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43
Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
FEDERAL CIVIL RIGHTS LEGISLATION
AND STATE SOVEREIGN IMMUNITY
Debra D. Burke, Western Carolina University
Malcolm Abel, Western Carolina University
ABSTRACT
State governments employ millions of people, and provide services to millions of Americans
as well, some of which are of a governmental nature, but many of which are similar to those offered
by the private sector. While the employment practices of most private employers are governed by
a number of federal laws, state employers may not be required to conform to those regulations.
Similarly, while the manner in which private employers provide services to the public are regulated
by federal laws, state and local governmental service providers may be exempt from that regulatory
scheme. Why? The Eleventh Amendment to the United States Constitution provides that, “The
Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” As a result, states may enjoy sovereign immunity, and
may not be subject to the jurisdiction of federal courts in cases in which plaintiffs seek judicial relief
under federal law. This paper will discuss the application of sovereign immunity with respect to
federal civil rights legislation, and discuss the most recent case to present this issue, which was
decided by the Supreme Court this term.
STATE SOVEREIGN IMMUNITY
In essence the Eleventh Amendment precludes federal courts from adjudicating disputes
brought against state governmental entities “by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” Although the Eleventh Amendment does not expressly preclude citizens from
bringing suits against the state in which they reside, the Supreme Court has interpreted the
constitutional provision as precluding federal jurisdiction over suits against nonconsenting States,
even by its own citizens. (College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd.,
1999). The amendment has been interpreted as prohibiting Congress from authorizing subject matter
jurisdiction for suits against states in which the immunity has been neither waived nor effectively
abrogated, although it can be argued that that the restriction was intended only to be for suits against
states based upon diversity jurisdiction, not federal question jurisdiction. (Chemerinsky, 1997).
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
Further, the amendment specifically addresses Article III jurisdiction of federal courts,
seemingly leaving open the question of whether or not state courts may entertain such federal law
claims brought by citizens against states. However, in a case involving alleged violations of the
overtime provisions of the Fair Labor Standards Act of 1938, the Court determined that no judicial
forum is available for suits against states if Congress has not expressly and legitimately waived
immunity. (Alden v. Maine, 1999). “We hold that the powers delegated to Congress under Article
I …do not included the power to subject nonconsenting States to private suits for damages in state
courts.” (Alden v. Maine, 712, 1999). The Fair Labor Standards Act, however, was passed pursuant
to the Interstate Commerce Clause, so the case did not address the legitimacy of suits filed in state
court raising federal claims passed pursuant to the Fourteenth Amendment.
Whether or not suits legitimately are permitted by citizens against states under federal law
usually involves a two-step inquiry to determine 1) if Congress unequivocally expressed its intent
to abrogate that immunity, and 2) if it did, whether Congress acted pursuant to a valid grant of
constitutional authority. (Kimel v. Florida Board of Regents, 2000). In Seminole Tribe of Florida
v. Florida the Supreme Court held that Congress lacks power under Article I to abrogate the states'
sovereign immunity. That case involved the Constitution's Indian Commerce Clause, which grants
the federal government authority over Indian commerce. Specifically at issue in the case was the
Indian Gaming Regulatory Act passed by Congress in an effort to provide a statutory basis for the
operation and regulation of gaming by Indian tribes. (25 U.S.C. § 2701 (2005)). Previously, in
Pennsylvania v. Union Gas Company (1989), a plurality of the Court concluded that the Interstate
Commerce Clause granted Congress the power to abrogate state sovereign immunity, stating that
the power to regulate interstate commerce would be "incomplete without the authority to render
States liable in damages..." (Pennsylvania v. Union Gas Company, 19-20, 1989). However, in
Seminole Tribe the Court overruled Union Gas, confirming that the background principle of state
sovereign immunity embodied in the Eleventh Amendment may not be abrogated by Congress, even
when the Constitution vests in Congress complete law-making authority over a particular area, such
as the regulation of Commerce among the Indian Tribes. The Court concluded that the “Eleventh
Amendment prevents congressional authorization of suits by private parties against unconsenting
States. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot
be used to circumvent the constitutional limitations placed upon federal jurisdiction.” (Seminole
Tribe of Florida v. Florida, 73, 1996).
In contrast, Section 5 of the Fourteenth Amendment, which states “Congress shall have
power to enforce, by appropriate legislation, the provisions of this article," does grant Congress the
authority to abrogate the States' sovereign immunity. In Fitzpatrick v. Bitzer, the Court recognized
that “the Eleventh Amendment, and the principle of state sovereignty which it embodies…are
necessarily limited by the enforcement provisions of Section 5 of the Fourteenth Amendment.”
(Fitzpatrick v. Bitzer, 456, 1976). As a result, plaintiffs may bring suits under civil rights legislation
if the Congressional abrogation of immunity is constitutional under the Fourteenth Amendment,
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
Section 1 of which provides in pertinent part that “[N]o State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”
Courts are somewhat deferential to the determination of Congress as to the legislation that
is needed to secure Fourteenth Amendment rights. In City of Boerne v. Flores (1997) the Court
concluded that Congress' enforcement powers includes the authority to remedy, as well as to deter,
the violation of guaranteed rights. By the same token the Court admonished that Congress was only
given the power to enforce the Amendment, not to determine what constitutes a violation of rights
under the Amendment. The Court observed that the determination as to whether or not prophylactic
legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition
of the Fourteenth Amendment right at issue, is often difficult. As such, the Court concluded that
while Congress should be afforded some deference as to where that line should be drawn "there must
be a congruence and proportionality between the injury to be prevented or remedied and the means
adopted to that end." (City of Boerne v. Flores, 520, 1997). This "congruence and proportionality"
test applies to the validity of applying federal civil rights legislation, to state governments. In other
words, courts must examine the history and pattern of civil rights violations by states to determine
if such conduct is proportionate to the remedial or preventive objectives of the legislation.
A key factor in such an analysis is the nature of the constitutional right allegedly violated
by the state. State practices, which classify persons based upon suspect classifications such as race,
are subject to the most rigid scrutiny under constitutional law (Korematsu v. United States, 1944).
States must establish a compelling state interest and demonstrate a means narrowly tailored to
achieve that interest in order to justify practices that treat persons differently based upon race or
ethnicity. (Regents of University of California v. Bakke, 1978; Adarand Constructors, Inc. v. Pena,
1995). In comparison, classifications based upon sex are analyzed by an intermediate level of
review, which requires states to establish that gender classifications serve an important
governmental objective, and are substantially related to the achievement of those objectives. (Craig
v. Boren, 1976; States v. Virginia, 1996). Other classifications of persons by states by other criteria,
such as disability, are subject to a rational relationship review under constitutional law, which
questions only whether or not the policy or practice is rationally related to a legitimate governmental
objective. (Cleburne v. Cleburne Living Center, Inc., 1985). Classifications based upon age fall into
this type of categorical review as well. (Massachusetts Board of Retirement v. Murgia, 1976).
In addition to the heightened judicial scrutiny of state classifications for members of suspect
classes, constitutional jurisprudence recognizes that certain fundamental rights or interests also merit
strict scrutiny under the Fourteenth Amendment. The denial or dilution of voting rights to classes
of persons by states is subject to close scrutiny under the Equal Protection Clause (Harper v.
Virginia State Board of Elections, 1966), as are state barriers that restrict certain classes of persons
from access to the judicial process. (M.L.B. v. S.L.J., 1996).
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
In sum, state sovereignty is impervious to laws passed pursuant to the Article I power of
Congress, but not to Congressional power under the Fourteenth Amendment. Nevertheless, even in
exercising those powers under Section Five, Congress must tailor its remedial legislation to fit the
civil rights violations addressed by its statutes, and the nature of the alleged violation as it relates
to classifications or fundamental rights also must be examined. Even if States are cloaked with
immunity, state officers, nevertheless, may be sued in federal court for declaratory or injunctive
relief for civil rights violations. (Ex Parte Young, 1908). Furthermore, federal law provides a cause
of action “at law, suit in equity, or other proper proceeding” against persons “who, under color of
any statute, ordinance, regulation, custom, or usage, of any State…subject “any citizen of the United
States…to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws…” (42 U.S.C § 1983 (2005)). And, while sovereign immunity bars suits against states, it does
not “extend to suits prosecuted against a municipal corporation or other governmental entity which
is not an arm of the State.” (Alden v. Maine, 756, 1999). In light of this history, how have litigants,
who presumably have been given redress under federal law for discriminatory acts, fared?
GENDER DISCRIMINATION
The Civil Rights Act of 1964 was passed “[T]o enforce the constitutional right to vote, to
confer jurisdiction upon the district courts of the United States to provide injunctive relief against
discrimination in public accommodations, to authorize the attorney General to institute suits to
protect constitutional rights in public facilities and public education, to extend the Commission on
Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on
Equal Employment Opportunity, and for other purposes.” (42 U.S.C. § 2000e (2005)). Title VII of
the Civil Rights Act of 1964 provides that "[I]t shall be an unlawful employment practice for an
employer-- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin . . ." (42
U.S.C. § 2000e-2(a)(1) (2005)). Further, Title VII makes it illegal for employers “to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his
employees or applicants for employment in any way which would adversely affect his status as an
employee, because of such individual’s race, color, religion, sex, or national origin” (42 U.S.C. §
2000e-2(a)(1) (2005)). The Equal Employment Opportunity Act of 1972 extended Title VII's
coverage to state employers, removing the express exclusion of "a State or political subdivision
thereof" from the definition of "employer”, and amending the definition of "employee" to include
individuals "subject to the civil service laws of a State government, governmental agency or political
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
subdivision." (86 Stat. 103, 2(2) (1972)). The Civil Rights Act of 1991 (Pub. L. 102-166) amended
the 1964 Act to provide for damages in cases of intentional employment discrimination.
In Fitzpatrick v. Bitzer (1976) plaintiffs brought a class action suit seeking money damages
against Connecticut under the 1972 Amendments to Title VII of the Civil Rights Act of 1964,
alleging that the state’s retirement plan discriminated against male employees. In the first case to
pit the Eleventh Amendment against Section 5 of the Fourteenth Amendment, Connecticut claimed
that a damages award payable to a private party from the state treasury was barred by the Eleventh
Amendment’s provision for sovereignty. In evaluating Congressional authority to impugn state
immunity, the Supreme Court held that clearly Congress intended to abrogate state sovereign
immunity under Section 5 of the Fourteenth Amendment with the passage of the 1972 amendments,
and that the abrogation was permissible. After examining the circumstances surrounding the passage
of the Civil War Amendments, the Court asserted that Section 5 of the Fourteenth Amendment
expressly grants Congress “authority to enforce ‘by appropriate legislation’ the substantive
provisions of the Fourteenth Amendment, which themselves embody significant limitations on state
authority. When Congress acts pursuant to Section 5, not only is it exercising legislative authority
that is plenary within the terms of the constitutional grant, it is exercising that authority under one
section of a constitutional Amendment whose other sections by their own terms embody limitations
on state authority.” (Fitzpatrick v. Bitzer, 456, 1976).
The Court concluded further “that Congress may, in determining what is "appropriate
legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for
private suits against States or state officials which are constitutionally impermissible in other
contexts.” (Fitzpatrick v. Bitzer, 456, 1976). Thus, Fitzpatrick allows Congress through the
Fourteenth Amendment to inhibit and sanction state action, whether it expresses its intent in the
language of the statute itself, or in the legislative history leading up to the passage of the law.
(MacConaill, 2005). However, while the Court approved the abrogation of sovereign immunity
under Section 5 in principle, it did not decide whether or not the application of the substantive law
in Title VII to Connecticut’s retirement plan was an improper exercise of that remedial power by
Congress under the Fourteenth Amendment.
A subsequent case, Nevada v. Hibbs (2003) did address the substantive validity of
Congressional abrogation in the context of gender discrimination, not under Title VII, but under the
Family and Medical Leave Act of 1993 (“FMLA”). The FMLA entitles eligible employees to take
up to twelve work weeks of unpaid leave annually for any of several reasons, including the onset
of a "serious health condition" in an employee's spouse, child, or parent, and creates a private right
of action to seek both equitable relief and money damages "against any employer (including a public
agency) in any Federal or State court of competent jurisdiction." (29 U.S.C. §§ 2612(a)(1)(C),
2617(a)(2) & 2615(a)(1) (2005)).
In holding that “employees of the State of Nevada may recover money damages in the event
of the State's failure to comply with the family-care provision of the Act,” (Nevada v. Hibbs, 725,
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
2003) the Court first addressed the issue of Congressional intent to abrogate immunity, concluding
rather easily that “[T]he clarity of Congress' intent [to abrogate] here is not fairly debatable.”
(Nevada v. Hibbs, 726, 2003). The more complex issue was the substantive validity of the
abrogation under Section 5. The Court recognized that gender-based statutory classifications were
subject to a heightened standard of scrutiny, which requires the state not only to establish that the
discriminatory classification serve important governmental objectives, but also that the means
employed to achieve such objectives are substantially related to their achievement (and not merely
rationally related to some legitimate objective). As applied to gender discrimination, the state is not
permitted to rely instead upon overbroad generalizations or inaccurate stereotypes about the sexes.
The Court noted that Congress, in passing the FMLA, had documented a history of discrimination
against women by state employment laws, both facially and as applied, including the discriminatory
application of parental leave laws. This analysis led the Court to conclude that “the States' record
of unconstitutional participation in, and fostering of, gender-based discrimination in the
administration of leave benefits is weighty enough to justify the enactment of prophylactic Section
5 legislation.” (Nevada v. Hibbs, 735, 2003).
Further, Justice Rehnquist, writing for the majority, concluded that “Congress' chosen
remedy, the family-care leave provision of the FMLA, is ‘congruent and proportional to the targeted
violation.’” The Court noted that Congress previously had tried unsuccessfully to address this
"difficult and intractable problem," through Title VII and the Pregnancy Discrimination Act, and that
its persistence could justify such a prophylactic measure. “By creating an across-the-board, routine
employment benefit for all eligible employees, Congress sought to ensure that family-care leave
would no longer be stigmatized as an inordinate drain on the workplace caused by female
employees, and that employers could not evade leave obligations simply by hiring men.” (Nevada
v. Hibbs, 737, 2003). The Court also noted that “the FMLA is narrowly targeted at the fault line
between work and family--precisely where sex-based overgeneralization has been and remains
strongest--and affects only one aspect of the employment relationship.” That narrow tailoring,
coupled with the fact that the statute requires only unpaid leave, applies only to employees who
have worked for the employer for at least one year and provided 1,250 hours of service within the
last 12 months, requires advance notice of foreseeable leave, allows certification by a health care
provider of the need for leave, excludes employees in high-ranking or sensitive, including state
elected officials, their staffs, and appointed policymakers, and provides for damages which are
strictly defined and measured by actual monetary losses, all of which provisions taken together
proportionately taylor the remedy to accomplish the important governmental objective of the
legislation.
With the decision in Hibbs, the FMLA became the first prophylactic antidiscrimination
legislation to pass the congruence and proportionality test announced in Boerne, and arguably
represents an attempt by the Court to confirm the relevance and feasibility of that test, as well as to
clarify Congress's limited power to abrogate the States' sovereign immunity through valid
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
prophylactic antidiscrimination legislation. (Williams, 2004). While Hibbs and Fitzpatrick
concerned gender discrimination in employment, it would seem that in the context of racial and
national origin discrimination in employment, Congressional prophylactic legislation, such as Title
VII, could meet the congruence and proportionality test in many substantive contexts, particularly
since such discrimination by states is subject to even more exacting scrutiny than gender
discrimination. However, other antidiscrimination legislation, at least in the employment context,
has fared less favorably under Boerne.
AGE DISCRIMINATION
Congress considered and rejected amendments to the 1964 Civil Rights Act legislation that
would have included older workers in the protected classes of Title VII (General Dynamics Land
Systems, Inc., v. Cline, 2004). However, the Secretary of Labor subsequently investigated the issue
of age discrimination, and concluded that it was common for employees to be discriminated against
in the workplace because of their age, and inaccurate stereotypes about the abilities of older workers.
(Recent Case, 2003). As a result, in 1967 Congress passed the Age Discrimination in Employment
Act (ADEA) in an effort to eradicate arbitrary discrimination and negative stereotypes about the
performance level of older workers. (EEOC v. Wyoming, 1983). The ADEA’s purpose is “to
promote employment of older persons based on their ability rather than age; to prohibit arbitrary age
discrimination in employment; and to help employers and workers find ways of meeting problems
arising from the impact of age on employment” (29 U.S.C § 621(b) (2005)). The ADEA prohibits
discrimination against individuals over the age of forty because of their age, and also prohibits
covered entities from depriving individuals of employment opportunities or taking any other adverse
action against such individuals because of their age. The Act makes it unlawful for a covered
employer "(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age; (2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual's age; or (3) to
reduce the wage rate of any employee in order to comply with this chapter" (29 U.S.C. § 623 (a)(1)-
(3) (2005)).
The ADEA as passed in 1967 applied only to private employers; the term employer as
originally defined excluded "the United States, a corporation wholly owned by the Government of
the United States, or a State or political subdivision thereof." (Kimel v. Florida Board of Regents,
68, 2000). In 1974 Congress amended the definition of "employer" contained in the statute to
include "…a State or political subdivision of a State and any agency or instrumentality of a State or
a political subdivision of a State…"(29 U.S.C. § 630(b) (2005), while commensurately amending
the definition of employee as excluding elected officials and appointed policymakers at the state and
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
local levels. (29 U.S.C. § 630(f) (2005). Congress also amended the enforcement provision to
permit an individual to bring a civil action against employers, including governmental entities, in
state or federal court. (29 U.S.C. § 216(b) (2005)).
In EEOC v. Wyoming (1983) the Court held that the ADEA represented a valid exercise of
Congress' power under the Interstate Commerce Clause, and that the Act did not transgress any
external restraints imposed on the commerce power by the Tenth Amendment. The Tenth
Amendment to the Constitution provides that “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” However, the fact that Congress had the power to pass the legislation under the Commerce
Clause without infringing upon state authority does not necessarily mean that the legislation can be
applied to state and local governments.
In Kimel v. Florida Board of Regents (2000) plaintiffs brought suit against state government
employers in consolidated cases alleging illegal discrimination in violation of the ADEA. The Court
recognized that "[U]nder our firmly established precedent…, if the ADEA rests solely on Congress'
Article I commerce power, the private petitioners in today's cases cannot maintain their suits against
their state employers.” (Kimel v. Florida Board of Regents, 79, 2000). The Court then considered
the Congressional action pursuant to the Fourteenth Amendment’s Equal Protection Clause, and its
Section 5 remedial authority to enforce that constitutional provision. The Court held that, although
the ADEA does contain a clear statement of Congress' intent to abrogate state sovereign immunity,
that abrogation exceeded Congress' authority under the Fourteenth Amendment. In its two-part
analysis the Court concluded first that “the plain language of these provisions clearly demonstrates
Congress' intent to subject the States to suit for money damages at the hands of individual
employees.” (Kimel v. Florida Board of Regents, 74, 2000).
However, the Court concluded that under the "congruence and proportionality" test, the
substantive requirements the statute imposed on state and local governments were “disproportionate
to any unconstitutional conduct that conceivably could be targeted by the Act.” (Kimel v. Florida
Board of Regents, 83, 2000). The Court observed that, unlike persons who suffer discrimination on
the basis of race or gender, older persons historically have not been subjected to purposeful
discrimination. Further, under the analysis of the Equal Protection Clause of the Fourteenth
Amendment, age is not a suspect classification; therefore, age discrimination by governmental
entities is permissible if the age classification in question is rationally related to a legitimate state
interest. In light of this constitutional framework and history, the Court held that the ADEA
prohibits very little conduct by state and local governments that would be deemed to be
unconstitutional. While prohibiting unconstitutional conduct is not a prerequisite to establishing the
validity of a remedial statute as applied to state and local governments, since Congress can enact
“reasonably prophylactic legislation.” (Kimel v. Florida Board of Regents, 88, 2000).
However, Congress may not establish new obligations for states. In evaluating the ADEA
in this light the Court concluded that “the ADEA's legislative record confirms that Congress' 1974
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Journal of Legal, Ethical and Regulatory Issues, Volume 10, Number 1, 2007
extension of the Act to the States was an unwarranted response to a perhaps inconsequential
problem,” because, while Congress had found substantial discrimination based upon age in the
private sector, it had never identified a pattern of unconstitutional age discrimination by state or
local governmental entities.” (Kimel v. Florida Board of Regents, 89, 2000). As a result “in the
ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by private
individuals.” (Kimel v. Florida Board of Regents, 91, 2000).
DISABILITY DISCRIMINATION
The Americans with Disabilities Act ("ADA") was passed in1990, and applies to employers
with fifteen or more employees. Title I of the ADA requires employers to make reasonable
accommodations for qualified employees with disabilities, so long as the accommodation would not
result in an undue hardship, that is, one which entails significant difficulty or expense. The ADA
defines the term "qualified individual with a disability" as "an individual with a disability who, with
or without reasonable accommodation, can perform the essential functions of the employment
position that such individual hold or desires" with consideration being given to the employer's
judgment as to what job functions are essential. (42 U.S.C. § 12111(8) (2005)). In other words, a
qualified individual must be able satisfy the prerequisites for the position, such as proper training,
skills and experience, in addition to possessing the ability to perform the essential function of the
job either with or without reasonable accommodation. (29 C.F.R. § 1630.2(m)(2005)).
Further, the Act requires employers to "make reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless [the employer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the [employer's] business." (42 U.S.C. §
12112(b)(5)(A)(2005)). A reasonable accommodation may include, for example, making existing
facilities used by employees readily accessible to and usable by individuals with disabilities, job
restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition
or modification of equipment or devices, appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities. (42 U.S.C. § 12111(9) (2005)). The Act also
prohibits employers from "utilizing standards, criteria, or methods of administration…that have the
effect of discrimination on the basis of disability." (42 U.S.C. § 12112(b)(3)(A) (2005)). The Act
defines "disability" to include a physical or mental impairment that substantially limits one or more
of the major life, a record of such an impairment; or being regarded as having such an impairment."
(42 U.S.C. § 12102(2) (2005)). A disabled individual is otherwise "qualified" if he or she, "with or
without reasonable accommodation, can perform the essential functions of the employment position
that such individual holds or desires." (42 U.S.C. § 12111(8) (2005)).
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In Board of Trustees of the University of Alabama v. Garrett (2001) the Court held that
Congress did not validly abrogate the States' sovereign immunity from suit for employment
discrimination brought by private disabled individuals seeking money damages under Title I of the
ADA. The Court first recognized that precedent established, that in enacting the ADA, Congress
could not have abrogated sovereign immunity except under its Section Five authority. The Court
then looked to prior cases addressing Fourteenth Amendment Equal Protection claims to determine
the appropriate framework for the application of the congruence and proportionality test. In doing
so the Court concluded that “States are not required by the Fourteenth Amendment to make special
accommodations for the disabled, so long as their actions towards such individuals are rational. They
could quite hard headedly -- and perhaps hardheartedly -- hold to job-qualification requirements
which do not make allowance for the disabled. If special accommodations for the disabled are to be
required, they have to come from positive law and not through the Equal Protection Clause.” (Board
of Trustees of the University of Alabama v. Garrett, 368-9, 2001).
After defining the nature of the Constitutional right at issue, the Court proceeded to examine
if Congress had identified a history and pattern of unconstitutional employment discrimination by
the States against the disabled. In doing so the Court determined that “[T]he legislative record of the
ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state
discrimination in employment against the disabled.” (Board of Trustees of the University of
Alabama v. Garrett, 368, 2001). While Congress made a general finding that society tended to
isolate and segregate individuals with disabilities, the States were not primarily culpable. The Court
further concluded that Title I's broad remedial scheme was insufficiently targeted to remedy or
prevent unconstitutional discrimination in public employment. In his concurring opinion Justice
Kennedy observed that if the state governments had been “transgressing the Fourteenth Amendment
by their mistreatment or lack of concern for those with impairments, one would have expected to
find in decisions of the courts of the States and also the courts of the United States extensive
litigation and discussion of the constitutional violations,” but there was no such record.
In deciding Garrett, the Court did not decide the constitutional issue of whether or not Title
II, which has somewhat different remedial provisions from Title I, was appropriate legislation under
Section Five of the Fourteenth Amendment. The parties did not brief the Court on that issue, and the
Court suggested that since Title I specifically dealt with employment claims, Title II may not have
be intended to address such claims. Title II provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
(42 U.S.C. §12132 (2005)). The term ''qualified individual with a disability'' is defined as “an individual
with a disability who, with or without reasonable modifications to rules, policies, or practices, the
removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids
and services, meets the essential eligibility requirements for the receipt of services or the participation
in programs or activities provided by a public entity.” (42 U.S.C. §12132(1) (2005)). The Act defines
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the term "public entity" to include state and local governments, as well as their agencies and
instrumentalities. (42 U.S.C. § 12131(1) (2005)).
In Tennessee v. Lane (2004) two paraplegics, a criminal defendant and a court reporter, both of
whom used wheelchairs for mobility, sued the state of Tennessee, alleging that it had denied them
physical access to the state court system in violation of Title II of the ADA. The facts indicated that the
criminal defendant had crawled up two flights of stairs to get to the courtroom for his first criminal
appearance. For his second appearance, he refused to crawl again (or to be carried by officers to the
courtroom), and subsequently was arrested and jailed for failure to appear. The court reporter alleged
that she has not been able to gain access to a number of county courthouses, and, as a result, has lost
both work and an opportunity to participate in the judicial process. In analyzing Tennessee’s claim of
immunity from the suits, the Court concluded that the question of whether or not Congress intended to
abrogate state immunity was easily answered by reference to the statute, which provides, "[A] State
shall not be immune under the eleventh amendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a violation of this chapter." (42 U.S.C. §
12202 (2005)).
The Court then scrutinized the validity of that abrogation. The Court noted that like Title I, Title
II, is designed to prohibit irrational disability discrimination. However, in contrast to Title I, it
additionally seeks to enforce a variety of other basic constitutional guarantees, the infringement of
which may be subject to strict scrutiny review, not merely a rational basis judicial review. For example,
the right of access to the courts, which was at issue in Lane, is protected by the Fourteenth Amendment.
The Court noted that “Congress enacted Title II against a backdrop of pervasive unequal treatment in
the administration of state services and programs, including systematic deprivations of fundamental
rights,” such as exercising the right to vote, to marry and to participate in civic activities like jury duty
and voting. The Court also cited a documented pattern of unconstitutional treatment provided by states
in their mental health care facilities, penal systems, judicial systems, as well as in public education with
respect to the disabled. Congress recognized this pattern of discrimination, as stated in the statutory
language: "[D]iscrimination against individuals with disabilities persists in such critical areas as . . .
education, transportation, communication, recreation, institutionalization, health services, voting, and
access to public services." (42 U.S.C. § 12101(a)(3) (2005)). The Court surmised that “[T]his finding,
together with the extensive record of disability discrimination that underlies it, makes clear beyond
peradventure that inadequate provision of public services and access to public facilities was an
appropriate subject for prophylactic legislation.” (Tennessee v. Lane, 530, 2004).
The Court declined to examine the validity of Title II under Section 5 in all of its conceivable
applications with respect to public services afforded to disabled citizens (a full breadth inquiry), but only
concluded that “Title II unquestionably is valid Section 5 legislation as it applies to the class of cases
implicating the accessibility of judicial services...” (Tennessee v. Lane, 531, 2004). The court
emphasized that Title II requires only "reasonable modifications" that would not fundamentally alter
the nature of the service provided eligible disabled persons, which can be satisfied in a number of ways.
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The court further pointed out that regulations did not require States to undertake measures that would
impose an undue financial or administrative burden, threaten historic preservation interests, or effect
a fundamental alteration in the nature of the service. (28 C.F.R. §35.150(a)(2) & (a)(3)(2005)).
Because the Court’s holding was narrowly limited to the application of Title II to access to
justice and due process in state courts, a number of unanswered questions concerning the scope of Title
II remain. The Court considered one more such issue in part this term. United States v. Georgia (2006
U.S. LEXIS 759) presented the question of whether or not Title II of the ADA validly abrogates state
sovereign immunity for suits by disabled inmates alleging discrimination by state prison systems. The
petitioner in the case, Tony Goodman, is a paraplegic who uses a wheelchair for mobility. His
complaint, filed pro se in 1999, alleged that he was held in the Georgia State Prison for more than
twenty-three hours a day in a cell so narrow that he could not turn his wheelchair, that the prison failed
to make toilet and bathing facilities accessible to him such that he was sometimes forced to sit in his
own waste, that he was denied needed medical care, such as catheters, treatment for bedsores and access
to mental health counselors, and that he was excluded him from programs and activities because of his
disability. The district court granted summary judgment in favor of Georgia based upon the state’s
sovereign immunity, and the Eleventh Circuit affirmed in an unpublished opinion, holding that the
Eleventh Amendment precludes suits against states for money damages. The United States Department
of Justice intervened in support of the statute being a valid abrogation of state sovereignty, and in
defense of the constitutionality of the ADA.
Petitioner Goodman, in his brief to the Court (Brief for the Petitioner, Goodman v. Georgia,
2005) argued that Title II enforces not only the Fourteenth Amendment’s prohibition against irrational
discrimination, but other constitutional guarantees that are subject to a more searching judicial scrutiny,
such as the right to be free from cruel and unusual punishment protected by the Eighth Amendment and
made applicable to the States under the Due Process Clause of the Fourteenth Amendment. With respect
to the Equal Protection Clause of the Fourteenth Amendment, the petitioner argued that the States had
a pattern of unequal treatment of prisoners with disabilities, and compiled an extensive addendum of
cases evidencing the problem of unconstitutional treatment of individuals with disabilities in state
correctional facilities. Further, the petitioner argued that upholding Title II in the context of a penal
system was particularly compelling since the State has total control of all aspects of an inmate’s life and
the means of existence. Likewise, the federal government in its brief that Title II of the ADA was
appropriate prophylactic legislation as applied to state prison administration. The Attorney General’s
brief asserted that Congress had documented a deeply rooted pattern of indifference by state penal
systems to the health, safety, suffering, and medical needs of prisoners with disabilities. (Brief for the
United States as Petitioner, Goodman v. Georgia, 2005).
In response, Georgia argued in its brief (Brief for Respondents, Goodman v. Georgia, 2005) that
disability based classifications are subject to a constitutional rational relationship review of state action,
and that as long as a prison regulation was reasonably related to legitimate penal interests it should
survive constitutional scrutiny. The state further asserted that any Eighth Amendment violations would
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entitle the Petitioner to relief under other federal laws, and that the ADA was not an appropriate means
of addressing such wrongs since the statute was not limited to deliberate indifferences to fundamental
needs, but also embraced the denial of nonessential services, programs or activities. As such, the State
of Georgia argued that a federal remedy for those denials would render the ADA a seriously
disproportionate one, for which there was no historical documentation of a widespread and persistent
violation of the constitutional rights of disabled state prisoners.
During oral argument before the Court (Kofke, November 10, 2005) the Justices questioned if
the application of Title II in this context would place an undue burden on the states and state budgetary
concerns, if the ADA added any additional obligations beyond rectifying constitutional violations (such
as claims for equal access to recreational activities), if Title II would allow for adequate deference to
state officials who have to confront issues of safety and security in the prison context, and specifically
whether or not the reasonableness requirement of the ADA was expansive enough to account for these
types of state concerns. Counsel for Goodman and for the United States argued that Title II was
congruent and proportional because it primarily targeted violations of constitutional rights. In response,
Justice Breyer suggested that it was already established that Congress could sweep discrimination that
did not technically violate the constitution into the scope of prophylactic legislation, while Justice Scalia
suggested that if Title II did sweep beyond constitutional violations, the Court could uphold it in cases
that alleged actual violations of Constitutional rights (an “as applied” analysis). With respect to the
history of past state discrimination against prisoners with disabilities, the Justices queried what standard
the Court should apply to determine whether or not there was sufficient evidence before Congress of
past discrimination to justify an abrogation of state sovereign immunity, how and when the record had
to be established, and whether it was appropriate to expose a state to damages when there was no
evidence that that particular state had a history of past violations. In other words, the Justices questioned
whether or not Congress must establish a record for each state before passing remedial legislation or
instead whether or not a more generic national record was sufficient for enacting Section 5 legislation.
Unfortunately, the opinion issued by the Supreme Court in United States v. Georgia (2006 U.S.
LEXIS 759) left many of these questions unanswered. In a narrow holding, the Court announced that
Title II of the ADA validly abrogates state sovereign immunity in suits for damages against states for
conduct that actually violates the Fourteenth Amendment. Justice Scalia, writing for a unanimous Court,
concluded that, while members of the Court have disagreed about the scope of Congress's prophylactic
enforcement powers under Section 5 of the Fourteenth Amendment, indisputably the enforcement power
of Section 5 includes the power to abrogate state sovereign immunity by authorizing private suits for
damages against states for claims based on actual unconstitutional conduct, such as violations of the
Eighth Amendment. Because it was not clear from the Petitioner’s filings what conduct he intended to
allege in support of his Title II claims, the Supreme Court remanded the case to the lower court for
clarification. Furthermore, because the Eleventh Circuit did not address the issue, it was also unclear
as to what extent the conduct underlying his constitutional claims violated Title II as well. The Court
suggested that some of Petitioner’s allegations were far from actual constitutional violations “under
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either the Eighth Amendment or some other constitutional provision, or even from Title II violations.”
Depending upon the nature of the amended complaint, the Court instructed the lower courts to determine
on a claim-by-claim basis “1) which aspects of the State's alleged conduct violated Title II; (2) to what
extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported
abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” In sum, the Court
left open the basic question of whether or not (or in what circumstances) states would be immune to
private lawsuits under Title II of the ADA in the absence of a parallel constitutional violation.
Justice Stevens, in a concurring opinion joined by Justice Ginsburg, observed that the Court
wisely chose for the parties to create a factual record before attempting to define the outer limits of Title
II's valid abrogation of state sovereign immunity, particularly since Title II prohibits more conduct than
the Constitution forbids. Justice Stevens opined that a factual record, while not absolutely necessary to
the resolution of the question, would aid in determining how Title II's reasonableness requirement
applies in the prison context.
Justice Stevens also emphasized that the Court’s opinion did not suggest that the Eighth
Amendment was the only constitutional right applicable in the prison context, and hence relevant to the
abrogation issue. He noted that the Courts’ approach, nevertheless, was consistent with its recognition
that the history of mistreatment leading to Congress' decision to extend Title II's protections to prison
inmates was not limited to violations of the Eighth Amendment. He suggested that the record of
mistreatment of prison inmates, which Congress reviewed in its deliberations preceding the enactment
of Title II, was comparable to the record in Tennessee v. Lane that was deemed to be sufficient to uphold
the application of Title II to cases implicating the fundamental right of access to the courts. He further
recognized that, while cases involving inadequate medical care and inhumane conditions of confinement
tended to dominate claims made by disabled inmates, courts also have reviewed allegations involving
the abridgment of religious liberties, undue censorship, interference with access to the judicial process,
and procedural due process violations, all of which, he concluded, should be taken into account in
examining the first step of the "congruence and proportionality" inquiry.
Some observers have concluded that Justice Scalia's opinion vaguely hinted that states will
retain immunity if there is no constitutional violation, but that the decision at least establishes that the
ADA is valid remedial Section 5 legislation in cases in which the state conduct that violates the ADA
also violates the Constitution, without the necessity of plaintiffs having to establish a history and pattern
of past state constitutional violations. (Denniston, 2006). What remains the primary mystery, however,
is whether or not in the absence of a concurrent constitutional violation, Title II of the ADA is
congruent and proportional remedial or prophylactic legislation based upon a sufficiently documented
history of the treatment of state prisoners with disabilities as amounting either to irrational
discrimination, or the denial of fundamental constitutional rights or interests, under the Fourteenth
Amendment. Other lingering questions include what standard applies to determine whether or not there
is sufficient evidence before Congress of past constitutional violations to justify an abrogation of state
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sovereign immunity, how and when such a record must be established, and if a state may be subject to
a claim for damages in the absence of evidence that it specifically had a history of past constitutional
violations. The importance of the answers to the questions remaining after the Court’s decision in U.S.
v. Georgia certainly transcends those issues presented in Mr. Goodman’s case. How the Supreme Court
decides such pivotal questions will have widespread implications for the application of the civil rights
legislation to the states as employers, and also as providers of goods and services to the public.
LEGAL AND POLICY IMPLICATIONS
In summary, it appears that the Supreme Court is only willing to justify the abrogation of state
immunity under Section 5 of the Fourteenth Amendment when there is a well-documented history of
discriminatory treatment involving either a member of a protected class involving race or gender, or the
denial of a fundamental constitutional right or interest. Since employment is not a fundamental right,
federal civil rights legislation designed to prohibit arbitrary discrimination against persons who are not
members of a suspect class, such as the ADEA and the ADA, has failed to constitute a valid abrogation
of state sovereign immunity. On the other hand, if the denial of a recognized fundamental right under
the Fourteenth Amendment, such as access to the courts or the right to be free from the imposition of
cruel and unusual punishment, is at issue, a different result is dictated.
Some commentators argue that this trend in interpreting the Fourteenth and Eleventh
Amendments demonstrates the dramatic and disturbing shift in ideology, resulting in state employees
enjoying fewer rights than their private sector counterparts because they are effectively deprived of any
meaningful remedies. (Royer, 2001). Professor Chemerinsky argues that the recognition of state
immunity should be balanced against the need for accountability, since avenues for ensuring state
compliance with federal law otherwise would be foreclosed. He concludes that while on one side there
is the value of protecting state governments by according them immunity from suit, on the other side
there is the value of ensuring the supremacy of federal law by providing for its enforcement in federal
court. “Eleventh Amendment doctrines ultimately are about how to balance the desire for state
immunity as against the desire for state accountability.” (Chemerinsky, 1227, 1997).
Are there other ways to guarantee that states, like their private sector counterparts, will be
prohibited from arbitrarily discriminating against citizens? One suggestion for achieving this objective
of accountability is that, in the future, Congress itself could do more to ensure the validity of its
abrogation of state sovereignty by carefully documenting a pattern of state discrimination against, for
example, older citizens and the disabled. (Chemerinsky, 2003). At the state level, states could either
enact legislation that parallels federal anti-discrimination legislation and expressly applies to state
government, or alternatively states could enact laws which waive sovereign immunity under federal civil
rights legislation. Many states have enacted laws comparable to federal civil rights legislation, which
prohibit arbitrary discrimination in employment and the provision of services, while some state
legislatures, such as Delaware, Florida, Kentucky, New Hampshire and New York have enacted laws
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waiving their sovereign immunity with respect to discrimination suits under some federal statutes.
(Chemerinsky, 2003). After the Court’s decision in Garrett, North Carolina and Minnesota waived
immunity, and consented to being sued in federal court pursuant to federal civil rights statutes. (Shelton,
2003). While a state indeed may waive its sovereign immunity, the Supreme Court has held that such
a waiver must be an express one, and not a general waiver of immunity (Atascadero State Hospital v.
Scanlon, 1985). It also has rejected the notion of a constructive waiver of immunity. (College Savings
Bank v. Florida Prepaid Postsecondary Education Expense Board, 1999).
In lieu of an express statutory waiver of immunity, the Supreme Court has found an implied
waiver of immunity to suit under federal law in several instances. For example, a state's voluntary
appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. (Clark v.
Barnard, 1883). The Court also has held, in the context of a bankruptcy claim, that a State "waives any
immunity…respecting the adjudication of a ‘claim’ that it voluntarily files in federal court.” (Gardner
v. New Jersey, 574, 1947). In another case, a state was deemed to have waived immunity when it
voluntarily agreed to remove the case to federal court, after having been brought involuntarily into the
case as a defendant in the original state-court proceedings. (Lapides v. Board of Regents, 2002).
Further, some courts have held that Congress constitutionally may require a waiver of sovereign
immunity as a condition of receiving federal funding, or that a waiver of immunity occurs when states
accept such funding (Roy, 2004). Of importance in this context is the fact that federal law provides that
“[N]o person in the United States shall, on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” (42 U.S.C. § 2000d (2005)). The term ''program or
activity'' includes the operations of a “department, agency, special purpose district, or other
instrumentality of a State or of a local government,” in addition to governmental entities that distribute
such assistance, colleges, universities, postsecondary institutions, local educational agencies and school
systems, as well as entities engaged in the business of providing education, health care, housing, social
services, or parks and recreational activities. (42 U.S.C. § 2000d-4a (2005)). More specifically, the
Civil Rights Remedies Equalization Amendment of 1986 provides that a “State shall not be immune
under the Eleventh Amendment of the Constitution of the United States from suit in Federal court” for
a violation of Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of
1972, the Age Discrimination Act of Title VI of the Civil Rights Act of 1964 or “the provisions of any
other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” (42 U.S.C.
§ 2000d-7 (2005)). Specifically, Section 504 of Rehabilitation Act also provides that “[N]o otherwise
qualified individual with a disability in the United States…shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance or under any
program or activity conducted by any Executive agency or by the United States Postal Service.” (29
U.S.C. § 794(a) (2005)). As a practical matter, assuming legitimacy, the privilege of conditioning
the receipt of federal money on compliance with federal civil rights legislation is a potent incentive.
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However, even though all states receive federal financial assistance, thus assuring at a minimum
compliance with the Rehabilitation Act, the ADA’s Title II provides a greater level of detail in its
coverage (Taggert, 2003), although requiring compliance by states with its more comprehensive
directives remains debatable.
Aside from this practical financial incentive, the issue of state compliance with federal laws
that provide remedies, including an award of damages, to private litigants in suits against states still
represents an important constitutional question under the doctrine of federalism. Whatever other
financial strong-arm tactic may be available to the federal government to insure state compliance
with its mandates, this issue, so important to the Framers in 1789 remains a source of controversy
today. How it is resolved on a case-by case and statute-by-statute basis is of significant importance
even in the new millennium, given the growing role of state governments as employers and
providers of services to millions of Americans.
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