October 2000 Legal E-bulletin

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Legal E-Bulletin - October 2000

Constitutionality of the ADA in Jeopardy?

A. Article III of the Constitution as Originally Drafted Permits Suits Against States.
B. The Eleventh Amendment Restricted Federal Jurisdiction over Suits Against States.
C. Congress Can Abrogate 11th Amendment Immunity in Some Cases.
D. How Does Congress Properly Abrogate 11th Amendment Immunity?

Sovereign Immunity and Title II of the ADA: Will the Supreme Court Hold That Congress Exceeded its Authority in Garrett v. University of Alabama.

I. Supreme Court Set to Hear Argument in Garrett v. University of Alabama on whether Title II of the ADA is Unconstitutional.

On October 11, 2000 the United States Supreme Court will hear argument in Garrett v. University of Alabama, which is on appeal from the 11th Circuit Court of Appeals. Garrett raises the issue of whether Title II of the ADA is an unconstitutional act of Congress that exceeds its authority to enforce the 14th Amendment. The substantial weight of Supreme Court precedent suggests that the Court will rule in favor of the State of Alabama, and will likely hold that Congress exceeded its authority by allowing a state to be sued in federal court without the state's consent. However, the Supreme Court has twice before heard cases under Title II of the ADA and has found the statute binding on the States. See L.C. v. Olmstead, ____ U.S. ______ (1999) and Yesky v. Pennsylvania, ____ U.S. _____ (1998).

The issue before the Supreme Court in Garrett is a complex combination of the limits of federal judicial authority under Article III, the Eleventh Amendment of the United States Constitution, the scope of legislative power of Congress under Article I and the Fourteenth Amendment of the Constitution. The core of the dispute is not over the ADA. The core dispute is a deeper issue of the power of Congress, the Sovereignty of the States and the power of the Federal Courts. To understand how and why Title II of the ADA is at risk of being held unconstitutional, one must begin with some fundamental principals of the American federal constitutional structure.

II. Sovereign Immunity and the Eleventh Amendment to the United States Constitution.

A. Article III of the Constitution as Originally Drafted Permits Suits Against States.

The first amendment to the federal constitution after the Bill of Rights addressed a perceived defect in the scope of federal judicial authority outlined in Article III of the Constitution. The assumption at the time of the adoption of the Constitution was that the state governments enjoyed sovereign immunity from suit. The established rule of common law borrowed from England held that the sovereign could not be a defendant in court unless the sovereign consented to be sued in a particular action or in a general category of claims.

The language of the Constitution, however, extended federal judicial authority". . . to controversies between two or more states; between a State and Citizens of another State; between Citizens of different States; . . . between a State, or the Citizens thereof, and foreign States, Citizens, or subjects." U.S. Const. Art. III, § 2. Clearly, the scope of federal judicial authority extended to states when they are a party to litigation in federal court. In 1793, because of public concern over the federal courts exercise of jurisdiction over the States in the landmark case of Chisholm v. Georgia, 2 Dall. 419 (1793), Congress proposed and the several states adopted the Eleventh Amendment which curtailed the already limited jurisdiction of the Federal judiciary.

B. The Eleventh Amendment Restricted Federal Jurisdiction over Suits Against States.

The Eleventh Amendment 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." U.S. Const. Amend. 11. The language of the Eleventh Amendment removed from Article III of the Constitution the clause ". . . between a State and a Citizen of another State . . ." and the clause ". . . between a State, or the Citizens thereof, and foreign States, Citizens, or subjects."

1. The Eleventh Amendment is Interpreted to Mean that States are Immune from Suit in Federal Court.

The language of the Eleventh Amendment, however, does not speak to actions between a State and a citizen of that same State. While the language of the Eleventh Amendment does not address actions between a State and a citizen of that same State, the scope of sovereign immunity as expressed in the Eleventh Amendment was further explained by the Supreme Court in Hans v. Louisiana, 134 U.S. 1, 15 (1890). In Hans, the Supreme Court held that the Eleventh Amendment is significant not only for what it says, but also for what it means. In Hans the Court held that the Eleventh Amendment presupposed that state sovereign immunity precluded action against a state by a citizen of that state. See also Seminole Tribe of Florida v. State of Florida, 517 U.S. 44, 54 (1996).

2. Substantial Disagreement among the Supreme Court Justices About the Extent of the 11th Amendment.

The justices of the Supreme Court do not agree on the significance of Hans. Justices Breyer and Stevens, for example, read Hans merely as holding that as a matter of state-federal comity the federal court should decline jurisdiction over a State when that State does not consent to suit even though federal jurisdiction exists. Other justices on the Court read Hans as requiring the federal court to dismiss an action against a State for the lack of jurisdiction. See J. Stevens Dissent in Seminole Tribe of Florida v. State of Florida, 517 U.S. 44 (1996).

The majority of the Court in Seminole Tribe held that the Eleventh Amendment presupposed that a State was immune from suit in federal court not only from the common law tradition, but also because Article III of the Constitution did not include language specifically permitting federal court jurisdiction over a suit between a state and a citizen of that state. The drafters of the Amendment, according to the Supreme Court, presupposed that the federal judiciary had no jurisdiction over such suits because Article III does not confer such authority. Again, there is substantial disagreement on this point among the members of the Supreme Court.

Some members view Eleventh Amendment sovereign immunity to be limited to the diversity jurisdiction of the federal courts and not to the "Federal Question" jurisdiction of the federal courts. If the Eleventh Amendment were viewed only as a restriction on the federal court's diversity jurisdiction, the federal court would still have federal question jurisdiction over a suit against a non-consenting State when the dispute raised a matter under the laws, constitution or treaties of the United States.

3. The Prevailing Majority View is that States are Immune.

While there remains substantial disagreement among the Supreme Court justices on this issue, the Court has formed a majority to establish the rule that the Eleventh Amendment precludes federal court jurisdiction over States that do not consent to suit. This principal has been confirmed in several recent cases. Since Seminole Tribe was decided, the Supreme Court has applied and reaffirmed this principal in several cases including: Alden v. Maine, 527 U.S. 706 (1999), Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 119 S.Ct. 2219 (1999). It is now the established authority that each state is a sovereign entity in the federal system and is not amenable to suit by an individual without the state's consent. See Seminole Tribe, 517 U.S. at 54, and Hans v. Louisiana, 134 U.S. at 15.

C. Congress Can Abrogate 11th Amendment Immunity in Some Cases.

In certain circumstances, however, the United States Congress can pass laws which give individual citizens a right of action in federal court against a state that has not consented to suit. Congress has the authority to do so under the special powers conferred on it under the Fourteenth Amendment to the U.S. Constitution. Despite the establishment of sovereign immunity as a constitutional limit on the judicial power of the United States, the 14th Amendment allows the Congress to enact laws that are not subject to the 11th Amendment restrictions for the purpose of enforcing the limitations on state action proscribed in the 14th Amendment.

The Fourteenth Amendment to the Constitution prohibits states from infringing on the rights of citizens and grants the Congress the power to adopt legislation to enforce the limitations on state activity established by the Fourteenth Amendment. The Fourteenth Amendment provides: "Section 1 . . . . No 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. . . . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. Const. Amend. 14.

Section 5 of the Fourteenth Amendment confers on the Congress the power to abrogate the states' sovereign immunity under the Eleventh Amendment and provide for federal court jurisdiction over individual suits against states. Congress, however, only has this power to abrogate sovereign immunity when it is acting pursuant to its enforcement power under section 5 of the 14th amendment. See Kimel, 120 S,Ct. at 644; Seminole Tribe, 517 U.S. at 58. Congress does not have the power to abrogate 11th amendment sovereign immunity when it is enacting legislation under its powers under Article I of the Constitution, such as exercising its power under the commerce clause. Kimel, 120 S.Ct. at 643-44; Florida Prepaid, 119 S.Ct. at 2205; Seminole Tribe, 517 U.S. at 72-73.

D. How Does Congress Properly Abrogate 11th Amendment Immunity?

To determine whether Congress has exercised its power to abrogate 11th amendment immunity in particular legislation, the Supreme Court looks to whether Congress has (1) unequivocally expressed its intention to abrogate the States' Eleventh Amendment, and (2) acted pursuant to a valid exercise of its power under section 5 of the 14th amendment. Seminole Tribe, at 55.

1. Unmistakably Clear in the Language.

On the first prong of this standard of whether a statute properly subjects States to suits by individuals, the Supreme Court has applied a simple but stringent test: Does Congress make its intention to abrogate eleventh amendment immunity unmistakably clear in the language of the statute? Dellmuth v. Muth, 491 U.S. 223, 228 (1989); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985). The ADA has met this prong because 42 U.S.C. §12202, Sec. 502.of the statute expressly provides that individuals may sue a State in Federal Court;

"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 Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such
remedies are available for such a violation in an action against any public or private entity other than a State."

2. Whether the Congress Is Acting Within the Scope of its Powers under the Fourteenth Amendment.

The second prong of the test for Congress' power to abrogate eleventh amendment immunity requires an assessment of whether the Congress is acting within the scope of its powers under the Fourteenth Amendment. Congress has the prerogative to determine whether and what legislation is needed to secure the guarantees in the Fourteenth Amendment. The conclusions of Congress regarding how to exercise its Constitutional powers are entitled to much deference from the courts. City of Boerne v. Flores, 521 U.S. 507, 517 (1997); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). The Congress' authority under section 5 of the Fourteenth Amendment includes the authority both to remedy and to deter violations of the rights guaranteed under the 14th Amendment. In doing so Congress may prohibit some conduct that is not itself prohibited by the 14th amendment, provided that it does so for the purpose of securing the rights guaranteed by the 14th amendment.

a. Congress Cannot Redefine Substantive Guarantees under 14th Amendment.

Nevertheless the Congress does not have the authority to define the meaning of the substantive restrictions on the States. The Congress is not permitted to assign any meaning that it chooses to the guarantees to citizens and restriction on States articulated in the Fourteenth Amendment. The responsibility to determine the substantive meaning of the 14th amendment belongs to the judicial branch of government. The Supreme Court noted in City of Boerne, that Congress cannot by ordinary legislation redefine the rights that are established in the Constitution. While Congress has wide latitude in deciding how to address equal protection legislation, the Supreme Court has held that there must be "congruence and proportionality" between the injury to be prevented or remedied and the means adopted for that end. City of Boerne at 520.

b. Proportionality and Congruence Standard.

The proportionality and congruence standard has been applied by the Court to undo several acts of Congress. In City of Boerne, the Supreme Court first articulated the proportionality and congruence standard. In this case the Court held that the Religious Freedom Restoration Act of 1993 (RFRA) was unconstitutional because the Congress inappropriately exercised its power to enforce the Fourteenth Amendment. The Court found in the legislative history of the RFRA little evidence of unconstitutional conduct by state of the sort that was prohibited by the substantive provisions of the RFRA.

i. Congruency

"Congruency" means that the remedial or preventive measures undertaken by Congress must correspond directly to the authority conferred by the 14th Amendment and that the actual need for the legislation is supported by evidence. The Court in City of Boerne (rather than giving Congress deference) characterized the testimony relied upon by Congress as being only "anecdotal evidence." The episodes of wrongful and unconstitutional conduct by the states to which individual witnesses at the RFRA hearings testified were dismissed by the Court as failing to reveal a widespread pattern of religious discrimination in the United States.

This holding is especially troublesome because Congress is under no obligation to hold any hearing, gather any evidence, or articulate any reason for legislation under the Constitution. One may wonder what type of evidence will suffice if the factual accounts of persons who have been injured by the discrimination are not sufficient. It is odd that the judiciary in every other context exhorts parties to present testimony from individuals with personal knowledge of the facts, yet Congress is now not permitted to rely on the very same type of evidence that the judiciary routinely relies upon to resolve the matters before it. In any event, the Supreme Court now examines not just the act of Congress alone, but looks "behind" the Act to determine if there was a sufficient reason and sufficient evidence to justify its remedial provisions to the satisfaction of the Court.

ii. Proportionality

In addition to congruency, the Supreme Court also looks for "proportionality" in the legislative enactment. The remedies or prohibitions must be proportionate to the wrong that the measure is intended to prevent. In City of Boerne, the Court concluded that the provisions of the RFRA was disproportional to the harm. Because the RFRA failed to be congruent and proportional, the Supreme Court concluded that it was an unconstitutional exercise of the power because it exceeded the authority conferred on Congress in the 14th amendment and was disproportionate to the harm.

iii. Congruency and Proportionality Standard Used Several Acts of Congress Unconstitutional.

The "congruency and proportionality" standard was applied in Florida Prepaid to hold an Act of Congress unconstitutional. The Supreme Court ruled that the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), which subjects states to patent infringement suits, was unconstitutional because Congress had not properly abrogated Eleventh Amendment immunity under section 5 of the 14th amendment. The Patent Remedy Act failed the "congruency and proportionality" standard because "Congress had identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." Florida Prepaid 527 U.S. at 630. Also, because many of the acts of patent infringement affected by the statute were unlikely (in the Court's opinion) to be unconstitutional in nature, the Court concluded that the Act was not proportional to the harm to be prevented.

Recently, the Supreme Court began to apply the "congruency and proportionality" standard in the field of civil rights law. In January 2000, the Supreme Court decided in Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000) that the Age Discrimination in Employment Act (ADEA) was not appropriate legislation under section 5 of the Fourteenth Amendment. The Court's decision in Kimel reviewed Court precedent regarding age discrimination, noting that it had three times previously considered claims of unconstitutional age discrimination under the Equal Protection Clause. See Gregory v. Ashcroft, 501 U.S. 452 (1991); Vance v. Bradley, 440 U.S. 93 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam). In all three cases, the Court held that the age classifications at issue did not violate the Equal Protection Clause of the 14th Amendment. See Gregory, 501 U.S. at 473; Bradley, 440 U.S. at 102-103, n. 20, and 108-112; Murgia, 427 U.S. at 317.

Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). Older persons, unlike those who suffer discrimination on the basis of race or gender, have not been (according to the Supreme Court) subjected to a "history of purposeful unequal treatment." Murgia, supra, at 313 (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)). The court also noted that old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it. 427 U.S., at 313-314. In Kimel, the court reaffirmed its holdings in Murgia, Bradley, and Gregory, that age is not a suspect classification under the Equal Protection Clause. Because classification on the basis of age was not a violation of the equal protection clause under the Fourteenth Amendment, Congress did not have the authority to abrogate 11th Amendment immunity. The power to abrogate was available only when the Congress sought to enforce the equal protection clause or other clauses of the fourteenth amendment.

III. What does Sovereign Immunity have to do with the ADA?

The Court is now poised to apply these same congruency and proportionality standards to the ADA in Garrett. Garrett is a consolidated case that joins the Garrett v. University of Alabama and Ash v. Alabama Dept. of Youth Services. The United States is an intervener in each of these cases. These cases raise issues under the ADA, the Rehabilitation Act and the Family and Medical Leave Act. In the district court, the State of Alabama asserted that it was immune from suit in federal court under the Eleventh Amendment. The district court granted summary judgment in favor of the State. On appeal, the Eleventh Circuit reversed in part, holding that the State was not immune from suit under the ADA and the Rehabilitation Act. The Eleventh Circuit affirmed in part, holding that under the circumstances presented in the case, the State was immune from suit under the FMLA. The Supreme Court granted certiorari and the case is scheduled for argument on October 11, 2000.

By applying the standards for the appropriate exercise of 14th Amendment authority that the Court applied in Kimel and the several other cases that raised the issue, it appears that the Supreme Court could rule that the enactment of Title II of the ADA is an unconstitutional exercise of Congressional power. The Court could conclude that the Congress failed to find a sufficient evidence of a history of purposeful unequal treatment based on disability by the States, and therefore the comprehensive scheme to prohibit disability based discrimination is not proportional to the violations that have occurred.

Moreover the Court could find, as they did in Kimel, that classifications based on disability are different from government conduct based on race or gender. Race and gender are not relevant to the achievement of any legitimate state interest, so State action based on such considerations are deemed to reflect prejudice and antipathy. However, disability status (like age in Kimel) cannot always be so easily characterized as being irrelevant to the achievement of a legitimate state interest. Consequently, a State may make rational disability based distinctions, if one follows the reasoning applied in Kimel.

Although in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985), the Court previously concluded individuals with disabilities are protected by the Equal Protection Clause of the Fourteenth Amendment, the level of protection afforded to this class is that of rational basis review. Under traditional equal protection analysis, it is a violation of the Fourteenth Amendment for the State to discriminate against persons with disabilities in an irrational manner or for an illegitimate reason. However, the Fourteenth Amendment allows a State to single out persons with disabilities for different treatment so long as it has a rational or legitimate purpose. See Cleburne, 473 U.S. at 446-47. As with other characteristics that receive rational basis protection, a State may rely on disability "as a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests." Kimel, 120 S.Ct. at 646. "That [disability] proves to be an inaccurate proxy in any individual case is irrelevant." Id.

It is impossible to predict what the Supreme Court may do in Garrett, given its rulings in 11th and 14th Amendment cases and the attitude the Court expressed toward the protection of disability discrimination in Sutton v. United Airlines. Garrett will provide the Court with its first opportunity to rule on the constitutionality of Title II. In its earlier Title II ADA decisions in Yeskey and Olmstead the Court was only presented with an opportunity to interpret the language of the statute because the lower courts, in both cases, did not address any constitutional claims. As a result the Supreme Court confined its review to the language of the statute. (Olmstead http://supct.law.cornell.edu/supct/html/98-536.ZO.html, Yeskey, http://supct.law.cornell.edu/supct/html/97-634.ZO.html)

However it is possible that the Court could view the ADA as prohibiting only irrational discrimination based on disability. Because the ADA prohibits disability based discrimination only against "qualified" individuals, the statute only addresses the irrational discrimination that is based on fear and myth and not rational distinctions based on ability. Also, the exceptions for undue hardship, direct threat and other defenses permit disability based distinctions on a rational basis. At the same time the Act precludes states from engaging in irrational discrimination that is based on factors other than the individual's abilities for a job. If the Court is persuaded that the ADA prohibits only irrational actions, but permits rational distinctions based on disability, Title II may yet survive.

Argument in Garrett is scheduled for October 11, 2000 and an opinion is expected in January 2001.

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