Court expands state sovereign immunity--again.

Without a doubt, one of the most dramatic changes in constitutional law in recent years has been the Supreme Court's substantial expansion of state sovereign immunity. The Court's recent ruling in Board of Trustees v. Garrett held that state governments may not be sued for employment discrimination in violation of Title I of the Americans with Disabilities Act (ADA).(1)

This is the latest in a series of decisions in which the Court has invoked the Eleventh Amendment, which prohibits bringing lawsuits against the states in federal court. In 1999, the Court ruled that state governments may not be sued for patent infringement.(2) In 2000, the Court held that state governments may not be sued for violating the Age Discrimination in Employment Act (ADEA).(3) Also in 1999, the Court held that sovereign immunity barred suits against state governments in state courts, holding that states can't be sued there for violations of the federal Fair Labor Standards Act.(4)

These rulings have established that state governments cannot be sued without their consent and that Congress's power to authorize suits is limited. Each of these cases was decided by a 5-4 margin, with the majority comprising Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. The dissenters were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

In each case, the Court followed the same analytical approach. However, Garrett went further than the prior decisions in restricting Congress's power to authorize suits against the states: It barred litigation despite a voluminous record before Congress documenting government discrimination against the disabled. After Garrett, it seems likely that the Court may deem other litigation under important federal civil rights laws to be precluded by the Eleventh Amendment.

In 1996, in Seminole Tribe v. Florida, the Court held that Congress may authorize suits against states only to enforce federal laws enacted under [sections] 5 of the Fourteenth Amendment, which empowers Congress to adopt statutes to enforce that amendment.(5) Two decades earlier, in Fitzpatrick v. Bitzer, the Court had held that because the Fourteenth Amendment came after the Eleventh and was intended as a limit on state power, Congress may use its [sections] 5 authority to permit suits against state governments.(6) But in Seminole Tribe, the Court ruled that Congress cannot abrogate sovereign immunity and permit suits against state governments to enforce laws enacted pursuant to its other powers, such as statutes adopted under the Commerce Clause.(7)

The crucial question in determining whether a state government may be sued to enforce a federal law is whether that statute constitutes a valid exercise of Congress's [sections] 5 power. The problem is that in the last few years, the Court has dramatically narrowed the scope of this power.

In City of Boerne v. Flores, a 1997 decision, the Court held that under [sections] 5, Congress may not create new rights or expand the scope of rights.(8) Congress may enact laws only to prevent or remedy violations of rights already recognized by the Court. These laws must be narrowly tailored to prevent or remedy constitutional violations. In the Court's words, the laws must be "proportionate" and "congruent" to the problems they address.

The decision struck down the Religious Freedom Restoration Act of 1993 on the grounds that it impermissibly expanded the scope of citizens' right to religious expression and that the statute's provisions were not shown to be "proportionate" or "congruent" to preventing or remedying constitutional violations.

In 1999, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Court invalidated a federal law authorizing suits against states for patent infringements because there were no legislative findings of frequent infractions by the states.(9) Although patents are unquestionably property protected from state infringements by the Due Process Clause, the Court explained that Congress had not found a pattern of state violations sufficient to make the authorization of suits "proportionate" or "congruent" to the problem.

Likewise, in Kimel v. Florida Board of Regents, the Court held that state governments may not be sued for violating the ADEA.(10) The Court explained that age discrimination receives only rational-basis review under equal protection analysis, so the statute provides substantially more protection than the Constitution does. Under rational-basis review, a law is upheld as long as it is rationally related to a legitimate government purpose. The Court said the ADEA was not an appropriate preventive or remedial measure because Congress had not found a pattern of unconstitutional age discrimination by state governments.

The new case

Garrett, the Court's latest decision in this area, follows this analytical framework. The case involved two claims against Alabama for violating Title I of the ADA, which bars employment discrimination against the disabled and requires state employers to make reasonable accommodations for people with disabilities.(11)

Patricia Garrett, a registered nurse, sued the state after she was required to give up her position as director of nursing at the University of Alabama in Birmingham Hospital. Garrett had taken a leave from work after she was diagnosed with breast cancer and underwent a lumpectomy, radiation treatment, and chemotherapy. The other plaintiff, Milton Ash--a security officer for the Alabama Department of Youth Services--sued to challenge lower performance ratings that he alleged had resulted from his seeking a change in his working conditions because of his asthma and sleep apnea.

The Court, in a 5-4 decision, held that these claims were barred by the Eleventh Amendment. Rehnquist, writing for the Court, followed the now-familiar two-step analysis used in Florida Prepaid and Kimel.

First, the Court said that Title I of the ADA expanded rights beyond those recognized by the Supreme Court under the Constitution. Rehnquist stated that disability discrimination receives only rational-basis review under the Equal Protection Clause.(12) The Court, citing its prior ruling in Cleburne v. Cleburne Living Center,(13) concluded that discrimination against the disabled "incurs only the minimum `rational-basis' review applicable to general social and economic legislation."(14)

In particular, the Court concluded that the ADA's reasonable-accommodation requirement confers substantially greater rights than those afforded by the Constitution in prohibiting disability discrimination. Rehnquist explained:

   [T]he result of Cleburne is 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 hard-heartedly--hold to job-qualification
   requirements which do not make allowance for the disabled.(15)

In the second step of the analysis, the Court considered whether Title I's expansion of rights was a valid exercise of Congress's [sections] 5 powers. It would be valid only if the statute was deemed a "proportionate" and "congruent" measure to prevent and remedy constitutional violations.

The ADA is arguably different from the statutes involved in Florida Prepaid and Kimel because there was an extensive legislative history documenting state discrimination against the disabled. Breyer attached a lengthy appendix to his dissenting opinion, which listed hundreds of examples.(16)

The majority, however, found the record of state discrimination to be insufficient. Rehnquist explained that "the great majority of these incidents do not deal with the activities of the states."(17) The Court said that many examples in the legislative record involved discrimination by local governments, which are not protected by sovereign immunity. Also, the Court said, much of the evidence was merely anecdotal, and many of the examples did not involve employment, the focus of Title I.

The Court concluded, "[E]ven if it were to be determined that each incident upon fuller examination showed unconstitutional action on the part of the state, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which [sections] 5 legislation must be based."(18)

In a footnote near the end of the opinion, Rehnquist emphasized that Title I still applies to the states.(19) The Court said its provisions "can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young."(20) But private suits against state governments for money damages under Title I of the ADA are barred by the Eleventh Amendment.

Implications

The Garrett decision raises an important question: What other suits against states to enforce federal civil rights laws are precluded by sovereign immunity? For example, the Court in Garrett expressly said it was not considering whether states can be sued for violating Title II of the ADA, which prohibits Skates from discriminating against the disabled in providing services.(21) The Sixth Circuit, in an opinion that has since been vacated, has said that Title II is not a valid abrogation of state sovereign immunity,(22) while the Ninth Circuit has come to the opposite conclusion.(23)

There is consensus among the circuits about whether individuals may sue states under some federal laws. Several circuits have ruled that the Equal Pay Act(24) is a valid exercise of Congress's [sections] 5 power and abrogates sovereign immunity.(25) On the other hand, there appears to be a consensus that the Family and Medical Leave Act(26) cannot be used to sue state governments.(27)

An important issue that has not yet been addressed by the Supreme Court is whether Congress may use its spending power to override state sovereign immunity. May Congress condition the grant of federal money on a waiver of immunity?

A few federal appeals courts have considered this question. The Eighth Circuit, in a recent en banc decision, held that the Rehabilitation Act(28) is a proper exercise of Congress's spending power and may be used to sue state governments.(29) Other circuits have ruled that states may be sued for violating Title IX,(30) which prohibits sex discrimination by recipients of federal funds.(31)

Any plaintiff attorney seeking to sue a state government must consider the enormous obstacle to litigation created by the Supreme Court's sovereign-immunity decisions. Unquestionably, Garrett makes it more difficult to use federal civil rights laws to sue state governments. What is uncertain is how far the Court will take its commitment to sovereign immunity and which federal laws will be found to be a valid basis for suits against the states.

Notes

(1.) 121 S. Ct. 955, 961 (2001).

(2.) Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999).

(3.) Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91-92 (2000).

(4.) Alden v. Maine, 527 U.S. 706, 759-60 (1999).

(5.) 517 U.S. 44, 56-57 (1996).

(6.) 427 U.S. 445, 455-56 (1976).

(7.) Seminole Tribe expressly overruled the Supreme Court's decision from seven years earlier in Pennsylvania v. Union Gas, 491 U.S. 1 (1989).

(8.) 521 U.S. 507, 517 (1997).

(9.) 527 U.S. 627, 630.

(10.) 528 U.S. 62, 91-92.

(11.) 42 U.S.C. [subsections] 12112-12117.

(12.) Garrett, 121 S. Ct. 955, 963-64.

(13.) 473 U.S. 432 (1985).

(14.) Garrett, 121 S. Ct. 955, 963.

(15.) Id. at 964.

(16.) Id. app. C, at 977-93 (Breyer, J., dissenting).

(17.) Id. at 965.

(18.) Id.

(19.) Id. at 968 n.9.

(20.) Id. at 968 (citing Ex parte Young, 209 U.S. 123 (1908)).

(21.) Id. at 960 n.1.

(22.) Popovich v. Cuyoga County Court of Common Pleas, 227 F.3d 627 (6th Cir. 2000), reh'g en banc granted, opinion vacated (Dec. 12, 2000).

(23.) Dare v. California, 191 F.3d 1167, 1174-75 (9th Cir. 1999),

(24.) 29 U.S.C. [sections] 206(d).

(25.) See, e.g., Varner v. Illinois State Univ., 226 F.3d 927, 936-37 (7th Cir. 2000); Kovacevich v. Kent State Univ., 224 F.3d 806, 833 (6th Cir. 2000); Hardertmark v. State of Fla. Dep't of Transp., 205 F.3d 1272, 1277 (11th Cir. 2000).

(26.) 29 U.S.C. [sections] 2612(c)(1).

(27.) See, e.g., Townsel v. Missouri, 233 F.3d 1094, 1095-96 (8th Cir. 2000); Kazmier v. Widmann, 225 F.3d 519, 523-33 (5th Cir. 2000).

(28.) 42 U.S.C. [sections] 2000d-7(a)(1).

(29.) Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir. 2000).

(30.) 20 U.S.C. [subsections] 1681-1688.

(31.) See, e.g., Pederson v. Louisiana State Univ., 213 F.3d 858, 876 (5th Cir. 2000).

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School.