Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 96 C 125 Robin D. Pierce, Magistrate Judge.
Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.
The plaintiff, a former state prisoner, seeks damages from the state prison administration under the part of the Americans with Disabilities Act, 42 U.S.C. secs. 12101 et seq., that governs the provision of public services. Title II, Subtitle A, 42 U.S.C. secs. 12131-12134. He also seeks damages under section 504 of the Rehabilitation Act, 29 U.S.C. sec. 794, but this claim need not be discussed separately. The Rehabilitation Act is materially identical to and the model for the ADA, Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996); McDonald v. Pennsylvania Dept. of Public Welfare, 62 F.3d 92, 94 (3d Cir. 1995); Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996), except that it is limited to programs that receive federal financial assistance -- which the Indiana prison system admittedly does. Since the ADA has a broader scope, we shall confine our discussion to it.
The district court dismissed the suit on the pleadings, on the ground that the Act is inapplicable to prison inmates -- a question of first impression in this circuit, having been expressly left open in Bryant v. Madigan, supra, and Love v. Westville Correctional Center, 103 F.3d 558, 559 (7th Cir. 1996). The circuits that have addressed the question disagree about the proper answer. Compare White v. Colorado, 82 F.3d 364, 367 (10th Cir. 1996) (holding that neither the ADA nor the Rehabilitation Act applies to prison employment), and Torcasio v. Murray, 57 F.3d 1340, 1344-52 (4th Cir. 1995) (holding that the ADA's applicability to prisons is not clearly established, but strongly hinting that it is inapplicable), with Duffy v. Riveland, supra, 98 F.3d at 454-55 (holding the ADA and the Rehabilitation Act applicable); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988) (holding Rehabilitation Act applicable); Harris v. Thigpen, 941 F.2d 1495, 1522 n. 41 (11th Cir. 1991) (same); and Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994) (same). So we are on our own. And all that we have to go on for facts is the complaint, according to which the plaintiff is blind and because of his blindness was denied access to a variety of programs, activities, and facilities at the prison that are routinely available to the prison's population, including educational programs, the library, and the dining hall.
The Americans with Disabilities Act confers rights on "qualified individual[s] with a disability" who are denied access to "services, programs, or activities of a public entity." 42 U.S.C. sec. 12132. (See 29 U.S.C. sec. 794(a) for the parallel language of the Rehabilitation Act.) A "qualified individual" is defined as someone who with or without a reasonable accommodation has the physical and mental capacity to participate in the program or activity in question, 42 U.S.C. sec. 12131(2); and in the present posture of this case we must assume that the plaintiff satisfies this criterion. The statute defines "public entity" as either a state or local government or any department or other instrumentality of a state or local government, so the Indiana Department of Corrections is covered. Incarceration itself is hardly a "program" or "activity" to which a disabled person might wish access, Bryant v. Madigan, supra, 84 F.3d at 249, but there is no doubt that an educational program is a program, and when it is provided by and in a state prison it is a program of a public entity. Schroeder v. City of Chicago, 927 F.2d 957, 962 (7th Cir. 1991). The use of a library is, equally clearly, an activity, and so, only a little less clearly, is the use of the dining hall. Love v. Westville Correctional Center, supra, 103 F.3d at 559. So if the statute is read literally, the plaintiff has stated a claim under it. It might not be a good claim; the prison might be able to show that there was no reasonable accommodation that would have enabled the plaintiff to participate in the programs and activities in question or that making the necessary accommodation would place an undue burden on the prison system. Id. at 561; Gates v. Rowland, supra, 39 F.3d at 1446-48; cf. Turner v. Safley, 482 U.S. 78, 87 (1987). But these things cannot be determined on the bare pleadings. If the statute is applicable to prisoners, the judgment for the defendant was premature and must be reversed.
The state concedes that the statute is applicable to prisons, as distinct from prisoners, and thus that its protections are applicable to guards and other prison employees, as assumed in Miller v. Illinois Dept. of Corrections, 107 F.3d 483 (7th Cir. 1997), and, by deeming a visit to a prison or a prisoner in the prison as an "activity," to visitors as well. Pack v. Arkansas Valley Correctional Center, 894 P.2d 34, 39 (Colo. App. 1995). But the state asks us to draw the line at prisoners. The difficulty is that the statute furnishes us with no implement for drawing the line there. (See 28 C.F.R. sec. 35.102(a), a Department of Justice regulation that explains that Subpart A of the ADA is applicable to "all services, programs, and activities provided or made available by public entities," except certain public transportation services.) The only criterion of eligibility is that the individual be "qualified" in a sense unrelated to his jural status. Nothing in the legislative history indicates a desire to except prisons or prisoners. When the Americans with Disabilities Act was passed in 1990, the Rehabilitation Act -- basically the same statute, only limited to programs receiving federal assistance, so that what the ADA did in essence was generalize the Rehabilitation Act to the entire economy -- had been on the books for 17 years, and there were several cases holding that Act applicable to prisons and prisoners. Bonner v. Lewis, supra; Harris v. Thigpen, 727 F. Supp. 1564, 1582-83 (M.D. Ala. 1990), aff'd (on this point), 941 F.2d 1495 (11th Cir. 1991); Sites v. McKenzie, 423 F. Supp. 1190, 1197 (N.D. W.V. 1976). Nevertheless, Congress did not attempt, by altering the language that it was borrowing from the old statute as the template for the new one, to prevent the new one from being interpreted the same way the old one had been interpreted; nor did it amend the Rehabilitation Act to extinguish the old interpretation. Of course, Congress may not have been aware of the cases interpreting that Act. Still, the state is asking us to create an exception to these statutes on grounds of policy rather than to interpret ambiguous language, plug a gap, resolve a conflict, or, in short, "interpret" in any sense that makes the judge subservient to the expressed intentions and visible designs of the legislators. Realistically, the state is asking us to amend the two statutes.
Realistically, judges do this, or something like it, at times. An example much emphasized by the state in this case is the exclusion of prisoners employed in a prison from the minimum-wage and maximum-hours provisions of the Fair Labor Standards Act. See, e.g., Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992), and other cases cited in Bryant v. Madigan, supra, 84 F.3d at 248; Nicasto v. Reno, 84 F.3d 1446 (D.C. Cir. 1996) (per curiam); Danneskjold v. Haursrath, 82 F.3d 37 (2d Cir. 1996). The FLSA defines "employee" sweepingly, see 29 U.S.C. secs. 203(d), (e)(1), (g); Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (remarking the "striking breadth" of the statutory definition); prisoners fall within its literal scope; and there is no express exception for or applicable to prisoners. There are a host of other examples of judge-made statutory exceptions so weakly rooted in the statute as to be fairly described as judicial amendments. A famous one is the Feres doctrine, which excludes military personnel from the Federal Tort Claims Act. Feres v. United States, 340 U.S. 135 (1950); United States v. Johnson, 481 U.S. 681 (1987). Then there are the cases that construe the union-shop provision of the National Labor Relations Act, 29 U.S.C. sec. 158(a)(3), which permits a collective bargaining agreement to require all employees in the bargaining unit to join the union, as requiring only that the employees must pay a portion of the union dues, without their having to join the union. E.g., Radio Officers' Union v. NLRB, 347 U.S. 17, 39-42 (1954); Communications Workers of America v. Beck, 487 U.S. 735, 745 (1988).
But courts do not create exceptions to statutes every time it seems that the legislature overlooked something. The legislative role of the courts is more confined than that of the legislature. E.g., Seminole Trial of Florida v. Florida, 116 S. Ct. 1114, 1133 (1996); Commissioner v. Asphalt Products Co., 482 U.S. 117, 121 (1987) (per curiam). The judges will create a statutory exception only when, as in the union-shop cases, it is necessary to save the statute from being held unconstitutional (see also, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994)), or when they have great confidence that the legislature could not have meant what it seemed to say, as may be the explanation for the Feres doctrine. The first criterion is really included in the second; the legislature presumably would not have wanted the statute struck down in its entirety.
The state's first argument for a judge-made exception straddles the two criteria. The argument is that Congress cannot invade an "essential state function," such as prison administration, without a clear statement of its intent to invade it. "Clear statement" rules of statutory interpretation occupy an intermediate zone -- some would say a no man's land -- between interpretations motivated by desire to avoid a constitutional challenge and interpretations motivated by desire to give effect to the legislature's intentions. They give quasi-constitutional protection -- quasiconstitutional because based on constitutional values but not an interpretation of the Constitution, and therefore subject to being overruled by Congress -- to quasi-constitutional interests, such as the interest of the state in being allowed to perform the traditional core functions of state government without federal interference. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989); William N. Eskridge, Jr. & Philip P. Frickey, "Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking," 45 Vand. L. Rev. 593, 597 (1992). A parallel to that clear-statement rule is the rule that statutes will be interpreted so far as possible to avoid infringing the prerogatives of tribal Indian governments. See, e.g., United States v. Funmaker, 10 F.3d 1327, 1330-31 (7th Cir. 1993); Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490, 493, 495 (7th Cir. 1993). The tribal interest in autonomy, like the state interest in autonomy that undergirds the principle of federalism (both being forms of comity, the mutual respect of sovereigns), is not a constitutional right. But it has a kind of constitutional dignity that the courts go out of their way to protect, whether or not they are right in supposing that Congress would not want the interest impaired unless it made its intentions to do so unmistakable.
Prison administration is indeed a core function of state government, as is education. But the state's concession that the Americans with Disabilities Act applies to the prison's relations with its employees and visitors, as well as to the public schools, suggests that the clear-statement rule does not carry this particular core function of state government outside the scope of the Act. We doubt, moreover, that Congress could speak much more clearly than it did when it made the Act expressly applicable to all public entities and defined the term "public entity" to include every possible agency of state or local government. Maybe there is an inner core of sovereign functions, such as the balance of power between governor and state legislature, that if somehow imperiled by the ADA would be protected by the clear-statement rule, cf. Gregory v. Ashcroft, supra, 501 U.S. at 461-63; but the mere provision of public services, such as schools and prisons, is not within that inner core.
The second and as it seems to us firmer basis for judgemade exceptions to statutes is where the exception is necessary to save the statute from generating absurd consequences. E.g., Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 454 (1989); Bryant v. Madigan, supra, 84 F.3d at 248-49; Merrill Lynch, Pierce, Fenner & Smith v. Lauer, 49 F.3d 323, 326-27 (7th Cir. 1995); Cass R. Sunstein, Legal Reasoning and Political Conflict 183 (1996). It is a firmer basis because it is more legitimately interpretive and escapes the criticism that it stretches the Constitution by giving quasi-constitutional status to principles such as "federalism" or "tribal autonomy" that may lurk in the interstices of the constitutional text but are not expressly protected. Interpreting -- so not really amending -- to avoid absurdities recognizes what sophisticated students of interpretation have been saying for at least a century and a half, see Francis Lieber, Legal and Political Hermeneutics 28-29 (enlarged ed. 1839), that a text is merely a clue, though an essential one, to the meaning of a communication; that meaning is inferred from the text and its context rather than being "in" the text in some simple sense. Suppose A says to B, "please give me a cup of coffee," and B snatches a cup of coffee out of a stranger's hand and gives it to A. B's literal interpretation of A's statement would be incorrect, because it would ignore a context that includes a practice of respect for property rights. In the case of prisoners who work in the prison and want to be paid the minimum wage, the context of the word "employee" in the Fair Labor Standards Act includes a workplace setting intended not to provide the worker with the money he needs to support himself -- the support is provided by the prison -- but to punish or rehabilitate him, and a statute obviously intended not to punish or to rehabilitate, but rather to provide a living wage to a worker who depends upon a wage for his support. We know from the Thirteenth Amendment that it is permissible for government to subject people to involuntary servitude as punishment for crimes; and it would be absurd to think that involuntary servitude, the polite word for slavery, carried with it an entitlement to a living wage.
It might seem absurd to apply the Americans with Disabilities Act to prisoners. Prisoners are not a favored group in society; the propensity of some of them to sue at the drop of a hat is well known; prison systems are strapped for funds; the practical effect of granting disabled prisoners rights of access that might require costly modifications of prison facilities might be the curtailment of educational, recreational, and rehabilitative programs for prisoners, in which event everyone might be worse off. But unlike the minimum-wage case, there is another side to the issue. The Americans with Disabilities Act was cast in terms not of subsidizing an interest group but of eliminating a form of discrimination that Congress considered unfair and even odious. See 42 U.S.C. secs. 12101(a)(2), (a)(3); H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 22, 30, 42 (1990). The Act assimilates the disabled to groups that by reason of sex, age, race, religion, nationality, or ethnic origin are believed to be victims of discrimination. Rights against discrimination are among the few rights that prisoners do not park at the prison gates. E.g., Turner v. Safley, supra, 482 U.S. at 84. Although the special conditions of the prison setting license a degree of discrimination that would not be tolerated in a free environment, id. at 84-91; Bryant v. Madigan, supra, 84 F.3d at 248, there is no general right of prison officials to discriminate against prisoners on grounds of race, sex, religion, and so forth. If a ...