determining where it lies,” Flores , 521 U.S. at 519-520. Thus, the relevant inquiry is not whether Title II “prohibit[s] a somewhat broader swath of conduct,” Garrett , 531 U.S. at 365, than would the courts. “Congress is not limited to mere legislative repetition of this Court’s constitutional jurisprudence.” Garrett , 531 U.S. at 365. Rather, the question is whether, in light of the scope of the problem identified by Congress, the enactment “is so out of proportion to the supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Kimel , 528 U.S. at 86 (quoting Flores , 521 U.S. at 532). Title II is not. 1. Title II’s Terms are Tailored to the Constitutional Problems it Remedies Because much of Title II targets only discrimination that threatens fundamental rights it therefore mostly targets conduct outlawed by the Constitution itself. As applied to discrimination in voting, child custody proceedings, criminal cases, institutionalization, conditions of 50
confinement, interactions with law enforcement, judicial proceedings, access to public officials and offices, and other areas implicating fundamental rights, Title II tracks the Fourteenth Amendment when it prevents the disparate deprivation of those rights for invidious reasons. Furthermore, Title II targets some additional discrimination, and, in so doing, ensures that the government’s articulated rationale for differential treatment does not mask impermissible animus and does not result in the unlawful differential treatment of similarly situated groups. The States retain their discretion to exclude persons from programs, services, or benefits for any lawful reason unconnected with their disability or for no reason at all. The Disabilities Act does not require preferences and permits the denial of benefits or services if a person cannot “meet the essential eligibility requirements” of the governmental program or service, 42 U.S.C. 12131(2). But once an individual proves that he can meet all the essential eligibility requirements of a program or service, especially those programs and services that implicate fundamental rights, the government’s interest in excluding that individual solely “by reason of such disability,” 42 U.S.C. 12132, is both minimal and, in light of history, constitutionally circumscribed. At the same time, permitting the States to retain and enforce their essential eligibility requirements protects their legitimate interests in selecting and structuring governmental activities. The Disabilities Act thus balances a State’s legitimate operational interests against the right of a person with a disability to be judged “by his or her own merit and essential qualities.” Rice v.
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