Determining where it lies flores 521 us at 519 520

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
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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.