HILL, Senior Circuit Judge, concurring specially:
I concur with reluctance.
In Part IIA, we conclude that the meaning and consequence of an unambiguous
written release are subject to dispute, variance and avoidance because we, acting in
loco parentis, find the adult parties to the contract in need of our patronage. Although
troublesome, we apparently have such a role. See Puentes v. United Parcel Service,
Inc.,
86 F.3d 196 (11th Cir. 1996).
In Part IIB, we find that Title II of the ADA (the Act) is carefully drafted to
obfuscate.1 Congress could have said “discrimination in employment” if it had
wanted to do so. Here, however, it merely forbids the exclusion of qualified
individuals “from . . . participat[ing] in or be[ing] denied the benefits of the services,
programs or activities of a public entity” by reason of a disability.
The district judge concluded that the Act forbids discrimination vis-à-vis the
“output of these public entities.” See Bledsoe v. Palm Beach Soil and Water
Conservation District,
942 F.Supp. 1439 (S.D.Fla. 1996). If a constituent is angered
by the district judge’s interpretation or our holding today, his or her Congressperson
1
The Act resembles the campaign address of a candidate appearing before an audience
that was split on a key issue. The candidate observed, “Some of my friends are in favor of this
proposition; some of my friends are against it! As for me, I stand four square behind my
friends!”
can say “That’s not what we passed. I would never have voted for that! That’s just
the work of those activist judges.”
So be it. The legislative power is vested in Congress. By concluding what
Congress has done, are we legislating? I hope not.
With a tip of the hat to the district judge, I reluctantly conclude that the flow of
precedent is too strong for him or for us to swim upstream, and I
CONCUR.
