Court revisits sovereign immunity in discrimination cases.

Over the last decade, few areas of constitutional law have received more attention from the Supreme Court than sovereign immunity. Since 1996, the Court has significantly limited plaintiffs' ability to sue state governments. But its most recent ruling on the issue, in United States v. Georgia, actually opens the door to more lawsuits against states by holding that plaintiffs may use federal laws to sue state governments if they claim that the state is violating the Constitution. (1)

The current wave of sovereign immunity litigation resulted from the Court's decision in Seminole Tribe of Florida v. Florida, (2) where it found that Congress may authorize suits against state governments only under [section] 5 of the Fourteenth Amendment. (3) A law that Congress adopted under the Commerce Clause, for instance, could not be used to sue a state government, but a law it passed under [section] 5 could be. (4)

A year after Seminole Tribe, the Court significantly narrowed Congress's [section] 5 power in City of Boerne v. Flores. (5) This ruling held that even under [section] 5, Congress may not act to create new rights or expand the scope of rights guaranteed by the Fourteenth Amendment. Rather, it can act only to prevent or remedy violations of rights already recognized by the courts. Moreover, such laws must be narrowly tailored: In the words of the Court, "there must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." (6)

In City of Boerne, the Court declared that the federal Religious Freedom Restoration Act was unconstitutional as applied to state and local governments, because it exceeded the scope of Congress's power under [section] 5.

In subsequent cases, the Court considered whether several other statutes constituted a valid exercise of Congress's [section] 5 authority and thus could be used to sue state governments. In Florida Prepaid v. College Savings Bank, the Court held that state governments could not be sued for patent infringement, even though a federal statute expressly authorized such suits. (7)

The Court explained that the federal law did not fit under Congress's [section] 5 power because Congress had not proven that the states were engaged in pervasive unconstitutional behavior when infringing patents.

Similarly, in Kimel v. Florida Board of Regents, the Court ruled that state governments could not be sued for violating the federal Age Discrimination in Employment Act (ADEA). (8) The Court said age discrimination cases alleging violation of equal protection guarantees receive only rational-basis review, and the statute prohibits much more than would be considered a violation of the Equal Protection Clause. The Court said this exceeded the scope of Congress's power under [section] 5, although it assumed that the law was constitutional as an exercise of authority under the Commerce Clause. As a result of this analysis, a state government cannot be sued for violating the ADEA.

A year after Kimel, in Board of Trustees of University of Alabama v. Garrett, the Court ruled that state governments may not be sued for violating Title I of the Americans with Disabilities Act (ADA). (9) As in Kimel, the Court stressed that disability discrimination receives only rational-basis review and found that the law prohibits much conduct that would not violate the Constitution.

The Court shifts course

But in two more-recent cases, the Court allowed more leeway for lawsuits filed against state governments under federal statutes. In Nevada Department of Human Resources v. Hibbs in 2003, the Court held that state governments may be sued for violating the family leave provisions of the Family and Medical Leave Act. (10)

The Court found that when Congress enacted this law it was concerned with gender discrimination and that the loss of family leave disproportionately affected women in the workplace. The Court said gender discrimination receives intermediate scrutiny rather than the rational-basis review that applies to age or disability cases, and it concluded that Congress has more latitude to legislate under [section] 5 when it aims to eliminate discrimination that receives the courts' heightened scrutiny.

A year after Hibbs, in Tennessee v. Lane, (11) the Court held that state governments may be sued under Title II of the ADA when they discriminate against people with disabilities by limiting their access to the courts. (Title II prohibits discrimination in government programs, services, and activities. (12))

The case involved a criminal defendant who crawled on his hands and knees to reach a second-floor courtroom that had no wheelchair access or other accommodation for those with disabilities. In its ruling, the Court emphasized that access to the courts is a long-recognized, basic right and that states can be sued for keeping people with disabilities from exercising it.

But the Lane ruling left many questions unanswered. The Court said only that states can be sued under Title II if they violate a fundamental right; it did not consider whether Title II could be used to sue state governments for any other reasons.

The road to Georgia

Tony Goodman is a paraplegic inmate in the Georgia state prison system. In his lawsuit against the state, he alleged that he was confined from 23 to 24 hours a day in a 12-by-3-foot cell, which was so small he was unable to turn his wheelchair around.

He said he could not use the toilet or shower without help and that prison officials often refused to assist him. At times he had to sit in his own feces and urine. He said he was denied access to almost all prison programs, including medical care. Goodman sued under Title II of the ADA.

The Eleventh Circuit upheld a trial court ruling that dismissed Goodman's claims, but the Supreme Court reversed in a unanimous decision. In a brief opinion written by Justice Antonin Scalia, the Court stated, "While the members of this Court have disagreed regarding the scope of Congress's 'prophylactic' enforcement powers under [section] 5 of the Fourteenth Amendment, no one doubts that [section] 5 grants Congress the power to 'enforce ... the provisions' of the amendment by creating private remedies against the states for actual violations of those provisions." (13) The Court declared that "Congress is expressly granted authority to enforce the substantive provisions of the Fourteenth Amendment. (14)

The decision clearly says that state governments maybe sued for violating the Constitution, because "insofar as Title II creates a private cause of action for damages against the states for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." (15)

The Court also explained that because the Eleventh Circuit upheld the district court's motion to dismiss, much of the factual record of the case was not clear. For example, the record did not show whether the state's conduct violated Title II or the Fourteenth Amendment--or both. Nor did the Court consider whether Title II fit within Congress's [section] 5 power, even if the state's conduct did not violate the ADA. The Court remanded the case for further proceedings to clarify the record.

More questions

After the flurry of sovereign immunity cases the Court decided between 1996 and 2004, a simple--but controversial--principle appeared to emerge. If a federal law targets types of discrimination that receive heightened scrutiny, then it can be used to sue state governments, even without proof of past constitutional violations. But if the statute involves discrimination or other rights violations that don't receive heightened scrutiny, then Congress cannot authorize suits against states, no matter how elaborate the legislative history.

In Hibbs, for example, the Court found that states could be sued for violating the family leave provision, even without finding that the absence of family leave results in unconstitutional gender discrimination. On the other hand, in Garrett, the Court ruled that state governments could not be sued for violating Title I of the ADA, despite a voluminous legislative history documenting extensive discrimination against people with disabilities.

United States v. Georgia does not alter this framework but adds to it in an important way. The Court held that a state government can be sued for violating a federal law when the law authorizes a remedy for a constitutional violation. This will expand the circumstances in which such lawsuits can go forward.

It is unclear, though, how courts will implement this expansion. Will every allegation of a constitutional violation be enough to allow suits against state governments under federal law? This seems perplexing, because many of the earlier cases involved claims of constitutional violations. In Kimel and Garrett, there were claims of unconstitutional discrimination as well.

The Hibbs and Lane decisions involve rights that receive heightened scrutiny. In United States v. Georgia, the Court focused on the Eighth Amendment's prohibition of cruel and unusual punishment. But the Court has never articulated a level of scrutiny for this right. In fact, Scalia's opinion never mentions heightened scrutiny.

Perhaps we can interpret United States v. Georgia as simply holding that a state can be sued using federal law if the suit alleges a direct violation of a right or if there is a heightened-scrutiny claim. If so, then the ruling significantly expands the possibilities for suing state governments.

Undoubtedly, this ruling is not the Court's last word on the subject of suing state governments under federal law, or on using Title II to do so. But it is an important additional step toward clarity in this important area of the law.

Notes

(1.) Nos. 04-1203, 04-1236, 2006 WL 43973 (U.S. Jan. 10, 2006).

(2.) 517 U.S. 44 (1996).

(3.) Earlier, in a case involving Title VII of the 1964 Civil Rights Act, the Court held that state governments could be sued for violating laws adopted under [section] 5 of the Fourteenth Amendment. Fitzpatrickv. Bitzer, 427 U.S. 445 (1976).

(4.) Of course, even if a state government cannot be sued, state officers may be sued, including for injunctive relief. See Ex Parte Young, 209 U.S. 123 (1908).

(5.) 521 U.S. 507, 533 (1997); see also Tennessee v. Lane, 541 U.S. 509, 531 (2004).

(6.) City of Boerne, 521 U.S. 507, 520.

(7.) 527 U.S. 627 (1999).

(8.) 528 U.S. 62 (2000).

(9.) 531 U.S. 356 (2001).

(10.) 538U.S. 721 (2003).

(11.) 541 U.S. 509 (2004).

(12.) 42 U.S.C. [section] 12132 (2000).

(13.) No. 04-1203, 04-1236, 2006 WL 43973, at *4.

(14.) Id.

(15.) Id.

ERWIN CHEMERINSKY is Alston & Bird Professor of Law and Political Science at Duke University.