Hence “principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments ‘by appropriate legislation.’ Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” City of Rome, 446 U.S., at 179, 100 S.Ct. 1548. See also Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Ex parte Virginia, 100 U.S., at 345. And, ironically, the greater the obstacle the Eleventh Amendment poses to the creation by Congress of the kind of remedy at issue here—the decentralized remedy of private damages actions—the more Congress, seeking to cure important national problems, such as the problem of disability discrimination before us, will have to rely on more uniform remedies, such as federal standards and court injunctions, 42 U.S.C. § 12188(a)(2), which are sometimes draconian and typically more intrusive. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 704–705, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (BREYER, J., dissenting). Cf. ante, at 968, n. 9. For these reasons, I doubt that today’s decision serves any constitutionally based federalism interest.

The Court, through its evidentiary demands, its non-deferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress. Morgan, 384 U.S., at 648, n. 7, 86 S.Ct. 1717 (The “sponsors and supporters of the [Fourteenth] Amendment were primarily interested in augmenting the power of Congress”). Its decision saps § 5 of independent force, effectively “confin[ing] the legislative power ... to the insignificant role of abrogating only those state laws that the judicial branch [is] prepared to adjudge unconstitutional.” Id., at 648–649, 86 S.Ct. 1717. Whether the Commerce Clause does or does not enable Congress to enact this provision, see, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 100–185, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (SOUTER, J., joined by GINSBURG and BREYER, JJ., dissenting); College Savings Bank, supra, at 699–700, 119 S.Ct. 2219 (BREYER, J., dissenting), in my view, § 5 gives Congress the necessary authority.

For the reasons stated, I respectfully dissent.

APPENDIX A TO OPINION OF BREYER, J.

Footnotes

[1] Respondents' complaints in the United States District Court alleged violations of both Title I and Title II of the ADA, and petitioners’ “Question Presented” can be read to apply to both sections. See Brief for Petitioners i; Brief for United States I. Though the briefs of the parties discuss both sections in their constitutional arguments, no party has briefed the question whether Title II of the ADA, dealing with the “services, programs, or activities of a public entity,” 42 U.S.C. § 12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e.g., Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ( “[W]here 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” (internal quotation marks omitted)). The Courts of Appeals are divided on this issue, compare Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (C.A.9 1999), with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816 (C.A.11 1998). We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question. To the extent the Court granted certiorari on the question whether respondents may sue their state employers for damages under Title II of the ADA, see this Court’s Rule 24.1(a), that portion of the writ is dismissed as improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 184, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959).

[2] Garrett raised other claims, but those are not presently before the Court.

[3] It is clear that Congress intended to invoke § 5 as one of its bases for enacting the ADA. See 42 U.S.C. § 12101(b)(4).

[4] Applying the basic principles of rationality review, Cleburne struck down the city ordinance in question. 473 U.S., at 447–450, 105 S.Ct. 3249. The Court’s reasoning was that the city’s purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects. Although the group home for the mentally retarded was required to obtain a special use permit, apartment houses, other multiple-family dwellings, retirement homes, nursing homes, sanitariums, hospitals, boarding houses, fraternity and sorority houses, and dormitories were not subject to the ordinance. See ibid.

[5] It is worth noting that by the time that Congress enacted the ADA in 1990, every State in the Union had enacted such measures. At least one Member of Congress remarked that “this is probably one of the few times where the States are so far out in front of the Federal Government, it’s not funny.” Hearing on Discrimination Against Cancer Victims and the Handicapped before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, 100th Cong., 1st Sess., 5 (1987). A number of these provisions, however, did not go as far as the ADA did in requiring accommodation.

[6] The record does show that some States, adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927). But there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.

[7] Only a small fraction of the anecdotes Justice BREYER identifies in his Appendix C relate to state discrimination against the disabled in employment. At most, somewhere around 50 of these allegations describe conduct that could conceivably amount to constitutional violations by the States, and most of them are so general and brief that no firm conclusion can be drawn. The overwhelming majority of these accounts pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA.

[8] Section 2 of the Fifteenth Amendment is virtually identical to § 5 of the Fourteenth Amendment.

[9] Our holding here that Congress did not validly abrogate the States’ sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. See n. 5, supra.