Supreme Court Holds Constitution Does Not Authorize Abrogation of State Immunity in Damage Action Against a State for Employoment Discrimination Under ADA Title I

Preparation and publication of this paper is supported by a grant from the Program on Law & Society of the Open Society Institute. In another 5-4 opinion, with the usual suspects in the majority, the U.S. Supreme Court ruled that the Eleventh Amendment to the Constitution bars recovery of money damages against the state for violation of the employment discrimination provisions of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Board of Trustees of the Univ. of Alabama v. Garrett, 121 S. Ct. 955 (2001).

The ADA was passed under Congress’ legislative powers under the Commerce Clause and the Fourteenth Amendment. 42 U.S.C. § 12101(b)(4). It contains an express abrogation of state sovereign immunity, 42 U.S.C. § 12202.   However, under the Supreme Court’s decision in Seminole Tribe of Florida v. Florida , 517 U.S. 44 (1996), the Commerce Clause does not support abrogation of state sovereign immunity because it was enacted prior to the Eleventh Amendment. The Court has interpreted the 11th Amendment to apply to all suits by private parties for damages against a state in federal court. State immunity may be abrogated only by legislation validly enacted under clause 5 of the Fourteenth Amendment, granting Congress legislative power to enforce the Amendment.  Congress may also require the states to waive immunity as a condition of accepting federal funding under the Spending Clause, College Savings Bank v. Florida Postsecondary Education Expense Board,  527 U.S. 666, 686 (1999); Jim C. v. United States, 235 F. 3d 1079 (8th Cir. 2000).  The ADA is not such legislation because it is not founded on grants to the states.  Accordingly, the question before the Court was whether the abrogation of immunity in the ADA as applied to recovery of  damages under Title I was pursuant to a valid exercise of Fourteenth Amendment power.  The majority found it was not.

Under the Court’s decision in City of Boerne v. Flores, 521 U.S. 507 (1997), Congress has the authority both to remedy and deter violation of rights guaranteed by the 14th Amendment by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text. However, legislation reaching beyond the scope of the actual guarantees of the Amendment itself must exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”.Id. at 520.

 Disability discrimination for purposes of the equal protection clause of the 14th Amendment calls only for rational basis review. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).  Under this test, according to the majority opinion, a state may treat a group possessing distinguishing characteristics on the basis of those differences and need not articulate a reason for doing so when the action is taken.  Rather, the challenging party must negate any reasonably conceivable state of facts that could provide a rational basis for the classification. Thus, the majority found, states are not required by the 14th Amendment  to make special accommodations for the disabled, so long as their actions towards such individuals are rational. A state "could quite hard headedly--and perhaps hardheartedly--hold to job-qualification requirements which do not make allowance for the disabled" without violating the 14th Amendment.

Having defined the constitutional protection, the Court looked to whether Congress identified a history and pattern of unconstitutional discrimination by states against persons with disabilities.  The majority then further narrowed the inquiry, looking only to evidence of discrimination by states in employment, the claim in the case.  It found only 6 references in the legislative record to employment discrimination by the states and found this insufficient to support a pattern of unconstitutional discrimination.  Justice Breyer, in dissent, compiled hundreds of examples of state discrimination based on disability in the legislative record (not limited to employment), cataloged by state in a voluminous Appendix C to his opinion.

The majority also found that there was no congruence and proportionality between the rights and remedies created by the ADA and constitutional violations.   It would be rational for a state employer to conserve financial resources by hiring employees who are able to use existing facilities, but the ADA requires that the facilities be accessible to persons with disabilities.  Even taking into account the exception in the ADA for employers that removes the “reasonable accommodation” requirement if it creates an “undue hardship”, the reasonable accommodation requirement would impose obligations on state employers not required by the 14th Amendment. Although the majority pay lip service to the authority of Congress to prohibit conduct beyond that prohibited by the 14th Amendment, its application of the congruence and proportionality test here may effectively limit Congress to proscribing only what is constitutionally required in the case of discrimination based on disability.

Justice Breyer, for the dissenters, gave much more deference to a Congressional determination as to its legislative powers under the 14th Amendment.  The question he framed was whether “Congress reasonably could have concluded that the remedy before us constitutes an ‘appropriate’ way to enforce this basic equal protection requirement.”  As to the legislative record, the dissent found 300 references to discrimination based on disability by states and a record of broad based discrimination in employment by states, local governments and private employers.  In addition, it gave great weight to express Congressional findings of a pattern of discrimination and prejudice. 42 U.S.C. § 12101(9).  It described the majority treatment of the legislative record as appropriate for review of an administrative agency but not for an act of Congress.  When the majority imposes a “burden of proof” on Congress to justify its legislative acts in a record, the Court is sitting as a superlegislature.

As to congruence and proportionality, the dissent notes: “. . . what is wrong with a remedy that, in response to unreasonable employer behavior, requires an employer to make accommodations that are reasonable? Of course, what is ‘reasonable’ in the statutory sense and what is ‘unreasonable’ in the constitutional sense might differ.   In other words, the requirement may exceed what is necessary  to avoid a constitutional violation.  But it is just that power-the power to require more than the minimum-that §5 grants to Congress, as this Court has repeatedly confirmed.”
 

Enforcing the ADA after Garrett  Although the decision very narrowly interprets Congressional authority under the 14th Amendment, it removes only the Title I private suit damage remedy against the states.  The limited scope of the holding is made clear in footnote 9 of the majority opinion, which clearly states that the standards of ADA Title I are applicable to the States and can be enforced “by private individuals in actions for injunctive relief under  Ex parte Young, 209 U.S. 123 (1908).”   Young allows such suits if the responsible state official rather than the state itself is named as the defendant.

For more information on enforcing the ADA, see the memorandum on this website:  Life After Garrett: Enforcing the ADA and Section 504 Against States, and State Officials and Is Abrogation of State Sovereign Immunity for Claims Under Title II of the ADA Constitutional after Garrett?  (To be posted March 6, 2001)

 This application of Young to Title I augurs well for its application to Title II suits against  a state official to enjoin discrimination based on disability in any service, program or activity of a state or state agency, even if Garrett were applied to Title II. (See the separate memorandum on this issue on this web site.) The application of Young to enforce the ADA had been called into doubt by lower courts. See, e.g., Alsbrook v. City of Maumelle, 184 F. 3d 999 (8th Cir. 1999), cert. granted sub nom Alsbrook v. Arkansas, 528 U.S. 1146, cert. dismissed, 529 U.S. 1001 (2000).  States argue that Title II imposes obligations and liability only on the governmental entity, so that no suit can be brought against a state official under Title II.   But a similar situation prevails in Title I, where the majority of courts hold that a suit can only be brought against the employing entity, and not against executive or supervisory employees. See, e.g., EEOC v. AIC Security Investigations, Ltd., 55 F. 3d 1276 (7th Cir. 1995) (sole stockholder and CEO of corporate employer not liable under Title I.).  Yet, the majority opinion has no problem with applying the fiction of Young, that the suit against a state official in her/his official capacity is not against the state for Eleventh Amendment purposes, even though the reality is that the prospective relief applies against the state, even if it involves payments out of the state treasury. Milliken v. Bradley, 433 U.S. 207 (1977).