Constitutional Law
Apr. 27, 2002
Justice Undone
Forum Column - By Erwin Chemerinsky - When can state governments be sued for violating federal civil rights laws? For example, can state governments be sued for violating Title II of the Americans with Disabilities Act, 42 U.S.C. Section 12132, which prohibits government entities from discriminating against the disabled in providing services and requires reasonable accommodation for disabilities?
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
When can state governments be sued for violating federal civil rights laws? For example, can state governments be sued for violating Title II of the Americans with Disabilities Act, 42 U.S.C. Section 12132, which prohibits government entities from discriminating against the disabled in providing services and requires reasonable accommodation for disabilities? What about other federal civil rights laws, such as the Equal Pay Act, the Family and Medical Leave Act or even "disparate impact" employment discrimination claims against state governments?
These issues are being litigated throughout the country, and the outcome is crucial for civil rights plaintiffs. If courts extend sovereign immunity to bar these claims, then those injured by discrimination often will lack any remedy, and the deterrent to impermissible discrimination will be undermined.
The issue arises because the Supreme Court in recent years has greatly expanded the scope of the 11th Amendment. The court has interpreted the 11th Amendment to bar suits against state governments in federal court by citizens of their own states and by citizens of other states. Additionally, the court has held that state governments cannot be sued in state court without their consent. Alden v. Maine, 119 S.Ct. 2240 (1999).
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), held that Congress may override the 11th Amendment when acting under Section 5 of the 14th Amendment; but Congress may not override the 11th Amendment under any other constitutional authority. Thus, in determining whether a state government can be sued under a federal statute, the issue is whether the law is within the scope of Congress' power under Section 5 of the 14th Amendment.
The problem is that in City of Boerne v. Flores, 521 U.S. 507 (1997), the court held that Congress, acting under Section 5 of the 14th Amendment, may not expand the scope of rights or create new rights. Congress may act only to prevent or remedy violations of rights recognized by the courts, and any law must be narrowly tailored, "proportionate and congruent," to preventing or remedying the constitutional violations by state governments.
As a result, in Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000), the court held that state governments may not be sued in federal court for violating the Age Discrimination in Employment Act. In a 5-4 decision, the court ruled that the act prohibited discrimination that would not violate the Constitution and that it was not proportionate or congruent to preventing or remedying constitutional violations.
In Board of Trustees University of Alabama v. Garrett, 121 S.Ct. 955 (2001), the court held that state governments cannot be sued under Title I of the Americans with Disabilities Act, which prohibits employment discrimination based on disability and requires reasonable accommodation for disabilities.
These decisions are enormously troubling. Congress long has been thought to have broad powers to prevent and remedy discrimination. Yet the court's decisions mean that state governments can violate these civil rights statutes without being held accountable. The court has emphasized that state officers still may be sued, but realistically, often no relief will be available unless there is the ability to sue the government entity for relief.
The crucial issue concerns which, if any, other federal civil rights laws can be used to sue state governments. For example, in Garrett, the court left open the question of whether state governments can be sued for violating Title II of the Americans with Disabilities Act, which prevents the government from discriminating against the disabled in providing services.
In the year since Garrett, the federal appellate courts have split on this question. The 5th U.S. Circuit Court of Appeals, for example, has ruled that state governments may not be sued for violating Title II. Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001).
The 2nd U.S. Circuit Court of Appeals has ruled that state governments may be sued for violating Title II so long as there is an allegation that there was discriminatory animus or ill will because of disability. Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001).
The 6th U.S. Circuit Court of Appeals, in an en banc decision, ruled that Title II validly abrogates a state's sovereign immunity for due process claims for denial of participation in public services, but not for equal protection claims. Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002) (en banc).
The 9th U.S. Circuit Court of Appeals, however, has held that state governments may be sued for violating Title II. In Hason v. Medical Board of California, 279 F.3d 1167 (9th Cir. 2002), the court followed prior 9th Circuit decisions and held that Title II validly abrogates state sovereign immunity.
In Clark v. California, 123 F.3d 1267 (9th Cir. 1997), the court held that Congress, in enacting Title II, validly abrogated state sovereign immunity under its 14th Amendment powers.
In Dare v. California, 191 F.3d 1167 (9th Cir. 1999), cert. denied, 121 S.Ct. 1187 (2001), the court carefully reviewed the law concerning the 11th Amendment and the history of Title II and expressly reaffirmed Clark's holding.
Undoubtedly, the Supreme Court will need to resolve this conflict among the circuits. Hopefully, the court will find, as the 9th Circuit did, that Title II is different from Title I in its legislative history and in its providing a remedy for constitutional violations. Congress made express findings of persistent discrimination in "public services."
Unlike employment, where Congress made a finding about private employment but no analogous finding for public employment in the text of the statute itself, Congress made express findings of persisting discrimination in "education, ... institutionalization, ... voting, and access to public services." 42 U.S.C. Section 12101(a)(3).
The same committee reports that the court in Garrett found lacking with regard to public employment are directly on point in finding government discrimination with regard to public services. See S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 28 (1990).
Also, Congress' findings were based on an extensive record of unconstitutional state conduct regarding people with disabilities in the areas covered by Title II, a record more extensive than existed for employment alone.
Similarly, there is a conflict among the circuits as to whether state governments can be sued for violating the Family and Medical Leave Act. In Hibbs v. Department of Human Resources, 273 F.3d 844 (9th Cir. 2001), the 9th Circuit held that this law was a valid enactment under Section 5 of the 14th Amendment and can be used to sue state governments.
But several other circuits have come to the opposite conclusion. See, for example, Laro v. New Hampshire, 259 F.3d 1 (1st Cir. 2001); Townsend v. Missouri, 233 F.3d 1094 (8th Cir. 2000); Kazmier v. Widmann, 225 F.3d 1519 (5th Cir. 2000).
The same issue concerning the ability to sue state governments is being litigated with regard to many other federal civil rights laws. For example, several circuits have ruled that states may be sued for violating the Equal Pay Act. Varner v. Illinois State Univ., 226 F.3d 927 (7th Cir. 2000); Kovacevich v. Kent State Univ., 224 F.3d 806 (6th Cir. 2000); Hardertmark v. State of Florida Dep't of Transp., 205 F.3d 1272 (11th Cir. 2000).
The 8th U.S. Circuit Court of Appeals ruled, en banc, that states may be sued for violating the Rehabilitation Act. Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000).
The 11th U.S. Circuit Court of Appeals held that state governments may be sued for disparate impact employment discrimination claims under Title VII. In re Employment Discrimination Litigation, 198 F.3d 1305 (11th Cir. 1999).
Each of these statutes will need to be litigated separately, and ultimately the Supreme Court will have to decide which, if any, can be used to sue state governments. The Supreme Court's broad interpretation of sovereign immunity and its narrow interpretation of Congress' powers under Section 5 of the 14th Amendment place enforcement of all of these laws in jeopardy.
Decisions such as Kimel and Garrett, barring enforcement of key civil rights laws, are a value choice by the five conservative justices that protecting state governments is more important than is holding them accountable for civil rights violations.
The principle of sovereign immunity appears nowhere in the Constitution. The 11th Amendment bars only suits against states by citizens of other states and was meant just to preclude litigation against states based solely on diversity of citizenship. Ironically, the five most conservative justices - and every one of these Supreme Court decisions has been by a 5-4 margin - have ignored the text and the Framers' intent and created a broad new constitutional right.
This is judicial activism from the right. Hopefully, the court will be persuaded that these other federal civil rights laws are different from the Age Discrimination in Employment Act or Title I of the Americans with Disabilities Act. But unfortunately, civil rights plaintiffs have little reason to be optimistic.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California. He represented Michael Hason before the 9th Circuit in Hason.
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