Cite as: 527 U. S. 581 (1999)
Kennedy, J., concurring in judgment
II
With these reservations made explicit, in my view we must remand the case for a determination of the questions the Court poses and for a determination whether respondents can show a violation of 42 U. S. C. § 12132's ban on discrimination based on the summary judgment materials on file or any further pleadings and materials properly allowed.
At the outset it should be noted there is no allegation that Georgia officials acted on the basis of animus or unfair stereotypes regarding the disabled. Underlying much discrimination law is the notion that animus can lead to false and unjustified stereotypes, and vice versa. Of course, the line between animus and stereotype is often indistinct, and it is not always necessary to distinguish between them. Section 12132 can be understood to deem as irrational, and so to prohibit, distinctions by which a class of disabled persons, or some within that class, are, by reason of their disability and without adequate justification, exposed by a state entity to more onerous treatment than a comparison group in the provision of services or the administration of existing programs, or indeed entirely excluded from state programs or facilities. Discrimination under this statute might in principle be shown in the case before us, though further proceedings should be required.
Putting aside issues of animus or unfair stereotype, I agree with Justice Thomas that on the ordinary interpretation and meaning of the term, one who alleges discrimination must show that she "received differential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic." Post, at 616 (dissenting opinion). In my view, however, discrimination so defined might be shown here. Although the Court seems to reject Justice Thomas' definition of discrimination, ante, at 598, it asserts that unnecessary institutional care does lead to "[d]issimilar treatment," ante, at 601. According to the Court, "[i]n order to receive needed medical services, persons with mental dis-
611
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